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FMLA/Fired for no call no show for points/ Can I get UI?

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watertown28

Junior Member
What is the name of your state (only U.S. law)? Wisconsin

Okay this is a mess..

Here is the story
My work has a call in policy where you must call in every day you are off work UNLESS the doctor give you a time frame to be off... but you must call in up to that time.

What happen is this:
I have 2 disabled kids. I have been approved FMLA for both kids on a "as needed" bases so I can use FMLA at any time.

I was using FMLA from the dates of the 26th to the 31st. The thing is they have no record of me calling in on the 26th. They marked this down as a no call no show which gave me three points and that put me to the point total of 14 which resulted in my firing.

I called HR on the 27th to let her know what was going on. I told her I was on FMLA and just wanted to touch base with her to let her know the situation. I also called her on the 31st to let her know the kids were better and that I would be returning to work the next work day.

Both times nothing was said about the missed call. In the attendance book they put me down for FMLA ( I got holiday pay for it )but sometime they checked to recorder and discovered that I was not on there so they moved the FMLA day from that date.

So this is my record:
1-17-12 Trasprotation
1-31-12 Late no call ( this one was because my locker would not open, had to get a mechanic to open and I could not get on the floor without my gear due to it being food safety/ personal safety...) they still counted it even if it was work related.
3-20-12 Sick
5-09-12 Sick
6-23-12 Sick
6-26-12 Sick LOA
7-6-12 Trasportation
7-7-12 Transprtation ( I finally got a co worker to give me a ride there after so getting to work would not be an issue )
10-5-12 sick
11-15-12 sick
11-26-12 sick
12-26-12 no call no show.
Each one listed is 1 point each with the exception of the 12-26-12 one which was 3 which put me at 14. I know a few of the "sick" have doctor notes with them so its not like I just took off without seeing the doctor a few times.

With that said, would FMLA cover that still? I can not get land line phone records because it was a local call and from what I was told only legal people can like cops and the courts. SO I have no way to know if I did or not. It was a long night with my kid who I was up all night with caring for with the fear of him aspirating on his vomit. By the time it was time to call in at 5am or so, I know I was way tired, so I can not recall if I did place that call... even if I did realize that I did not, I would still have called in late because that would have been better than the no call.
I made them aware the following day of the FMLA, without knowing I did not call in the day before, nor was it brought up in the conversations at all until yesterday ( the 2nd of Jan )... do you think I have any kind of legal leg to stand on with this?

Also, I was wondering about the UI also. Would I quality for it?
 


cbg

I'm a Northern Girl
You cannot be fired for the time you missed due to FMLA. You can be fired for the time you missed due to lack of transportation and your late/no call (even if work-related).
 

watertown28

Junior Member
Would they have to go back on the 26th and mark it for FMLA? The thing is I did not use it the day before that because it was a holiday.
 

cbg

I'm a Northern Girl
Even under FMLA, you are still responsible for following the employer's call in policies. The fact that they did not immediately jump on you on the 27th about it does not mean that a no-call, no-show is acceptable. The law gives the employer the right to deny FMLA leave when call in procedures are not followed.
 

watertown28

Junior Member
Even under FMLA, you are still responsible for following the employer's call in policies. The fact that they did not immediately jump on you on the 27th about it does not mean that a no-call, no-show is acceptable. The law gives the employer the right to deny FMLA leave when call in procedures are not followed.
Okay so it would not give the opening within the reasonable time clause in the law I take it?

How about UI? Would I be able to get it?
 

cbg

I'm a Northern Girl
No, calling the next day is not "within reasonable time frames" unless there was LITERALLY no way you could have called previously. Even calling in late would be better than not calling at all, as you have pointed out yourself.

As for UI, there are others better qualified to make an assessment on that given the circumstances. Commentator will no doubt be able to give you a pretty good estimate. But as far as I'm concerned, you absolutely should apply right now if you haven't already done so. UI is not retroactive beyond the date of application so if you haven't already applied, that's time you've already lost and will not get back. It costs nothing, there is no penalty for being wrong and the worst thing that can happen is that they say no, in which case you are no worse off than if you never filed in the first place.
 
W

Willlyjo

Guest
No, calling the next day is not "within reasonable time frames" unless there was LITERALLY no way you could have called previously. Even calling in late would be better than not calling at all, as you have pointed out yourself.

As for UI, there are others better qualified to make an assessment on that given the circumstances. Commentator will no doubt be able to give you a pretty good estimate. But as far as I'm concerned, you absolutely should apply right now if you haven't already done so. UI is not retroactive beyond the date of application so if you haven't already applied, that's time you've already lost and will not get back. It costs nothing, there is no penalty for being wrong and the worst thing that can happen is that they say no, in which case you are no worse off than if you never filed in the first place.
What proof do you have that UI benefits are not retro beyond the application date? UI benefits are given on pretty much a universal procedure. For instance, the Application should have a "Date last worked" in which the OP can tell EDD the last day the OP worked. Then there is a 7 day period from such date in which the OP doesn't receive benefits. This is called the "waiting period". Even if the OP was a couple weeks later in filing for UI benefits, there would be no penalty or lost benefits as a result. I wouldn't go too much beyond that though.
 

watertown28

Junior Member
What proof do you have that UI benefits are not retro beyond the application date? UI benefits are given on pretty much a universal procedure. For instance, the Application should have a "Date last worked" in which the OP can tell EDD the last day the OP worked. Then there is a 7 day period from such date in which the OP doesn't receive benefits. This is called the "waiting period". Even if the OP was a couple weeks later in filing for UI benefits, there would be no penalty or lost benefits as a result. I wouldn't go too much beyond that though.
Yes I have already started my app for the UI.

