August 7th, 2012

Let’s Talk with Kalola: FMLA


Another , Let’s Talk with Kalola, where targets can share their experiences with WBI’s blog readers. Here we go!

Dear Kalola,

My husband suffered from a heart attack and end stage renal (kidney failure) five years ago. My manager was very supportive of my FMLA requirement to care for him. His health issues were very significant and I was very open and honest in my communications regarding time away from work to care for him (as well as the health issues I developed as a caregiver).

Last year, we had a layoff. My director (my manager’s manager) decided to reduce my hours to part-time permanently. I exercised my union rights to “displace” an employee with less seniority (I work in a union environment). The decision was made to reinstate my position to prevent me from displacing (breaking our union contract) while my director was on vacation out of the country. The managers who made this decision knew she would be upset. She was. I am now her target. She interfered with the performance evaluation my manager gave me (and gave me a low rating, despite my 10 years of perfect performance evaluations in my current job). She tried to write a memo to make me sign about my future attendance. Even though last year my job was changed to a job share and I missed far less time than the previous four years because my husband’s circumstances changed and I was able to bring in resources for him to work full time, she mandated that my manager give me a bad performance evaluation (which I am now fighting). I have a lawyer lined up.

My husband passed away a few months ago. Even though I am devastated by that situation, I am still being beat up by this publicly documented bully because it is an emotional and ego-driven issue with her. I have worked for two bully managers previously. This is the worst.

I met with our Executive Director and told him what is going on. He promised me that she would not be able to document me on anything that was based on personal bias. He knows how she is and did not in any way try to defend her actions or negate my labeling of her as a “bully”. I told our HR department recently that my performance evaluation is illegal (it refers to all of my FMLA absences and they are being used against me in evaluating me….I am being rated at “needs improvement” in almost every area). I told them that I have researched this issue extensively and that if they intend to move forward with this, I will not only go to the top of this agency (I have a good relationship with our Executive Director and his second in command), but I will take this as far as I need to to have the bullying stop. I am fed up with it.

Our HR director has told her that she needs to revise my performance review and that if she doesn’t, she is placing our agency at risk. We will see what she does. If she lays me off this year (we will have another layoff), I am going directly to my lawyer and going after my agency.

Thank you,

Mrs. J


Dear Mrs. J,


You have been through so much personally as well as professionally.  Your husband was very ill, and you took time off work to care for him under the Family Medical Leave Act (FMLA).  Your husband recently passed away.  I am very sorry for your loss; my condolences to you and your family.

The other players in your workplace story are:

  • HR
  • Executive Director and his second in command
  • Your Manager’s Manager (hereinafter called “Unit Administrator”)
  • Your Manager (hereinafter called “Supervisor”)
  • Your Union

Your position was reduced to part time by the Unit Administrator.  The Unit Administrator put your position on the layoff list.  As a union member, you have seniority rights when it comes to layoffs.  You would have exercised your bumping rights, however, your position was pulled from the layoff list by another manager when your Unit Administrator was away.  The Unit Administrator was not happy with what happened.

Your Supervisor reports to the Unit Administrator.  The Unit Administrator is now attempting to create a paper trail of actions against you.  The Unit Administrator is telling your Supervisor to give you a bad review while your work history for the employer has been exemplary.  The Unit Administrator is now retaliating because your layoff was circumvented by another manager.

 

The Family Medical Leave Act (FMLA) is an enforceable federal law.  Additionally, your state may have its own version of the FMLA.  If your Unit Administrator took prohibited actions against you because you took time off work to care for your husband then you may be able to file a complaint against the employer with the U.S. Dept. of Labor, Wage and Hour Division.  According to the U.S. Dept. of Labor, you have two years from the date of a violation to file a complaint.

Reference:  http://www.dol.gov/whd/fmla/

The fact that you took time off work to care for your husband under the FMLA should not be a factor for giving you a poor performance evaluation, reducing your work hours, and/or laying you off.

From the U.S. Dept. of Labor, Wage and Hour Division’s Fact Sheet No. 77B:  Protection for Individuals Under the Family Medical Leave Act (FMLA):

Examples of prohibited conduct include:

  • Refusing to authorize FMLA leave for an eligible employee
  • Discouraging an employee from using FMLA leave
  • Manipulating an employee’s work hours to avoid responsibilities under the FMLA,
  • Using an employee’s request for or use of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions, or,
  • Counting FMLA leave under “no fault” attendance policies

Reference:  http://www.dol.gov/whd/regs/compliance/whdfs77b.pdf

Although you have an attorney lined up, have you exercised all your options?  Here are two options:

1.  You pay union dues; let your union’s shop steward help you.  Ask the union shop steward to sit in on meetings with you and management, and meetings with HR.  Your union contract also provides a grievance procedure.  The shop steward can speak on your behalf, and can also serve as a witness to what occurred in meetings with you and management.  As a union member, you have contractual rights that at-will workers do not have.  A worker employed at-will can be terminated for cause, no cause, or for no reason at all whereas your union contract affords you with certain rights that the union negotiated with the employer.

