Docked pay due to use of FMLA

I am on approved intermittent FMLA due to my son's disability. Both my supervisor and HR director dislike FMLA and have made working very difficult. Since I am salaried and also exempt from receiving overtime, I have offered to work weekends and evenings, but am not allowed. I am also the only supervisor not allowed to work holidays at my discretion-all the other supervisors(male) are allowed to work or not work holidays to accumulate time off. I have been told by HR that if not for FMLA I would be fired, that morale at my workplace is poor due to my FMLA and I need to do something about it, etc. It is non-stop. My FMLA was recertified in May 2010 and approved. In mid July I received a letter from HR telling me that my recertification was not adequate for the hours I was needing to take off, so the provider needed to redo it. Fair enough. I took the form to the provider only to be told by his nurse that he was out of the office for 2 weeks. I informed HR of this by email but received no reply. The week the provider returned I waited for him the fill out the form and phone me. Since I didn't receive a call, I phoned last week and then met with the nurse. She apologized profusely, explaining that she had completely forgotten about it. She said she would expedite it. Today I received a letter from HR telling me that my pay was to be docked for some hours taken off for FMLA purposes due to them not receiving the form within 15 days. I emailed back detailing the problems with the provider, including their phone number for verification. I was under the impression that the time frame was a minimum of 15 days, but could be extended if the provider delayed. Can my pay be docked? Note that prior to FMLA leave I had no problems at work. Also, other employees are not under the same requirements I am. I have been informed that my supervisor is trying to get me to quit. Not gonna happen! This has been going on since January 2008 and EVERYTHING is documented.

Thank you.

2 answers  |  asked Aug 23, 2010 1:14 PM [EST]  |  applies to Illinois

Answers (2)

Kristen Prinz
Your employer requested that your provider complete a recertification form in mid-July of 2010. I am assuming you are referring to the Certification of Health Care Provider for Family Member’s Serious Health Condition (“Certification Form”). The Certification Form states that “Your employer must give you at least 15 calendar days to return this form to your employer.” The general rule for certification is that you must, “provide the requested certification to the employer within 15 calendar days after the employer’s request, unless it is not practicable under the particular circumstances to do so despite the employee’s diligent, good faith efforts…” 29 CFR 825.305. In other words, you must do everything you can to provide the requested certification before day 15. You can only be given more time if you have tried your best, but you have not turned in the requested certification by day 15.

The law is also very clear about the timeframe with respect to recertification. “An employee must provide recertification within the time requested by the employer (which must allow at least 15 calendar days after the request) or as soon as practicable under the particular facts and circumstances.” 29 CFR 825.313(c). In other words, you are required to turn in the recertification as soon as you are able, given your specific constraints.

Taken together, the facts you described may indicate that you have a potential claim against your employer. It is unlawful for your employer to interfere with your rights under the Family Medical Leave Act (FMLA), and it is also unlawful for your employer to discriminate against you for complaining about that interference. Section 105 of the FMLA. If your employer has interfered with your rights or discriminated against you for complaining about that interference, it may be liable to you for wages, salary, or employment benefits that have been denied or lost.

posted by Kristen Prinz  |  Sep 9, 2010 08:44 AM [EST]
John Otto
It is against the law to discriminate against someone for taking FMLA leave. It sounds like they are discriminating against you because of your taking FMLA leave. You should see a lawyer to discuss whether it is worth filing a lawsuit, since you still have your job, and your damages, at this point, at most would be 15 days pay.

posted by John Otto  |  Aug 23, 2010 2:36 PM [EST]

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