Fired and had FMLA

[hjfesing]

Well, we were just informed what is illegal is form them to hold an FMLA approved absence against an employee. They can fire me for any reason....yes! But they cannot give me a "point" for an absence that was approved under FMLA.

 

[commentator]

What unemployment is going to be interested in was the exact reason for the very last tardy. The one where your alarm clock didn't go off, and you were fired that day for that particular tardy. It was the proverbial last straw, right? So that's the one they will want to talk about. Did you know, had you been given enough warnings that you knew that if you were tardy again (for an AVOIDABLE REASON) you were in grave danger of being fired?

The thing is, in an at will state, the company does not have to follow its own handbook or rules, does not have to count this as one point and that as a half point and not count this at all as an approved absence. They can fire you for three or two or one medical reasons with a doctor's note for each and every one of them. But then unemployment is your recourse, IF you can get approved for unemployment.

If on your last day, you had started off to work timely and on the way there, your car was struck by a bus and you were rushed to the hospital in critical conditions (and I've seen this actually happen) and they fired you for being tardy anyhow (and I've seen THIS actually happen) there would still have been no labor laws broken. But you would, when you were finally able and available to work again, be able and very likely to be approved for unemployment benefits. Your tardiness was NOT something you could reasonably have avoided. Last tardy+medical excuse is usually considered unavoidable, and while your firing was legal, it will probably be possible for you to draw benefits.

But when you are hovering on around the edge of a termination, getting warnings and disapproval feedback of various kinds from your employer, and you don't take the reasonable actions to avoid having another tardiness incident, you know, the action of buying a new clock, having friends call to check on you, setting a cell phone alarm, etc. and you get another tardy because your alarm clock didn't go off AGAIN, then you are fired, with nothing illegal in your firing, and not a very good chance at all of being approved for unemployment benefits either.

You can get into the unemployment insurance case and argue and tell the adjudicator that you were being treated unfairly, that the company didn't figure your "points" for termination correctly because one of them was for a medical situation covered by FMLA, so they really shouldn't have fired you for the occasion where they did fire you, you should've gotten at least one more warning and shot at it. And you may try to show that you weren't being treated fairly because the company did not use the same standard to figure points and terminate with another employee that you knew of. So you didn't think you'd be fired because they didn't fire him. Or because of what they told you in your warning meeting. What they're going to ask you, over and over, is "Did you know that being tardy again was likely to lead to your termination?" And you're going to have to come up with some way to make "my alarm clock didn't go off" sound like a convincing reason you didn't make it, even knowing you were about to get fired. And all that just to get approved for unemployment. There's NOTHING here that is going to mean any way to ask for and demand your job back.

 

[cbg]

Well, we were just informed what is illegal is form them to hold an FMLA approved absence against an employee. They can fire me for any reason....yes! But they cannot give me a "point" for an absence that was approved under FMLA.

True. But they can fire you for the absences or tardies that were not FMLA related. No matter what the letter says. No matter how many the handbook references. The law does not care whether they follow what is in their handbook or not, as long as that handbook is not a contract. Roughly 99% of contracts are not.

Bottom line, unless you are prepared to show that the SOLE reason you were fired had to do with the protected absences, you're up a creek.

 

[hjfesing]

I was given ZERO warnings for anything! In fact, the day I I was tardy, they had given me the printout of my points (turns out wasn't even current), and they he given me the impression that I was all good and my job was safe. They were discussing if they were going to give me a point or a point in a half for eCh tardy.

The next day, work started good. I was called into the office assuming it was for being written up (which was deserved because I was tardy...unintentionally tardy, but still tardy). That's when they handed me the paper and told me I was terminated due to being at 8.5 points. I had questioned how I had gotten 4 points, and that's when the manager hand wrote on the absence/point list that I had provided that I was receiving no call/no shows.

I'm not arguing the fact that I messed up. I take full responsibility. Jut the specific reason they gave for termination is wrong. Even if I am givin these 4 points, I am still under what their handbook states is termination.

The HR rep had no clue what was in my file until she opened it. There was NOTHING for any of the absences over the last year (there were 2) besides the FMLA covered absences.

The HR rep told me she feels I deserve to get unemployment so she will not fight that.

