Need Human Resources Advice - Family Leave Act

Tidybuoy · 01-12-2016, 09:11 AM

I have an employee that is currently out on Family Leave Act. The employee is my Human Resource Director and is NOT sick, but instead working the system.

Details:
12 weeks ago, this employee was fearing she was going to lose her job. Probably was going to be let go after numerous issues. The day before she went out on leave, she had a meltdown in the office which included balling her head off and claiming that the owners don't like her anymore and weren't returning e-mails. For the record, the owners own several companies and are extremely busy. It's hard for any of us to get ahold of them without sending multiple e-mails.

The following day, the HR Dir sent an e-mail stating that she felt dizzy and immediately went to the doctor who put her on bed rest for two weeks. When the two weeks were up, she sent another e-mail stating that the doctor has extended her bed rest for approx. 2 months and would be back on 01/04/2016. With her initial e-mail, she stated that she had completed all the family leave paperwork. We followed up with sending her the required forms and she did have her doctor complete his part.

Again, on the day she is supposed to be back, she sends an e-mail stating the doctor extended another month but would like to work from home, if possible. (the answer is NO). She is now scheduled to be back 02/01/2016.

Keep in mind, she has not checked in one single time during her absence. No communications with her staff, no nothing. At the time, she was in the middle of planning the company Christmas party and never even let us know where she left off (i.e., renting a venue, caterer, etc..)

SO, She hits 60 days absence 01/25/2016. Our intent is to let her go after this.

We have a temp HR person filling in and this person is telling me that we have to send advance notice to our HR Director that her family leave is up 01/25/2016 and that she is expected to be back to work on the 26th. IS THAT CORRECT?

I intend to check with our external council but I'm just checking to see if anyone knows the rules. My fear is that she comes back on the 26th and I only want to notify her of the bare minimum that I am required to do. To some, this may seem harsh but if you knew the history on this person who should never have been hired and has a terrible performance record, getting rid of her is very justified but unfortunately all of her performance issues have not be well documented, which is sometimes hard to do when you are dealing with the top HR person.

Any advice would be appreciated.

mgatepi · 01-12-2016, 09:17 AM

Sounds to me the big question here is; Do you have employment practices insurance? If the answer is yes.......I don't see a problem.
I too have experienced similar issues with an HR manager....this will not end well.
Good luck
mg

McLovin · 01-12-2016, 09:31 AM

Not sure a car parts vendor bulletin board is where you want to get your advice on this one.

1990C4S · 01-12-2016, 09:47 AM

See your lawyer and separate the emotion from the facts.

Tidybuoy · 01-12-2016, 09:49 AM

Quote:

Originally Posted by McLovin

Not sure a car parts vendor bulletin board is where you want to get your advice on this one.

Off Topic is for "off topics". Of course I have legal council but I like to do a little bit of research first. Sorry to bother you.

JeremyD · JeremyD's Garage

#1 Check your handbook, check your policies, follow your policies to a "T"

#2 If you have ever granted anybody an exception, she knows about it - If you don't grant her the same it's exception, it's because she is female, old, christian, american indian, etc.

#3 Follow your state laws when it comes to employment - California has some of the most anti business laws out there - you are the big bad employer - you will get screwed

#4 FMLA is 12 weeks - her job has to be open - so make sure you get to 12 weeks and one day before anything is done.

My advice would be to pay her some severance in exchange for her resignation and agreement not to sue.

mgatepi · 01-12-2016, 10:55 AM

All good advice and very typical, but as in my case, you are dealing with an expert in all that has been mentioned here. (Assuming she isn't incompetent) You don't think she has this covered? Considered all there is to consider?
If you truly want her gone, its going to get ugly.

Paul_Heery · Paul_Heery's Garage

Quote:

Originally Posted by JeremyD

#4 FMLA is 12 weeks - her job has to be open - so make sure you get to 12 weeks and one day before anything is done.

Also, the 12 weeks starts on the "first day of absence" on the FMLA filing. Make sure you check the paperwork on this when you do your calculations.

Rot 911 · 01-12-2016, 11:03 AM

To follow up with what Jeremy said, it is not just 12 weeks, it is 12 "work weeks."

