My Wife got terminated after giving birth- was told she would get unemp. benefits.

[FrustratedSam]

Colorado


I am trying to help my wife out regarding a very frustrating situation we have been put regarding her unemployment benefits.

My wife worked for a company for just over 1 year and 2 months; of which 3 months of that she was a contractor. Therefore, she did not qualify for FMLA when our son was born by a couple of weeks literally.

Regardless, since her delivery had complications and required an emergency C-Section; and she only had about a total of ten days of sick leave and vacation time, her supervisor did her best to try and get her some sort of extended leave etc.. The supervisor initially sent her an email saying if she could work 1 hour per day from home for 8 weeks, she would be secured her job and benefits. The condition was, my wife had to get a letter from her doctor stating this was an acceptable situation. She convinced the doctor and got a letter stating it was acceptable.

Well, the day after her vacation and sick time was exhausted which happened to be the last day of October; the companies HR department contacted her and said they could not go through with the 1 hour a day offer and she needed to return to work immediately full time (8 hours a day) or would be terminated since she had exhausted all of her leave. Additionally, they needed another doctor’s letter saying this was acceptable. This was ridiculous; and her doctor would in no way take the liability of stating this. She could barely get out of bed still, so there was no way this was realistic.

So in an email she asked her HR contact to give her the reason why she was being terminated and benefits info. HR said she had “exhausted all of her leave” and said she would be eligible for unemployment benefits, COBRA etc… sent along links to the CO Unemp. site in the email.

She had just gotten her second unemployment credit last week, when she also got a letter in the mail from the Colorado Unemployment Appeals Office stating her old company had declined the unemployment claim because she “voluntarily” quit. Along with this was a 3rd party contact that represented the company and a hearing date.

All of this is completely a false accusation; and she has emails to prove that the company was terminating her because she had no sick leave left. Considering they even sent her links to the unemployment office; and emails from her supervisor apologizing for the situation there should be no question here right? She had an outstanding supervisor review sheet and was a very liked employee there as per her peers; so how can they get by with this when the only thing she did was have a baby?

I look forward to your advice.

Thanks. Frustrated SamWhat is the name of your state (only U.S. law)?

 

[Beth3]

You're wife won't be eligible for unemployment benefits until she is physically capable of working, so if she is still recuperating from the C-section and unable to work, she isn't eligible for unemployment benefits until she's released by her doctor for full-time work. My understanding is that on average, that's 8 weeks following the surgery provided there are no complications.

I don't know why your wife's former employer is not saying she quit. Your wife should provide copies of the emails stating her employment was being terminated to the UC office and/or at an unemployment hearing if one is scheduled.

BTW, I don't know why your wife wasn't eligible for FMLA. If she was an employee of this company for 11 months and then a contractor for the same company for 3 months, all that time counts towards her eligibility for FMLA. I suggest you and your wife look into this further and contact the federal Department of Labor for further information and clarification. If she was wrongfully denied FMLA, she can file a complaint with them.

 

[Zigner]

BTW, I don't know why your wife wasn't eligible for FMLA. If she was an employee of this company for 11 months and then a contractor for the same company for 3 months, all that time counts towards her eligibility for FMLA. I suggest you and your wife look into this further and contact the federal Department of Labor for further information and clarification. If she was wrongfully denied FMLA, she can file a complaint with them.

Just to clarify. Time as an independent contractor counts towards FMLA?

 

[Beth3]

If she had continued to work for the same employer, in many cases it will, although we'd need clarification as to what the OP means by "independent contractor." If the OP's wife truly became self-employed, then it wouldn't. But if the employer changed her status to that of a "1099" consultant, then it does. It's also pretty difficult for an employer to lawfully make the transition of an individual from an employee to a consultant and meet all the necessary criteria. That may be worth the OP looking into as well.

 

[FrustratedSam]

To clarify- in my original post, I state she was a contractor. By this I mean she worked through a 3rd party placement company for 3 months before becoming a permanat employee for the company we are dealing with. So in this case is it correct she would not qualify for FMLA since she was at the main company's location for over 1 year, but not in any way directly employed by them for over 1 year?

Thanks again for all of the tips and suggestions!

 

[Hot Topic]

She was an employee of the agency before going from temp-to-perm status; therefore, the three months she temped cannot be include with the time that she became a permanent employee.

 

[Beth3]

I don't believe that's the case, HotTopic. The agency and the employer were "co-employers" of the OP's wife and it's my understanding/recollection that ALL this work time must be counted towards FMLA eligibilty.

Sam - contact the DOL for clarification and/or go to their website to research this: The U.S. Department of Labor Home Page.

 

[commentator]

One or both of these entities, either the employer OR the temp service uses the third party private contractor-from-hell to do their unemployment claims. THEIR practice is to contest each and every claim that is filed by their client company. This does really reduce the number of claims approved, because some people just meekly accept that they aren't automatically approved, and don't pursue an appeal.
So yes, they've contested your wife's claim. They can, and they have. The company has hired this third party to do this to every unemployment claim filed against them. Sort of like a company denying all health insurance claims and then seeing if the patient will appeal the denial. Some won't so they come out ahead.

What your wife will need to do is present the information that she is fully eligible. The fact that the employer told her she was eligible and provided her with links to the u.i. website does not mean she was automatically approved, but it will sure sound good in the appeal hearing.

She'll have to go through the process. Which means she will have to prove (by submitting the necessary documentation to the unemployment office) that she has been released by her doctor as able and available for work again, and that she was let go by her company while under a doctor's care, having exhausted all her FMLA. Then she should be able to get a decision approving her claim and begin drawing benefits.

 

[swalsh411]

I won't repeat what's already been posted but I want to clear up two things for the benefit of the OP.

Firstly, employer's do not decide whether or a former employer is eligible for unemployment nor do they "decline" or "accept" applications once somebody files for benefits. That decision is made by each State's unemployment department based on established eligibility criteria. Both parties have appeal rights if they do not agree with the decision.

Secondly, you must be able and available for work to collect unemployment. If your wife cannot work right now due to complications from her pregnancy then she is not eligible for unemployment benefits regardless of any other considerations.