Legal Question in Medical Leave in New York
fmla violation
I was recently on disability under fmla protection from my employer and I was told I was laid off during the course of my approved leave. I was told by HR that they have the right to lay me off because my position was replaced and there is no position for me now, so there is no need for me since they do not have enough work to add me. Is this not a clear violation of the FMLA? If so whom do I contact first, an attorney?
2 Answers from Attorneys
Re: fmla violation
Generally, the FMLA provides that any employee who takes such "shall be entitled, upon return from such leave--
1. " to be restored by the employing agency to the position held by the employee when the leave commenced; or
2. " to be restored to an equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment.
If your position is eliminated, the employer would then have to show it had no "equivalent position" to offer you. See http://www.dol.gov/esa/whd/regs/statutes/fmla.htm#SEC_201.
Re: fmla violation
Your situation is not a clear violation of the FMLA; however, the burden of proof -according to the FMLA- is on your former employer to prove that regardless of your status (e.g. on or off leave) your position would have been eliminated and there is no similar job available were you can be place. You can contact an attorney or file a complaint (no special form required) with the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor.
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