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I work for the SF City and County. I have a cyst the size of…

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I work for the...

I work for the SF City and County. I have a cyst the size of a golf ball on the back of my hand. I applied for Workman's Comp, but was denied later on in the process working with my WC physician. I am also a whistleblower and the City Attorneys Office has been threatening me on a regular basis indicating I am under investigation. The reason why has yet to be disclosed. Now, I am having panic attacks for this constant retaliation for filing complaints with the Ethics Commissioner, Controller's Office and the Civil Service Commission. HR has tried everything they can to apply constructive discharge, but I cannot quit my employee because by husband is disabled. He received kidney transplant and the anti-rejection drugs are more than we can pay for without private insurance. Now, I was allowed SDI to recover from the panic attacks at work. Instead, the Civil Rights division of HR submitted a fraudulent FML 3 indicating that I have been approved for the continuous FMLA and CFRA without my physician's approval and filing of a FMLA 2 form. They cannot due this to me - can they?

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

California San Francisco

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

Full time.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I was a paralegal for the US DOJ for nearly ten years. It is unbelievable that filing a complaint for misappropriated Federal and State funds, and a number of other violations would cause such retaliation for over 2 years. I guess San Francisco does not honor the whistleblower protection act. Most of my contacts with attorney's has led me denial of any legal assistance. Can the City attack my health coverage as well. Thank you

Submitted: 7 months ago.Category: Employment Law
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Answered in 2 minutes by:
12/18/2017
Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago
Legal Eagle
Legal Eagle, Lawyer
Category: Employment Law
Satisfied Customers: 14,054
Experience: Licensed to practice before state and federal court
Verified

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today. Because I want to provide you with the most accurate answer possible, do you mind if I take a moment to review your question?

Please keep in mind that our conversation does not include an attorney-client relationship and this is for general information purposes only.

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Customer reply replied 7 months ago
Good luck. I have also filed a complaint with the CA State Bar. They are aware of the complaints and the City Attorney's Office as claimed "Plausible deniability". Not surprised. Thank you and I think I know what the answer is already.
Customer reply replied 7 months ago
No. I am also on the phone with HR and my physician's letter that is allowing me to return to work may not be acceptable to them. I cannot even speak right now because of the retaliation that is taking place. How can I stop them from doing this to me?
Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago

Oh, that’s not a problem with the phone call. The system automatically asks if you want one, but there is no problem declining the request. One moment while I review your situation.

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Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago

I'm sorry to hear about your situation. If I can clarify your concern, your FMLA was unapproved because they believe you submitted information fraudulently?

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Customer reply replied 7 months ago
No, I had intermittent FMLA approved never continuous. My Workman's Comp was denied, which is the norm for SF. I was approved for SDI for 6 weeks. HR sent me a FML 3 showing that I was approved for the continuous FMLA and CFRA for the same time period and that I needed to a letter from my physician to return to work. This FML 3 is fraud by the HR in that I never applied for continuous leave and my physician never approved such a leave.
Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago

You may have to educate me on what an "FML 3" is exactly. As far as I understand, it looks like your employer is claiming that you were on FMLA and worker's comp at the same time, but this wasn't the case, correct?

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Customer reply replied 7 months ago
Sorry for my typing. I am having difficulty with my pain occurring on my left hand. Plus, while on WC the physician had submitted an accommodation request for limited typing. There was no discussion about the limited work and I was sent home immediately. I filed a complaint with HR reporting that there was no discussion regarding the denial and no form indicating as such.
Customer reply replied 7 months ago
No, my WC was denied on 9/1/2017. I applied for SDI on 11/132/2017. The FMLA 3 form is the form provided to the employee reporting approval of FMLA - but it was continuous, not intermittent that was already approved.
Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago

Ok, I think I understand. So, help me understand what your primary question is regarding this? I don't want to make any presumptions.

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Customer reply replied 7 months ago
Is the filing of the FML 3 from fraud on the HR's part. HR cannot approve the continuous FMLA leave without a physician's approval by filing the FML 2 form. My physician never approved and I never filed the FML 2 form for continuous leave.
Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago

I see what you mean. Thank you for clarifying. Unfortunately, I don't believe that this would constitute fraud. Fraud is generally something that must be done with intent to defraud someone. Only if they were intended to defraud you or defraud some other individual through issuing the FML 3 form, would they be liable for any kind of fraud. Does that make sense?

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Customer reply replied 7 months ago
No. The rights and responsibility of the employee is to obtain a valid FML 2 by a licensed physician that would approve a the continuous leave. They have given me the approval without the physician's approval. This is like a pharmacy providing a drug without a physician's Rx. There is intent to defraud me and require that I abide by the return to work regulations under FMLA rather than SDI. This is what is happening. The Dept of Labor even reports on the form that if the Employer harasses you causes any harm in the process, I may report it to them. I think that this is what I will do. Sorry and I hope I educated you somewhat on Employer fraud.
Employment Lawyer: Legal Eagle, Lawyer replied 7 months ago

Hi, unfortunately, I don't know if I can help you with this. I don't believe that this is fraudulent unless someone intentionally did something to gain some benefit; however, I don't know if I can see that there was intent and I don't know that they gained anything by providing this. FMLA and SDI have similar regulations, it's only that FMLA just allows you to be off work and SDI pays you while you're out of work. With that said, let me opt out of this discussion and let another expert who may be better qualified to answer your question do so. Thanks.

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Employment Lawyer: Law Educator, Esq., Attorney replied 7 months ago
Law Educator, Esq.
Category: Employment Law
Satisfied Customers: 126,697
Experience: 20+ Years of Employment Law Experience
Verified

Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only. Please feel free to ignore any phone service request, the expert does not send those unless asked by customer and they are sent by the site automatically.

I am a DIFFERENT CONTRIBUTOR, as your previous contributor had to leave.

The issue with FMLA is it is granted for any qualified condition known to the employer. It is up to the employer as to what type of documentation they require for the leave and if the employer wants to approve continuous leave without a doctor's recommendation, that is up to the employer, but it is not fraud.

As far as an employee returning to work, it is up to the employer to make a determination with medical support as to whether or not an employee is safe to be in the workplace. If the employer refuses to allow an employee back to work once an employer has cleared them, then this can be discrimination under the Americans with Disabilities Act and you can file a complaint with the EEOC regarding that discrimination.

The problem I see here is the retaliation you are claiming and that is a completely separate issue that you may want to pursue against the employer, since they cannot harass, intimidate or retaliate against you for making complaints of that nature with the employer or with any government authorities. If the employer is engaged in such retaliation then you need to seek out a local employment discrimination attorney and pursue a retaliation suit against the employer for that retaliation.

Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.

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Customer reply replied 7 months ago
Thank you. However the FMLA rights and responsibilities state that it is up to the employee to obtain physician certification for continuous leave. I was already approved for intermittent leave. Now I know the reason is that they have put me on admin leave, when they were trying to get FMLA to pay for it. That maybe fraud.
Employment Lawyer: Law Educator, Esq., Attorney replied 7 months ago

Thank you for your reply.

It is up to the employee to supply the necessary information upon demand of the employer. If your employer did not ask for it AND your employer is not receiving benefit from this submission, but you are, then it is not "fraud" in the sense you are thinking. Your employer can grant you leave as they see fit is the issue here. In order to win a fraud case against them, you have to prove they obtained some gain from giving you continuous FMLA leave.

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