Legal Question in Employment Law in Florida

Re: FMLA violation

If your brother is not a key employee, he must be returned to the same position upon his return from FMLA leave. Go to www.dol.gov for more info on the FMLA. Also, I would strongly recommend that he call the DOL and speak with the investigator about filing a claim. If he files a charge with DOL, they investigate and discover there is a violation, they will attempt to resolve it. If the employer refuses to resolve, he should then contact an attorney to discuss filing an FMLA lawsuit.

Re: FMLA violation

I'm very sorry to hear of your brother's illness. I hope his recovery is complete and lasting.

I fully understand that he does not need another fight, but it is possible he could get his old job back without much difficulty. In essence, if your brother was eligible for leave as you say, then the employer must return him to the same or equivalent job (another manager job with the same responsibilities, authority, pay and benefits), unless it can show that the position would have been eliminated anyway, even if your brother had not taken leave. For example, if there was a downsizing, reorg, layoff, etc.

So, your brother should file a free complaint with DOL. All he needs to do is explain his story, and then they will investigate. (Eventually he'll need to put it in writing.) Often, they'll make an informal call first to get the employer's side and see if they can work out a deal.

It's possible that the employer does not know the law. Your brother could go to HR first and show it to them. It is found at http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.214.htm. It says:

29 C.F.R. 825.214

a) On return from FMLA leave, an employee is entitled to be

returned to the same position the employee held when leave commenced, or

to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such

reinstatement even if the employee has been replaced or his or her

position has been restructured to accommodate the employee's absence.

See also Sec. 825.106(e) for the obligations of joint employers.

Also, here is the regulation on filing a complaint (http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.401.htm):

29 C.F.R. 825.401

(a) A complaint may be filed in person, by mail or by telephone,

with the Wage and Hour Division, Employment Standards Administration,

U.S. Department of Labor. A complaint may be filed at any local office

of the Wage and Hour Division; the address and telephone number of local

offices may be found in telephone directories.

(b) ... In no event may a complaint be filed more than two years after the action which is alleged to be a violation of FMLA occurred, or three years in the case of a willful violation.

(c) ... a complaint must be reduced to writing and should include a full statement of the acts and/or omissions, with pertinent dates, which are believed to constitute the violation.

All the regs and much info is found at dol.gov. Click on FMLA.

If you need to hire an attorney to help with the complaint or negotiate with the employer, feel free to email directly to me.

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.

Re: FMLA violation

Strongly recommend you review in person this matter with an attorney. It sounds like they violated his rights but full detail and a reponse strategy needs to be worked on.