Employment Law

Employment Law Questions? Ask an Employment Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Employment Law

Marsha, I asked a questions last week about my FMLA rights.

Customer Question
Hi Marsha,I asked a questions...
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: 1 year ago.Category: Employment Law
Show More
Show Less
Ask Your Own Employment Law Question
Customer reply replied 1 year ago
Hi,Here is the response from my employer.
Answered in 1 hour by:
9/19/2016
Employment Lawyer: Marsha411JD, Lawyer replied 1 year ago
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,548
Experience: Licensed Attorney with 29 yrs. exp in Employment Law
Verified

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.

Ask Your Own Employment Law Question
Ask Marsha411JD Your Own Question
Marsha411JD
Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20,548
20,548 Satisfied Customers
Experience: Licensed Attorney with 29 yrs. exp in Employment Law

Marsha411JD is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

I must thank you all for such a positive and knowledgeable Expert in your Employment Law category. She has provided much relief and answers for me in the midst of dealing with a case. I am totally pleased with her customer service and care.

MildredWashington, DC

Excellent direction from Socrateaser to help me preserve and pursue my rights as a proud American who has become unemployed in this messed-up economic downfall. Thank you

Happy CustomerDenver, CO

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

8,184 satisfied customers

JD, BBA, recognized by ABA for excellence.

Allen M., Esq.

Allen M., Esq.

Employment Lawyer

12,549 satisfied customers

Employment/Labor Law Litigation

Marsha411JD

Marsha411JD

Lawyer

20,548 satisfied customers

Licensed Attorney with 29 yrs. exp in Employment Law

Infolawyer

Infolawyer

Lawyer

12,054 satisfied customers

Licensed attorney helping employers and employees.

JB Umphrey

JB Umphrey

Lawyer

6,273 satisfied customers

Assisting employees and employers for over 14 years.

John

John

Employment Lawyer

3,912 satisfied customers

Exclusively practice labor and employment law.

Dimitry K., Esq.

Dimitry K., Esq.

Attorney

3,007 satisfied customers

I provide employment and discrimination law advice in my own practice.

< Previous | Next >

Related Employment Law Questions
I was on FMLA. My position with the company was considered
I was on FMLA. My position with the company was considered critical so four weeks out they hired the PRN person to do my job. I returned to work after 8 weeks. Now I am having to train my replacement … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
Out on fmla, my manager, hr department and payroll
Out on fmla, my manager, hr department and payroll department are not responding to my requests to view my time off accrual reports. My paychecks have been incorrect and I've asked to review my accrue… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
FMLA protects job rights for up to 12 weeks. Does Worker's
FMLA protects job rights for up to 12 weeks. Does Worker's Compensation law protect or provide return to work rights beyond 12 weeks (assuming we run WC absence concurrent with FMLA absence)? (Questio… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Second opinion] My husband went out on FMLA effective Oct 5,
second opinion] My husband went out on FMLA effective Oct 5, 2017 for what was to be a 3-4 week leave for surgery/recovery for his colon. His company said he had to use his vacation time then after 29… read more
Attyadvisor
Attyadvisor
Doctoral Degree
7,121 satisfied customers
I have an employee out on FMLA that was to return on January
I have an employee out on FMLA that was to return on January 3rd. They have not been in correspondence or called, returned calls ect. Their paperwork states that they would be out for 6 weeks. They st… read more
LawGuy
LawGuy
Juris Doctor
123 satisfied customers
Can a doctor decide how many FMLA forms should be signed per
can a doctor decide how many FMLA forms should be signed per family? … read more
Allen M., Esq.
Allen M., Esq.
Employment Lawyer
Juris Doctor, Cum Laude
12,549 satisfied customers
I recently applied for FMLA for 1 month at my workplace
I recently applied for FMLA for 1 month at my workplace stating the reason that I need to go back home to take care of my sister who is sick but was denied … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
My 12 weeks of my FMLA expires but I�m still out on
Second opinion] My 12 weeks of my FMLA expires but I�m still out on disability my manger tell me that they can replace me if the want to since I�m noblonger protected I see that true… read more
RobertJDFL
RobertJDFL
Attorney
Juris Doctorate
5 satisfied customers
Under the FMLA can an injured worker who is a qualified
Under the FMLA can an injured worker who is a qualified injured worker be placed in a position that will displace a regular associate already in that position? … read more
Ray
Ray
Lawyer
Doctoral Degree
30,828 satisfied customers
If an employee has fmla for bronchial issues and uses a
If an employee has fmla for bronchial issues and uses a spray agent that could trigger it when theyre not suppose to be using it anyway is that something that fmla is held accountable for? Its self in… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
I became disabled, I took FMLA, with 4 extensions, had bilat
I became disabled, I took FMLA, with 4 extensions, had bilat knee replacement, went back to work and lost 30 percent of my pay … read more
Marsha411JD
Marsha411JD
Lawyer
20,548 satisfied customers
I'm approved for FMLA specifically to take my mother to her
I'm approved for FMLA specifically to take my mother to her oncology appointments. I gave 30 days notice of the appointment and made sure it was on my employers approved days. My employer required me … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers
I asked for FMLA PAPERWORK AND WAS FIRED. Arkansas I am also
I already have intermittent FMLA for narcolepsey and am covered by the ADA. I was fired because they said that I was over the companies 80 hour rule. However after further investigation. I was actually at 79.25 hours.… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Regarding doctor refusal to complete FMLA forms for
Regarding doctor refusal to complete FMLA forms for documented 100% Service Connected disabled veteran who was Medically discharged from the military due to his injury (works a job with modification, … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers
If you are on fmla can you do work that is of a different
if you are on fmla can you do work that is of a different type that does not aggravate your condition… read more
Phillips Esq.
Phillips Esq.
Attorney
Juris Doctor
18,316 satisfied customers
Is it a violation of FMLA if the employer knew that an
Is it a violation of FMLA if the employer knew that an employee had a serious health issue and fired that employee, when 12 weeks of FMLA could have resolved the issue. … read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
12,054 satisfied customers
I submitted FMLA paperwork for reinstatement of my FMLA and
I submitted FMLA paperwork for reinstatement of my FMLA and it's been 8 days. I haven't received approval, denial or a request for more information. How long do I have to wait for an answer either way… read more
Dwayne B.
Dwayne B.
Juris Doctor
28,688 satisfied customers
This concerns FMLA; the use of FMLA is limited as I
This concerns FMLA; the use of FMLA is limited as I understand it. However, can you give credence to whether an employee can use FMLA in conjunction with a previously scheduled vacation out of country… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
7,307 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x