Are they within the law?

[junebug48]

Nevada
My physicians put me on "bed rest" due to pregnancy complications in February 2006. At that time I was 3 months away from my due date; therefore my FMLA was exhausted around the time my baby was born on 5/15/06. Before going on leave, I discussed the FMLA with HR and understood that by law they didn't have to hold my job past the 12 weeks. However, when I expressed concern that they may terminate me after the 12 weeks was up (obviously I needed additional leave after childbirth), I was told by the department head that my job would be there when I returned (same position).

Now (one week before my return) I've been informed that my position has been eliminated and that if I don't come back on the agreed upon date, I resign. How can I resign from a position that no longer exists? They say there are other positions in the company that I can apply for (for less pay), but it's not garunteed. Shouldn't this be a termination on their part?

I would understand it if they had contacted me to let me know that my additional leave had been revoked, and that I had to come back after the 12 weeks were up or face the consequences; but they just let me think everything was okay and that my job was secure this whole time.

Can they do this simply because I went over the 12 weeks? They wouldn't let me return without a doctor's release, so I couldn't have come back after the 12 weeks anyway. With as much time as I have been off, I knew there was a possibility they wouldn't hold my job, but it just seems like they are going about this in a way to avoid officially terminating me (and to avoid any unemployment claim I may or may not file).

Is this legit? I think I prob just got screwed over.

 

[cbg]

They have no legal obligation to hold your job for you after the 12 weeks. Whether failing to return after a medical leave is a voluntary or involuntary termination is a matter of semantics only with no legal definition; a case can be made from both sides.

It's not what your company calls it that's going to matter when it comes to unemployment; it's going to be the REASON you did not return to work. Your employer does not make the decision; the state does, and they don't make it based solely on what your employer calls it; they make it on the merits of the situation.

 

[junebug48]

Thanks for your response

It's not what your company calls it that's going to matter when it comes to unemployment; it's going to be the REASON you did not return to work.

I can't go back for the simple reason that I cannot live on what they are willing to pay me now. I don't know how NV Unemployment would view that. Additionally, they have stated that there MAY be a position, but I would have to apply.

The position that could be available is almost exactly the same as the one I held previously, but without the title. They would be paying me a lot less money to basically do the same thing. Since I prob couldn't live on unemployment (and I've NEVER been out of work in my life) I would rather get a new job than pursue a claim. It's just the fact that they are doing this in such a shady way in order to get rid of me. I've worked there for 7 years without as much as a scratch on my record. The fact that they are doing this to a long-term employee just proves there is no real loyalty. No matter how many times I tell myself that this is typical behavior on their part (and should have been expected) it doesn't make the situation less suckier.