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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 19777
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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Marsha, I asked a questions last week about my FMLA rights.

Customer Question

Hi Marsha,I asked a questions last week about my FMLA rights. To refresh your memory, I am currently on FMLA that has been documented by my father's physician. Recently, my boss offered me a relocation package to resign based on the fact that she feels my position will be eliminated.You suggested that I clarify with her what she meant about the elimination of my position. Here is the letter I wrote, I may have overshared information with her but wanted to get a clear understanding:Dear *****tina,Thank you again for the generous offer. However, given the gravity of decision (e.g., relocation of my home and loss of job), I am unable to provide an answer at this time. I am requesting additional time for consideration.To be honest, I was quite surprised by the offer and the timing - since this all this is occurring during a very stressful time for me and my family. Consequently, I have consulted an employment lawyer to learn more about my rights under FMLA. My lawyer has advised me to request additional information for clarification before considering your offer because I may have a potential claim under FMLA for violation of the re-employment rule. Here is the list of items for clarification:· Job Restoration: The law states that –“When an employee returns from FMLA leave, he or she must be restored to the same job or to an "equivalent job". The employee is not guaranteed the actual job held prior to the leave. An equivalent job means a job that is virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions (including shift and location).”Please note that it has never been my intention to resign from my position. Therefore, I would like to request that you clarify that KCAA Preschools of Hawaii policy complies with the law. During my lunch conversation with you last week Friday, 9/2, - where your presented the relocation offer for my resignation - you made reference to the fact that I would not have a position when I returned from FMLA. I asked you directly if I would not have a job to return to and you shared that you did not want me to return to Hawaii if I did not have a job. Hence, you made an offer to relocate me if I resign from my position. This goes against the FMLA law and my lawyer and I are concerned. Can you clarify if you are eliminating my position and if so, other positions of the same level and salary?· Intermittent FMLA Leave: FMLA allows an employee to take FMLA intermittently for a total of 12 weeks within a calendar year per KCAA Employee Policy. My FMLA paperwork, submitted on 8/20 (electronically) and hardcopy via certified mail, shared that my father’s doctor verified the need for FMLA taken intermittently. My understanding is that I can work out a schedule with you to return to work as needed during the remainder of the calendar year. Please confirm. I am planning to return to work for 2 weeks in late September as long as my father’s health and condition remain stable.Thank you again for your kind offer. I look forward to your response and clarification on my questions. Also, to clarify, I would like to request a formal letter from you stating your approval of my right to invoke FMLA and that you have received all documentation to support my claim. Please include leave balances, and information on when my FMLA (including Hawaii FMLA) began.Mahalo ***** ***** look forward to your response.Best,MichelleShe replied on Friday with the following letter. Please see attached. Do you have any recommendations about my rights under FMLA?Thank you and I look forward to your response.Best,Michelle
Submitted: 2 months ago.
Category: Employment Law
Customer: replied 2 months ago.
Hi,Here is the response from my employer.
Expert:  Marsha411JD replied 2 months ago.

Hello again,

They are saying some of what I discussed with you in my previous response. That is that an employer is not in violation of FMLA laws if they do not reinstate the employee because the position, or substantially similar position, does not exist. From what your employer is saying, that may eventually be the case. Your position may no longer exist. They are not required to keep a position in existence or create one to reemploy you if they would have gotten rid of the position whether you were on FMLA or not. You might, if necessary, want to go back and reread our previous conversation.

As an aside, I am not your attorney so you cannot use me as your attorney in conversations with your employer. You can hire an attorney and do so, but the information I provided to you was not legal advise from your attorney. This is after the fact, but you really never needed to tell your employer what you know about the law when you are clarifying the facts. As I believe I mentioned in our prior exchange, you simply would have wanted just to ask why you might not be reinstated. From the letter it appears that your employer had previously discussed the issue with you about the funding for the position, and the position itself disappearing. But, in any event, that is perfectly legal on their part. So, if you have some offer of help from them, you might consider taking it.

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