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wallstreetfighter
wallstreetfighter, Employment Lawyer
Category: Employment Law
Satisfied Customers: 17080
Experience:  14 years exp, General counsel for National Corp. firms, Hostos College instructor, Represented employees in discrimination lawsuits
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I have been approved to be on a FMLA status since my elderly

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I have been approved to be on a FMLA status since my elderly mother moved into my home and I take her to and from doctors appointments and such. I have read that the law states that I am entitled to 12 weeks of "unpaid" leave for this purpose because we employ over 150 people and are a private sector, doctor owned Medical Clinic. I have presented my issue to my State Dept of Labor and Industries as well as the US Dept of Labor to which neither have been able to give me an answer. Both refer me to the other and I have not gotten a clear answer from either.
We earn time off referred to as PTO that accumulates based on time worked. Even though FMLA is approved, they require that I exhaust my PTO time first and be paid before I am allowed to take time off for FMLA. Personally I wanted to not be paid for FMLA time because I wanted to save my PTO for vacation and my own appointments that we all have. So, they are making me be paid, but they are also charging the paid PTO time against FMLA time.

So, I question can they make me take this time as paid therefore exhausting my PTO?
Secondly; if I am being paid and using my "earned" time off, then can they also charge this time against my 480 hours allowed every year while qualified for FMLA?

I asked that they not pay me and just allow me to take some time off now and again for FMLA for doctor appts and such. The response was and I quote "This was brought up in a Past Managers meeting and the decisions was to be the same across the board to all staff. Each emp is to be brought up the their FTE (full time equivalent) status for each paycheck, if this means that they have to use their PTO to do that, that is what needs to be done. You could change your FTE status to a lower amount, say 90%, if Heather (my supervisor) approves that. Understand that she may have to hire someone else to cover those hours and they may not be available later on when you want to go back to a full 100% FTE status."

Were talking about a couple hours a week, but occasionally maybe 8 hours in a week. But yes, it has exhausted my PTO time completely and my workload has not suffered. I just feel threatened by the advise to lower my FTE status, which then effects benefits of course.

And that I feel very strongly that I am getting hit twice with exhausting my PTO, and then also those same hours being charged against the allowable FMLA hours. It feels like discrimination to me.

I am anxious to hear what your educated opinion dictates. Thanks so much and sorry this was such a lengthy inquiry.

wallstreetfighter :

Hello and welcome. My name isXXXXX am a Licensed practicing attorney and my goal is to provide you with excellent service today.

wallstreetfighter :

You have a common issue,

wallstreetfighter :

an employer can force an employee to use PTO

wallstreetfighter :

and FMLA,

wallstreetfighter :

PTO is regulated by the employer so the employer can make any rule they wish

wallstreetfighter :

However,

wallstreetfighter :

under the law an employer cannot harass or discriminate against

wallstreetfighter :

any employee who has chosen to take FMLA leave,

wallstreetfighter :

if the employer is denying you benefits,

wallstreetfighter :

or is discriminating against you due to your FMLA use,

wallstreetfighter :

that is a violation of the Federal law

wallstreetfighter :

If you take FMLA time off,

wallstreetfighter :

the employer has to provide you the same job and benefits,

wallstreetfighter :

as you had before you took leave,

Customer:

It just feels like they are double dipping to use PTO time and those same hours get charged as FMLA use toward the allowed 480 hours per year.

wallstreetfighter :

It seems that they are, however since PTO is not regulated by the State,

wallstreetfighter :

the law allows an employer to dictate these terms, what is against the law, is if they do not do this to other employees, and are picking on you ,

Customer:

I have not taken a "leave", it has just been appointments here and there and emergency visits to hospital.

wallstreetfighter :

You are on intermittent leave, that is fine

Customer:

The issue arising is that all of my PTO time has been used and I am facing not having enough PTO to bring my hours up to 40 each week. That is where I am concerned that if I work only like 38 hours that they will force me to lower my FTE status, which effects benefit %. Can they do that?

wallstreetfighter :

the law only protects you from termination or discrimination

wallstreetfighter :

they can only do this if they follow the same policy to other employees,

Customer:

And I assume it is not discrimination to take my PTO time and charge those very same hours against the allowable FMLA hours? Because people who are not on FMLA do not have this issue.

wallstreetfighter :

right,

Customer:

OK, well it just doesn't feel right because "if" I would not have applied for FMLA then I would not be expected to lower my FTE status.

wallstreetfighter :

If the reason they are doing this to you is your use of FMLA, that is against the law,

wallstreetfighter :

they cannot treat you different due to your use of FMLA,

Customer:

I do think they treat everyone on FMLA the same, but I am the only one who is gone just a few hours each week, every other week, unless an emergency arises.

Customer:

The issue is that they just made that "management decision" to use PTO the following month after I applied for FMLA, keeping in mind that my supervisor suggested that I apply for FMLA so I wouldn't be questioned when I had to run out on an emergency. Kinda backfired!

wallstreetfighter :

That is unfortunate, and they may have done this to punish you for taking FMLA,

wallstreetfighter :

however, it is only against the law,

wallstreetfighter :

if they did not do this to other employees,

wallstreetfighter :

who take leave,

Customer:

Ok, so even though it feels wrong ~ they can get away with it because they are the employer and hold the cards. I just think it's unfair to take your PTO when people really need that time to recover from being under so much stress from caring for loved ones. They do treat everyone pretty much the same which is good, but just doesn

Customer:

doesn't feel like they care about the employees.

wallstreetfighter :

That is true, however unless you can have the employer create a new PTO policy where this cannot happen, the employer is allowed to act this way

wallstreetfighter :

This is common practice for most employers,

wallstreetfighter :

so this is not unique

Customer:

Thanks so much for helping me with this issue. It has been nagging at me for sometime and I now have clarification and I appreciate it. Maybe I will just lower my FTE status and let the dice roll, this would be the only way to stop my PTO from being exhausted. I will have to think about it a bit more.

wallstreetfighter :

That may the best option,

wallstreetfighter :

FMLA will protect you from a termination or demotion,

wallstreetfighter :

so if they try to do that, you could have a valid complaint

Customer:

I have two jobs and work 4 10's here and 1 day at a Veterinary clinic. My boss there is appauled by the uncaring nature of this management rule, as am I. I can afford it financially but so many others here cannot and its truly unfair to them. I am at Supervisory Level here and have expressed my feelings about it to management but on deaf ears it seems.

Customer:

Thank you and I will use your service again when I need legal advise. I know now that I will just let this go and not make a claim or issue of this at a legal level.

wallstreetfighter :

Good luck and if you have any further questions please do not hesitate to ask.

wallstreetfighter :

If satisfied please provide us with positive feedback, thank you

Customer:

Have a great evening, summer is over here in Washington as today is our last day of nice sunshine, will go home and BBQ. Thanks again....... Bye

wallstreetfighter :

Thank you

Customer:

Oh, Is there a way to print this conversation?

wallstreetfighter :

yes, once you provide feedback, it will be saved and you can print it,

Customer:

Awesome! I will do that now ~ would have anyways since you have been great!

wallstreetfighter :

Thanks, XXXXX XXXXX good day

Customer:

You as well...............

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