Terminated by employer after FMLA exhaustion (San Antonio, Anton: lawyers, kindergarten, best)

[melowout]

U.S. Department of Labor - Wage and Hour Division (WHD) - Family and Medical Leave Act (http://www.dol.gov/whd/fmla/index.htm - broken link) - sorry, missed the URL on this one.

[slkrik72]

hello , i was recently terminated from a company who has made up there own fmla rules. example if you miss mo re than three days its only on occurrence . i missed work for over a month and they gave me two concurrences " you didn't have enough time for paid time off for the first half, but mid way you did then you didn't so two concurrences were charged, thus leading to termination. is this legal? does anyone know of a good attorney in San Antonio TX? i have more illegal proof, that includes harassment, discrimination etc.... suggestions?

[TexasRedneck]

Missed work for over a month - and you wonder why you were terminated......really?!??

[perticusrex]

Every company reserves the right to have its own attendance policy. You most likely signed something upon hire, like an employee handbook acknowledgement which often details the policy. Some organizations even have differing attendance policies within each department. If your company guidelines were 3 days of unapproved time off = 1 occurrence after X amount of occurrences = termination, than that is their guideline and they are within their right to end your employment.

[24annie]

An attorney told my son that since Texas is a right to work state your employer can fire you if he doesn't like the color of the shirt you are wearing.

[Azure110]

Originally Posted by 24annie

An attorney told my son that since Texas is a right to work state your employer can fire you if he doesn't like the color of the shirt you are wearing.

Yes but the employer better make sure they also have their butts covered. If the employee can prove wrongful termination then there is grounds to sue. Employee must have documentation though.

[CyVaquero]

Let's get a couple things straight.

A company cannot not have it's own FMLA rules, it is a federal law so it applies to every employer in the U.S with a few exceptions outlines in the statute itself.

"Right to work" laws regulate compulsory union membership. What you are referring to is "At-will employment", whether either party can terminate an employment contract without cause with some limitations imposed by federal and state statutes - FMLA being one of those.

If slkrik72 was indeed taking FMLA then the employer can not terminate him/her despite the violation of the attendance policy. However, one does not simply proclaim FMLA - there are conditions that must be met and forms that must be filled out, i.e. documentation. Failure to do so means your absence does not qualify as FMLA leave and regular attendance policies take precedence.

That said, if there was systematic harassment, and more importantly documentation of it - Judges love documentation, then you 'may' have a case. A visit to an employment lawyer is warranted.

[WVREDLEG]

This thread belongs in Employment Forum. San Antonio is not the only place where people get fired.

[EntropyGuardian]

I'm an HR manager for the SA area. I completed two FMLA packets with EEs today, actually.

FMLA provides unpaid, job-protected leave for up to 12 weeks per year for an EE's own serious medical condition (and other things not relevant to the discussion). When the FMLA is exhausted the EE's job is not protected and it can be filled. Once the EE is cleared to return there may or may not be a position left for them to return to.

I'm curious as to how many weeks people think an employer should be required to give an employee? 3 months is a very long time to not have someone permanent in a position.

And while you technically can fire whoever for whatever reason, without showing cause and demonstrable malice or incompetence, or a history of written warnings, it is likely the EE can receive unemployment benefits.

So if you don't like the color of their shirt, a smart manager writes them up for violating the dress code first.

[Azure110]

Originally Posted by EntropyGuardian

I'm curious as to how many weeks people think an employer should be required to give an employee? 3 months is a very long time to not have someone permanent in a position.

I think it should be up to the employer but if it must be a law, then no longer than a month.