Purple
Enthusiast
Reged: 07/15/03
Posts: 233
Loc: Midwest
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Hi everyone,
I have been off the board for a while trying to deal with my migraines. And to add to it, I was released back to work at the beginning of March only to be told not to return because my job was filled. I heard that the girl who replaced me, walked off the job last week and said "I know why Purple got sick from this (you know what) job and got migraines, this place caused her to get sick."
I thought by being on medical leave under 2 doctors care, that I would not lose my job, but I was wrong. Any advise? Any legal experts out there? Should I get a lawyer and sue? I have applied for Unemployment and will see what happens but their handbook says they don't pay for people who lost their job due to being on medical leave, but I have an interview with them today.
Thanks for reading. This really stinks on top of dealing with doctors and migraines!!
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johng
Board Addict
Reged: 02/13/03
Posts: 355
Loc: great lakes
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several ??
1 were you on FMLA
2 is it a small co less than 50 people
3 how long were u out for (12 weeks or less)
if you answered yes, no yes. you do have case under FMLA
let me know
johng
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Ask and it will be given to you Matthew 7:7
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14stones
Board Addict
Reged: 06/18/03
Posts: 336
Loc: On the beach in California
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Sorry things aren't going well purple. I think John is asking the right questions though. I have a little experience with this.
In my former life I had a pretty dangerous profession. I would have to test experimental equiptment at least twice a year. As a result, I (and everyone in my line of work) would eventually get injured while on the job. It wasn't a matter of "if" it was a matter of when.
So, in my line of work, I was employed on contract. My staff though would be hired by the company I was under contract to. They did this to keep them from leaving with any exclusive information and going to a competitor.
One day, while testing out one of these experimental items, it blew up under me. I was thrown thirty feet up and out (contiguous arc) and given a couple of broken ribs and a concussion.
My mechanic, who was on staff, was burned badly on his arm and had a broken scapula. (he got off lucky too). He also, was exposed to a chemical that my company used exclusively as a coolant and is a result of that exposure, he had a burned lung.
Here is the pertinent bit. We were told by our physician that he would be out for at least 5 months. That was important to us because we were employed for a specific number of events that would happen over a specific period of time. His injuries would make him unavailable to us well past the end of this time span.
We had to replace him. I didn't worry about that because he worked for the company that I was under contract to and I knew that they would take care of him. I was wrong.
While under doctors care, they approached him and told him that they would either fire him for deriliction of duty causing a major mechanical malfunction that ruined a machine that was valued at over 300K or, he could accept a severance package that included paying him for the remainder of the year (6 months) and all of his medical expenses regarding the injuries he recieved from the incident.
He called me and as I was in a position to leave at any point if I wasn't satisfied with the level of support I was recieving from this company (as they were if I didn't perform up to expectations) I acted on his behalf.
I called an employment atty. and asked him if my worker had any legal rights. He asked me allot of questions many of what John has asked you.
To make a long story a little bit shorter. If my worker wanted to get any satisfaction from the company then he would have to hire a lawyer and sue them. He, would have to take his own money, and sue a company that is a family household name and one of the biggest of its kind in the world (if not the biggest).
So, while he was easily in the right, it was his lack of funds that made it impossible for him to get any satisfaction. He called one of those "Larry Parker got me a Million Dollars" TV lawyers but what he found was that if he was lucky that guy would have gotten a settlement that would have been around the same as what they were offering him and then he would have to pay the lawyer as well.
I was able to use the "you aren't supporting me the way I expect and will walk" clause of my contract as leverage for them to "work out a better package" for him and in the end, he recieved two years of full pay and a little more.
I was able to hire him back a little more than a year later (the company hated that) and he ended up giving some of his money back and he works for them to this day while I have retired.
So, answer the questions jon asked as they will help you get a better understanding of where you stand legally and then, hire a lawyer if you can and go get them. It sounds like you not only have pain and suffering but recieved on going injuries along with the loss of your means of employment.
Hang in there purple,
Migranes are one of the worst things to go through and you have freinds here if you need to vent.
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2muchpain
Enthusiast
Reged: 10/07/03
Posts: 274
Loc: USA
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Purple,
I sure as heck hope you don't live in a "right to work" state like Virginia. You do need to speak with the unemployment folks first and then to an employment attorney. Be honest with the attorney because the opposition will find out every time you have picked your nose.
