Position Eliminated while on FMLA/Maternity Leave

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Latest post 01-03-2011 1:52 PM by JLang30. 8 replies.
  • 12-03-2010 5:34 PM

    • JLang30
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    Position Eliminated while on FMLA/Maternity Leave

    Hi all.

    I took approved (meaning my company fell under all FMLA eligibility requirements) FMLA leave for the birth of my first child. I took a total of 10 weeks of leave (eligible for 12). Upon return to work, I was stopped at the front door and told my position had been eliminated while I was gone. They said that my job duties had been disbursed among the remaining office employees and they were able to handle the extra duties with no problems, therefor, they no longer needed my position. They also claimed that the company was experiencing financial harships and this was also part of the reason my position had been eliminated. (Just an FYI- the financial hardships claim is bull and the company experiences gains EVERY year. Plus, my position is the only one that was eliminated within a company of over 300+ employees. Sorry, but a $28K salary isn't going to save a company from financial hardships.)

    Anyway, would it be considered a violation of FMLA because they eliminated my position as a direct result of my leave? Had I not taken leave, they would never have disbursed my job duties, and my position never would have been eliminated. I know for a fact that they cannot prove that my job was in danger before I took leave.

    One more thing, they also never offered me an equivalent position and said that none were available. However, the admin assistant in our office was "promoted" while I was gone to HR assistant. The HR assistant position was created while I was gone and was not a previous position held by anyone else. So not only was the company NOT experiencing financial hardships like they say it was, they were in fact creating new positions!

    Anyone have anything similar happen? What was the outcome?

    Thanks!!

  • 12-04-2010 12:54 AM In reply to

    • cbg
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    Re: Position Eliminated while on FMLA/Maternity Leave

    I can't carve anything in stone for you on the basis of a short post. But I think you have definite cause to contact the US DOL and file a report of a potential FMLA violation. They'll sort it out for you.

  • 01-03-2011 12:38 PM In reply to

    • JLang30
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    • WI
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    Re: Position Eliminated while on FMLA/Maternity Leave

    Thanks. I did contact the DOL, but they are skirting the issue and refuse to do a proper investigation. I am having a hard time talking to anyone beyond the guy who answers the phones.

    Without a DOL ruling on the situation, no lawyer will even touch this case.

    Does anyone have any advice on who I can talk to besides the Wage & Hour Div?? I am tired of them brushing this off.

  • 01-03-2011 12:55 PM In reply to

    • cbg
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    Re: Position Eliminated while on FMLA/Maternity Leave

    Since the regulatory agency for FMLA is the DOL, your options are the DOL or an attorney. It doesn't fall under anyone else's jurisdiction.

  • 01-03-2011 1:10 PM In reply to

    • Drew
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    Re: Position Eliminated while on FMLA/Maternity Leave

    There are two separate jurisdictional issues --your state medical leave and the federal FMLA--it seems like you are covered by FMLA but its debateable if all your needs add up to 10 under state laws--pure maternity is but 6 in your state.

    True, employer must offer you your position back or an equivalent one but the rules do provide an exception if your position was eliminated. (as in context of business downturn etc)

    If they need to bump somebody else--thats not your direct concern.

    Whatever it is you are doing--you need to be postive you are filing timely written complaints to the appropriate agency and following the rules to a T.

    Now your version of the story (I'm sure the other side differs)  sure seems to suggest that the reassignment of duties as all to convenient to serve as a single excuse to avoid  placing you back on staff. Far too conveniet if you were the only one  subjected to job consolidation . I reality your position wsa not eliminated but disbursed--and I'm sure a seasoned labor lawyer can quickly blow a hole in that verson of the company logic.



  • 01-03-2011 1:20 PM In reply to

    • Drew
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    Re: Position Eliminated while on FMLA/Maternity Leave

    Part of your practical problem may be who is going to pay for expensive litigation.

