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  #1  
Old 03-14-2009, 11:42 PM
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FMLA taken too far?

What is the name of your state (only U.S. law)? Connecticut

I work for a financial firm which has undergone substantial layoffs recently. Additionally, the head of my department left the firm a few weeks back. Her assistant - whose job has been obviously made obsolete - is out on maternity leave.

It's been hinted to me by someone in the know that, because the woman out on leave is protected by FMLA, she'll be given my position while I'm to be "laid-off".

This woman has never done my job. Further, I have far greater seniority and make less than her. I've never gotten a poor review and work my tail off for these people.

If they do let me go but keep this woman on, do I have any case against them? It seems like discrimination and an abuse of FMLA to force me out so someone else can keep their job.What is the name of your state (only U.S. law)?
  #2  
Old 03-14-2009, 11:46 PM
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they can lay of either or both of you with no recourse available to either of you.

FMLA generally does not prevent an employer from laying off an employee because of FMLA leave as long as it is not because of the FMLA leave.
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  #3  
Old 03-14-2009, 11:59 PM
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Also, if they do keep her and let you go it's not unreasonable to expect that the duties you previously performed would be inherited by those still employed.
  #4  
Old 03-15-2009, 10:58 AM
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It is not obvious to me that the job of the assistant to a department head becomes obsolete if the department head leaves the company. In fact, the assistant may become even more valuable to the operation of the company.
  #5  
Old 03-15-2009, 11:24 AM
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A company can legally lay someone off who is on FMLA if they would also have laid that person off had they NOT been on FMLA. It doesn't protect their job to the extent that they can't ever be laid off for any reason.
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  #6  
Old 03-15-2009, 11:30 AM
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Also, this question was answered when you asked it last month.

[url]http://forum.freeadvice.com/hiring-firing-wrongful-termination-5/eeoc-claim-455998.html[/url]
  #7  
Old 03-19-2009, 09:46 AM
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Thanks for all the responses and apologies if this seems like a double-post; I didn't really pose my question correctly the first time around.

So what this really comes down to is this: can I be fired specifically so this woman - who has never held my position - can take my job? Please note that I have no performance reasons to be terminated... they're saying I'll be let go for "lack of work". Which makes no sense to me since someone will be taking my place.

I have more seniority and make less than my potential replacement. I'm also the only male in an all female department where the men-bashing runs rampant (I have numerous gender-biased statements by the staff on record). I can say in all honesty that the woman is being kept around because she's "liked" better... I've even been told that, since she has a new baby, that she needs the job more than me.
  #8  
Old 03-19-2009, 10:02 AM
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Quote:
Originally Posted by CuckoosNest View Post
Thanks for all the responses and apologies if this seems like a double-post; I didn't really pose my question correctly the first time around.

So what this really comes down to is this: can I be fired specifically so this woman - who has never held my position - can take my job?
It really doesn't matter how many times you rephrase the question. The answer is the same. Yes, you can be terminated in your situation.
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Right. That is a statute... just as I'd presumed.

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  #9  
Old 03-19-2009, 10:23 AM
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Yes, I can be terminated. Whether or not it's wrongful is the question.

I'm failing to see how this isn't discrimination. I'm being targeted... isn't that grounds for a suit?
  #10  
Old 03-19-2009, 10:29 AM
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Quote:
Originally Posted by CuckoosNest View Post
Yes, I can be terminated. Whether or not it's wrongful is the question.

I'm failing to see how this isn't discrimination. I'm being targeted... isn't that grounds for a suit?
Discrimination is not illegal in most cases. The only times it would be is if it's based on a protected characteristic (such as race, gender, etc)
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Originally Posted by grndslm View Post
Right. That is a statute... just as I'd presumed.

Yea! Ziggy the Court Jester presiding.
It is not LAW.

Gender references shall apply equally to the other gender. I will not correct gender mistakes (unless I want to)
  #11  
Old 03-19-2009, 10:37 AM
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I'd say that I've been told that my potential replacement "needs the job more than me because she has a new baby" qualifies as illegal discrimination. It's saying that I'm losing my job because I don't have a newborn. Agreed?
  #12  
Old 03-19-2009, 10:42 AM
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Quote:
Originally Posted by CuckoosNest View Post
I'd say that I've been told that my potential replacement "needs the job more than me because she has a new baby" qualifies as illegal discrimination. It's saying that I'm losing my job because I don't have a newborn. Agreed?
Nope - not agreed. But, knock yourself out.
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I am not an attorney. Review the information yourself to make an informed decision.

Communication is KEY - 10 mins of talking now can save you months of headaches later!

Masterfully stating the obvious to the oblivious! (Thanks SP!)

Chuckle of the day:
Quote:
Originally Posted by grndslm View Post
Right. That is a statute... just as I'd presumed.

Yea! Ziggy the Court Jester presiding.
It is not LAW.

Gender references shall apply equally to the other gender. I will not correct gender mistakes (unless I want to)
  #13  
Old 03-19-2009, 11:08 AM
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Quote:
Originally Posted by CuckoosNest View Post
I'd say that I've been told that my potential replacement "needs the job more than me because she has a new baby" qualifies as illegal discrimination. It's saying that I'm losing my job because I don't have a newborn. Agreed?
Discrimination is only illegal if it's based on a protected characteristic. Protected characteristics include things like race, gender, disability, age, and religion. Not having a newborn child is not a protected characteristic. Ergo, discriminating against people who don't have newborn children is not illegal. Period.
  #14  
Old 03-19-2009, 11:59 AM
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Quote:
Originally Posted by CuckoosNest View Post
I'd say that I've been told that my potential replacement "needs the job more than me because she has a new baby" qualifies as illegal discrimination. It's saying that I'm losing my job because I don't have a newborn. Agreed?
The basic concept of "at-will" employment is that employers can hire or fire anybody they want to, for any reason. Likewise, you can work for anybody you want to or quit when and if you choose to do so.

There are exceptions to the doctrine of at-will employment in accordance with Title VII of the Civil Rights Act of 1964. Those exceptions prohibit discrimination based on the protected characteristics of race, religion, etc., that have already been mentioned in this thread. That is what defines "illegal discrimination". "It's not fair!" does not, by itself, meet the standard for illegal discrimination.

The water gets a little murkier when you start dealing with employment contracts, unions, public policy exceptions, covenants of good faith, etc., but they don't apply here.

You are not a victim of illegal discrimination. It might not be fair, but it's legal. And I'm not even sure that it's not fair.

Incidentally, if willyjo ever gets out of the time-out corner he's probably going to tell you you have a million dollar wrongful termination case. Do yourself a favor and ignore him.
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  #15  
Old 03-19-2009, 01:33 PM
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Thank you all for replying, especially Charlotte for giving a bit more of an explanation. I truly appreciate it.

Perhaps we're wading into a new part of the pond here... it just doesn't seem right that I'll lose my job (and potentially my home) because my co-worker decided to have a child.

Hey, what if I go out on FMLA starting tomorrow? Then, when I get back, they'll be obliged to give me my old job, newborn or no newborn. Now I'm thinking!
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