• FreeAdvice has a new Terms of Service and Privacy Policy, effective May 25, 2018.
    By continuing to use this site, you are consenting to our Terms of Service and use of cookies.

Much further than wrongful termination?

Accident - Bankruptcy - Criminal Law / DUI - Business - Consumer - Employment - Family - Immigration - Real Estate - Tax - Traffic - Wills   Please click a topic or scroll down for more.

Kpg

Junior Member
I live in New Hampshire, husbands workplace was in Massachusetts.

This is going to be long but I want to provide the most information as possible.

My husband hurt his knee outside of work in May 2017. He went to the doctors and found out he needed to have a donor ACL. His job (hvac engineer at a commercial building) asked for a doctors note because his doctor said he could put the surgery off a few months while we plan and save for it and his doctor cleared him to work FULL DUTY. After bringing that note to work he worked for about two weeks with that note then he got a call from his boss on his day off saying that Human Resources really just wanted him to have it done and he couldn’t come back to work until he had surgery and recovered. He told them (and they knew this prior) that it was a six month recovery and he wasn’t prepared to be out that long and they said don’t worry about it just schedule your surgery and get well. He couldn’t get in for surgery for 3 weeks after that he was told he couldn’t come back so he called work and told them it was scheduled for July 5th and asked if he could come and work since he had a note saying he could work without restrictions until the date of his surgery. He was told NO. He was also told he could file short term disability right away.

Turns out they were wrong about that and STD told him he could file on July 5th and that’s when he would be considered disabled. He only had 2 weeks of vacation and sick time but his work continued to pay him until his STD kicked in.

The only thing that was ever said about his time off was “just keep checking in and keeping us in the loop as to when you can come back”. They never mentioned FMLA nor did we receive any paperwork on FMLA. We only spoke to his union who gave us instructions on how to file for short term disability.

At his check up on 9/12/2017 he was cleared to work on restricted duty, his work said no, had to be full duty no restrictions. They never even inquired what kind of restrictions he would need.

Finally on 11/27/2017 he is cleared to return to full duty work. He sent the letter to his boss. No word. He calls his boss, no answer. He calls another boss and he tells him he will have someone call him. No call ever came. Finally he gets a text saying that we should have a certified mail from them at the post office.

And that we did. It was a big envelope with a smaller one inside, the smaller one was a letter dated 11/1/2017 saying he had exhausted all of his time off and they would need to terminate his employment effective that day. The other letter said there was a mix up with USPS and that’s why we never got the letter and they just discovered it in their mail room.

He talked to a regional manager later that day who told him that he used up all of his FMLA and then some but if he was off under FMLA then why was it never mentioned? That would have given him just 12 weeks and we already knew recovery was much longer than that.

Also in my opinion it was wrong that he was forced out and never given a timeline. He was having a surgery that would take some time to be able to bend his knee in order for him to climb a ladder again. He was told because the injury didn’t happen at work they didn’t have to accommodate restrictions. Basically it feels like they knew this would be the end result but forced him into surgery anyway.

He is going to file a grievance with the union on Monday morning. We don’t really want a lawsuit, he just wants his job back.
 


HRZ

Senior Member
I think hubby wants to see an attorney skilled at litigation of FMLA issues ..like darn soon .

THere are lots of loose ends in what you post ...and best to counsel sort out the maze ...his union may or may not put up a solid fight..but try to enlist them, be nice !

Some problems I see:

FMLA is capped at 12 weeks, employer need not extend it longer ...but other policies and leaves might stretch it out.

THere are some requirements about notices to employees about FMLA leave in general and how much the person has in particular ....and that mailroom lost notice may or may not hurt employer .

IN general employer is required to consider a request for reasonable accommodation .( under ADA ) ..but employee must ask for it , it's not automatic . A work caused medical problem or a problem created elsewhere is not the issue

WHat he was told may become a he said she said debate ..

He needs attorney on this one!
 

Kpg

Junior Member
I think hubby wants to see an attorney skilled at litigation of FMLA issues ..like darn soon .

THere are lots of loose ends in what you post ...and best to counsel sort out the maze ...his union may or may not put up a solid fight..but try to enlist them, be nice !

Some problems I see:

FMLA is capped at 12 weeks, employer need not extend it longer ...but other policies and leaves might stretch it out.

THere are some requirements about notices to employees about FMLA leave in general and how much the person has in particular ....and that mailroom lost notice may or may not hurt employer .

IN general employer is required to consider a request for reasonable accommodation .( under ADA ) ..but employee must ask for it , it's not automatic . A work caused medical problem or a problem created elsewhere is not the issue

WHat he was told may become a he said she said debate ..

