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RobertJDFL, Lawyer
Category: Employment Law
Satisfied Customers: 13506
Experience:  Experienced in multiple areas of the law.
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My son had accounting job in NYC. I got him into rehab for

Customer Question

my son had accounting job in NYC. I got him into rehab for substance abuse December 1-23. He is doing great. Went back to work on Jan 3 and on Jan 6 got fired. I thought under FMLA they had to keep position or give position of equal responsibilities. Was this a violation on their part?
JA: Because traffic laws vary from place to place, can you tell me what state this is in?
Customer: Lives in NJ, and job was in New York City
JA: Has anything been filed or reported?
Customer: Just disability, which unfortunately only gives him $170 a week with the first week out not covered. So being paid for 16 days under disability at this rate. He has two children.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Not sure.
Submitted: 6 months ago.
Category: Employment Law
Expert:  RobertJDFL replied 6 months ago.

Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

Expert:  RobertJDFL replied 6 months ago.

Good morning,

I'm going to presume that your son was otherwise eligible for FMLA, properly informed his employer that he was taking FMLA, etc. You are correct that upon return from FMLA leave (whether after a block of leave or an instance of intermittent leave), the FMLA requires that the employer return the employee to the same job, or one that is nearly identical (equivalent).

If not returned to the same job, a nearly identical job must:

  • offer the same shift or general work schedule, and be at a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance);
  • involve the same or substantially similar duties, responsibilities, and status;
  • include the same general level of skill, effort, responsibility and authority;
  • offer identical pay, including equivalent premium pay, overtime and bonus opportunities, profit-sharing, or other payments, and any unconditional pay increases that occurred during FMLA leave; and
  • offer identical benefits (such as life insurance, health insurance, disability insurance, sick leave, vacation, educational benefits, pensions, etc.).

An employer can't retaliate against an employee for taking leave by firing him or her. An employee on FMLA leave may be terminated, however, if the reason isn't retaliatory. If the employer needs to reduce staff, for example, or because of misconduct or poor work performance, employees who were on leave are not entitled to any greater protection against termination than other staff.

Arguably, while New York is an "at will" employment state -meaning that in the absence of an employment contract or union agreement, an employee may be terminated for any reason at any time, so long as it is not unlawful (e.g., you cannot be fired because of your race or religion)- the timing of your son's termination is highly suspect and the employer will be under pressure to show that it was unrelated to his FMLA leave.

If your son believes he was wrongfully terminated, he may file a complaint with the Wage and Hour Division of the Department of Labor. They will investigate the claim and may attempt to resolve the matter administratively, and in some cases, may even file a lawsuit on behalf of an employee.

An employee also has the right to file a private lawsuit under the FMLA in any Federal or state court of competent jurisdiction. The FMLA is subject to a statute of limitations. This means that, generally, suit must be filed within two years after the last action that the employee believes was in violation of the FMLA, or three years if the violation was willful. (It is up to the court to rule whether the alleged violation occurred and, if so, whether it was willful.) I would highly recommend that your son contact an employment lawyer to discuss what happened if he is thinking about filing a suit.

Expert:  RobertJDFL replied 6 months ago.

Was there anything I could clarify about my response or additional information you needed?

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