Fired...while on medical leave!

Here my situation I recently had major knee surgery and was off work to have the operation and was determined physically incapacitated by my doctor until the beginning of October. My employer whom had contacted me via phone every 2 weeks while I was off work says the 3rd party company that manages off work time claimed I was supposed to be back in early September. All doctors info states not to return til 10/3/2011. They sent me an email on 9/20/2011 stating that i had missed 2 work shifts and was assumed "Resigned" from my position and terminated my employment. These 2 companies involved are large fortune 500 companies and the settlement could be quite profitable. Do I have a strong case to take to a lawsuit?

dez4real:

These 2 companies involved are large fortune 500 companies and the settlement could be quite profitable. Do I have a strong case to take to a lawsuit?

NOT so fast!  FMLA only protects your job for 12 weeks of leave regardless of how long your doctor states you need to be off.  Once you exceed 12 weeks your employer can legally terminate you or consider you having "resigned" when you don't report for your assigned shift.  That said, how long have you been off of work?

Even if there has been an error in their calculation of your time off and you still have available FMLA time, the employer is only legally required to restore you to an equivalent position of pay, benefits, and responsibility.  It will not entitle you to a "profitable settlement" as you put it.  As long as they give your job or one of equal standing they will have met the law and you will have been made whole and not entitled to anymore under the law. 

 

The wording of your post seems to indicate that you believe this is the message boards are the place to look for an attorney.  They aren't.  How big the companies are isn't even a little relevant as to the issue of settlement, I'm afraid.

In any event, not near enough info in your post to know whether the employer has even violated the law let alone whether it's lawsuit-worthy vs. just filing a complaint with the federal DOL.  If you hadn't been gone 12 weeks as of when they fired you and you would have otherwise been ready and able to go back to work before the last day of the 12 weeks was up, then feel free to file a complaint with the federal DOL and consult with an attorney.

thank you for  your response. At the time of my termination I had been off for 7 weeks.

That being the case, these questions become quite important -

1.) How long had you worked for this employer?

2.) In the 12 months immediately preceding your leave, had you worked for this employer a minimum of 1,250 hours?

 

You didn't really speak to the issue of whether you'd be ready and able to go back to work at or before the 12-week mark.  If not, then beyond filing a complaint with the federal DOL, there's no harm done here.  If you're ready to go back to work now, presumably you've already filed for unemployment benefits.

If you were ready to go back to work before the 12 weeks were up, I'd feel free to file the DOL complaint and, if you don't care to have the job back, down the road contact an attorney that handles FMLA-related lawsuits (if you do care to get the job back, a pointed note from an attorney about how they violated FMLA may do the trick -- that is assuming you were eligible for it in that you'd worked 1,250 hours in the 12 months preceding the need for leave (no small point)).  Ultimately, what you'd be able to go after is lost wages and attorney fees. 

I have been a full time employee since 4/2008 and yes, I had 1250 or more hours worked in the previous year.

Then it certainly couldn't hurt for you to contact the US DOL and inquire about filing a claim for FMLA violation.

dez4real:

At the time of my termination I had been off for 7 weeks.

It's 12 weeks per 12 month period, not per episode. 

ok thanks for the info. im paying "special" attention to the 12 weeks per 12 month period point you're making as before surgery my doctory had me off for 5 weeks while going thru evaluations and MRI tests because of the pain i was in. However, at that time i was on STD (short term disability) paid leavefrom work and was told that if I exceeded the 12 weeks allowed by STD I would then be placed on FMLA.

 

The thing thats really shady about it all is that my direct supervisor had called me every 2 weeks to get status on my leave and then sent and email to an account I dont even use anymore to tellme that she was looking for me to return to work. The change in contact method screamed to me that they were just looking for any reaon to dismiss me and the wording i was assumed 'resigned" I crazy when I submitted my doctors return to work order that same week.

 

Am I screwed here? Or there a chance at 

a. getting the job back

b. winning a suit for FMLA violation

dez4real:

im paying "special" attention to the 12 weeks per 12 month period point you're making as before surgery my doctory had me off for 5 weeks while going thru evaluations and MRI tests because of the pain i was in. However, at that time i was on STD (short term disability) paid leavefrom work and was told that if I exceeded the 12 weeks allowed by STD I would then be placed on FMLA.

