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socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39031
Experience:  Retired (mostly)
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Question Re: treatment of FMLA

Customer Question

I was recently involved in an office move that required WARN ACT provisions. Our entire department was moved more than 60 miles to a consolidated facility. This was particularly difficult for employees given the current cost of fuel. Many of us scrambled to locate co-workers that we could car pool with to avoid exorbitant commute costs.At the time of the move, the company offered employees help in locating other positions that were closer to their homes. They also ofered a bonus to those employees who continued in their current positions for a year.The help with finding employment was no different than standard policy of posting positions that were open. Employees were allowed to apply, and in some cases were deemed qualified, passing tests that were developed to assess abilities, moved to second interviews, etc. only to have the position filled with an outside candidate.We have have had our shifts randomly change with little/no notice, we have been flexible in acccomodating the company to help ensure a smooth integration.I am a 20+ year employee, have weathered the transition, have volunteered to assist on numerous occassions, including training of new co-workers, changed my shift voluntarily to accomodate business needs, changed carpool arrangements 4 -5 times due to company dictated shift changes, with little to no notice, and have been recognized as a strong player in my department, often trailblazing integration efforts for procedures within the department, including being called in to assist on un-scheduled days to get the job done, and having to quickly learn and facilitate an alternate business process and train others to do it because no one who made the transition was trained in the position.Progression training and raises have not been even-handed or consistently applied throughout the department. Some newer co-workers have advanced to positions that are higher than mine, even though they have no remarkable qualifications, prior experience, or applicable training.Now the company is stating that any employee who used sick time, or FMLA benefits during the year will not be elgible for the bonus that was announced at the time of the move. There was no such stipulation made at the time the bonus was announced. I am in a position where I have had to apply for FMLA to care for my Mother, who is undergoing surgery. It is not an elective surgery, and it cannot be delayed. As a result, I will not be able to receive the bonus that was promised. I have remained in my position, and as stated above have performed well in the position with the intent of helping the company make the transition, and now feel like I am being discriminated against for exercising "unplanned" FMLA benefits.I am but one example of an employee who made a decision to make the move in their current position, with the understanding that a bonus would be paid if still functioning in that position at the end of a year. Is this an acceptable business practice, and does it fall within the legal guidelines of FMLA?

Submitted: 4 years ago.
Category: California Employment Law
Expert:  socrateaser replied 4 years ago.
There are two broad categories of claims under the FMLA (and CFRA: California Family Rights Act, which is substantially identical to the FMLA): (1) interference (or entitlement) claims in which an employee asserts that the employer has denied or otherwise interfered with substantive rights (or entitlements) under the FMLA (e.g., leave denial), and (2) retaliation claims in which it is asserted that the employer has discriminated against an employee for engaging in activity protected under the FMLA (e.g., discriminating against an employee for past use of leave). Strickland v. Water Works & Sewer Bd. (11th Cir. 2001) 239 F3d 1199, 1206–1207; Edgar v. JAC Products, Inc. (6th Cir. 2006) 443 F3d 501, 507–508; Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F3d 1125, 1133, fn. 7.

If your employer denies you the bonus expressly because you engaged in lawful actions under the FMLA/CFRA, then you have a retaliation claim. You can either sue the employer, or file a complaint with the U.S. Department of Labor (1-866-487-2365) and/or the California Department of Fair Employment and Housing.

Hope this helps.

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