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Patrick, Esq.
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I was red September 30, 2013 I was terminated Monday August

Customer Question

I was hired September 30, 2013
I was terminated Monday August 24, 2015
I took FMLA January 4, 2015 -Feb 8, 2015
I was not told when I took FMLA that my hire date would change.
I asked for my vacation pay 2 wks.
Manager said she would check on it. She asked if I was told my hire date would change because I took FMLA. I told her no. She said oh, that's probably because the leave was only 35 days.
I was told today I will not receive my vacation pay because when I took my FMLA that changed my hire date. I only took 35 days off for surgery. So since they changed my hire date to 35 days later, they said because it would be to far off from my termination date to my new hire date to pay out my 2 weeks of vacation. Can they do this legally?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

The rule in TN is that employers are not required to pay an employee their accrued vacation upon separation of employment unless they have a policy which express so requires. Here, such policy DOES exist, but your employer is applying it in a manner that results in your disqualification for payment of the accrued time. The question therefore becomes whether this application of the policy is lawful.

According to the DOL, ""Upon return from FMLA leave, an employee must be restored to the employee’s original job, or to an equivalent job with equivalent pay, benefits, and other terms and conditions of employment. An employee’s use of FMLA leave cannot result in the loss of any employment benefit that the employee earned or was entitled to before using FMLA leave, nor be counted against the employee under a “no fault” attendance policy."

Pushing an emploee's hire date back when they take FMLA leave to cause them to lose an employment benefit such as accrued vacation would therefore be against the law as a form of illegal FMLA retaliation. You may wish to reference the above-quoted page from the DOL's website to your employer, which you can do here: http://www.dol.gov/whd/regs/compliance/whdfs28.htm#.UI8mf467Z4E

If they still refuse to pay you for these days, an individual in your circumstance can file a complaint with the Department of Labor (which has jurisdiction to hear claims for violation of the FMLA). Alternatively, you can file a lawsuit in civil court.

I hope that you find this information helpful. Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you. Very best wishes moving forward.

Customer: replied 1 year ago.
I just spoke with them. HR is now saying that even if she goes by my hire date of September 30 2013 since I was term'd August 26. They haven't processed my termination in the system, I was also told they didn't change my anniversary date, somehow it got missedI will not be employed on my anniversary date so they're not paying my vacation. I'm 34 days from my anniversary date I was told I hadn't a accursed the time even with me working 12 months. Can they do this.
Expert:  Patrick, Esq. replied 1 year ago.

Thank you for your reply. As noted above, the law does not require an employer to pay accrued vacation unless the employer has a policy that expressly so requires. So, if you would not be entitled to your accrued vacation according to your employer's policy even if your hire date was not changed because of the FMLA, then you would have no recourse. You would only have recourse if you were being denied your accrued vacation because your employer changed your hire date because of your FMLA, and due to that change in hire date, you were no longer eligible for the accrued vacation payout according to your employer's policy.

I hope this clarifies things.

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