Your FMLA Rights - Important!

There is a link in my blog, Links to important sites, to the DOL web site where you can read the law. The elder President Bush twice vetoed the bill and President Clinton finally signed it into law in 1993. Basically, the law says that a company must grant up to 12 weeks of unpaid leave, in a 12 month period, to employees if certain conditions are met and that the employee has the right to return to the same job they held before taking FMLA. There are a number of ways that the company can define the 12 month FMLA period. The general conditions are:

Only applies to companies in the U.S. or a U.S. territory with 50 or more employees within 75 miles of the employees job site.

The employee must have a legitimate reason for requesting FMLA, i.e. serious illness, serious illness of a family member, birth of a baby, adoption; Read the law.

The employee must have performed 1250 of work for the company in the last 12 months.

The employee must be currently employed and have worked for the company for at least 12 months within the last seven years.

Some states grant additional benefits and any company may grant more than 12 weeks of leave in any or all 12 month periods if they want to. FMLA defines only the minimum requirements.

Right or wrong, the compliance burden is placed on the company. DOL and the courts have taken the position that FMLA is a "strict liability" (any FMLA violation, regardless of how minor, is a de facto violation of FMLA) and the affected employee has the right file a complaint with the DOL or sue the company in an appropriate court. Wow, under that definition, I feel sorry for the company. FMLA is a complicated matter but the company HR professionals are required to understand it. DOL and the courts have also taken the position that the law shall generally be interpreted in the manner most beneficial to the employee. There is some protection for the company because the law only provides for specific double damages and does not allow a "punitive" award. It's interesting, however, to note that there has been a jury award (reversed on appeal) of almost 12 million dollars in one case.

Here's my public service announcement to the company, the employees and the union. You folks need to get together and discuss how the CBA affects FMLA. I an not a lawyer so please don't take anything I write as fact, get a legal opinion. I have and I'm convinced I'm correct.

The first little twist is Article 30 (E) of the CBA dealing with personal holidays. You have the right, with certain conditions, to use any entitled personal holidays as "sick time". In my case (and for whatever it's worth) I was never given the option and sent the company a Demand for Payment of Wages. The company honored my demand and send me a check for 16 hours. I suspect it was more to appease me than anything else.

Now, it gets really interesting. The CBA does not address the issue of using vacation as sick time and in general FMLA allows a company to force an employee to use any paid time off concurrently with FMLA. There are exceptions and the CBA may put you in the exception category. Court decision and Arbitration lean in that direction but each case must be judged on it's own merit.

I'll make this statement since I am convinced I'm correct: FMLA at First Transit is "paid" leave and under FMLA an employee may agree to (BTW, I never did) to use their vacation concurrently, consecutively or not at all. It's the employee's choice and not a company decision. "Ridiculous", you say! I reply, "Take the time to read and understand the law". Article 27 (D) of the CBA requires the company to provide 26 weeks of Short Term Disability for the employee and that provision defines FMLA (and Medical Leave of Absence up to a total of 26 weeks) as "paid"leave. Please reference Repa v. Roadway Express, Hendricks v. Compass Group and others for, admittedly non-binding, decisions. Also, your vacation "rights" are guaranteed in the CBA and if the company decides that you have to take vacation while on any type of leave, it's potential CBA violation.

If anyone think I'm just blowing hot air, then there's nothing else to say. I would still, however, like an answer to the question I've asked before: I was placed on vacation from September 21st, 2008 through October 4th, 2008 while I was already on FMLA. What was my exact "duty status" for that two week period?

To date, I've done most of the research on my own (and consulted with a number of attorneys for advice). I'm 100% convinced that I am correct in most, if not all, of my interpretations of the CBA and applicable laws and regulations that apply to company, the employees and the union. I caution the reader not to take what I write as fact and not to apply my situation to your own except in general principle. My opinions are offered only as a place to start and to suggest that you not take anyone's word when you're told something you disagree with. You always have the right to a second, third, etc. opinion and the ultimate decision maker is the U.S. Supreme Court.