Terminated while on FMLA, can i sue former employer?

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Latest post Mon, Dec 5 2011 10:40 AM by Drew. 6 replies.
  • Sun, Dec 4 2011 1:00 PM

    • DonOhio
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    Terminated while on FMLA, can i sue former employer?

    I was terminated from my job of nearly 14 years for misconduct/violating company policies.    I went through a lengthy process to get my unemployment compensation approved because i was originally denied and had to appeal the determination by the state of Ohio. What i had done did not meet the level of misconduct that was needed to deny my unemployment benefits under state law.  The fact that i was on FMLA as needed, and under a doctors care/taking meds was a big factor in my unemp. benefits getting approved.    My question now is, should i pursue a wrongful termination case against my former employer?  I am thinking of consulting an attorney, but thought i would ask for some advice here before i go any further.   I have suspected all along that i was terminated for reasons other than the misconduct, and now that i have won my unemployment case i wonder if i should pursue this.    Any insight would be greatly appreciated!

  • Sun, Dec 4 2011 1:33 PM In reply to

    • LG81
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    Re: Terminated while on FMLA, can i sue former employer?

    You can certainly speak with an employment attorney and see if s/he thinks you have a case, but I doubt that you do.  Please note:

    1) It is not illegal to terminate an employee while s/he is on FMLA.  It would be illegal to terminate an employee because s/he took FMLA.  Based on your prior post, nothing indicates the latter is the reason you were terminated.

    2) The fact that you were successful in winning the employer's appeal of your UIC benefits does not mean you have a case for wrongful termination.  Many folks are terminated for a number of reasons, and as long as it is not deemed gross misconduct by the state, UIC is approved.  Very few of those folks have cases for wrongful termination.  I will give you an example.  I know someone who was terminated from her job around this time last year because she was "not a good fit."  She was successful in her UI claim but definitely did not have any cause for pursuing "wrongful termination."  To be wrongful, the termination would have to be the result of discrimination against a protected class or because of protected whistleblower statutes.

    From your earlier post, you were terminated because you shared your password for a sensitive file with others.  Even though you indicate this was a common practice in the past, the employer can still terminate you for using poor judgement (and that would not be wrongful).  You could have had your back-up person with you while you chose to reset the password and then have him or her enter the new password that would be known to only him or her and then could have completed the same process (in reverse) when you returned.

     

     

  • Sun, Dec 4 2011 2:17 PM In reply to

    Re: Terminated while on FMLA, can i sue former employer?

    DonOhio:
    My question now is, should i pursue a wrongful termination case against my former employer? 

    Based on all your posts you were not wrongfully terminated.  I won't repeat what LG81 said since it would be redundant but will add that wrongful termination means you were fired for a reason prohibited by law, NOT that you believe your termination was wrong.  Being approved for UI does not mean your employer broke the law it means that UI did not agree that your termination rose to the level of misconduct egregious enough to deny you benefits.  

    It is a common misconception that being on FMLA means the employer cannot fire you.  The employer may fire you for any reason that would have caused your termination even if you were not on FMLA.  If you would have been terminated for the conduct or laid off regardless of being on FMLA the employer may take that action.  They cannot terminate you BECAUSE you used FMLA.  It does not appear your employer did that.

    DonOhio:
    I am thinking of consulting an attorney, but thought i would ask for some advice here before i go any further.

    You can certainly call a few employment attorneys.  Most will do an initial phone consultation at no charge and can tell you based upon the basic facts if there is the potential for a case and if you need to schedule and in depth paid consultation.  

    DonOhio:
    I have suspected all along that i was terminated for reasons other than the misconduct, and now that i have won my unemployment case i wonder if i should pursue this.

    You will need way more than your suspicions to sustain a lawsuit.  The burden of proof is on you to prove their conduct was illegal.  They do not have to prove they didn't if you intend to bring a suit.

     

    "That's just my opinion, then again I might be wrong."  Dennis Miller

     

  • Sun, Dec 4 2011 7:52 PM In reply to

    • Drew
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    Re: Terminated while on FMLA, can i sue former employer?

    I think its worth a detail review with local labor attorney.

    If you were properly out on FMLA and covered and supposedly terminated for reason ABC but the company failed to sustain its burden to show necessary level of misconduct --then what was the reason? 



  • Mon, Dec 5 2011 12:16 AM In reply to

    • cbg
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    Re: Terminated while on FMLA, can i sue former employer?

    The UI division determining that the employee was not terminated for a disqualifying reason, does not mean that the terminaion was a pretext.

  • Mon, Dec 5 2011 10:16 AM In reply to

    • Beth3
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    Re: Terminated while on FMLA, can i sue former employer?

    What i had done did not meet the level of misconduct that was needed to deny my unemployment benefits under state law.   Which is ONLY relevant to your eligibility for unemployment benefits.  It does not mean tht the employer didn't have a valid reason for terminating your employment.

    Since you didn't provide any information as to why you were terminated, it's not possible to venture an opinion as to whether your FMLA status was the underlying issue.

  • Mon, Dec 5 2011 10:40 AM In reply to

    • Drew
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    Re: Terminated while on FMLA, can i sue former employer?

    I strongly suggest you review your options with a labor lawyer who has successfully litigated FMLA issues from,employee side.  It may not be a bleak as others post......

    Note there is a very powerful lever--if you prevail under FMLA--employer pays your legal bills!  Attorneys will fight if they are pretty sure there is a good payday .....

    The issues of misconduct sufficent to sustain a UC issue are different  and are heard under different rules, different burdens of proof  in a different fourm as to FMLA issues.  But having failed to bear the burden as to UC , its not a slam dunk for employer as to FMLA either --given it locked itself in to a specific reason to discharge .

    And selective use of rule violation doesn't always work for an employer  as a sufficent reason to discharge while seeking  FMLA., it  didn't for Enterprise Car  as to violation of gas credit card use rules in Carter v Enterprise  

     

    But you must file rather promptly----do not snooze about.  



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