maternity leave law. Please help

[dimka448]

We live in Brooklyn, NY, and my wife is going on maternity leave in 2 weeks. She is a supervising pharmacist in the one of the big pharmacy chain store. The problem is that her manager does not guarantee her a spot at the same store, which is just 10min walk from our house. He does guarantee her a job as a pharmacist but somewhere in another location. Does anybody know the law regarding maternity leave regarding this situation? I know that employer must hold your job for 8 weeks, but is he allowed to transfer her somewhere else immediately after she returns?

Thanks,
Dmitry

 

[cbg]

According to my source, NY law does not specify that the employee must be returned to the exact same spot.

IF she is ALSO eligible for FMLA, she MIGHT have some recourse if he transfers her, depending on how far away the new store is. Please answer the following questions:

1.) How long has she worked for this employer?
2.) Does the employer have at least 50 employees within a 75 mile radius?
3.) Has she worked at least 1,250 hours in the last 12 months?
4.) How much leave time, TOTAL, has she already taken in the last 12 months related to the pregnancy or any other illness, including any time for doctor's appointments, morning sickness, etc.?

 

[dimka448]

Thanks for the quick reply!
She is with the company for 7.5 years. This is one of the largest drug chain in the area (Duane Reade) and has more then 100 stores in New York city. She works full time. Our first child is 4.5 years old, and when she took here maternity leave back then, she had no problems to return to the same store. (she works as SP pharmacist in that location for 6.5 years). Actually the manager ( she has a different district manager now) back then guaranteed her that her store will be available for here to return. She never took any extra days off for the past 12 month and beyond (only two weeks vacation and 1 sick day)
Thanks again for your help!

 

[dimka448]

one more thing..

It is not easy to get a permanent store to work. She waited almost a year to get the store she works right now. So most likely if she wont get her own store back she will become a floater, meaning that she will work at different stores every day in the area (like if somebody get sick or go on vacation)

Thanks,
Dmitry

 

[Beth3]

The FMLA applies which means that if your wife returns to work within 12 weeks, her employer must reinstate her to her same position or one of "equivalent status and pay." I don't think an argument could legitimately be made by the employer that returning her to work as a floater as a fill-in pharmacist assigned to any variety of stores is a position of equivalent status.

I suggest your wife contact human resources and discuss the situation with them. Perhaps her manager is ignorant of what the law requires.

 

[dimka448]

Thanks again for the reply!
The problem is that when she spoke with HR person, she referred her to the district manager. And when she asked about company policies regarding maternity leave, she was told that they don't have anything in writing. So its basically up to the district manager (who is with the company for less then a year) to decide if my wife will be able to get her store back. The uncertainty is what worries her the most and just 3 weeks before her due date is not healthy situation. Should the company like Duane Reade has policies in writing available for employees or it is up to manager discretion to do what he wants?
In the phone conversation he told my wife that "this is a business, and we do what is the best for the company".

Thanks,
Dmitry

 

[Beth3]

It sounds like the local management doesn't know what they're doing and apparently have never heard of the Family and Medical Leave Act.

A company that size certainly must have a corporate headquarters. I suggest your wife call them and ask to speak to the VP or Director of Human Resources, explain her situation, and specifically reference the FMLA. That ought to get their attention. Judgments and awards for willful violations of the FMLA have been massive in recent years.

While your wife shouldn't have to be the problem solver on all this, she's much better off if she can get this resolved and clarified with her employer now (and have corporate straighten out site management) than wait until a violation of the FMLA actually occurs when she tries to return to work and then has file a complaint with the DOL and pursue legal recourse.

 

[cbg]

FMLA is a Federal law. Every company in the United States with more than 50 employees in a 75 mile radius is charged with upholding it. From your description, your wife's employer (I'm not familiar with the company specifically - they don't exist in my part of the country) is certainly large enough to be subject to it. Since your wife has worked for them for more than 12 months, since she has worked more than 1,250 hours and since her medical condition is specifically covered under the statute, she is an eligible employee. This means that if your wife's employer fails to return her to a position that is equivalent in ALL respects to the one she left, they will be in violation of the law. It doesn't matter what the company policy is or whether or not they have those policies written down. As I said, this is a Federal law and they can find themselves in serious trouble if they do not comply.

This does not mean that she necessarily has to be returned to the exact same store she is in now. They could put her in a permanent position in a store that is 15 or 20 minutes away, instead of ten. But they could NOT put her in a permanent position in a store an hour away, or put her in a floating position instead of a permanent one, since that would be a significant change to the conditions she was in previous to her leave.

If they fail to comply with FMLA, your wife can file a complaint with the US DOL and I assure you, her employer will not like what the DOL has to say to them. (BTW, they CANNOT legally take any action against her for filing such a complaint and if they do, she can amend her complaint to include a wrongful termination/wrongful demotion/wrongful whatever.)

Your wife needs to make it clear to HR that she is applying for FMLA and that FMLA protects her right to be returned to a position that is equivalent in ALL respects.

 

[dimka448]

Thank you Beth3 and cbq for your reply!
I will definitely let my wife know that law is on our side and we will definitely follow suggested course of actions.
Thanks again for your help!

Dmitry

 

[cbg]

Let us know how it comes out!

 

[SuzieWahoozie]

Please allow me to play the Devil's Advocate here...although I agree with what cbg and Beth have said, I am not as certain as they are that this applies under FMLA. I know cbg and Beth are asking, "Why is that Suz?"

Although you mention this is a large chain store and they have over 100 stores in NY, you did not answer the specific question of how many EEs are located within 75 miles of your wife's work place. If they have 5 stores within 75 miles, but those stores do not employ an average of ten EEs per store, the "50 EEs within a 75 mile radius" rule would not be met.

So, specifically answer the question asked...not how many stores there are...not how many EEs they have companywide. How many employees does the company have WITHIN 75 MILES OF YOUR WIFE'S WORK LOCATION? If the answer to THAT question is "more than 50," then AND ONLY THEN would FMLA apply. If there are less than 50 EEs in a 75-mile radius, your wife would have no claim under the FMLA and would then, unfortunately, have no job protections and be subject to the whim of her DM.

 

[dimka448]

You are not going to be successful playing Devil's Advocate ;-)
They employ around 300 people within 2 miles radius. They practically have 1 store per block. And each store have I would say around 30 people total. This is the largest drag store chain in North East (Duane Reade Pharmacy) and one of the biggest in the country And Their headquarters are located in Manhattan, New York , approximately 10 miles away from our house
Just checked Bloomberg. This company have 6100 employes in tri state region