Forced to resign

[Shroud]

What is the name of your state? California

At the beginning of February I was put on disability for stress/depression until March 1st. Towards the end of February I found that my disability was being extended until April 1st (and possibly beyond). I understand that my employer has the right to replace me due to business needs as I am in a supervisory position and as a result they must place me in a position with equal pay, benefits, etc. if I return before my 12 week FMLA period.

I recently received a call from my employer stating that I was in fact being replaced and that I would be offered a position that would require me to commute up to 60 miles one way (prior to disability, my commute was 13 miles one way) and though the position has the same job title, the position would be more stressful and have greater responsabilities. The employer stated that I could take this position or be offered a transition package in which they would give me two months pay to leave the company. The employer also stated that there may be other possibilities within the company, but kept refering to the transfer package. Since this conversation my employer has called every two days to see if I have "made a decision on what I wish to do." I feel as though I am being forced out of the company...can they do this?

 

[Beth3]

"can they do this?" Nope. If you return to work within 12 weeks, you must be returned to your original position or one of equal stature and pay. A position 47 miles further away is NOT one of equal stature. Same goes with offering you two months severance if you resign. If your employer follows through with their plan, they're in hot water.

In the hopes of working this out amicably with your employer, why don't you discuss this with your supervisor or the HR Department. Ample info on the FMLA is available via the internet. I'd suggest you do further research to ensure you're amply familiar with the relevant requirements of the FMLA before having this conversation. If your employer refuses to rethink their plan, then you're free to file a complaint with the federal DOL.

Good luck.

 

[Shroud]

Thanks for the information. I went to the DOL website and found the FMLA documentation in addition to detailed explinations. It apears as though I have some leverage.

"Same goes with offering you two months severance if you resign." In your professional/personal opinion, what should they be offering me if I choose to forefit my position? I've heard pay equal to six months.

Again, thanks for your input.

 

[Beth3]

Shroud, not all companies offer severance - fewer don't than do. There is no established norm but in cases of involuntary separation due to a layoff or position elimination, one to two week's pay for every year of service is fairly customary, depending upon what the employer can afford and what they have done in the past.

However...your negotiating stance, IMO, needs to be asking for something more generous than that. From the bit I've read, judgements in recent years for willful violations of the FMLA have been in the several hundred thousand dollar and up range. Now if you go in asking your employer for that kind of money, they're going to throw you out the door after they stop gasping for air. Negotiations need to be reasonable if they're going to succeed. I'm just saying keep in mind that what you're actually negotiating is compensation in lieu of your filing a complaint with the federal DOL and you have a very strong case. That is a big deal.

When you discuss this with them, be pleasant but be firm and let them name a figure first. They'll be low and you need to come back in high but not with a totally absurd figure. Things to consider asking for in exchange for waiving your rights to file a complaint or suit against them (which I presume they'll ask for - they're idiots if they don't) include salary continuation, continuation of your group health benefits, a favorable reference, and outplacement.

Keep in mind too that filing a complaint and subsequent lawsuit isn't going to be a barrel of laughs for you either. It'll tie you up for several years at least so there IS a definite benefit to you if you and your employer can resolve this between the two of you.

If you really want to be well prepared, consult with an employment law attorney first. Good luck.