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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17029
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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I had an elderly mother that needed to be taken care of. She

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I had an elderly mother that needed to be taken care of. She was able to take care of herself but had many health issues with no transportation to or from the doctors. She was also suffering from many falls. I became her caretaker in December of 2011 and she came to live with me. I immediately filed for FMLA at my job in order to get her to her appointments as needed. This was approved without incident. The only issue with this is I have to use my vacation(pal) time to take her. If I do not have this time then I can have the time to take her but I do not get paid for the time off. My company put everyone on mandatory overtime, working 10 to 15 extra hours a week. We have been on overtime at this time for over seven months. In January of 2013 my brother suffered a massive heart attack but survived and we were called asking us to come to his bedside as they did not expect him to survive. While on the trip he suffered 2 more heart attacks. Upon arriving we were told by his Dr. that his kidney's were shutting down and that he had lost a lot of oxygen to his brain from the first attack. If he was to come out of the induced coma he would be a vegetable. In other words he was brain dead. My mother and I decided to turn the machine's off. Normally, my company allows 3 days for bereavement. We left home on the 3rd of January, turned the machines off on the 7th of January which is when my bereavement kicked in and then I returned to work on the 14th of January. Back into mandatory overtime as well. Needless to say, this took a toll on me like it would on anyone and my production started to fall. My mother was severely depressed as was I. My brother left 5 kids and he was only 50 years old. Only one child was over 21. I tried every week to improve by changing my concentration habits. Focusing by purchasing a headset to block out surrounding conversations, buying a stop watch to be sure I wasn't over my break times. I was given an oral warning that eventually went into a written warning for my production. I was slowly starting to bring my production up but not to the 96% level the company requires when one morning I woke up and went to get ready for work and found my Mother deceased on the couch in the living room. This was on the 7th of June. Again, more bereavement time. This time it is different. I am the only family member left now which means I have to take care of all the arrangements for my mother. I knew what she wanted but she didn't have a will as she was very poor. Three days of bereavement leave was not enough. Again, I had to take more time off without pay. Once again I am returning to work and once again my production begins to fall. The home my mother and I were living in was based on her and my incomes. Now that she is gone, I can't live in this house anymore so this brings on another issue. I now have to move which means more time off from work without pay. More production falls. I am actually having a harder time after my mothers death getting back to routine than in the beginning. I am also exhausted. I haven't even been to see my Dr. for my own issues because I am to busy taking care of everything else. I was put on a final warning around the 28th of august. I was advised at that time I had to pull my production up to at least 96% by the end of Sept. or I would face termination. Around this time I started to have issues of my own. I had put off my Dr. appointments to take care of my Mom and everything else that was going on. I went to a dentist for an abcess and cavity in 2 molars. I was scheduled to have the two teeth removed after work on a Thursday October 3rd at 6:30 PM, but the dentist recommended that I have the day after (Friday) off due to the swelling, sutures and pain medication he had me on. I was given a return to work letter for Monday October 7th, by the dentists office. At this same time I had been to see a gastroenterologist doctor who had scheduled me for an endoscopy and colonoscopy to be completed as outpatient surgery on Tuesday the 8th of October. This surgery was scheduled for 9:30 AM. I did not have any pal time left so I requested it as time off without pay for the surgery which I was told they do not do that any more. So I contacted Metlife which handles the requests for FMLA and requested FMLA for Oct 8th. I was given an FMLA number and I called my supervisor on Friday the 4th of October and left a message with this number on it. I returned to work on Monday October 7th, worked until approximately 3:30PM and was terminated by HR for not meeting production standards. On the day of my surgery I was called by Metlife and told my FMLA had been approved. I have been with this company for eight years. I had never been written up for production or insubordination or any other reason that may put me in jeopardy of losing my job. I had even received recognized customer comments on how I handled there concerns while in customer service. My quality was never an issue while I was in claims. Just because I have had an extremely difficult year for things I had no control over and has now caused issue is just not understandable. Do I have a case?

Submitted: 9 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 9 months ago.
Hello,

Thank you for the information and your question and I am sorry to read about your difficulty over the last year. Can you tell me exactly what kind of case you are asking about? Are you saying that your employer didn't terminate you because of poor production but instead because you filed for FMLA? Is there any evidence that they didn't follow their own procedures for stepped discipline or that they counted the time you were off on FMLA in your production numbers?
Customer: replied 9 months ago.

I was terminated for poor production. I asked about the FMLA because I was under the impression that FMLA protects you from losing your job. The company did follow the stepped discipline procedures. I also wanted to add that this a Fortune 500 company that recently sold itself to another well known corporation and it is still in transition of the change over. Their are still a lot of shake ups and moves going on and needless to say, many people being terminated and new people being hired in there place.

Expert:  Marsha411JD replied 9 months ago.
Hello again and thank you for your reply. Although there is some degree of job protection while an employee is on FMLA, that is not absolute. In other words, an employee cannot be terminated for attendance issues because of the use of FMLA and cannot be terminated for merely asking for it or using it, they can still be terminated for non-FMLA issues that are present whether they are on FMLA or not. For example, an employee can still be terminated while on approved FMLA for legitimate misconduct and performance issues arising before or after FMLA has been used. Likewise, if a company has an economic lay off or reorganization, then the employee may still be let go as long as they would have been if they had been working or not.

So, if your employer has legitimately evaluated your performance (by not including lack of performance while you were on FMLA), then as long as they are following their own procedures, they could lawfully terminate you for this reason. Of course, if you believe that they have used this reason as a subterfuge because of your use of FMLA, then in that case, you might have a wrongful termination claim based on retaliation.

If you think the latter situation occurred, then you will want to sit down with a local employment law attorney to discuss the facts of your case and see if they want to represent you in a wrongful termination case.

Please let me know if you have any follow up questions. I would be glad to assist you further if I can.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17029
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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