 

[eerelations]

Well, we were just informed what is illegal is form them to hold an FMLA approved absence against an employee. They can fire me for any reason....yes! But they cannot give me a "point" for an absence that was approved under FMLA.

You could conceivably complain to the federal DOL that you were fired in part for FMLA absences. But all your former employer has to do to make the DOL happy is to say "Whoopsee! We made a mistake! Sorry about that, what were we thinking! We will change those points and reissue a termination letter to the OP stating that he was fired for non-FMLA tardies and absences only."

 

[hjfesing]

From what I have, it does show that I was terminated due to having 8.5 points....had that 1 point been correctly documented as FMLA in the first place, the point would be be there, therefore I would have my job!

 

[hjfesing]

our corporate office asked me what my interpretation of the handbook was. I read it word for word and told her my understanding. After that, she told me she was going to look into it and get back to me. Our corporate office is in a different state. The plant I work at is in a small community of less than 3,000 people, so everyone knows everyone,band our HR lady isn't very well informed on things and has had more than a hand full of issues with keeping proper records for employees.

Now it's a matter of waiting......

 

[hjfesing]

What unemployment is going to be interested in was the exact reason for the very last tardy. The one where your alarm clock didn't go off, and you were fired that day for that particular tardy. It was the proverbial last straw, right? So that's the one they will want to talk about. Did you know, had you been given enough warnings that you knew that if you were tardy again (for an AVOIDABLE REASON) you were in grave danger of being fired?

The thing is, in an at will state, the company does not have to follow its own handbook or rules, does not have to count this as one point and that as a half point and not count this at all as an approved absence. They can fire you for three or two or one medical reasons with a doctor's note for each and every one of them. But then unemployment is your recourse, IF you can get approved for unemployment.

If on your last day, you had started off to work timely and on the way there, your car was struck by a bus and you were rushed to the hospital in critical conditions (and I've seen this actually happen) and they fired you for being tardy anyhow (and I've seen THIS actually happen) there would still have been no labor laws broken. But you would, when you were finally able and available to work again, be able and very likely to be approved for unemployment benefits. Your tardiness was NOT something you could reasonably have avoided. Last tardy+medical excuse is usually considered unavoidable, and while your firing was legal, it will probably be possible for you to draw benefits.

But when you are hovering on around the edge of a termination, getting warnings and disapproval feedback of various kinds from your employer, and you don't take the reasonable actions to avoid having another tardiness incident, you know, the action of buying a new clock, having friends call to check on you, setting a cell phone alarm, etc. and you get another tardy because your alarm clock didn't go off AGAIN, then you are fired, with nothing illegal in your firing, and not a very good chance at all of being approved for unemployment benefits either.

You can get into the unemployment insurance case and argue and tell the adjudicator that you were being treated unfairly, that the company didn't figure your "points" for termination correctly because one of them was for a medical situation covered by FMLA, so they really shouldn't have fired you for the occasion where they did fire you, you should've gotten at least one more warning and shot at it. And you may try to show that you weren't being treated fairly because the company did not use the same standard to figure points and terminate with another employee that you knew of. So you didn't think you'd be fired because they didn't fire him. Or because of what they told you in your warning meeting. What they're going to ask you, over and over, is "Did you know that being tardy again was likely to lead to your termination?" And you're going to have to come up with some way to make "my alarm clock didn't go off" sound like a convincing reason you didn't make it, even knowing you were about to get fired. And all that just to get approved for unemployment. There's NOTHING here that is going to mean any way to ask for and demand your job back.

I didn't even get a "warning" meeting. I was under no impression that my job was at stake! It was when my supervisor handed my "updated points status" which I requested that he said they were trying to figure out what points to give me. I was under the impression I could receive a write up, or at most suspension and basically be told to shape up or my next step was termination.

I was in complete shock when the manager smiled and told me I was terminated and I was a week too early since one of those points would roll off this week.

My guess is when they were "figuring out what points" to give me, they were trying to rush before that point fell off. In turn though, that point shouldn't even be there since its FMLA.

 

[hjfesing]

I need to make it clear that the HR rep who signed my termination told me straight out that she will NOT fight my unemployment.

