Replaced and Transferred while on Short Term Disability

[susans222]

What is the name of your state? New Jersey

I have been working as an executive assistant at a company in New Jersey for 8 years. About 6 weeks ago, I went out on Short Term Disability (paid disability by the state, with supplemental pay from my company) due to an illness. After my 1st week of disability, I saw my position listed on an open jobs website, but listed as part-time. I was assured they were simply looking to hire an additional helper for the department, as they realized two assistants were not enough coverage. About 2 weeks later, the HR department called to inform me they had "re-assessed" the position, hired someone to replace me, and I was being transferred to a different department, at the same salary. They could not tell me what my job title would be, or the responsibilities I would have, but said I would not necessarily be working in an "assistant" capacity, as with my previous position.

Is it legal for my company to replace me and transfer me to another department, while I am out on short term disability (STD)? I am unsure whether they have to hold my specific position for me, or just a "comparable" position, during the 12 weeks of STD.

Also, I then sent a letter requesting the company send me a copy of my personnel file (as I wanted to have copies of previous positive employee evaluations, etc.), and received a letter stating I could set up an appointment with the HR rep to "review" my file by calling her. By law, aren't I entitled to receive a copy of my file, no questions asked?

Any help is appreciated as I am truly lost about what I am entitled to.

susans222

 

[cbg]

With regards to question #1, this is a critical question. How many employees does your employer have total? At your location? This will make all the difference to whether their replacing you at this time was legal or illegal.

With regards to question #2, the answer is no. State law determines whether you are entitled to see your file and/or have a copy of it. In New Jersey, it is entirely up to your employer whether or not to let you see your file, whether to give you a copy of the file, or whether to tell you no, you can neither see it nor have a copy. In your case, it sounds as if they are at least willing to allow you to see it, which is more than they are legally required to do.

 

[susans222]

Total Employees

CBG --

Thank you so much for your reply.

In response to your question: We have two locations, one in New Jersey with over 100 full time (probably around 130 to 150) permanent employees, and one in Canada with around 500 employees. So our total employees would be in the 600+ range, but I don't know if you count out-of-U.S. locations.

As for the personnel file, thanks for the info. I guess it's worth taking them up on the "offer" to review my file with me, just to see if I can get copies of past employee evaluations.

susans222

 

[cbg]

The following assumes that you were a full time employee, rather than part time, or at the very least that you had worked over 1,250 hours in the 12 months preceding your leave.

You are entitled under the Family Medical Leave Act to 12 weeks of leave with your job protected. This means a COMPARABLE position, however, not necessarily your exact job. It must be comparable in all respects; pay, benefits, hours, shift, approximate duties. (Note that comparable does not necessarily mean identical.) As long as the job is comparable, it is not illegal to transfer you or to change your job, but if the job is not comparable, an FMLA violation will have occurred UNLESS the employer is able to show that the changes would have happened anyway, regardless of whether you took leave or not.

 

[susans222]

Thanks!

CBG --

Thank you so much for your replies and the clarification.

It sounds like I won't really know if they have violated the FMLA until I return to work and see if the job in the new department is "comparable" to my previous duties. I have the feeling that, although I feel the way they handled this was very unfair, they have probably covered themselves and made sure they were within the law. But I at least wanted to understand what my rights were.

Thanks again for you time.

Susans222