What do I need to make my case stronger? I guess I can call my doctor and get slips for the few times I did need to go in to see them. I know the 11-23 one for sure was due to my medication for blood pressure which the side effects made me ill .
 

cbg

I'm a Northern Girl
Are you claiming, Willy, that UI is EVER paid for a week that was not certified? And how does he certify a week that occurred BEFORE he made the claim?

Here's the law:

http://docs.legis.wisconsin.gov/statutes/statutes/108/06

I trust that you will need no further proof than the statute that says so?
 

Zigner

Senior Member, Non-Attorney
From http://dwd.wisconsin.gov/uiben/benfaq1.htm:

I will be laid off in a few weeks - should I call in my claim now to get things started?
No, wait until the first week in which you are unemployed or partially unemployed and start your claim then. If that week is Christmas or Thanksgiving or the 4th of July or New Year's week, we may be very busy, so call a week early. If you are ever unable to get through to start your claim in that first week, you can call the next week. Just be sure to tell the Claims Specialist that you want to start your claim with the prior week.


That does seem to indicate the the state will accept a benefit application up to a week late (not the "couple of weeks" that Willy claims, of course.)

Also, another correction for Willy (as usual) - The waiting period doesn't necessarily apply every time an application for benefits is made in WI. Just once per benefit year.
 
W

Willlyjo

Guest
Yes I have already started my app for the UI.

What do I need to make my case stronger? I guess I can call my doctor and get slips for the few times I did need to go in to see them. I know the 11-23 one for sure was due to my medication for blood pressure which the side effects made me ill .
If you are only looking to get UI benefits, relax! Based on what you've said in your posts, your case is plenty adequate to recieive UI benefits.

I would check with an Attorney regarding the fact you were fired for using FMLA benefits. A company's arbitrary and unreasonable procedure regarding a point system may not be acceptable by a court.

I agree with CBG that you could be fired for lack of transportation and calling in late or not at all, however, you were fired for not calling in concerning FMLA leave that you were eligible for. I'd have questions about the way you were fired in this way. It wouldn't hurt to speak with an Attorney.
 
W

Willlyjo

Guest
From http://dwd.wisconsin.gov/uiben/benfaq1.htm:

I will be laid off in a few weeks - should I call in my claim now to get things started?
No, wait until the first week in which you are unemployed or partially unemployed and start your claim then. If that week is Christmas or Thanksgiving or the 4th of July or New Year's week, we may be very busy, so call a week early. If you are ever unable to get through to start your claim in that first week, you can call the next week. Just be sure to tell the Claims Specialist that you want to start your claim with the prior week.


That does seem to indicate the the state will accept a benefit application up to a week late (not the "couple of weeks" that Willy claims, of course.)

Also, another correction for Willy (as usual) - The waiting period doesn't necessarily apply every time an application for benefits is made in WI. Just once per benefit year.
For all intents and purposes, the OP will have a waiting period since he worked long enough to become eligible for FMLA, which usually takes a year's worth of hours worked. Also, I'm sure that a couple weeks late in filing would certainly be acceptable since the EDD would process according to the "last day worked" as noted in the application. But, alas, I'm confident that EDD is not as nitpicky as you are Zig. :rolleyes:
 

Zigner

Senior Member, Non-Attorney
For all intents and purposes, the OP will have a waiting period since he worked long enough to become eligible for FMLA, which usually takes a year's worth of hours worked. Also, I'm sure that a couple weeks late in filing would certainly be acceptable since the EDD would process according to the "last day worked" as noted in the application. But, alas, I'm confident that EDD is not as nitpicky as you are Zig. :rolleyes:
Ahh, more back-pedaling and veering...just as expected.
 

cbg

I'm a Northern Girl
But that specifically says that it is in cases where the claimant is UNABLE to get through during known busy periods. Not when he simply doesn't call.

Then there's this, directly from the statute:

(2) 
(a) A claimant may establish a benefit year in the manner prescribed by the department by rule, whenever the claimant qualifies to start a benefit year under s. 108.04 (4) (a) and:
1. The employee is eligible to receive benefits;
2. The employee has experienced a reduction in hours of employment of at least 25% in one week as compared to his or her average number of hours of employment for the preceding 13 weeks; or
3. The employee reasonably expects to be eligible to receive benefits during the next 13 weeks.
(b) No employee is eligible to receive benefits before the employee establishes a benefit year.
(bm) An employee's benefit year begins on the Sunday of the week in which the employee files a valid request to establish a benefit year with the department,
except that the department may permit an employee to begin a benefit year prior to that time under circumstances prescribed by rule of the department.


Yes, they then go on to indicate that there can be exceptions, but only those exceptions specifically notated by law. "I didn't call yet" is not one of those exceptions.
 

cbg

I'm a Northern Girl
cbg is right about an employer's right to deny FMLA when call in procedures are not used, too.

Check out page 6:

http://www.dol.gov/whd/fmla/finalrule/NonMilitaryFAQs.pdf
 

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