My fiance was terminated from her job

[keggerz]

QUOTE (keggerz @ 7/16/08 9:29am) *

1st I dont see any insults....i just stated that your reading comprehension with regards to this is lacking

 

2nd READ THE LAW...it says NOTHING about SEPERATION...actually it does address seperation by mentioning that

the 12 months does NOT have to be consecutive. Yep, you are correct, the 12 months need not be consecutive....people are off on disability leave or other leave that the employer can choose not to assess FMLA status too...workers comp leave...whatever. During that leave they accumulate no hours....but it counts.

3rd see the bolded because you are reading it incorrectly.

 

4th WHITE BOARD IT

 

 

agreed it does count but as long as they work 1250 hours during that 12 month time frame then they qualify

[TheShiznit]

QUOTE (keggerz @ 7/16/08 9:29am) *

1st I dont see any insults....i just stated that your reading comprehension with regards to this is lacking

 

2nd READ THE LAW...it says NOTHING about SEPERATION...actually it does address seperation by mentioning that

the 12 months does NOT have to be consecutive. Yep, you are correct, the 12 months need not be consecutive....people are off on disability leave or other leave that the employer can choose not to assess FMLA status too...workers comp leave...whatever. During that leave they accumulate no hours....but it counts.

3rd see the bolded because you are reading it incorrectly.

 

4th WHITE BOARD IT

 

 

agreed it does count but as long as they work 1250 hours during that 12 month time frame then they qualify

 

No, the law clearly states you must achieve all four to qualify:

 

 

(a) An ``eligible employee'' is an employee of a covered employer

who:

(1) Has been employed by the employer for at least 12 months, and

(2) Has been employed for at least 1,250 hours of service during the

12-month period immediately preceding the commencement of the leave, and

(3) Is employed at a worksite where 50 or more employees are

employed by the employer within 75 miles of that worksite. (See

Sec. 825.105(a) regarding employees who work outside the U.S.)

( The 12 months an employee must have been employed by the

employer need not be consecutive months. If an employee is maintained on

the payroll THIS IS KEY....for the one week off she was not maintained on the payroll....that is my contentionfor any part of a week, including any periods of paid or

unpaid leave (sick, vacation) during which other benefits or

compensation are provided by the employer (e.g., workers' compensation,

group health plan benefits, etc.), the week counts as a week of

employment. For purposes of determining whether intermittent/occasional/

casual employment qualifies as ``at least 12 months,'' 52 weeks is

deemed to be equal to 12 months.

© Whether an employee has worked the minimum 1,250 hours of

service is determined according to the principles established under the

Fair Labor Standards Act (FLSA) for determining compensable hours of

work (see 29 CFR Part 785). The determining factor is the number of

hours an employee has worked for the employer within the meaning of the

FLSA. The determination is not limited by methods of recordkeeping, or

by compensation agreements that do not accurately reflect all of the

hours an employee has worked for or been in service to the employer. Any

accurate accounting of actual hours worked under FLSA's principles may

be used. In the event an employer does not maintain an accurate record

of hours worked by an employee, including for employees who are exempt

from FLSA's requirement that a record be kept of their hours worked

(e.g., bona fide executive, administrative, and professional employees

as defined in FLSA Regulations, 29 CFR Part 541), the employer has the

burden of showing that the employee has not worked the requisite hours.

In the event the employer is unable to meet this burden the employee is

deemed to have met this test. See also Sec. 825.500(f). For this

purpose, full-time teachers (see Sec. 825.800 for definition) of an

elementary or secondary school system, or institution of higher

education, or other educational establishment or institution are deemed

to meet the 1,250 hour test. An employer must be able to clearly

demonstrate that such an employee did not work 1,250 hours during the

previous 12 months in order to claim that the employee is not

``eligible'' for FMLA leave.

