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Samuel II
Samuel II, Attorney at Law
Category: Employment Law
Satisfied Customers: 27010
Experience:  More than 20 years of experience practicing law.
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I am on approved FMLA since June 19th. My boss just gave me

Customer Question

I am on approved FMLA since June 19th. My boss just gave me a layoff notice yesterday, July 10th. He said HR told him since they'd begun force reduction planning before June 19th they can lay me off. Is this for real?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Samuel II replied 1 year ago.
Hello
This is Samuel and I will discuss this and provide you information in this regard
Unfortunately, the answer is yes. The only way that you could argue against it, is if you can show that you would not have been employed with the company during the work reduction.
In other words, because you are on FMLA, even though without pay, you are still employed. So as long as the work reduction takes while you are still employed, then it is legal.
However, please take note of the second paragraph, because they do need to maintain your benefits until your FMLA is up
§ 825.216 Limitations on an employee's right to reinstatement.
(a) An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. For example:
(1) If an employee is laid off during the course of taking FMLA leave and employment is terminated, the employer's responsibility to continue FMLA leave, maintain group health plan benefits and restore the employee cease at the time the employee is laid off, provided the employer has no continuing obligations under a collective bargaining agreement or otherwise. An employer would have the burden of proving that an employee would have been laid off during the FMLA leave period and, therefore, would not be entitled to restoration. Restoration to a job slated for lay-off when the employee's original position is not would not meet the requirements of an equivalent position.
Please note that I can only provide information for what you ask. In that regard, if you have other questions or need clarification, please let me know here. Otherwise, I would appreciate a Positive Rating as that is how I get credit for my time.
​Thank you

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