are claims of violation of FMLA grievable to the end under union contract?

I was laid off wrongfully while under FMLA. My union agrees and filed multiple grievances, including FLMA violation (the union, not myself, is listed as the grievant). I want to fight this with an attorney, either through settlement or court. The union contract does not address specific claim types and which are grievable past Step II in their process. They decide on a case-by-case basis. I am wondering, since FMLA is a federal act, am I afforded any rights outside the union to sue on my own, or am I stuck with the union process? I understand if the union pushes forward I have no further recourse (if they win, I get my job back, no damages, if they lose, that is the end, period). This seems terribly wrong. Any feedback and/or links to relevant law on this subject would be much appreciated. Thank you in advance.

2 answers  |  asked Sep 2, 2011 08:44 AM [EST]  |  applies to California

Answers (2)

Elisa Ungerman
You mention FMLA but not CFRA - the California "equivalent" but ot when it comes to damages. Yes, you are allowed to sue on your own, and CFRA supplies better damages if you prevail. But to do so you must file a complaint with the DFEH within a year of the termination first, and obtain a Right to Sue letter in order to pursue court action. FMLA you have two years and dont need to file anything as a precursor to court action. You can file in either federal or state court - but if you file an FMLA claim in state court, you may be removed to federal court.

If you pursue your FMLA claim through a union grievance that results in a hearing on the merits - you may be precluded from re litigating in court - so that is something to consider. Unions will typically defer a claim if you want to file in civil court.

Also - keep in mind that a lay off or reduction in force does not automatically bar an employer from considering you or placing you in a RIF. You can still be laid off even if you are on FMLA/CFRA leave if the criteria and selection process utilized was objective and based in fact on nuetral criteria.

posted by Elisa Ungerman  |  Sep 2, 2011 11:11 AM [EST]
Arkady Itkin
Hello,

There are two separate and independent ways through which you can pursue an FMLA violation claim. First, is through union grievance which would argue that you were dismissed without just cause in violation of the collective bargaining agreement. The contract doesn't have to specifically mention FMLA. Secondly, and often a more effective way - by filing a lawsuit in court for FMLA violation and related claims. The reasons that a civil lawsuit may be more effective are multiple, but one of the important ones is that the union has a complete discretion as to whether to pursue your grievance and take it to arbitration or drop it before that.

Again, you can pursue both routes at the same time, which is often done by aggrieved employees.

Thanks, and feel free to follow up.

Arkady Itkin
San Francisco & Sacramento Employment Lawyer
http://www.arkadylaw.com

posted by Arkady Itkin  |  Sep 2, 2011 10:08 AM [EST]

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