(d) The determinations of whether an employee has worked for the

employer for at least 1,250 hours in the past 12 months and has been

employed by the employer for a total of at least 12 months must be made

as of the date leave commences. If an employee notifies the employer of

need for FMLA leave before the employee meets these eligibility

criteria, the employer must either confirm the employee's eligibility

based upon a projection that the employee will be eligible on the date

leave would commence or must advise the employee when the eligibility

requirement is met. If the employer confirms eligibility at the time the

notice for leave is received, the employer may not subsequently

challenge the employee's eligibility. In the latter case, if the

employer does not advise the employee whether the employee is eligible

as soon as practicable (i.e., two business days absent extenuating

circumstances) after the date employee eligibility is determined, the

employee will have satisfied the notice requirements and the notice of

leave is considered current and outstanding until the employer does

advise. If the employer fails to advise the employee whether the

employee is eligible prior to the date the requested leave is to

commence, the employee will be deemed eligible. The employer may not,

then, deny the leave. Where the employee does not give notice of the

need for leave more than two business days prior to commencing leave,

the employee will be deemed to be eligible if

the employer fails to advise the employee that the employee is not

eligible within two business days of receiving the employee's notice.

(e) The period prior to the FMLA's effective date must be considered

in determining employee's eligibility.

(f) Whether 50 employees are employed within 75 miles to ascertain

an employee's eligibility for FMLA benefits is determined when the

employee gives notice of the need for leave. Whether the leave is to be

taken at one time or on an intermittent or reduced leave schedule basis,

once an employee is determined eligible in response to that notice of

the need for leave, the employee's eligibility is not affected by any

subsequent change in the number of employees employed at or within 75

miles of the employee's worksite, for that specific notice of the need

for leave. Similarly, an employer may not terminate employee leave that

has already started if the employee-count drops below 50. For example,

if an employer employs 60 employees in August, but expects that the

number of employees will drop to 40 in December, the employer must grant

FMLA benefits to an otherwise eligible employee who gives notice of the

need for leave in August for a period of leave to begin in December.

[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]

Edited July 16, 2008 by TheShiznit

[keggerz]

http://209.85.215.104/search?q=cache:OuHrM...lient=firefox-a

 

First Circuit Rules Break In Service Does Not Prevent Counting of Earlier Employment Towards 12-Month Eligiblilty Requirement

 

The Court Circuit in Rucker v. Lee Holding Co., No. 06-1633, 2006 U.S. App. LEXIS 31072 (st Cir.. Dec.. 18, 2006) recently held that the complete separation of an employee from his or her employment for a period of years does not prevent the employee from counting earlier periods of employment towards satisfying the 12-month FMLA eligibility requirement.

 

 

http://federalfmla.typepad.com/federal_fml...hours_elig.html

1250 Work-Hours Eligibilty Requirement Strictly Enforced

 

Plaintiff Antoinette Pirant sued the Postal Service alleging that she was terminated in violation of Title I of the FMLA for missing work due to a covered chronic serious health condition. The record established that Pirant had worked 1248.8 hours in the 12 month period preceding the unscheduled absence that gave rise to her termination.

[Sox]

My dad says they are given a new contract to sign....my guess is that if sox looks...his wife has a new employee ID number for this contract versus the last as well. Now, if she has the same employee ID number...then I would question the seperation.

 

 

I still don't agree with your separation argument,but it may not matter.

 

Since she averaged about 38-39 hours a week,she has well over the 1250 hours needed for this contract.

[keggerz]

No, the law clearly states you must achieve all four to qualify:

The 12 months an employee must have been employed by the

employer need not be consecutive months. If an employee is maintained on

the payroll THIS IS KEY....for the one week off she was not maintained on the payroll....that is my contentionfor any part of a week, including any periods of paid or

 

 

you are reading it incorrectly.. IF, doesnt say HAS TO BE

[TheShiznit]

http://209.85.215.104/search?q=cache:OuHrM...lient=firefox-a

 

First Circuit Rules Break In Service Does Not Prevent Counting of Earlier Employment Towards 12-Month Eligiblilty Requirement

 

The Court Circuit in Rucker v. Lee Holding Co., No. 06-1633, 2006 U.S. App. LEXIS 31072 (st Cir.. Dec.. 18, 2006) recently held that the complete separation of an employee from his or her employment for a period of years does not prevent the employee from counting earlier periods of employment towards satisfying the 12-month FMLA eligibility requirement.

