Terminating prior to actual leave

NancyJ

Here's the scenario:

A part-time employee calls benefits and asks about FMLA leave, because she is pregnant. She is advised of the process, and in the midst of this conversation she tells the benefits coordinator that she already submitted a letter (a month ago) to her worksite manager requesting the leave. We ask for a copy of the letter, and we see that she clearly asks for FMLA leave for the birth of her child, lists the dates she will be out, when she will return, her return-to-work schedule, etc. Her first day of leave is exactly a week after her one-year anniversary and she will have worked about 30 hours short of the 1250 requirement (but we don't want to quibble with that).

Here's the problem - we called the worksite manager to discuss it with him, to which he replied that he had already placed an ad in the paper to replace the employee, because he had decided to make it a full-time position. He does not plan on offering her a position when she returns from FLMA leave.

Here's the question - the employee is pregnant (clearly), and has submitted a written request for FMLA. After receiving the request, the ad was placed. Can this manager terminate the employee prior to the leave under the premise that the position has grown into a full-time one? Or do we need to honor the FMLA leave, and after she returns then tell her the position is not F/T and is she interested? If not, then we replace her?

Opinions?

juju

After reading your post, I certainly would "quibble" with the 30 hours issue. She is not eligible for FMLA or the job protection it provides. Now if your state has a more lenient law or your company wants to grant a leave anyway, fine. But it would not be FMLA.

Nrdgrrl

1. If this qualified for leave, you would have to give this person the leave as it was requested prior to the ad being placed. However, she doesn't meet the minimum. Also, do you have any other types of leave?

2. I would hate to have to defend the way the manager went about it- getting the notice and THEN putting an ad in the paper- doesn't look good to a jury- it smacks of pregnancy discrimination. Does he have any paperwork from before the request (and preferably prior to knowing of the pregnancy) that this was going to be a full time job?

3. So has he made her full time until the baby comes? Only seems fair if it's grown into that. Has anyone asked if she would like to be full time?

4. If you do decide to quibble over the 30 hours- make sure that others that were in that threshold were treated the same.

NrdGrrl

NancyJ

Thanks for the response. Re your questions/points: 1) No, we don't offer any other type of leave for part-timers. 2) My sentinents exactly! What makes it even worse is the fact that we are a group of OB/GYNs! 3) She's still part-time. He did not discuss his intentions with her or offer her more hours. 4) True - and we have made the concession in the past, mainly on the advice of our attorney. He feels that if we were called on it and an employee is close to the 1250 hours, then the judge will side with the employee. Makes us look like the big bad employer!

marc

I also worry about the pregnancy discrimination issue, perhaps more than the FMLA situation. And just to complicate matters a bit, have you overlooked the 1250 hour threshhold for other employees? That may pose a bit of a consistent treatment issue. Finally, if you are going to grant FMLA despite not meeting the 1250 hour hurdle, you must offer her a similar position on her return.

NancyJ

How sad is this? We're a group of OB/GYNs supposedly dedicated to women's health, and we don't even offer maternity leave to our employees! And when they claim FMLA leave the doctors try to replace them! Sheesh!

Don D

This whole scenario is full of problems, not the least of which is your attorney who gave you the entirely inappropriate advice that a judge would apply his own definitions and time lines to the federal FML Act. If that is the reason your company has been waiving the definition, you need another attorney. Judges do not have the authority to disregard the time lines established in the act nor to replace them with his own. But, it may take an appeal to convince him of that.

SMace

Don, you beat me to it. Totally agree with getting rid of your attorney. In my opinion that is terrible advice. So you grant it to someone 30 hours short, what about 70 hours short, then 100 hours short, then 150. You had a legal threshhold that you threw out the window. Now what threshhold will you use? 500 hours, 1000 hours?

NancyJ

Gotcha, thanks. I hate being held hostage by employees - and our attorney is a little too meek.

Thanks everyone for your advice!

Don D

A meek attorney is like a meek wrestler. There was only one meek wrestler, that German comedian guy and he died. There's a corollary and a coronary there somewhere.