You might want to read up on FMLA: The Family and Medical Leave Act - Wage and Hour Division (WHD) - U.S. Department of Labor

mgatepi · 12:12 PM

Do you think she will claim retribution (for taking FMLA) as the reason why she was fired? Think you will be in court? YES

flatbutt · 01-12-2016, 12:21 PM

Simply stated you must follow all requirements of FMLA, no wiggle room there. As for not documenting her performance issues...that's a major screw up on your part. Even if California is an "employment at will" state you must have some proper justification for terminating her especially upon her return from FMLA. Further, documenting her issues now must be done most carefully in order to avoid any claim of retribution. I'm familiar with this as I was a hiring manager here in NJ so CA may be a little different.

BTW: while out on FMLA an employee is not required to check in and you may not contact her.

Tidybuoy · 01-12-2016, 12:50 PM

Quote:

Originally Posted by mgatepi

Do you think she will claim retribution (for taking FMLA) as the reason why she was fired? Think you will be in court? YES

If she is going to be fired, it will be because she didn't show up for work. We have held her job open for her and have continued paying her medical, etc. However, on 01-25-2016 she will have exhausted her family leave (60 working days off) and we no longer have to hold her job for her. I understand that family leave gives the employee rights but after 60 days, I believe they lose any continued rights. If she comes back before the 60 days, we are screwed and won't be able to terminate without it looking like retaliation.

I was mostly concerned about the notification that we have to send her in advance of the 60 days and how much notice do we have to give her (this type of info is not published in an employee handbook. The handbook basically tells the employee that we will hold the job for a specified period, which we have done).

MRM · 01-12-2016, 01:13 PM

The situation is way too complicated to handle in PPOT. It's too complicated to even give you any pointers that you can have any confidence you can rely on. This is what outside counsel are for and how they earn their living. Call your employment law specialist and follow whatever he or she says to the letter.

mgatepi · 01-12-2016, 01:14 PM

Of course every case is different, but I am assuming she will show up on the 26th. She knows the rules. IF she doesn't, should be no problem, but then again if she is determined to make problems....she will. I have been through this and we virtually always lose because we are the big bad company!!!!
Good luck and I hope it works out well for you.

scottmandue · 01-12-2016, 01:24 PM

Quote:

Originally Posted by wdfifteen

Look in the employee handbook. If it is any good it will outline what is to be done.
Legally, a lot depends on how big your company is and what state it is in. In my state and in our employee handbook, "family leave" has to do with children and "sick leave" is for the employee.
Are you trying to get rid of this person in a way that keeps you out of court, or keeps you from being hit with higher UE premiums? In my experience the small increase in premiums that follows a dismissal is a small burden compared to subjecting your good employees to a bad one.

I work for the state and "family leave" is only applicable as stated above. (however it can be used for a sick spouse in addition to children).

sc_rufctr · 01-12-2016, 01:50 PM

This is complicated to say the least.

She's a HR person so she know how to play the game so you need professional advice, NOW.
You've let this drag on for far too long.

From "1990C4S"

"See your lawyer and separate the emotion from the facts."

McLovin · 01-12-2016, 02:06 PM

Quote:

Originally Posted by MRM

The situation is way too complicated to handle in PPOT. It's too complicated to even give you any pointers that you can have any confidence you can rely on. This is what outside counsel are for and how they earn their living. Call your employment law specialist and follow whatever he or she says to the letter.

Exactly. I'm not one to say you need to hand it to a lawyer for everything, but this is one of those times. Anything done here is at best useless.

But, in the spirit of PPOT and so this thread is not all for naught, here's pictures of teh Saddest Cats on the Internet.

1990C4S · 01-12-2016, 03:24 PM

Is the sad cat the employee or the employer?

MRM · 01-12-2016, 03:58 PM

She was being paid by 1099s as an independent contractor until she was injured. Now she's claiming work comp benefits as an off the books employee and asking for sanctions against the employer for not carrying work comp insurance.

ckelly78z · 01-12-2016, 05:02 PM

Wow, hard to compete with sad kittens !

When I was in bad car accident 3 years ago, I was off work for 5.5 months healing 17 broken bones and learning to walk again. I was required to check in with HR every week while off to keep my LTD going, and keep from getting fired. A good employee handbook (one not written by the apparent abuser) should outline what the company will require, and tolerate.