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I am a career law clerk for a U.S. District Court Judge. I…

Customer Question
I am a career...

I am a career law clerk for a U.S. District Court Judge. I have two elders w/ serious medical conditions. HR told me I have 359 hours of my own sick leave remaining this year to care for them & I could invoke my 12 week FMLA time. THe difficulty, I've been told, is that there is no funding to bring in a temporary law clerk. Do I lose my rights because of that &/or because I serve at the pleasure of the Judge? Any insight you could provide would. Be much appreciated. Thank you--

Lawyer's Assistant: Since laws vary from place to place, what state is this in?

Arizona

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

There is none - I am a federal government employee.

Submitted: 10 months ago.Category: Employment Law
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Answered in 7 minutes by:
9/22/2017
Employment Lawyer: Law Educator, Esq., Attorney replied 10 months ago
Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 126,810
Experience: 20+ Years of Employment Law Experience
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

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Employment Lawyer: Law Educator, Esq., Attorney replied 10 months ago

Under FMLA, the law guarantees you 12 weeks of protected leave for qualified medical conditions or to care for immediate family with qualified conditions. If you cannot return after 12 weeks you may be terminated, but during the 12 weeks under FMLA they cannot terminate you for using such leave and you must be returned to the same or substantially similar position at the same or greater rate of pay.

Even though you are at will and serve at the pleasure of your judge, the 12 weeks of leave are guaranteed protection under federal law as long as you qualify under FMLA regarding having been employed for at least 12 months and working 1450 hours during that 12 months.

There is an exception to FMLA for "key employees." In order to deny restoration to a key employee, an employer must determine that the restoration of the employee to employment will cause "substantial and grievous economic injury" to the operations of the employer, not whether the absence of the employee will cause such substantial and grievous injury. An employer may take into account its ability to temporarily replace or do without the employee on FMLA leave. If permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from restoration.

An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer determines that substantial and grievous economic injury to the employer's operations will result if the employee is reinstated from FMLA leave.

As soon as an employer makes a good faith determination that substantial and grievous economic injury to its operations will result if a key employee is reinstated, the employer must notify the employee in writing of its determination, that it cannot deny FMLA leave, and that it intends to deny restoration to employment on completion of the FMLA leave. This written notice may be served in person or by certified mail.

If the key employee exemption is applied, it is possible for the employer to legally not restore you after FMLA. You can appeal the decision through the employer's internal appeals process and if you can prove that the employer would not sustain economic harm TO RESTORE YOU, you can defeat their claim you were a key employee.

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