Layoff

What is the name of your state (only U.S. law)? IL

Wife works/worked for a small non-profit. She was on Maternity Leave (and it was covered under FMLA per their by-laws). She was recently laid off, while on Maternity Leave. Her employer cited "we don't have the money". However... here's the rest of the situation.

She was notified of this on a Wed, but the Layoff date was back-dated to the prior week. This prior week's date is what was sent to the State. As stated, she was on Maternity Leave, and she was advised of this at 7:30pm on Wed, that she was Laid off the previous week. She is a Salaried non-exempt Employee (Asst. Director and Counselor).

To add to the confusion, the gal who does the payroll was unaware of this, and still cut a check for her, AND the Director gave it to her.

I'm under the impression that the Payment would change the date of her Layoff to this week, vs. the initial reported date. And in the mean time, she's still doing some projects for her "boss", we don't know if this is temporary. She has several weeks of paid vacation on the books that would be needed to be paid out if she's outright terminated, when they have the money to do so.

I guess the questions are this:

Does FMLA mean anything? She's the only person laid-off, and there's talk of hiring a Board Member's mother to replace her.

If she's doing, or requested to continue to do her job, how is that a lay-off? And, if they need her to do this, how is it they can function without her?

Can they notify someone they are laid off a week after the fact? That's the big question we have.

Thanks

Your post is somewhat contradictory. I cannot tell if she is actively working, currently on leave, or working while on leave. But I'll do my best.

FMLA means that you cannot be laid off BECAUSE you are on FMLA. It does not mean that you have a get out of jail free card. If the employer can provide a genuine business related reason why she would have been laid off even if she were not on FMLA (and I am not making any judgements as to whether they can or cannot - just telling you what the law says) then she can be laid off regardless of whether she is on FMLA or not.

It's not a question of whether they can "do without her" or not. In a poor economy, employers frequently have to lay off employees that they desperately need, simply because they do not have the money to pay them. However, I agree that if she is still ACTIVELY working on projects for her employer, then she has not been laid off YET. (Query - why is she working on projects while she is on FMLA? Or do you mean that there are projects waiting for her when/if she returns?) This does NOT mean that the layoff is necessarily void. And it has nothing whatsoever to do with whether she did or did not receive a paycheck - while an employer cannot refuse to pay an employee for hours ACTUALLY WORKED, there is no law prohibiting an employer from paying an employee for time not worked. In a situation like this, it's called, "severance pay". Or can be, at least.

Yes. If the employee is not actively at work ANYWAY, then yes, you can (and in some cases, possibly should) be notified after the fact.

She was/is on Paid Maternity Leave, utilizing her Sick Leave. They called her on Wed night at 730, notifying her that she was Laid off last Week. This, is after she came into the Office earlier in the day to get some documentation for a Grant she was writing.

She was working on her Maternity Leave, as far as she knew, but was advised that she was now Laid-Off, and had been for a week.

Whether it was paid or unpaid leave is immaterial. The law is not different based on the pay status of the leave.

Does she have a valid and supportable reason to believe that, had she NOT been on maternity leave, that she would NOT have been laid off?

BTW, it doesn't matter what the by-laws say. FMLA is a Federal law and the eligibilty for FMLA is carved in stone at the Federal level. She may or may not have been entitled to maternity leave, or even paid leave, under the company by-laws, but unless she and the employer both qualified for FMLA under the statutory definitions, it was NOT FMLA and FMLA protections do not apply.