I don't think they are treating her right. I feel she should be "made
whole". I would consult with a "employment attorney".
Pregnancy disability leave or maternity leave for the birth of a child
would be considered qualifying FMLA leave for a serious health
condition.
Below is the FAQ site for FMLA
http://www.dol.gov/elaws/esa/fmla/faq.asp
Q: Will I lose my job if I take FMLA leave?
Generally, no. It is unlawful for any employer to interfere with or
restrain or deny the exercise of any right provided under this law.
Employers cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary
actions; nor can FMLA leave be counted under "no fault" attendance
policies. Under limited circumstances, an employer may deny
reinstatement to work - but not the use of FMLA leave - to certain
highly-paid, salaried ("key") employees.
Q: Are there other circumstances in which my employer can deny me FMLA
leave or reinstatement to my job?
In addition to denying reinstatement in certain circumstances to "key"
employees, employers are not required to continue FMLA benefits or
reinstate employees who would have been laid off or otherwise had
their employment terminated had they continued to work during the FMLA
leave period as, for example, due to a general layoff.
Employees who give unequivocal notice that they do not intend to
return to work lose their entitlement to FMLA leave.
Employees who are unable to return to work and have exhausted their 12
weeks of FMLA leave in the designated "12 month period" no longer have
FMLA protections of leave or job restoration
Under certain circumstances, employers who advise employees
experiencing a serious health condition that they will require a
medical certificate of fitness for duty to return to work may deny
reinstatement to an employee who fails to provide the certification,
or may delay reinstatement until the certification is submitted.
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So My question is would she have been reclassified otherwise.
The site below covers who is considered a ``successor in interest''
http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.107.htm
(a) For purposes of FMLA, in determining whether an employer is
covered because it is a ``successor in interest'' to a covered employer,
the factors used under Title VII of the Civil Rights Act and the Vietnam
Era Veterans' Adjustment Act will be considered. However, unlike Title
VII, whether the successor has notice of the employee's claim is not a
consideration. Notice may be relevant, however, in determining successor
liability for violations of the predecessor. The factors to be
considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same plant;
(3) Continuity of the work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products or services; and
(8) The ability of the predecessor to provide relief.
The following site provides information on how to file a complaint and
details on potential remedies.
http://www.dol.gov/elaws/esa/fmla/fc.asp |