Best of luck to you.
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2muchpain
Enthusiast
Reged: 10/07/03
Posts: 274
Loc: USA
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14stones,
you are a class act!
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yawkaw3
Pooh-Bah
Reged: 03/22/03
Posts: 1193
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Purple,
I'm so sorry- that totally sucks.
Send me a PM if you are feeling up to it, we haven't talked in a while.
You should definitely get in touch with a lawyer. For some reason, I remember one of Clinton's campaign promises having something to do with this. Maybe one of the legal people here will have some idea.
Hang in there.
-yawkaw
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johng
Board Addict
Reged: 02/13/03
Posts: 355
Loc: great lakes
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Purple,
You have the right to have 12 weeks unpaid family medical leave. You have the right to return to a simular job. you have the right to be placed back after your illness.
The are some exceptions. one the company has to have more than 50 persons. second you must have worked at least 2000 hrs in one year. the company did not have any layoffs in your department(yes you can be laid off while onn FMLA) you have medical proof of the need.
if you meet all of the above you have a very good case for violation of the Family medical leave act of 1992 (clinton bill)
if this is work related and the reson you went on leave was because of the illness/inj you are protected under workers comp and I am not very familur with those laws.
I do know that if the company let you go because you would not be able to complete you duties you are eligable for workers comp permante disablity...
I sugest you see a atternoy asap to be able to provde spacfics. on the outside it sounds like you have a lagitamate case.
keep me updated and if it is FMLA related I can PM you with much information
Jo
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Ask and it will be given to you Matthew 7:7
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dhc_60
Member
Reged: 01/31/04
Posts: 175
Loc: mo.
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the same thing happened to my wife @ ceasears casino. she pregnancy leave and was let go. we talked to lawyers, gov., etc... bottom line you have to be employed as permanant fulltime for 1 yr, or they can do whatever they want to you union or not. we were just glad the ins. covered the birth.
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everything is going according to plan... its just not my plan.
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Purple
Enthusiast
Reged: 07/15/03
Posts: 233
Loc: Midwest
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Hi everyone and thanks for all the input. Sorry to take so long to get back here but I was hit with the stomach flu last week. YUK
Here's the story of what happened:
I started working for the company in May 2000 full time.
In Sept 2001 I applied for a different position in another dept, same company. I got the job which was straight days, Monday thru Friday, weekends off.
Everything was going okay until this dept grew tremendously during a short period of time. I was the only one doing customer service. I begged and pleaded for some help, they dragged their feet but finally got a lady to come work alongside me. The dept kept growing and before we knew it we both were working 12-14 hrs a day.
By July 2003 the stress of the job was wearing on me and the doc said to slow down as I was told I have high blood pressure. In Aug 03 I asked my boss if I could go part time, they said yes. I worked 8 hrs on Monday and 5 hrs on T,W & Thu with Friday's off. The migraines were still there.
On Oct 26,03 I went to the doc and was immediately put on medical leave. I called HR and they put me on FMLA (that's what it is called here in Illinois.)
HR said as long as I got the doctors note to my boss stating why I was off, that's all I had to do and I did have the doc's office fax the note each & everytime I was there and I waited for confirmation. I followed up with a phone call to my boss to verify. She never answered the phone when I called, I left a voice message. In Jan 04, I was getting concerned about my job since I was fast approaching the 12 week mark and I went into work in person to speak to my boss, she was busy so I talked to the other manager. He told me not to worry, just get better and I would have a job when I returned. He did state that if I went over the 12wks they would put me in the other section of the dept. Okay, I said.
I went to the doctor in Feb 03 & he faxed a note stating I would see him on March 5th 04 and he would determine then when I would return to work. I spoke by phone w/PCP the week before the March 5th appt & he said to tell work I would be back on March 8th and he would sign the release when I saw him on Mar 5. I called my boss on Monday March 1st & left vm stating the above. She never called me back during the time I was off, UNTIL March 5th only to tell me that I would not have a job to return to on Mar 8th. She said there was nothing else available for me to do.
