Legal Question in Employment Law in Florida

Re: FMLA and being layed off

If the Company is initiating layoffs in general, they would not be required to restore your employment merely because you are presently out on FMLA leave. However, if there are no real layoffs and they have just trumped this up as a pretextual reason to fire you, then they very well may have interfered with your FMLA rights and/or retaliated against you for exercising those rights, so you should consult with an attorney as soon as possible to determine what rights you may have.

Re: FMLA and being laid off

If your company has more than 50 employees in a 75 mile radius, and if you had worked at least 1250 hours in the 12 months before you began leave, then you are entitled to FMLA protection and they may not lay you off unless they are having a mass lay off that includes your position, or your position is being eliminated entirely and would have been even if you were not on leave. (In other words, no one will replace you, even if the work is distributed among other people, and they did not do it just because you are on leave.)

It doesn't matter that you did not ask for FMLA protection. As long as you let them know you were taking maternity leave, it is the company's obligation to apply FMLA protection. The protection lasts up to 12 weeks at which time you must return to work unless the company authorizes longer leave.

If you believe the FMLA was violated, you can do the following: contact your HR dept. and ask them to review the matter. If that does not work, you can file a free complaint with the local office of the US Dept. of Labor, Office of Wage and Hour. The website is dol.gov. Just call the general number and tell them you need to file an FMLA complaint locally. If all else fails, you can hire an attorney if you believe your rights were violated.

There may also be a discrimination claim based on sex. If males who do the same job as you and report to the same supervisor were allowed to take long-term leave without being laid off, you may have been discriminated against. You can file a free claim with the local office of the US EEOC (eeoc.gov), and could also hire an attorney to help with that. (But it is not necessary and obviously is not free.)

Congratulations on the baby and good luck!

Jeff Sheldon

Jeffrey L. Sheldon

The Sheldon Law Firm

CAVEAT: This is only general advice based on limited facts and knowledge of the situation. It thus can not be relied upon as legal advice nor is the author responsible or liable for any actions by the parties involved in the matter.