    I frankly do NOT know what the WI statute  at 103.10 provides for attorney fee recovery for violations of state law..but I suspect it is rather limited and your options under state statue are limited as you may have been out too long.

    The Federal laws may be more liberal if you are the prevailing plaintiff -and some attorneys will undertake the task knowing there is a deep pocket if one wins  -but fee collection is not a cakewalk.

    "The employer may be liable for the employee’s lost wages, salary, benefits, or other monetary losses, plus interest.  Additionally, the employer may be liable for an additional liquidated damages amount equal to the amount of the employee’s actual losses plus interest.  The court may also issue appropriate equitable relief, such as reinstatement or promotion. See 29 U.S.C. § 2617(a)(1). Attorney’s fees and costs are also available to a prevailing plaintiff. See 29 U.S.C. § 2617(a)(3)."



  • 01-03-2011 1:21 PM In reply to

    Re: Position Eliminated while on FMLA/Maternity Leave

    " but they are skirting the issue and refuse to do a proper investigation"

    Why won't they investigate? What are they telling you?

  • 01-03-2011 1:48 PM In reply to

    • JLang30
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    • WI
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    Re: Position Eliminated while on FMLA/Maternity Leave

    Drew:

    There are two separate jurisdictional issues --your state medical leave and the federal FMLA--it seems like you are covered by FMLA but its debateable if all your needs add up to 10 under state laws--pure maternity is but 6 in your state Correct. My state FMLA and maternity leave benefits were up as of 6 weeks. I was told to file under state law (DWD) just to cover my bases, but I was well aware that this was not a state issue, rather a federal one.

     True, employer must offer you your position back or an equivalent one but the rules do provide an exception if your position was eliminated. (as in context of business downturn etc)

    Now your version of the story (I'm sure the other side differs)  sure seems to suggest that the reassignment of duties as all to convenient to serve as a single excuse to avoid  placing you back on staff. Far too conveniet if you were the only one  subjected to job consolidation . I reality your position wsa not eliminated but disbursed--and I'm sure a seasoned labor lawyer can quickly blow a hole in that verson of the company logic.

     They gave two reasons as to the elimination of my position. 1.) Financial hardship (which is NOT true and can quickly be shot down with a simple glance at company financial records.) 2.) The disbursement of my duties could be handled by remaining staff.

    Now, if I could just get the DOL to take me seriously or to return my phone calls, they would see that my position was eliminated as a direct result of my FMLA leave. Had I not taken leave, my job duties never would have been disbursed and my position never would have been eliminated. Wouldn't burden of proof lie with the company to somehow prove that my job was in danger of being eliminated BEFORE I took leave?? And yes, my position was the only one eliminated in the entire company!

    I found a case cite that is almost identical to mine. The employee won because the company could not prove that her job was in danger before she took her maternity leave. The court concluded that if she had never taken FMLA leave, her job never would have been disbursed among other employees and her position never would have been eliminated.

     

  • 01-03-2011 1:52 PM In reply to

    • JLang30
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    • WI
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    Re: Position Eliminated while on FMLA/Maternity Leave

    Arthur3:

    " but they are skirting the issue and refuse to do a proper investigation"

    Why won't they investigate? What are they telling you?

    They won't tell me why they won't do an investigation. I filed a complaint with them in April 2010. I was told that the DOL was "behind" by about 8 months and it might be a while before I hear anything. Ok, fine. I waited until November and called them to see what the status of my claim was. The man I talked to said "I see this was marked as "closed, no investigation" on May 18th,2010"

    I asked how they could just close a claim without having ANY of the facts except that I called to report a possible violation. His response was "I don't know. I will have my supervisors look in to it when they return on Monday." I never received another call from them. I left another message and still haven't heard back. I am running out of time here....

    The sad part is that the DWD (state) did a full investigation already and said that their hands are tied because the state limitations run out at 6 weeks. But even they said I should push the Feds for an investigation. It seems like everyone knows that I have a legitimate claim except the DOL. I am tempted to drive to Madison to talk to someone in person....

     

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