2.  You can contact the U.S. Dept. of Labor, Wage and Hour Division by calling their help line at:  1-866-487-9243, 8:00 am to 8:00 pm (Eastern Time), Monday through Friday except holidays.  If it appears that your employer violated your rights under the FMLA, the agency representative may suggest that you file a complaint against the employer.  Again, you would have two years from the date of the violation to file a complaint.

You stated that the Unit Administrator mandated that your Supervisor write a bad performance evaluation.  Although HR said that they asked your Unit Administrator to revise your performance evaluation please be aware that you have the right to write a response, and have that response placed in your personnel file.  See your union contract as there are time limits.  If there is an employee handbook, also read the handbook which may detail your rights as an employee.  It sounds like you are now now using the grievance process to fight the bad evaluation.

It would be in your best interests to review your personnel file.  If you see any inflammatory documents that were placed in your personnel file that you were not aware of and not given a copy of, ask the HR office for a copy of the documents.

 

Keep a diary of the work problems that you are experiencing— list dates, times, places, witnesses.  Keep copies of relevant documents.  Keep your documentation at home.  Do not confide in HR, your co-workers or others that you are keeping documentation about what is happening to you at work.  Do not keep your documentation on your work computer or do any type of personal work on the company computer.  Do not discuss your situation via the company e-mail to anyone.  The computer and the company e-mail are the agency’s property.  The Information Technology Department can access any of the work you do on the company computer.

 

Be professional in your dealings with HR, your superiors, and co-workers.  The Executive Director is being neutral.  He only commented on one thing, and that is that the Unit Administrator couldn’t use personal bias to write you up.  It will be her word against yours, another reason why she is creating a paper trail on you.

You say that you have an attorney lined up.  Once an attorney becomes involved in your matter, your relationship with the employer will change.  The employer’s attorney will be responding to your attorney.  Your good relationship with the Executive Director and his second in command could change.

 

If you file a complaint with the U.S. Dept. of Labor due to an FMLA violation, your employer will be sent a copy of the complaint for a response.  Usually the employer’s attorney will respond.  Large employers pay for employer liability insurance or employment practices liability (EPL) insurance.  The insurance company provides the employer with access to a legal team.  There are two types of employment and labor attorneys:  one that represents the worker (usually the plaintiff), and one that represents employers.  If you decide to pursue your matter with an attorney, make sure the attorney you hire works for plaintiffs only or workers only, and that the attorney has extensive trial experience.  Pursuing a legal matter can be emotionally costly as well as financially costly.   It is not for everyone.  The U.S. Federal Courts encourage alternative dispute resolution (ADR) versus a long-drawn out, expensive court trial.  The courts encourage the parties to settle their differences outside of court in private.

Your health and well being are very important.  Often times, caregivers overlook their own health while caring for their loved one.  Now, it is time to take care of you.  Be sure you have had all your annual health checkups.  You might want to check if your community offers a bereavement support group or other support group that will fit your needs.  Your County Mental Health Department may have a list of support groups in your community.  You can also ask your physician for a referral to a mental health professional to help you cope with your loss as well as the stress and anxiety caused by the workplace.  Taking care of yourself is much easier while you still have medical benefits.  You may be less inclined to see a doctor if you have to pay for the costs out of pocket.

 

With all that you have gone through, I can fully understand that you are upset with the way you are being treated.  I hope that the Executive Director is, indeed, on your side.  Time will tell.

If you should decide to do battle using an attorney, read the fine print in the contract that you have with the attorney very carefully.  Do not sign the contract immediately, take it home and read it thoroughly.  Consider the percentage that your attorney will receive off the top of any settlement that you might receive, that is if you win a settlement.  Then there are federal taxes that must be paid.  You happen to live in a state that does not have state personal income taxes.  Even if the attorney takes your legal matter on a contingency basis, there may still be legal fees and costs that you will have to pay out of pocket.  The best case scenario is if your legal matter can be settled out of court privately versus a public court trial.  Pursuing a legal matter in court is a lot of stress and anxiety with no guarantees as to the outcome of your matter.   It will behoove you to know what you  might be getting yourself into if you decide to go after the employer.  Have a realistic talk with your attorney.  You may also want to discuss this issue with your family.  You will need emotional support if you pursue the matter.

Take good care of yourself.  Give yourself time to grieve the loss of your husband.  It is up to your employer to tell the Unit Administrator that she is out of line in attempting to oust you from your job because you took time to care for your husband.  I hope that the employer will do the right thing.

Sincerely,

Kalola

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This entry was posted on Tuesday, August 7th, 2012 at 11:20 am and is filed under Let's Talk with Kalola, Target Tale, Tutorials About Bullying. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.



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