THERE is the problem.  You have been off a total of 12 weeks.  STD policies ONLY provide a continuation of income they do not provide any job protection what so ever.  It is a common misconception that they protect one's job.  They do not.  Once you were put out on medical leave the employer was legally obligated to apply that time towards your FMLA so that initial 5 weeks does count towards your 12 weeks total and since you have now been out another 7 weeks that totals 12 and you have likely exhausted your FMLA time.

dez4real:

Am I screwed here? Or there a chance at 

a. getting the job back

If the employer wishes to rehire you, yes.

dez4real:

b. winning a suit for FMLA violation

Not if you have exceeded the 12 weeks which it appears you have.

 

I'm afraid that someone there wasn't quite clear on how FMLA works in terms of their explanation.  It doesn't matter if you were on "short term disability" for the other five weeks and this employee rep somehow separating in his/her mind what was FMLA and what wasn't.  Any reference to "short term disability" would seem to point to an internal policy or pay continuation program vs. anything to do with the law protecting you from losing your job for 12 weeks. 

You need to get the lawsuit thing out of your mind.  Ultimately, while someone violated FMLA regs by not clearly laying out what FMLA means, that doesn't mean there was any harm done in terms of them running afoul of the law.  FMLA protects you from being fired for being absent from work for 12 weeks, but you got yours, so ... (and it isn't as though you'd have magically been ready to return from work weeks sooner regardless even if they'd told you from the first moment you needed to be out (the 5 weeks) that you only had 12 weeks' worth of job protection).

"The thing thats really shady about it all is that my direct supervisor had called me every 2 weeks to get status on my leave ..."

Well, she oughtn't have unless your medical certification/status was up in the air and you or someone else was wishy-washy about how long you'd be out (if you were, that's presumably why; if the powers that be had info that you'd be out until X date and someone didn't convey that to her, they made a mistake).  It doesn't really matter that she sent email to the wrong address -- that's a red herring issue.  Doesn't change the fact that you got your 12 weeks' worth of job protection.

They wouldn't need a reason to let you go the moment you'd used up the 12 weeks; if someone there thought otherwise, they were mistaken.

Can't know whether it's possible for you to get the job back, but ultimately, if you did, it wouldn't be because the employer was obligated to do so (even if they'd flat-out fired you only after being gone for 7 weeks total).

I'd file a complaint with the federal DOL about how they mishandled dissemination of info (though of course they could pretend as though they didn't -- don't know how successfully).  You're free to see if someone's so ignorant of the regs that they'd cave to a nasty letter from an attorney, I suppose.

dez4real:

before surgery my doctory had me off for 5 weeks while going thru evaluations and MRI tests

dez4real:

Am I screwed here? Or there a chance at 

a. getting the job back

b. winning a suit for FMLA violation

FMLA is job protection, not a private cause of action.  If you exceeded 12 weeks in a 12-month period, your FMLA job protection no longer existed and you could be legally fired for not showing up to work.  STD has nothing to do with FMLA protections. 

Timelines are critical.

It reads as if you were fired well before your FMLA ran out  but I don't have all the details --and there are some issues as to sequential leaves vs concurrent leaves which are beyond me.

Lay it out carefully on paper--then review it with labr lawyer who litigates on FMLA isses.

Federal law has provision for attorney fee recovery if your side prevails

 

ok i went thru ALL my documents and it appears they "Fired" me on Day 84 that i was off total (84/7(days a week)=12 (weeks off). IPretty smart of them Eh? This is why I brought up the question of and email sent to and old account. When every communication I've had with them was by phone andf when something as important as my job is at stake (having NEVER received and email in 4 years of employment) with them, they send me an email saying I ignored there attemtsto contact me and assumed i resigned.

 

I dont't dispute that my STD aor or FMLA time had expired and I'm ever so grateful of your explanations (I learned a lot). Was the 3rd party company or my own employer obligated to explain to me what could occur on day 84? Is the absence of  phone call from either company (since the had 100% success contacting me that way and the policy states to makes sure a current phone number is available not email) negligent as far as info dissemination?