Legal Question in Employment Law in Florida

My question is regarding the successor in interest section (825.107) of FMLA. I contacted the department of labor and they told me that based on the information I have provided, it looks like I, as well as the other employees, should still be eligible for FMLA under this section. However, they cannot take any action and formally investigate unless I file a formal complaint. Even though legally they cannot retaliate against me, I know should something happen, the burden of proof lies with me.

Per the advice of the employee with the DOL, before filing a formal complaint, I went to my HR benefits coordinator as well as the director of HR and questioned the method by which they determined my eligibility for FMLA coverage and quoted this specific section of the act. They still insisted that because I was technically a new employee I would not be eligible until after 12 months of employment.

I believe that I should be covered under the successor in interest section for the following reasons:

Since April 2008 I worked for the same bank. On June 25, 2010 my bank was closed by the FDIC through receivership, then acquired by another bank. Most of the employees were retained by the new bank, only select upper management were either terminated or resigned. None of the original employees were "grandfathered" in for time of service, we all started as brand new employees with the new parent company bank as of 6/28/10. The products/services are the same, the locations are all the same, we kept the same bank name we origininally had, I nor the other employees that were kept had to interview for our positions.

I want to file the complaint because I believe I am right, but I am also afraid of being terminated for a bogus reason for doing so. I am 20 days from my delivery. Time is running out; I have a lot to lose and a lot to gain- so here I am... give me some advice please. Thanks.


Asked on 8/13/10, 7:38 am

1 Answer from Attorneys
Jeffrey Sheldon

First, employees often fear retaliation but have no real basis for that fear. So you should consider how real the problem is.

Second, FMLA of course only provides job protection while on family or medical leave. If the company is willing to grant you pregnancy leave, then it should not matter whether you have FMLA. Have you talked to HR about that?

You can also talk to your immediate supervisor to see if he/she has any problem with your leave. If not, then you don't have to worry about the FMLA. (Get it in writing that you can take whatever leave you are requesting - vacation, sick, LWOP, etc., such as in an email.)

If they will not grant pregnancy/maternity leave, then you have 4 basic options:

do nothing re: the FMLA, and just use whatever annual or sick leave you have available (assuming the sick leave policy covers pregnancy);

file the complaint - understand that this is not a guarantee that you are right about the successorship argument, or that the company would cover you anyway. They might fight it and let DOL go to court. DOL likely would not, so you might be stuck having to go to court yourself which you do not need on top of having to worry about a new baby (and it's expensive).

hire an attorney to write to the company to get them to see the light - but that will cost you money and there's no guarantee the company will come to its senses. (You're asking them to set a precedent that everyone who has 12 months with the old company is entitled to FMLA protection - they obviously do not want to do that)

inform them in writing that you believe, based on what DOL told you, that you are entitled to FMLA leave and are invoking the protection of the FMLA for your leave. Then, when you take it, if they violate the Act, you can bring the complaint and will be able to say you did what you could to give them notice and get protection, but they refused. If the FMLA does apply to them, then you would be entitled to the protection whether the company agreed or not. But either DOL would have to rule for you on the complaint and get the company to agree to abide by its decision, or you'd have to sue in federal court. (Expensive and requires an attorney to do it correctly.) And, as you indicate, you might be fired or retaliated against in the meantime.

Best bet - talk to HR or your supervisor to make sure this is really a problem. If they won't grant the leave you want regardless of the FMLA, or say your job will not be protected, then you'll have to decide how aggressive you want to be about filing a complaint.

Sometimes, you are forced to protect your rights, even if that means a difficult situation.

Congratulations and good luck!

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Answered on 8/19/10, 6:37 am


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