Termination while on FMLA Maternity Leave

[purpleflowerlaw]

What is the name of your state (only U.S. law)? Oregon

I am currently on maternity leave. My 12 weeks ends tomorrow, 10/25/16. Wednesday of last week I was informed by the HR director with my boss on the phone at my company that I would be released from my job. Monday of this week (10/24/16) they offered me a severance package that stated my official "release" date would be November 9th, 2016. After that, I will receive 5 weeks full pay and benefits and an additional 1 month of paid COBRA after that. They base severance on longevity at the company.

The reasoning for my release is not performance based, but rather part of a larger downsize. My job title is being eliminated in the company, however I believe my boss is staying with the company in some other capacity. The funny thing is that I had a conversation with my boss on 10/12/16 informing him that I intended to return to work and we settled on my return date of 10/25. So either he did not know this was coming or was not able to tell me that my job was on the line.

I have been with the company for three years and had either satisfactory or excellent reviews. I have received a full bonus every year as well as a standard raise.

Now that I have laid out my situation, I have a couple of questions:

1. Would it be unreasonable to ask for 6 months pay, 6 months COBRA and my full bonus (usually given in April)?
2. This seems illegal considering that FMLA allows for employees to get their old job or an equal job with the same pay and responsibility level. Am I correct in that?
3. Based off of the situation, are there any nuances of the FMLA laws that would protect my employer?

 

[eerelations]

While the FMLA does protect employees using FMLA leave from losing their jobs specifically because they are using FMLA leave, it does not protect employees from losing their jobs for any other reasons, including downsizing. So no, your employer has not violated any FMLA regulations here (I guess this is the "nuance" that protects your employer).

Employers are not legally required to provide departing employees with severance pay. So asking for more than the severance pay offered could be dicey - your employer could easily respond to your request by withdrawing its original offer. And this would be legal.

Regarding COBRA, your employer is required to allow you to continue on the company benefits plan, at your own expense, for up to one year after your termination date.

Finally, whether or not you receive your bonus depends on two things:

1. the language of your bonus plan documents; and
2. whether or not these documents rise to the level of a bona fide contract.

 

[cbg]

1.) That will depend on what is being offered to others.
2.) It is not, unless you have a valid and supportable reason to believe you were selected for layoff BECAUSE you took FMLA leave. FMLA protects you from being let go for taking FMLA. It does not protect you from a layoff that would have occurred whether you took FMLA leave or not.
3.) Your employer has done nothing inherently illegal. Unless you have evidence, and I mean evidence that would hold up in a court of law, that had you not taken FMLA leave you would not have been downsized, your employer is in the clear legally.

 

[commentator]

You will be able to begin receiving unemployment insurance as soon as you are released by your doctor to go back to work after the child's birth. Sign up at once, regardless of whether or not you are receiving x amount of severance pay or not. Tell them what you are getting, and let them dig it out. You were let go due to a downsizing or business decision, not for performance issues, so you are out of work through no fault of your own. Let the claim set up and get that initial decision out of the way.

And then of course as soon as you are no longer under medical restrictions, as soon as you would have been released to return to work after the baby is born you start filing for weeks of unemployment and making the job searches as required. You must of course, be able and available and actively seeking another job. Tell them you "just want to stay at home with the baby for a while" and you'll get no unemployment. And you cannot postpone drawing it, as if you do not file quickly and begin drawing the claim within the year, you'll lose counted quarters of wages to set up the claim.

In my years of closing plants, this was very common, there was always someone out on sick leave, using FMLA during the downsize. They really get no special consideration, have no greater bargaining chip. Your manager may not even have known when he last spoke to you what the arrangements of the lay off might be, sometimes they are not told things far in advance either. In any case, he was not required to provide this knowledge to you. The severance package you're getting sounds reasonable. Why would you think you could demand more?