He needs attorney on this one!

That’s the “funny” part his work didn’t seem to know anything about FMLA because they kept saying it’s 14 weeks and everywhere I read says 12.

At least what we have on our side here are emails, many emails saying no accommodations could be made for him to come back to work until he was on full duty.

We are talking with a lawyer on Monday after we talk to the union. The part really bothering him is upon getting the letter he reached out to the union and no one called him back.
 

Kpg

Junior Member
Exactly how long was he out, from beginning to end?
5 months. That’s the short answer.

In case it helps for more information...

June 14 is when he was told he couldn’t come back without having the surgery. He was paid with vacation time and they even paid him an extra week of vacation before his STD kicked in on July 5th.. surely not out of the goodness of their hearts but they didn’t know how the system worked. They told him he could be on disability right away. Not the case..
He was told he could go back on restricted duty on 9/12/17 but he was told no, 12/7/17 was the date he was released for full duty.
 

cbg

I'm a Northern Girl
While I do not deny that this was handled badly, this is not a wrongful termination as defined by law.

The longest than an employer is required to hold his job for him is 12 weeks. On week 13, day 1, if he is not able to to return to work, he may legally be terminated.

A landmark US Supreme Court case in 2002, Ragsdale v. Wolverine, states that as long as the lack of notification does not result in his losing time he would otherwise have been entitled to, it is not required that he be told the time is being attributed to FMLA. He received two months longer than the law requires, so the fact that they did not specifically say it was FMLA does not mean he is entitled to more time or that they are required to give him, his job back.

This is something he is going to have to take up with his union. It may be that he has rights under his contract that are being violated, but the law is not.
 

Kpg

Junior Member
While I do not deny that this was handled badly, this is not a wrongful termination as defined by law.

The longest than an employer is required to hold his job for him is 12 weeks. On week 13, day 1, if he is not able to to return to work, he may legally be terminated.

A landmark US Supreme Court case in 2002, Ragsdale v. Wolverine, states that as long as the lack of notification does not result in his losing time he would otherwise have been entitled to, it is not required that he be told the time is being attributed to FMLA. He received two months longer than the law requires, so the fact that they did not specifically say it was FMLA does not mean he is entitled to more time or that they are required to give him, his job back.

This is something he is going to have to take up with his union. It may be that he has rights under his contract that are being violated, but the law is not.

I completely understand what you’re saying. Even though this affects me directly I would agree that is a long time to be out of work.

I am just having an extremely hard time understanding how he could have been denied working first in June when he had a doctors note saying that he could work full duty , and he worked with that note and then was told he couldn’t go back until he had the surgery, he asked several times if the length of recovery would be an issue and he was told no, just keep checking in.

Next I don’t understand why he couldn’t come back in September when he was released for restricted duty? They said it’s not allowed despite the fact there IS a desk job available in his department, they all take turns. Someone who had been recovering from a different surgery was allowed to work that for some time after coming back. When his time came they said “we no longer allow light duty at this time”.
 

HRZ

Senior Member
Who told him he was ok to work on light duty ?

IF it was a doctors note did he actually make it known to his boss/present it and in any way signal or request light duty?

Was proper notice about FMLA rights actually posted at his place of work . Proper notice is a big technical deal and

I think Hubby needs to visit good attorney with a track record of litigation FMLA and ADA issues .

HUbby is now fully recovered and able ?

HE or she can best evaluate if there are any straws to grab. IT is not entirely rare that a person coming off FMLA leave go on some sort of temporary restricted duty ....but employer is not required to bend over backwards ...if employer refused to even consider modest modification..that might be a problem for them and in your fact pattern there was an earlier request re doctors note .

Here is my view as a very old timer ...this was handled poorly and there might be some straws he could grab..the safer path more likely to save employer money and somebody's managers job is to make the problem go away by restoring him .....The firm might be 100% correct as to matters of law but this is not a hill I would chose to die on defending . ...the union might be able to make the point ...but don't assume they have the Moxie or willingness to do so. BUT he wants his advocate to make the point SOON if it is to be made.

HE long ago went past any FMLA time limits...
 

cbg

I'm a Northern Girl
Light duty is a strange crittter. Sometimes, there is lots of it going a-begging. Other times, there is none at all.

In November, my department has all the light duty an employee could ask for. The nature of what we do and when we do it means that there's plenty of light duty around for anyone who needs it in November, and if there's no one who needs light duty at the time, well, someone has to do the light tasks anyway. This continues till mid-December; I spent most of Friday working on the "light" tasks because someone had to do it, we had no one who needs a light duty job at the time and it was my turn.

