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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12355
Experience:  Significant experience in all areas of employment law.
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I had a baby in Nov; I took 6 weeks short term disability leave

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I had a baby in Nov; I took 6 weeks short term disability leave and 2 weeks unpaid leave. No FMLA. I Returned to work the first week of January. 3.5 months later I had to leave because my baby was not adjusting to daycare and she needed more bonding time. In my resignation letter, I indicated my desire to return when the baby was ready to try daycare again. My employer did not offer 12 wks FMLA, and I didn't know I was elligible. It has been 17 weeks, the baby is doing fine in a different daycare, and now I want to return to work. If they deny my return or try to have me take a pay cut, do I have a case? Ref Young vs. Wackenhut Corp

I worked full time (40hrs/wk), was salaried, was employed continuously since Aug 2008 with no performance or attendance issues.

Hello and thank you for entrusting me to assist you, I will do everything I can to answer your question.

If you are familiar with Young v. Whakenhut then you have already done some research. That is the case on point, and it holds that an employer's failure to provide individualized FMLA notice may give rise to a claim for violation of the FMLA if the employee who did not receive such notice can demonstrate an "impairment of her rights and resulting prejudice." Generally speaking, prejudice will be found to exist if the employer’s failure to advise the plaintiff of her FMLA rights "rendered her unable to exercise the right to leave in a meaningful way, thereby causing injury."

So, whether or not you have a viable claim depends on the particular facts of your circumstance. Can you argue that your employer's failure to notify you of your FMLA rights and to specifically offer you FMLA impaired your ability to adequately avil yourself of the protections afforded by the Family Medical Leave Act? That seems very likely to be the case, since at the time you resigned you would have had an additional 4 weeks of protected leave available to you and arguably you would not have outright resigned at that time if you were aware you could have taken additional protected time off work.

If you are denied a return position, it would be well worth the effort to contact some local employment law attorneys to determine whether legal action is worth pursuing. It certainly seems as though it may, but of course at this stage further discussion is premature. To locate an employment law attorney in your area, see here: http://www.martindale.com/

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes to you and thank you so much for coming to Just Answer.
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