LAY OFF OR FMLA
afpgraves
7 Posts
I HAVE A FRIEND WHO I THINK WAS DONE WRONG BY HER EMPLOYER, A LARGE EMPLOYER WHO SHOULD HAVE KNOWN BETTER. JUST WANTED TO RUN THIS BY SOMEBODY TO SEE IF I AM INSTRUCTING HER CORRECTLY.
SHE WAS PREGNANT, HER EMPLOYER WAS LAYING OFF PEOPLE, THEY TOLD HER INSTEAD OF BEING LAY OFF SHE COULD GO AHEAD AND START HER LEAVE. SO SHE WAS OFF WORK (NOT DRAWING UNEMPLOYMENT) UNTIL SHE HAD THE BABY, AND AFTER SHE WAS OFF 8 WEEKS SHE NOTIFIED THEM THAT SHE HAD BEEN RELEASED TO RETURN TO WORK . THEY TOLD HER THAT SHE HAD BEEN TERMINATED BECAUSE THEY DIDN'T KNOW WHERE SHE WAS OR ANYTHING?
MY THINKING IS THAT THEY CAN'T FORCE HER TO START HER FMLA TIME JUST BECAUSE THEY WERE LAYING OFF. SHE SHOULD HAVE BEEN LAYED OFF IF THEY DIDN'T HAVE WORK FOR HER, AND THEN WHEN THE TIME CAME THAT SHE COULDN'T WORK ANYMORE HER FMLA TIME WOULD HAVE STARTED.
I DON'T THINK THEY CAN FORCE HER TO GO ON LEAVE?
RIGHT OR WRONG?
INA
Comments
She's entitled to unemployment from the date of her layoff. However, if the unemployment insurance administrators want her to show that she's been conducting a job search, her benefits eligibility could be at risk because she thought she was employed but on leave and therefore not engaging in any search. That would be "give me a release and settlement agreement to right this wrong" time, but do it with the guidance of an attorney. One of the first questions the attorney will ask is the following, which is critical:
Does she have any documentation informing her that her leave was a) approved and b) designated FMLA leave?
If not -- are there any witnesses who were present when she was told she could go on leave instead of getting laid off and that such leave would be FMLA designated?