I applied for Unemployment on March 8th and rec'd a denial letter stating "the claimant is ineligible for benefits for the period from 3-7-04 thru 3-20. The claimant is only available to work part time due to medical reasons".
That is NOT entirely true since I asked to go part time & my boss agreed to it before I went on medical leave and when I talked to the other mgr in Jan 04 he agreed that I would be back part time when I returned from medical leave.
Now, I have to appeal this decision and go before a referee and I have to call a lawyer.
This all stinks after all I have been thru medically but I do have all the doctors notes to back me up.
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Purple
Enthusiast
Reged: 07/15/03
Posts: 233
Loc: Midwest
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John,
1. Yes, I was on FMLA
2. no, company has more than 50 people
3. I was out longer than 12 wks.
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johng
Board Addict
Reged: 02/13/03
Posts: 355
Loc: great lakes
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please please see a lawer
you have a very good case.the only stickler is the more than 12 weeks. BUT each state has reulations for such things. depending on when they made the discion to let you go may fall under the 12 weeks which then they violated the FMLA act of 1992. then they were unduly on you because you changed status FT to PT..
in the least you may get reemloyed on the outside you very may get a 'seperation' settlement. these companys count on the fired/ laid off person just to suck it up and not fight. but if you fight the will probly want it to go away and settle....
johng
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Ask and it will be given to you Matthew 7:7
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Purple
Enthusiast
Reged: 07/15/03
Posts: 233
Loc: Midwest
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Thanks John for the info.
I am meeting with a lawyer next week to disucss this. He said on the phone that I do have a good case. I have all the original doctor's notes and 2 notes from my PCP also.
I will keep you posted on how I make out.
Again, Thanks for the information. I hope you are doing well yourself.
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DAdrian
Newbie
Reged: 11/05/03
Posts: 36
Loc: California
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I'm in the middle of going to paralegal school and just finished Employment Law. Based on what you've posted so far, maybe this will help you get your "ducks in a row". (sorry if it runs long, trying to help)...
FMLA applies as described above, 50 employees or more, 12 weeks per calendar year or 12-month period based on fiscal year or employee's anniversary date. Intended to cover time off for "serious health condition". The definition of "serious" is one of the most difficult areas of interpretation. Department of Labor regs define it as "illness, injury, impairment, or physical or mental condition that meets one or more of the following criteria:
1. Inpatient care;
2. Continuing treatment by a health care provider for
more than three days;
3. Any period of incapacity due to pregnancy or prenatal
care;
4. Any period of incapacity for treatment of a chronic
serious health condition;
5. Permanent of long-term incapacity due to a condition
which treatment may not be effective (ex. Alzheimer's,
severe stroke, or terminal stages of a disease;
6. Any period of absence for multiple treatments of non-
chronic conditions that would result in incapacity
for three or more days without such treatment (ex.
chemotherapy, radiation, dialysis, physical therapy
for severe arthritis; or
7. Alcohol or substance abuse.
Employees taking FMLA leave must show that their condition prevents them from performing the functions of the job. If a health care provider finds that he/she is unable to work at all, or unable to perform an essential function of his or her job. Requirement does not mean that the physical condition itself actually renders the person incapable of working altogether. If you got state disability, any reports by your doctor to the state, or forms you filled out to make the claim will be really helpful.
Employee returning from FMLA is entitled to be returned to the same position he or she held prior to taking leave, or to an equivalent position with equivalent pay, benefits, etc. Employer must reinstate the employee even if the employee has been replaced, or his or her position has been restructured to accomodate the employee's abscence.
HOWEVER, if the employee is no longer able to perform an essential function of the position, the employer has no obligation to return the employee to his or her prior position. This is true even if the inability results from the condition that originally entitled the employee to FMLA leave.
Even if you have received written notice that you are not going to be reinstated, you are still entitled to request reinstatement at the end of the FMLA leave period. Actually, it looks like any communication from your employer to you about the FMLA leave should have been done in writing, preferably certified mail with return receipt requested. You might want to ask the attorney if you should request reinstatement now. Take any correspondence from the company or write down the dates and content of any phone calls, along with who you spoke to. If you have an employee handbook, take it with you. If you don't, see if someone at work can get one for you.
All of these things will help the attorney analyze your case and take action on your behalf a lot more quickly. Hope it helps.