 

 

http://federalfmla.typepad.com/federal_fml...hours_elig.html

1250 Work-Hours Eligibilty Requirement Strictly Enforced

 

Plaintiff Antoinette Pirant sued the Postal Service alleging that she was terminated in violation of Title I of the FMLA for missing work due to a covered chronic serious health condition. The record established that Pirant had worked 1248.8 hours in the 12 month period preceding the unscheduled absence that gave rise to her termination.

 

This is certainly an interesting decision to say the least. This is like Scalia throwing out the first sentence of the second ammendment and saying it doesn't matter. But it is a case that is worth noting. BTW, the circuit that ruled on this: The First Circuit covers Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico.

 

My guess is that other circuits can and will interpret this differently...and that a higher decision will need to be made...or the DOL will simply modify the language to be more clear.

[Puddy]

If each of our employers would just chip in the amount of our salaries spent on this topic and send it to Soxette she can drop the lawsuit and potentially retire early.

[TheShiznit]

I still don't agree with your separation argument,but it may not matter.

 

Since she averaged about 38-39 hours a week,she has well over the 1250 hours needed for this contract.

 

You can't just have the hours...you need the months....it says 12 months...and 1250 hours. The link from the frist circuit that Kegg posted offers some hope here as the separation argument may be moot if an employer feels bound by a circuit not over them. Anyway....I would still whiteboard it and see what possible good comes out of it.

[Cyclones]

If each of our employers would just chip in the amount of our salaries spent on this topic and send it to Soxette she can drop the lawsuit and potentially retire early.

 

 

I'll pitch in too, even though I've not contributed one bit to the thread, I've spent plenty of time reading and trying to decide which side is more idiotic.

 

Point here is that us morons can talk all we want and give all the suggestions we want and quote all the crap we want, in the end its going to work out one way or the other for Sox and Soxette, regardless of what we say.

[TimC]

13 pages? I haven't kept up...has Sox posted a pic of fiance yet??? I like 'em under 5 feet tall.

[i_am_the_swammi]

I still don't agree with your separation argument,but it may not matter.

 

Since she averaged about 38-39 hours a week,she has well over the 1250 hours needed for this contract.

 

keep out of it...this isn't about you.

[McBoog]

i agree....it would be interesting to see what and how a court would rule on the USPS' "policies" because they sure do seem to go against some major laws and the IRS

 

There is a lot of case law out on the web I have reviewed and in cases similar, the USPS/Fed Gov has prevailed almost always. I am looking for an angle for Sox, but it is not looking good. Even with the woker showing that accomodations have been made, are they applicable to a NATIONAL level? Is it local policy? What was the work load at the time compared to now? Do you have a copy of the temp agreement she signed? Were different Employee ID #s assigned for the different years?

 

She is NOT a "contract" employee for federal purposes. If she was, she would be part of a private company that has a service contract with the G. She would not have a supervisor that work for the G, but would have a supervisor from the contracted company and the COTR would be the main point of contact with employee issues wth the supervisor of that cntracted employee. Individuals can be "contracted" but are individuals with skills or knowledge (scientists, SMEs, etc. usually brought into a consulting or research situation).

 

She is a temporary, non-career, "casual" employee, who has a specific job to perform on a temporary basis. Any person of any race, creed or religion would be able to fill that job and could file EEO complaints based on the following discriminating factors, race, color, religion, sex, national origin, disability, or age as long as they are capable of fulfilling the requirements of that job and can show they were denied or removed from employment for any of these factors, or harassed on the job because of these factors. However, certian jobs/job series can discriminate on the basis of physical ability to perform a specific position, i.e. job description (see my earlier post that semi-describes the job). An example of this is that you would not hire any person to be a police officer if they were a paraplegic (assuming the condition did not happen because of their work AS a police officer in the line of duty). A person confined to a wheelchair cannot reasonably be expected to adequately perform the duties of a job requiring intense physical labor in a confined space.

 

Sox' doctor has clearly stated that she is not currently capable of fullfilliing the requirements of the job she was hired for on a temporary basis. Under EEO, the only possible claim would be disabilty. But pregnancy is not a disability, it is a physical condition, and one that was certainly not caused BY the workplace (At the workplace is another issue, but other laws would have to be broken ), Maybe "sex" because only women can get pregnant? I don't see EEO as the venue to try to "fix" this.