In February, we have someone who gets laid off and doesn't come back till July because we just don't have any work for her to do, and those of us who remain have an easy month because there's nothing much going on. Anyone who needs light duty in February is out of luck - we just don't have any. We don't even have enough regular work for the whole team to keep busy.

There is NEVER a time when an employer is required to provide light duty. There is NEVER a time when an employer is required to create a light duty job for them to do. If there's legitimate light duty at the time someone needs it that's fine, but if there isn't any? The employer doesn't have to create some.

As I said, I am not in the least questioning that this was badly handled. But his best bet is still going to be going through his union.
 

HRZ

Senior Member
I am not disagreeing with the fuzzy nature of light duty ....

I don't know the strength of the union or where hubbys plight might be in their priority...but if the union has not stepped in yet...I'd be nervous ....IF there is an applicable grievance procedure .follow it to a T no matter what anyone else says....

Personally I'd want my own paid advocate to give me an overview based on facts
Events as we have them.

THis is not the place to ask your friend who may be great lawyer at XYZ but never did FMLA/ADA or CBA work before ....you want an evaluation from somebody who has been there 25 + times before .

HUbby has ZERO odds right now .
 

justalayman

Senior Member
I completely understand what you’re saying. Even though this affects me directly I would agree that is a long time to be out of work.

I am just having an extremely hard time understanding how he could have been denied working first in June when he had a doctors note saying that he could work full duty , and he worked with that note and then was told he couldn’t go back until he had the surgery, he asked several times if the length of recovery would be an issue and he was told no, just keep checking in.

Next I don’t understand why he couldn’t come back in September when he was released for restricted duty? They said it’s not allowed despite the fact there IS a desk job available in his department, they all take turns. Someone who had been recovering from a different surgery was allowed to work that for some time after coming back. When his time came they said “we no longer allow light duty at this time”.
Allowing him to work knowing he had the issue, even with a doctors note, created a liability for the employer. His off work injury could have become a workers comp issue if anything happened to exacerbate the injury. They refused to allow him to work as a matter of self protection.

The employer is also not obligated to allow light duty after his surgery.

If he is a member of a union this should have been in front of them long ago. As it stands it appears to be his only possibility of changing the current standing of matters.
 

Kpg

Junior Member
Thank you all for your feedback. The attorney that we will be speaking with does specialize in the areas where we are needing advice.

I guess it comes down to being knowledgeable, I’m not very familiar with how unions work, nor is my husband. We went off of what we were told “don’t worry about your job just get better” which I do realize would be hearsay.

When he was first told he couldn’t come back he did contact the union steward and he told him to just have his surgery. Perhaps a harder push should have been made.

We thought we were following the rules. What I can’t comprehend I suppose is why no one would have given him a heads up that his time was running out, since it was understood by all parties what recovery would look like.

He worked in a building doing hvac, when he got the letter about restricted duty in September got a call right away stating it wasn’t possible. I do realize no one owes him an easier job but someone needs to be in the control room at all times so it is confusing why he wouldn’t be allowed to go back and be the one in there like other people who had come back after an injury or illness.

He’s never had any complaints against him and in fact, two or three days before he was told he couldn’t work anymore he received a text from his boss praising his work on a project.

Again I appreciate all the input he will contact the union tomorrow which I’m not hopeful about, he’s already reached out once and didn’t get a response the day he got the letter in the mail.
 

Kpg

Junior Member
Did he file for unemployment?

He will start the online process of that tonight. Here is where the plot thickens and maybe I left out an important piece.

On Tuesday when he got the letter he called the regional manager. Upon hearing my husbands side of what happened he put him on hold and said “maybe we will be able to place you at another facility” and he said he would call him back on Friday.

The phone call on Friday came but he now says to email him his resume. We didn’t want to file for unemployment before talking with him.

We worked on his resume today and updated it and we will send that over and file the unemployment for the mean time.

However at this point I’m thinking the whole request for his resume is to pacify him, I don’t think they will do anything with it. If they did great, and he would take whatever they offered but it went from we may be able to place you somewhere else with the same pay to we will take your resume.
 

cbg

I'm a Northern Girl
I'm sorry, but saying that "maybe" they will be able to place him elsewhere is not a guarantee; nor does it change anything with regards to the legalities. It is still not a wrongful termination under the law and he is still going to have to go through his union for any relief.

He needs to apply for unemployment sooner rather than later.
 

Find the Right Lawyer for Your Legal Issue!

Fast, Free, and Confidential
data-ad-format="auto">
Top