FMLA

stellad · October 2005

Hello formulites, I post rarely but I need your help, We have an office manager in our New Jersey terminal who became ill and is now on her 11 week of fmla, now she is a salary (key person), my problem comes now, we have done great without a office manger all this time and the powers to be be have decided to abolish the office mgr position, in the mean time she has notifed us that she will need another 4 weeks off, can I mail her via certified mail and let her know that her job has been eliminated, of course We will be kind and let her know. do you think there would be a problem? please let me know, I need to do this by the 31st
thanks stella

HR in CA · October 2005

We had the same thing happen 3 years ago. The employee filed a complaint with the Department of Fair Employment and Housing (DFEH). They contacted us and said it would be in our best interest to pay the sum of $11,000 the amount employee said she would settle for. We declined. 3 days before the one year anniversary of the filing (which would of been dismissed the same DFEH employee said it would be in our best interest to pay $4,000 the amount the employee would now settle for. Once again we declined. This opened an investigation. They asked for our hiring and termination information for 6 months before and 1 year after the complaint. They interviewed those in the department, etc. Bottom line, we won! But we had tons of documentatin showing the position would of been eliminated regardless. You must be rock solid with proof to show the job would of been eliminated even if the employee would not of been on FMLA. Based on the post this may not be the case.

What have you done previously when an employee has depleted all of their FMLA? If you terminated in the past, you should be able to do so now. Be consistant in your policy and practice!!

stellad · October 2005

In the past, the employee has used all the time but accepted that we could not hold his or her position. This ee wants to come back but Management had decided before that we did not need a office manager, I think she had that feeling because she went out for low blood counts. Our lax terminal does not have an office mgr and we were shooting for that for our new jersey terminal.

Down_the_Middle · October 2005

I would make the decision w/o regard to the FMLA issue. If the position is no longer needed, then I would proceed. You'll likely get some push-back suggesting that this might be retaliation, but presumably you have supporting documentation of why the POSITION is being eliminated and if it weren't for the FMLA her departure would occur anyway.

Whatever · October 2005

>, now she is a salary (key
>person),

Just because a person is salaried, it does not mean they are a key person under FMLA (and if they truly were a key person under FMLA they would not be entitled to the leave). Also, since her job is being eliminated, she is not a key person.
Since you do not have an office manager in your LAX terminal, eliminating the job should not be a problem (though ideally, they should have thought about eliminating before the office manager got sick).

marc · October 2005

Agree with Whatever - do not take the Key Employee tact. The person is not key by definition, and even if they were, you have not jumped through the FMLA hoops (which are really quite extensive) with respect to how to handle a key employee.

The part of you post that I found confusing is that you did not decide to eliminate the job until the EE was out on FMLA - that reads like you thought you needed the position until you found out you could run the terminal without her.

Later you said something different. You are lucky this person needed additional leave or you would probably have been forced to jump through the hoops of reinstating her to the job she left, and then try to eliminate the position while trying to avoid the appearance of retaliation.

stellad · October 2005

Thank you all for the advice
stella

Gillian3 · November 2005

This is dangerous. You need legal advice. The problem is that this decision came after she was gone because you found out that you could do the work without her. That is not the same as a layoff for lack of work (a legitimate reason to refuse to reinstate) because if she hadn't been out on FLMA you wouldn't have figured it out in the first place. My material provides four examples of when it would NOT be appropriate to refuse reinstatement. One of them is "You distribute the duties of an employee on family leave to several other employees and find that they can handle the additional work." Get some legal advice before you do anything with this one.

pork1 · November 2005

I concur, I'm sorry I'm coming in late on this one. In our case the employee would have already terminated herself because she did not return on the first day after the FMLA finish date. 12 weeks is the maximum without application for additional time off without pay. Terminate in accordance with your approval letter for the FMLA case and you do not or should not have to face the legal issues of position abandonment. This is one of the reasons for putting a sun set date and time for return to full time employment in your approval letter. So what did your approval letter say is the sunset for this FMLA case?

PORK

FMLA

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