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I was on fmla and my boss called me to tell me that I would

not have a job when...
I was on fmla and my boss called me to tell me that I would not have a job when I returned. This made my recovery very difficult. I called Hr and and they told me I should be given a severance package for my 24 years of service. I have returned to work part time with fmla for the remaining 20 hours. The Regional manager prepared my review my first week back and it had derogatory comments in it which I believe are due to my leave. He is now stating there is a job for me. The job is with a difficult employee. I know they need to give me a severance package. The regional manager has a reputation of having a bad temper. What are my rights?
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Answered in 8 minutes by:
3/10/2013
LawHelpNow
LawHelpNow, Attorney/Lawyer
Category: Employment Law
Satisfied Customers: 7,639
Experience: Relax. Let's work together. Practical solutions.
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Hello,
What is your state, please?
Thanks!
Ben, J.D.
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Customer reply replied 4 years ago
Colorado
Customer reply replied 4 years ago
The review stated I was emotionally charged. The regional manager 's interactions with me were during my leave. A comment like this will be detrimental to my career. Also, he did not ever give me any feedback prior to the review. Hope this additional info helps.
Customer reply replied 4 years ago
Thank you for helping me, Can you give me an ETA on a reply?
Hi there,
That helps a lot, and I appreciate your writing back.
Let me ask you a couple of other questions (with apologies, but I want to provide you with accurate information).
Concerning the severance package, do you have a written contract or written corporate policy guaranteeing it to you?
Also, what is your main objective, meaning do you want to file a discrimination complaint, resign and apply for unemployment insurance benefits, report an FMLA violation, etc.?
Again, thanks so much for patience!
Ben, J.D.
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Customer reply replied 4 years ago
Per Hr, they have to offer me a severance package if per my manager's call on my fmla leave my position is not available. I want my review corrected and the severance package because the work enviroment is threatening. Also, I don't think Fmla policy was followed. I want to know if my company violated Fmla by calling me on leave to tell me I wouldn't have a job. I am scared of the Regional boss who has now taken over managing me because they(management) knows they have done something wrong. I have been doing this long enough that I know they are trying to cover something up. Thoughts?
Hi again,
Great explanation, and I see where you're coming from. I'll mull this over (don't want to just speak off the cuff) and get back with you. If you could give me about an hour (I'll try my best to make it less), that would be great as I need to log off briefly. You have my word I'll be back with you shortly.
Until then, thanks again!

Ben, J.D.
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Hello again,


My name isXXXXX'm a licensed attorney. Glad to try and help out.

Many thanks for your patience in writing back and forth!


Sure sorry for your circumstances, truly. My heart goes out to you.

Here's how this works, having read and carefully considered everything you're shared. Kudos to you for being proactive and speaking with Human Resources about the issue of severance pay. Likewise with demanding that your review be corrected. Now, I think the main issue here centers about a potential violation of federal law. There is a ton of misunderstanding, but here's the botXXXXX XXXXXne. It is indeed possible for an employer to lawfully terminate an employee who is out on leave. Here's the official explanation, along with examples:

29 C.F.R. § 825.216

However, and this is a very important caveat, an employer (not the employee) bears the burden of proving that the termination decision was not related to the leave. In other words, your employer would have to show that you would have been terminated without regard to your leave. That's not at all a given, and in all candor the course of conduct you're described does raise cause for legitimate and valid concern.

That's an overview of the applicable law, but in terms of seeking redress there is also a remedy afforded by the Family and Medical Leave Act of 1993, Pub.L. 103–3, 107 Stat. 6. I'm speaking of seeking help, free of charge, from the United States Department of Labor Wage and Hour Division. Given what you've described here, you have more than enough reason to do so. In fact, I've seen instances where the mere mention to Human Resources (letting them know that you know your rights and aren't afraid to exercise them) will rather quickly result in their willingness to do the right thing. The way to do so is to contact your regional office (for these matters it's done this way rather than through a centralized system in Washington, D.C.), which for you is as follows:

Denver Colorado District Office

I would recommend going that route, although the law does provide an alternative means by way of submitting your complaint here:

Acting Secretary of the Department of Labor

There is no form promulgated for this purpose, meaning a simple letter with pertinent information and relevant dates suffices.

Now, hopefully it won't reach that point, but I would just mention that if the matter isn't resolved at the administrative (regulatory) level, there's also a private cause of action, as follows:

Section 107

So, that's about the size of things, and I know it's a lot to take in.

Please know that you deserve to be treated properly. I hope you see justice accomplished.


If you have a follow-up question or need clarification, please just say the word by using "reply" to reach me.


I truly hope all works out for you and that things look much brighter down the road. If you do need to write back and I've logged off for the evening, you have my word I'll be sure to check back for any updated word from you tomorrow (Monday)


Take care,


Ben, J.D.

LawHelpNow
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Customer reply replied 4 years ago
Thank you. One more question. Will these resources help with the issue of my manager stating there was no job available when starting Fmla and when the severance package was brought up, there was a job? Is that a violation? I am not sure how to deal with this and I am proactive to prevent being fired.
Hello,

I enjoyed working with you recently.

How are things going?

Is there anything else I can do to help?

Please just let me know.

Thanks!

Ben, J.D.
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