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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12554
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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I WAS ASSIGNED TO A SHIFT WHICH ALLOWED ME TO CARE SERIOUSLY

Customer Question

I WAS ASSIGNED TO A SHIFT WHICH ALLOWED ME TO CARE FOR MY SERIOUSLY ILL PARENT WITHOUT USING FMLA TIME. THE SUPERVISOR TOLD ME I DID NOT HAVE FMLA FOR MY PARENT AND QUESTIONED THE VALIDITY OF MY PARENTS CONDITION, AND DENIED THE WORK SHIFT. I INFORMED THE SUPERVISOR IF I WAS NOT ALLOWED TO WORK THE SHIFT I HAD WIRKED FOR SEVERAL MONTHS PRIOR I WOULD HAVE TO USE FMLA. I TURNED IN A LEAVE FORM INDICATING I WOULD USE FMLA FOR MY SERIOSLY ILL PARENT AND WOULD SUBMIT THE CERTIFICATION WITHIN THE 15 DAY TIME PERIOD. THE SUPERVISOR CONSULTED WITH ANOTHER SUPERVISOR AND ASKED THAT SUPERVISOR TO SPEAK WITH ME ABOUT SUBMITTING THE PAPERWORK. I WAS TOLD TO SUBMIT FOR A HARDSHIP INSTEAD. THE HARDSHIP REQUEST NEEDED A RECOMMENDATION FOR APPROVAL FROM A SUPERVISOR . THE SUPERVISOR WAS NOT INCLINED TO GIVE A RECOMMENDATION FOR APPROVAL, AND WAS UPSET BECAUSE I WOULD USE FMLA TIME TO CARE FOR MY PARENT. INTERMITTENTLY ON A REDUCED SCHEDULE, WHICH ENABLED ME TO COME IN AT THE SAME START TIME AS THE DENIED SHIFT. THE SHIFT THAT WOULD ALLOW ME TO USE MUCH LESS FMLA IS AVAILABLE , BUT I AM NOT ALLOWED TO WORK IT I BELIEVE IN RETALIATION OF ME FILING FOR FMLA. WOULD THE ACTION OF THE EMPLOYER DISALLOWING THE SHIFT BE VIEWED A PUNISHMENT FOR ME UTILIZING MY FMLA? PROVISION.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Andrea, Esq. replied 1 year ago.
Hi, my name is ***** ***** I will be glad to assist you.
I am very sorry to hear of your parent's illness. Your supervisors are very ill informed and this will get them into a lot of trouble with Federal law and they will be penalized with the imposition of fines. Not only because they did not allow you to exercise a right given to you by Federal law, but also for retaliating against you for exercising rights given to you by Federal Law.
The Family Medical Leave Act is a Federal law (but California has enacted a law which is a mirror image of Federal law). So, your employer has no where to hide. Anywhere he looks he will be held liable for violating both Federal and State laws. Your employer will also be penalized by the imposition of fines and penalties for violating Federal and California laws regarding an employee's right to take medical leave.
Both Federal Law and State law permit an employee to take up to 12 weeks of unpaid medical leave for himself, or to take care of a parent, spouse, or child who is ill. This right is given without reservation and an employer cannot retaliate or penalize an employee who exercises this right. The only requirement imposed on te employee is that he fill out the application for medical leave, furnish medical documentation with his application, and give the employer as much notice as possible. Of course, if the leave is taken because of an emergency situation, the only requirement imposed on the employee is that he give his employer notice which would be considered "reasonable under the circumstances", nothing more.
No employer is allowed to deny an employee's request for FMLA time if that is what the employee requires in order to care for a sick parent. I do not take an employer's denial of an employee's request for FMLA leave lightly, nor is an employer's retaliation against an employee to be ta***** *****ghtly. If an employer does not like this arrangement, Well, what can I say, other than the employer should go address the US Joint Sessions of Congress! I am sure that not everyone agrees with all the laws passed by Congress, but we must obey them anyway. ell, this holds true for your employer, as well.
Your employer giving you a hard time is clearly an attempt to retaliate against you for exercising a right given to you by Federal law. and you must report your employer to show him that following the Federal law is a requirement, and not taken on a "voluntary" basis. He cannot ignore the laws that do not suit him, nor can he retaliate against your for exercising your right. Furthermore, your employer cannot penalize you.
You must file a Complaint of your employer's violations under FMLA with the nearest Office of the US Department of Labor, Wage and Hour Division. You can file your Complaint in person, by telephone or by letter, whatever is convenient for you and no specific form is required a brief letter setting forth the facts and how your employer violated your rights under FMLA is sufficient for the US Department of Labor to initiate their investigation of your employer. Please allow me to stress that your employer cannot do anything to you which would even appear to be retaliatory action. If he does, please do not hesitate to let the US Department of Labor know and that, too, will become part of their report on your employer. The Department of Labor will then investigate your complaint and issue a ruling.
IN THE MEANTIME, PLEASE BE KIND ENOUGHT TO LEAVE A POSITIVE RATING SO THAT I CAN RECEIVE CREDIT OR ASSISTING YOU,
POSITIVE FEEDBACK AND BONUS ARE GREATLY APPRECIATED,
KINDEST REGARDS,
ANDREA
Expert:  Andrea, Esq. replied 1 year ago.
I see that you have had the opportunity to review my Answers. If you have any questions , I would be glad to explain further or offer further clarification. If not, please be kind enough to leave a positive rating. It will NOT cost you anything to leave a positive rating, but it is the only way that JustAnswer will give its Experts credit for assisting their customers. Thank you for understanding,
Kindest regards,
ANDREA

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