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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18813
Experience:  Employment/Labor Law Litigation
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I have been employed with my current employer since

Customer Question

I have been employed with my current employer since 9/7/2007. I have been Office Manager with this company and have just learned that my position is being taken over by another employee in the company. A short history is that in 2014 I suffered a herniated disc and had surgery, FMLA forms were completed and I returned to work in 6 weeks. This year, I had a knee replacement 11/11/2015, and have not yet been released to return to work. I again completed the required FMLA forms. The office is a small one with 10 employees. As the office has grown I have done the training, hiring, firing, essentially functioned with all of the hats on of a corporate office. What rights do I have? Should I walk away from this job and not fight the layoff/firing/displacement?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Allen M., Esq. replied 11 months ago.

Thank you for your question today. I just have a few questions so that I can better address your concerns.

You stated that the office was small, about 10 employees. Is the employer larger than that?

What reason have they given for replacing you rather than having you replace the other employee? In essence, what have they said (if anything) about how you were selected?

Were you informed of this before or after you requested FMLA? Is there any evidence that this was in the works before you requested FMLA?

Customer: replied 11 months ago.
The employer is approximately 130+ employees, surgeons and staff. We are the largest Cardiothoracic practice in the Midwest. Our office is the only one in Indianapolis, with the majority of offices being located in the Illinois area.
I was not informed of this prior to my FMLA, however, based on the response I had from my boss, when I told him of my impending surgery, I had a feeling something was about to happen. He questioned me about the previous surgery in 2014. I also refreshed his memory about 1 woman in our office that was on maternity leave, and another woman that is leaving now for maternity leave. Last year I also had an employee who was out for 6 weeks with medical leave. The history in the office is that we all would pitch in and do the work of the person out on leave. The same is for me, prior to leaving I brought everyone up to speed and trained on functions of my job.
As I am the only office manager, I was not informed of a replacement in progress.
Expert:  Allen M., Esq. replied 11 months ago.

Ok. The law about FMLA discrimination and retaliation use has it's limitations. While you can take the leave and your job is protected, that only means you are protected from retaliation for using FMLA. It doesn't mean that other forms of legitimate job elimination are not permitted.

This is why I asked about what reasons they have given, if any, for the job elimination. Clearly, you have the facts to support the initial framework of an FMLA retaliation claim. No doubt about that. The issue though will be what the employer gives as their basis for actually separating you. They obviously won't say "it was because he used FMLA" and if they did, great..the case is won. But they won't do that. They'll allege some reason, and if that reason is legitimate and non-discriminatory, then the FMLA claim won't work.

For example, if someone took FMLA and the employer already had in place a plan for a staff reduction (and the employee's name was on that list BEFORE FMLA was requested), then the employer would have a legitimate and non-discriminatory basis for termination. As another example, if the employee was already out on FMLA and the employer had a layoff, and included the FMLA employee, that too could be legal depending on how the employee was chosen. Is the employer a union employer, with "first in, first out" rules? Would the employee have been on that list, regardless of their FMLA use? Then that too is legal.

In your case, if the employer can point to any legitimate basis for your being selected for elimination, that has nothing to do with FMLA, then your FMLA use won't protect you here. Now, that being said, you've stated that there has been push back with your FMLA use. That's a good fact for you, and it calls into question any reason they would try to put forward as to why you were selected. You get to argument back too, to any reason they put forward, trying to show it as a pretext for discrimination.

I think it is worth your time to file a complaint with the Department of Labor, alleging FMLA discrimination. It would be better though to first make that complaint to the employer now, to HR if they have one, so that the employer cannot later claim that they never had a chance to cure.

Expert:  Allen M., Esq. replied 11 months ago.

Hello, I wanted to check in and make sure that there was not any additional information that you required.

If so, please use REPLY and ask me for any additional information you may need. If not, take care and have a great day.