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Devon :-)
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Anglwink
Veteran
Reged: 04/29/03
Posts: 605
Loc: East coast
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Hi Purple,
The same ting happened to me when I was out on temporary disability...I was fired after 5 months on disability...I called the labor board here in NJ and this is what they told me: the company has to hold your position for 12 weeks, after that, its up to their disscretion how to fill that position. So they were within their leagal boundaries. It s$$ks though. But this can actually work out better for you. My temporary disability lasted for 180 days, and because they fired me, I was able to collect unemployment benifits for another 8 months...In the meantime, I had applied for SSD permanant disability (and received it)...but at least the money from unemployment was there for me, while I was waiting for the SSD approval. May I suggest you go online and apply for social security benifits. pm me if you need additional info! Anglwink
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"Believe"
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Anglwink
Veteran
Reged: 04/29/03
Posts: 605
Loc: East coast
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Yes Purple, I agree...like I stated in an earlier post, here in NJ there is nothing saying that a company can't fire you AFTER the 12 weeks......But, I would definately fight for your unemployment!!! Anglwink
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"Believe"
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CeeBee
Member
Reged: 08/09/03
Posts: 186
Loc: garden state
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I am totally not knowledgeable about these things, so if someone can explain the difference to me about workman's compensation and disability I would appreciate. I worked for a large well-known retail store here in NJ for over 11 years. I fell and hurt my leg and knee at the job in the course of doing my work. I filled out an accident report, but did not immediately see a doctor, thought I would be okay in a few days. Wrong, the pain kept getting worse most likely because I stood all day. The job paid for the eventual MRI and doctor's appointments and treatments. Nothing helped, eventually had surgery and they put me on workman's compensation. I had complications that went on and on, physical therapy, shots in the knee. draining of the knee, etc. They held my job for a year, but never offered a sit down position or anything other than what I had. The year came they fired me, even though I was not released by the doctor (of their choosing) for another 3 1/2 months, at which time my WC benefits ended. Applied for Unemployment, was denied the reason being I was unable to return to work at the time of my termination. Well no kidding! Have applied for SS and have been denied. I thought that in the interval from when I was terminated (August 03, up till now) I would be entitled to collect. Some person from SS did call on Friday, I was not home, left a message with my daughter to call him on Monday, his question was if I was seeing a doctor. I am not because workman's comp benefits ended and I could not keep up the payments on my health benefits on my own. As I mentioned I have already been denied SS, so I don't know why this person is calling me. Could it be reconsidered?
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Anglwink
Veteran
Reged: 04/29/03
Posts: 605
Loc: East coast
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Hi CeeBee,
Let me try to help you here. When I say that I collected STATE temporary benefits: NJ has this program (its the same concept of unemployment insurance) that you pay into (your medicare tax) that if you are going to be disabled and your Dr. takes you out of work, you can collect for 6 months...Ask your Dr. for the paperwork...Even though you are not working anymore, you just might be able to collect it retroactive from when you were out. you paid into this tax, its your money, and if you are out with a Drs. note, you are entitled to collect these monies. so get the paperwork, notify them that after being out for so long the co. fired you and that you can't collect unemployment because you were still out on disability, you should be able to collect your temporary didability money. secondly, I was also fired when I was STILL OUT on disability, and I DID collect unemployment and I am also in NJ, so If you can't collect the state temporary monies (I don't know why you wouldn't be able too) appeal the unemployments decision and explain it to them. As far as ssd, EVERYONE IS DENIED THE 1ST TIME, thats why I filed early in my disability, because it takes about a year, and at least 1 appeal before approval. I was approved in 4 months, which is like unheard of! But I also had records about my disability going back for 25 years at that time, so thats probably why it was so fast. Also, get a ss lawyer...they do NOT charge you unless you are APPROVED, so you have nothing to loose there. Look in the yellow pages for one. if you have any questions that I can help you with, feel free to pm me! Anglwink
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"Believe"
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CeeBee
Member
Reged: 08/09/03
Posts: 186
Loc: garden state
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Angelwink, thanks for your reply I have to get offline now for awhile, but I would like to discuss or ask you more about this so I will probably PM you or post somemore tonight. Thanks for your interest!
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