Is there any reason to file an eeoc or dol claim?

[kitkatbup]

What is the name of your state (only U.S. law)? Pennsylvania. In July of 2013 I had an open FMLA claim because my son is disabled and he had surgery. I never used any days. I renewed it in August when the old claim expired. In December, I was diagnosed with cancer (a recognized ADA condition) and in January I started Chemotherapy. When I asked HR to end my son's FMLA and open one for myself, they said they would just roll mine into his FMLA claim. I asked about short term disability and was told I could not have both FMLA and STD. (I later found out I could have both.) I had used all of my sick, vacation and FMLA time by the middle of April. I started coming into work sporadically in March. My last round of Chemo was at the end of April.

Four days after my last chemo treatment I was called into my supervisor's office. HR was there also, they told me that they were cutting my hours. I said that was alright because I was thinking about going to six hours a day (which would still be full time.) They said they were cutting my hours to five hours a day, which is part time. I asked if it was because of my cancer. They said no it was not. I asked why. They said that while I was out, they had someone who used to do my job fill in an they realized that it was not a full time position. They told me they were looking into this for a while.

Do I have a reason to file a claim? I have a disability (cancer-which I did not have before I was hired.) I returned from FMLA and they cut my position to part time.

If I do file a claim, am I protected by the "whistle blower act?"

Thank you.

 

[justalayman]

while cancer in whole is acknowledged as a disability under the ADA, that in itself does not mean your cancer would cause them to do anything at all. Do you need any accommodations due to your cancer?

and yes, as far as the law is concerned, you can be ON FMLA leave and collect STD, LTD, or anything else. They are simply separate issues. FMLA allows for protected leaves of absence and nothing more. STD, LTD, and other similar matters are insurance payments to provide an income while on medical leave.

Unless you can show that they cut your hours because you went on FMLA leave, there is nothing improper about what they did. You can have your hours cut, be laid off, or anything else while on FMLA if it would otherwise have happened if you were not on FMLA. The problem is if the took action because you went on FMLA leave. That is illegal.

I had used all of my sick, vacation and FMLA time by the middle of April. I started coming into work sporadically in March. My last round of Chemo was at the end of April.

actually if you were off work longer than 12 weeks in a year, they could just fire you. FMLA provides for 12 weeks of leave per year (if you otherwise meet the qualifications). If you are out of work one day beyond that 12 weeks they can terminate you.

 

[cbg]

Under the law, you get a total of 12 weeks FMLA per 12 month period (as your employer counts the 12 month period -there are several legal ways of doing it). You don't get 12 weeks per person or condition; you get 12 weeks. As far as the law is concerned, that's all you get. If your employer offers STD benefits, that's great, but STD is how you get paid while you're on leave - it's not additional leave over and above FMLA. If your employer chooses to allow you more time, they may; the law will not force them to do so.

Your employer was actually quite nice to you if they allowed you to take vacation and sick time over and above FMLA - they're not required to and could have included that as part of the FMLA. They also could have held up approving any leave for you until you provided medical verification.

As JAL says, while cancer can be considered a disability, it is not automatically considered so across the board. There is only one condition which automatically qualifies you for ADA protection just by virtue of its existence, and that condition is HIV/AIDS. Every other condition has to be looked at on an individual basis, and it does not guarantee you additional time off. What it does guarantee you, assuming that your specific condition is found to qualify, is a reasonable accommodation that will allow you to perform the essential functions of your position. What accommodation do you need, and did you request it?

Now, all that being said, you are supposed to be returned to either your exact position or one that is equivalent in all respects, and that didn't happen. There is no harm in giving the US DOL a call and see what they say. If the company can support the fact that no matter what, your full time position would have been reduced to part time, they may be okay, because FMLA does not protect you from changes that would have happened anyway. But it will be the employer's burden of proof, not yours.

 

[tranquility]

I am uncertain what you mean when you say:

(I later found out I could have both.)

Do you mean you should get a salary, or do you mean you think you get disability income and rights to accrued income under FMLA?

 

[cbg]

I suspect, though I may be wrong, that the OP believed that STD was additional leave and was told that she was not entitled to additional leave and translated that into, can't have both. In actual fact, STD benefits are income replacement, not leave, and can be taken in addition to FMLA, so that the FMLA leave is partially paid.

 

[tranquility]

I suspect, though I may be wrong, that the OP believed that STD was additional leave and was told that she was not entitled to additional leave and translated that into, can't have both. In actual fact, STD benefits are income replacement, not leave, and can be taken in addition to FMLA, so that the FMLA leave is partially paid.

I certainly agree with the legality of your interpretation. I did not understand what was meant and was uncertain about the facts of your interpretation. But, what you say makes a lot of sense to me.

As a side note, look at the power of the forum! I am sad I have no signature; but, when many look at a thing, it is amazing how that thing can change.

 

[ShyCat]

They said that while I was out, they had someone who used to do my job fill in an they realized that it was not a full time position. They told me they were looking into this for a while.

That appears to be a legitimate, non-discriminatory business reason to cut your hours. I've known employees who were reluctant to take vacations for fear their replacements would prove that their actual job tasks did not require a full-time position. If your employer realized your job required only five hours a day, they are not required to schedule you for six hours a day just so you qualify for benefits. It would be nice if they did, but shareholders don't much care about nice.