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My son-in- law was dismissed from his position at Ginna

My son-in- law was...

My son-in- law was dismissed from his position at Ginna Nuclear Power Plant where he has worked since 2009 in the IT department on 3-12-18 as he was getting ready to turn in his paperwork for FMLA leave for the birth of his 3rd child scheduled for a C-Section on 3-23-18.

Lawyer's Assistant: Has your son-in-law discussed this scheduling issue with a manager or HR? Or with a lawyer?

Yes They said they were going to replace him with a contractor for less money and they cut their health insurance off as of today

Lawyer's Assistant: Is the workplace "at will" or union? Is the job hourly or salaried?

He is salary I believe

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

He had called HR on Thursdsay 3-8-18 to let them know the doctor signed the paperwork and he would be turning it in on that Monday. Just trying to give them a heads up . He went it that Monday and was terminated

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Answered in 3 minutes by:
3/19/2018
Attorney Wendy
Category: Employment Law
Satisfied Customers: 1,188
Experience: Member at Keefer & Keefer LLC
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Hello. My name is ***** ***** I am an attorney. I am currently working on a response to your question and should have that to you shortly.

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First, I am sorry your son is dealing with this issue. The timing of his termination is certainly suspicious. Under FMLA, an employer cannot retaliate against an employee for requesting leave to which he is entitled. That said, this one presents a potential disconnect in that the employer could claim - though I don't know how valid it would be - that the person who made the termination decision did not yet know about the upcoming FMLA request and leave since the formal request had to yet been made. This would sever the relationship between the request and the termination. If the employer cannot show that is the case, then the issue becomes was the request for leave a motivating factor in his termination. If he had no prior issues with performance, disciplinary concerns, performance concerns or the like during his employment prior to this time, it may be difficult for his employer to show - which they would need to show - that he would have been terminated regardless and the reasons for that termination would have to be undisputed (e.g., it was undisputed he had been absent 5 days, or that he had a mediocre performance review, etc.). It also seems a bit suspicious that they told him he was being replaced by a contractor without being offered the opportunity to transition from employee to contractor, but that is another issue that may or may not be related.

I do believe there is enough here that he should consider writing a letter stating his belief that the termination was in retaliation for his intended leave request and asking for a copy of or the chance to review his personnel file to determine if the employer could argue any other basis for the termination. Courts are generally faced with this issue when a termination occurs right after the formal request for leave; here, your son will have to show that those making the decision to terminate knew he was going to request the leave and, if he can do that, he may have a legal claim.

I hope this is helpful. If you need further assistance, please reply to this email. If I answered your question and provided excellent service, I would greatly appreciate your 5 star rating at this time.

Please note: This information is for educational purposes only and is not legal advice. No course of action is being proposed and no attorney-client relationship or privilege has been formed as a result of this conversation.

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Customer reply replied 4 months ago
Thank you for your help and all HR calls are recorded. He had just gotten a pay raise and a bonus a month prior. Strange for someone who is not working up to potential. Thank You again He had his papers in hand also to turn in. Coincidential? Humm

With the HR call and then being terminated literally the next business day after talking with HR about turning in his FMLA leave form, your son should definitely consider looking into a claim. For whatever reason, it certainly looks on the surface that he would not have been terminated had he not been planning leave. I am glad I could provide some help. Best of luck to your son and let me know if you need anything further.

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I apologize - I typed a response to your comment a bit ago and apparently it did not post. If HR records calls such that there is clear evidence that your son informed HR of his intent to turn in his paperwork just a few days later for leave, the decision to terminate, particularly in the light of his good performance, raises red flags and he may want to consider legal action under the circumstances. It certainly seems more than coincidental from my perspective.

Attorney Wendy
Category: Employment Law
Satisfied Customers: 1,188
Experience: Member at Keefer & Keefer LLC
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