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Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 20118
Experience:  30 years of practice.
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I had an auto accident and have been out of work for 12 weeks.

Resolved Question:

I had an auto accident and have been out of work for 12 weeks. I shattered my right femur. I have been working from home and am about to return to work. Can my employer penalize me for this absence by cutting my hours or compensation?.
Submitted: 8 months ago.
Category: Employment Law
Expert:  Loren replied 8 months ago.
Thank you for using JustAnswer. I am Loren, a licensed attorney, and I will do whatever I can to provide an honest and accurate answer to your question.

Before we begin, a bit more detail would be helpful please.

Do you have a written employment agreement?

Did you qualify for FMLA

Thank you.

Loren
Customer: replied 8 months ago.

I am an employee at will and have been employed as the Vice President of this Real Estate Management Company for 35 years. They never sent me an FMLA letter but I do qualify. I have no health benefits with the CO. My original boss was the father but the sons are in charge now.

Expert:  Loren replied 8 months ago.
Thank you, XXXXX XXXXX the additional information. I am sorry to hear of your dilemma.   I realize how frustrating this is for you and I hope to provide you information which is accurate and useful, even though it may not be the news you were hoping to get.

Unfortunately, an employee may not retroactively invoke his or her entitlement to FMLA leave unless that employee and his or her personal representative were physically or mentally incapable of doing so during the entire period in which that employee was absent from work for FMLA-qualifying purposes. 5 CFR §(NNN) NNN-NNNN4)(b). In that case, an employee may retroactively invoke his or her right to FMLA leave within 48 hours after returning to work. 5 CFR §(NNN) NNN-NNNN4)(b). The incapacity of the employee must be documented and he or she must also explain why their personal representative was unable to contact the Agency and invoke the employee’s right to FMLA leave. 5 CFR §(NNN) NNN-NNNN4)(b).

Without FMLA to fall back on, you are merely an at-will employee. If you have no written employment agreement then you are, in all likelihood, an at-will employee. As such, you are pretty much subject to the whim of your employer. They can change your schedule, your compensation or even terminate you at any time and for any reason or no reason.

I realize this is not the answer you were hoping to receive.  Also, please remember that this is not necessarily a moral judgement on my part.   As a professional, however, I am sometimes placed in the position of having to deliver news which is not favorable to a customer's legal position, but accurately reflects their position under the law. I hate it, but it happens and I only ask that you not penalize me with a bad or poor rating for having to deliver less than favorable news.

It is my privilege to assist you. Let me know if you need further information.  I hope I have helped you beyond your expectations in the service I have provided to you.  I am here for you.
Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures.

Please remember to rate my answer when our communication is completed so I will be compensated for my time in providing you with the information you requested.

If you feel the need to provide a low rating, please stop and reply to me via the REPLY button with whatever issue or clarification you may need. I will happily answer your follow-up questions and assist you until I am able to explain the answer to your satisfaction. Please also remember that I cannot control whether the law is favorable to your situation, so please do not penalize me for having to deliver bad news.

Thank you.

Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 20118
Experience: 30 years of practice.
Loren and 2 other Employment Law Specialists are ready to help you
Customer: replied 8 months ago.

I will be out for a total of 16 weeks so the FLMA will not apply anyway. Any advice as to how to handel the return to work conversation? My relationship with 2 of the 3 sons is good but I am highly compensated and they would like to put my salary in their pocket, as they have been unsuccessful at growing the business on their own. I started the business with their father in 1977. I have knowledge that they now is valuable to them but not as valuable as my compensation. They will try to cut the number of days that I work whioe still having access to my knowledge 24 / 7.

Expert:  Loren replied 8 months ago.
Is there any basis to assert an illegal discrimination claim (race, religion, age, gender, etc.)?

Thank you.

Loren
Customer: replied 8 months ago.

Probably not - but good thinking. My biggest card is that I know what they have been taking off the top of the investors return in superfluous fees and charges. I think I need an all or nothing response - I work or I don't - no accessibility without returning to my former position.

Customer: replied 8 months ago.

Did I miss an answer?

Expert:  Loren replied 8 months ago.
Thank you, XXXXX XXXXX the additional information.

The problem with holding on to their records is that it is their property and they can charge you with extortion and theft if you refuse to give them their records.

If you are a gambler, you can let them know that you expect to be returned to you existing position and compensation package at full time. Otherwise, you resign effective immediately without any transition. If you are valuable to them then they would not let that happen. After that, you will need to insist on a written employment agreement for a specified period. Without that you run the risk that they will fire you as soon as they have gotten the information you have.

I hope this is helpful.

Thank you.

Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 20118
Experience: 30 years of practice.
Loren and 2 other Employment Law Specialists are ready to help you
Expert:  Loren replied 8 months ago.
Thank you for your positive rating of my service to you. Let me know if you need more help or have future questions. I will be here for you. Just ask for me by name at the start of your question - "Loren" or use the following link (which you can bookmark in your browser):  http://www.justanswer.com/law/expert-Loren/
          

Best wishes and good luck to you.

If it is not too much trouble, Anne, when you receive a Customer Satisfaction Survey from JA/Pearl in a day or two, please consider rating me highly (9 or 10). It affects my ability to continue to assist you and other customers on JA/Pearl and would be most appreciated.  
Customer: replied 8 months ago.
I'm not holding onto their records - I am the records
Customer: replied 8 months ago.

What is the answer to the question, If I have an employment agreement do I sacrifice any of my protection as an employee under the law?

Expert:  Loren replied 8 months ago.
No not at all, but it will protect you from being terminated for at least the time period covered in the agreement. You actually have more protection.
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 20118
Experience: 30 years of practice.
Loren and 2 other Employment Law Specialists are ready to help you
Customer: replied 8 months ago.

I think I left something out. I am working from home full time and receiving full pay. Can't I ask for FMLA if I decide not to work from home and be paid but take the next 12 weeks to work on healing and getting back to walking and driving?

Expert:  Loren replied 8 months ago.
Hi Anne,

Unfortunately, assuming you qualify, you would have missed the window to apply for FMLA for this particular injury.

Loren
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 20118
Experience: 30 years of practice.
Loren and 2 other Employment Law Specialists are ready to help you
Customer: replied 8 months ago.

What is the window - thanks for all your help

Expert:  Loren replied 8 months ago.
The ultimate window is 48 hours after you start working again, assuming you are otherwise qualified.
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 20118
Experience: 30 years of practice.
Loren and 2 other Employment Law Specialists are ready to help you
Customer: replied 8 months ago.

Does that mean working at all or working from the office?

Expert:  Loren replied 8 months ago.
Return to duty could also be working from home. It relates to when you are able to make your request. However, you may want to try putting in the request and argue that your return to work was when you came back to the office. All they can do as a downside is say no.
Loren, Lawyer
Category: Employment Law
Satisfied Customers: 20118
Experience: 30 years of practice.
Loren and 2 other Employment Law Specialists are ready to help you

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