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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18811
Experience:  Employment/Labor Law Litigation
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I am having quite the problem with my company and think the

Customer Question

I am having quite the problem with my company and think the writing is on the wall that they have a plan to eliminate/lay off/fire me... I have been the SR VP/Chief Business Development Officer for the past 21 months. The first year I was a shining star and got a 3.8 annual evaluation out of 4. I hired new staff and basically set up the entire BD department with all the infrastructure, proposal library, presentations, marketing materials,website. As or more important I established teaming relationships with atleast six large govt contractors and significantly increased name recognition of this non profit organization. starting in March of this year I began to have performance problems with one of the BD sales staff. Tom had significant personal problems and shared that his wife was leaving, he was having a breakdown etc... HR and the CEO asked me to continue to build BD and they would work with Tom. I thought nothing of it. He started to buddy up with another sales staff that was not performing and in fact our CEO told me Henry had to go. found out subsequently that they had started an investigation on me and these two were claiming hostile environment, my being mean... I never saw any documentation on this investigation I was later called in and told about it and that it was being dismissed based on the findings ..Tom abandoned his job, Linda the CEO told me they were not going to fire Henry because of his Hispanic ethnicity and age but would tell him based on the advise of their lawyer that the department was being disbanded. I still believed everything was ok and they would support me based on good reports from the other employees.
I have RA and had a 7 day flair up the first week of June. The whole attitude changed. They immediately sent me FMLA paperwork to have the doctor sign and I returned with them and a return to work statement which seemed strange given I had plenty of leave and a good reputation
the next three weeks were cold at best but I continued submitted good proposals and putting a lot of time into my work. On July 9 I was rushed to the hospital with a serious medical condition a perforation of the abdomen. I was so out of it for the first three days on pain meds and hallucinations I called Linda, CEO but do not recall much of the conversation. I received a second set of FMLA paperwork. When I left the hospital I was told I was lucky given what I came in with. I returned with FMLA paperwork and return to work . The first day I was called in and told that my salary was being cut 25k that the BD staff no longer reported to me and I was off the Executive Team. I was shocked. Does the FMLA protect me from anything? I was top 10% so that is probably part of their strategy. The CEO keeps assuring me that she is sincere in wanting my success.
I found out inadvertently that they are interviewing for a VP of Marketing tomorrow. I am quite familiar with the budget issues and they can not afford one more VP without letting go on one...
I need to know what to do to protect myself. I am leaving for vacation for my daughters wedding sept 7and fear they will fire/layoff/eliminate me before or when I return, or even before. I need help
Submitted: 1 year ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 1 year ago.

The FMLA can protect you, but everything here really depends on whether or not the employer can state a legitimate, non-discriminatory basis for their actions. Just having used FMLA doesn't create insurmountable protection.

Let me give two extreme examples to make the legal point clear.

1. If an employer is planning a lay off, and they have already established the basis for that lay off, and then an employee takes FMLA, the fact that that employee took FMLA would not stop the employer from laying them off. The basis for the layoff already existed, and the timing of the FMLA isn't legally relevant to the decision to release the employee.

2. If an employee is taking FMLA and then returns, but they steal money from the employer when they get back (or before they left), the fact of FMLA use doesn't stop the employer from using a legitimate basis for termination to let that employee go.

Now, I'm not saying either of these circumstances exists here. I'm simply using them to illustrate the idea. FMLA protects you from being terminated when the sole basis for your termination is your FMLA use itself. It doesn't create any additional protections.

In looking at the facts you've mentioned here, there can certainly be made the argument that your treatment didn't begin until after you used FMLA (them sending you FMLA paperwork right away isn't really legally suggestive of anything). That being said, the issues followed closely in time to your FMLA use, and that creates temporal proximity. Add in your apparent work history and the move doesn't make a lot of sense.

You should file a complaint with the Department of Labor immediately, stating that you feel your demotion and reduction in pay are directly related to your FMLA use. This is really the strongest protection you can get right now, because any action by the employer following your complaint will look like retaliation...and that may cause them to pause and rethink.