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An employee filed a WC claim in 9/2017 and is now recovered…

An employee filed a...

An employee filed a WC claim in 9/2017 and is now recovered and ready to come back to work at full capacity. He drove a debris truck for our construction company. When he left we found that he had not done maintenance on the truck, the truck had debris piled throughout and he hadn't done other small tasks. During his 6 months away the substitute driver shined, outstanding. Now we have to figure out what to do. No one wants the original driver back.

Lawyer's Assistant: What state is this in? And how old is the truck?

CA the truck is Nissan flat bed with side rails, about 2010 model.

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

At will. full time.

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

He got a raise recently to do additional tasks that were not done. His wage is high to not drive and simply do labor. We'd like to lay him off to wait for a job that might develop in 2 months time - driving debris from the construction site OR do labor work at a jobsite at the inflated rate.

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Answered in 3 minutes by:
3/8/2018
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,120
Experience: Employment/Labor Law Litigation
Verified

Thank you for trusting your question to JA today. I am a licensed attorney with over a decade of law practice and over 20 years of experience in the legal field. I’m happy to be of assistance. (The system will automatically generate a phone call request to you. Unless I specifically state, during our discussion, that a phone call is possible, I intend to just use this chat format as I am not in a position to accept a phone call).

WC doesn't protect a person's job while they are out. The law that does that is the FMLA and it is limited in coverage to 12 weeks. One that time frame passed, the person no longer legally had a right to return to their job.

If you do not want to hire the person back, you do not have to, as long as it is clear that you aren't just punishing the person for taking WC. Explain that you have decided to keep the other driver and that you will look for a job for this person to return to, once it comes open.

If you have any further questions or other facts that you would like me to consider, please let me know. I invite follow up questions, so use REPLY for those. If you have no further questions then good luck going forward and please do not forget to rate my service with a three, a four or preferably a five star rating so that I receive credit for working with you today. Please rate me based on my service and not on your satisfaction with the law, which I am not in control of and I am just reporting to you. Also, feel free to request me in the future, if you have questions concerning a different matter.

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Customer reply replied 1 month ago
If I can ask an FMLA question regarding the selection of calculating the 12 week period - if our company selected "calendar" basis, how does that work different from counting 12 weeks from date of absence? Last day worked 9/22/17. 12 weeks was year end, so not a good example...but if his last day was 11/1/17 and 12 weeks crosses over the calendar year, how might that work?

It is 12 weeks per year and if you have selected calendar year as the turn over, then the person is entitled to 12 weeks in each calendar year.

So, if that person started their leave on 11/1/17, the would only use a few weeks in 17 and then in 18, their time would start over fresh.

However, if the person started on 9/22/17, that person ran out of protected FMLA leave coverage in 17 already, because that is more than 12 weeks to the New Year. Their protected time would have run out on December 15. So, their job was no longer protected at that point.

Now, there could be an argument that if you didn't notify him that he was no longer under FMLA protection, you waived that and now it starts over at Jan 1. That very well could be the argument made and it could work. If you gave no notice or indication at all, that can be a problem.

Unfortunately, too late, you should never use calendar or anniversary year as the 12 week basis for your FMLA. It should always be a 12 week rolling look back system to avoid this sort of situation. I haven't seen anyone use calendar for a long time, so that does change my response.

You run the risk of an FMLA complaint if you do not return the employee to his work.

Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,120
Experience: Employment/Labor Law Litigation
Verified
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Allen M., Esq.
Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 20,120
20,120 Satisfied Customers
Experience: Employment/Labor Law Litigation

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