She told me she thinks I deserve to be able to get unemployment, so she will not fight it.

Not sure why they think I deserve unemployment, but not the job.....

 

[FlyingRon]

What they tell you is immaterial. If they tell the state you were fired for misconduct, you have the chance your UI will be turned down. Your best bet is they don't make a strong statement about you being fired for cause when the state inquires.

 

[hjfesing]

They aren't responding to unemployment at all. At least that's what I was told by the HR rep. We will see though.

 

[eerelations]

Your former employer not responding to the UI people does not in any way mean the UI people will allow your claim for UI benefits. Whether or not an individual gets UI benefits is entirely up to the UI people, and not the individual's former employers. Not at all.

 

[commentator]

And I want to make it clear that unemployment benefits are your only recourse. If the HR person really wanted you to get unemployment benefits, she could have given you a letter or separation notice that said "lack of work." If you were terminated for tardiness, she doesn't have to "fight it" or to provide them with ANY information and you could still be denied if the unemployment office, which does make the decision decided you were let go for a valid misconduct reason. I find it very suspicious that you were in a discussion with them lately where your points, your tardinesses, etc. were an issue, which is something that doesn't happen to people who don't have excessive tardiness or attendance issues, and that they assured you you were "all right." But if you can show that you had no warnings or previous write ups that will be in your favor. But its not a given you will be approved for benefits. Be prepared, also, for six to eight weeks before the first check comes, if you are approved initially.

Unemployment is something you receive for only 6 months or less if the employer cannot shot they had a valid misconduct reason to terminate you. They pay taxes on their payroll which increase if people receive unemployment benefits from them. I am surprised, and I suspect she is not speaking for the whole management team if your HR person says she will not fight your unemployment. It's still not a guaranteed given, you will still have to file for it and there will be a decision made before you can receive benefits. Then they will no longer have to deal with you and your tardiness ever again, and it doesn't cost that much. That's why they may decide to cut their losses and go on and let you go even with a chance you will get unemployment if they think you have become a problem to them.

But there are NO laws, NO proofs, NO insistence that you must be treated fairly or that you are going to be able to cite and bully these people into taking you back.

 

[eerelations]

And I want to make it clear that unemployment benefits are your only recourse. If the HR person really wanted you to get unemployment benefits, she could have given you a letter or separation notice that said "lack of work." If you were terminated for tardiness, she doesn't have to "fight it" or to provide them with ANY information and you could still be denied if the unemployment office, which does make the decision decided you were let go for a valid misconduct reason. I find it very suspicious that you were in a discussion with them lately where your points, your tardinesses, etc. were an issue, which is something that doesn't happen to people who don't have excessive tardiness or attendance issues, and that they assured you you were "all right." But if you can show that you had no warnings or previous write ups that will be in your favor. But its not a given you will be approved for benefits. Be prepared, also, for six to eight weeks before the first check comes, if you are approved initially.

Unemployment is something you receive for only 6 months or less if the employer cannot shot they had a valid misconduct reason to terminate you. They pay taxes on their payroll which increase if people receive unemployment benefits from them. I am surprised, and I suspect she is not speaking for the whole management team if your HR person says she will not fight your unemployment. It's still not a guaranteed given, you will still have to file for it and there will be a decision made before you can receive benefits. Then they will no longer have to deal with you and your tardiness ever again, and it doesn't cost that much. That's why they may decide to cut their losses and go on and let you go even with a chance you will get unemployment if they think you have become a problem to them.

But there are NO laws, NO proofs, NO insistence that you must be treated fairly or that you are going to be able to cite and bully these people into taking you back.

Like button.

 

[cbg]

Okay. Acknowledged. The point for the FMLA absence shouldn't be there. We get it. We agree.

What you are failing to understand is that the law does not care how many points you have. You do not have to have 8.5 points to be fired. You do not have to have 7.5 or 6.5 or 5 4 3 2 1. You can LEGALLY be fired for one non-protected absence. Even if the handbook says 8.5.

So they take the FMLA point off. Big deal. You can still, LEGALLY, be fired for the rest of the points. Even if it's only one.

Yes, even if it says 8.5 in the handbook. Yes, even if it says for points in the letter.