My HR Office at my place of employment did not tell me that I would be charged 7 days of personal time prior to my FMLA starting back in January 2017 and no documents that I signed stated I would be charged these days either. Can my HR office legally char

On the 19th of Jan 2017 I went out on FMLA for 12 weeks because I had ACL Reconstruction surgery in my left knee. I am a salaried worker so my 12 weeks off was paid for by my company. I returned to work on the 13th of April 2017 as required. For the CY2017 I accrued and was awarded 22 days of personal paid time off for the year. Prior to going out on FMLA leave I was told by my HR department that during my 12 week absence I would have "accrued paid time off" deducted from my balance upon my return that I was awarded for the calendar year which I agreed upon and was okay with since it was going to be like 3 or 4 days that would be subtracted from the 22 I earned. I got back to work and logged into our paid time off system that shows our accrued days off and noticed that my HR department charged me 7 days of personal time off as a waiting period before my FMLA kicked in. Is this something that is legal to do without notifying me that they would do this? None of my paperwork that i signed stated any of this and my conversations i had with my HR rep at my job I tape recorded on my phone and nowhere did she state I would be charged this time. Do you know if my HR department can do this legally?

1 answer  |  asked Apr 17, 2017 11:26 AM [EST]  |  applies to New York

Answers (1)

V Jonas Urba
You do not work in any of the City's Burroughs apparently. You are also non-union although I do not know whether you operate under a written contract of employment (i.e. April 1 2017 to April 1 2018). Assuming you do not work for the government.

With that said, an employer may require an employee to use accrued paid time off - the following is directly quoted from the U.S. Department of Labor Wage and Hour Division regarding FMLA pay:

"Substitution of Paid Leave - Employees may choose to use, or employers may require the employee to use, accrued paid leave to cover some or all of the FMLA leave taken. Employees may choose, or employers may require, the substitution of accrued paid vacation or personal leave for any of the situations covered by FMLA. The substitution of accrued sick or family leave is limited by the employer's policies governing the use of such leave."

The only way for a lawyer to provide you with a definitive answer or opinion is to review all of your policies and procedures, any contracts under which you may be operating, and any other possibly binding documents which your employer may have led you to reasonably rely upon.

Although Human Resources is charged with knowing and applying policies uniformly unless they are discriminating against you, assuming they are applying this company's policy uniformly, you will need to find documentation to confirm what was apparently verbally told to you. You have every right to file charges for discrimination if there was discrimination (age, race, religion, national origin, etc..... or possibly disability - more information needed) of some form, but if you are "at will" you will certainly want to confirm a good faith argument, preferably with legal counsel on your side, before going down that road.

posted by V Jonas Urba  |  Apr 17, 2017 2:33 PM [EST]

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