 

Most temps go into the job with the understanding that they can be let go at almost any time for just about any reason. It is a harsh reality and may go against everything you private sector folks believe. The Government has legislated itself out of most of the employment restrictions it places on the rest of us. Sorry, but true.

Edited July 16, 2008 by McBoog

[McBoog]

If each of our employers would just chip in the amount of our salaries spent on this topic and send it to Soxette she can drop the lawsuit and potentially retire early.

 

I'm imaging a website on my other computer... not much to do but help a fellow huddler if possible!

[Big John]

13 pages? I haven't kept up...has Sox posted a pic of fiance yet??? I like 'em under 5 feet tall.

He did in this thread

[McBoog]

That one week off is real important....she is NOT an employee for that week off...and therefore a new clock has to start on her 12 months....which she hasn't completed yet.....you have to hit both bullets...not just one. Keggerz, I hope this answers your query.....she was off....not working...unemployed for one week...and then brought back on under a new one year contract....she has not satisfied the 12 month requirement....there is a reason why the postal service does this....so they can fire casuals whenever they please if they need someone else.

 

BINGO!

[McBoog]

He did in this thread

 

You scare the HE{{ out of me!

[TimC]

He did in this thread

 

She looks tall in that picture.

 

Yeah, he scares me too.

[McBoog]

The reason she is not a contract employee is that she is covered under the USPS Workers compensation plan if she were to get hurt at work. Blitz is off on his assertion. She is a different class of employee....as your link clearly shows.

 

However, this really does stink....and I still really think this:

 

Forget principle.....there are lots of good people with great principle who lose their jobs because of bullpoopy. Whiteboard the possible outcomes of this:

 

1.) She gets reinstated and put on unpaid leave for 12 weeks per FMLA and then she does not get her contract re-upped. But through all the brouhaha, you have tainted your reputation with the supervisors and managers and postmaster....so, now you are eggshell walking figuring they are just looking for reasons....and they will find them.

 

2.)You do nothing.......she gets let go early from her contract. Your relationship to management stays relatively intact. They won't be witch hunting on you.

 

I mean....aside from principle....even if you prevail there is really nothing here to gain.

 

 

Knowing how the USPS operates, I agree with this 100%. If they mess with you, a "retaliation" case is even harder to prove in most instances than an EEO.

 

I am impressed with your desire to protect your wife and family, but there is, at least in my opinion, little to gain and a lot to lose! I'll look a little more, but I don't think there is much that can help (and I hope I am wrong)!

[Azazello1313]

ya know, I don't know if she qualifies for the FMLA, looks like she probably does as far as I can tell, but isn't that kind of screwed up? you take a job under the condition that you can be gone any day. if they have a slow week, you can be gone. if you break your ankle rock climbing, you can be gone. if you're late one day, you can be gone. but then we have laws that say, if the cause of your inability to work is pregnancy, well then suddenly your totally temporary, totally undependable work situation just became a guaranteed job for the next nine months (even though you can no longer perform the duties) and for at least 6 months after that whenever you happen to decide you want it. that is kind of a funky set of laws.

Edited July 16, 2008 by Azazello1313

[Squeegiebo]

ya know, I don't know if she qualifies for the FMLA, looks like she probably does as far as I can tell, but isn't that kind of screwed up? you take a job under the condition that you can be gone any day. if they have a slow week, you can be gone. if you break your ankle rock climbing, you can be gone. if you're late one day, you can be gone. but then we have a laws that say, if the cause of your inability to work is pregnancy, well then suddenly your totally temporary, totally undependable work situation just became a guaranteed job for the next nine months (even though you can no longer perform the duties) and for at least 6 months after that whenever you happen to decide you want it. that is kind of a funky set of laws.

 

At-will employment is such that there is no guaranteed job from one minute to the next, but the anti-discrimination laws and FMLA apply.

[Azazello1313]

At-will employment is such that there is no guaranteed job from one minute to the next, but the anti-discrimination laws and FMLA apply.

 

well no schit sherlock, that was the whole premise of my post, that those laws probably apply but they also don't make much sense. that you can't discriminate based on one particular condition that renders you unable to do your job, but you can "discriminate" based on any other whim of the employer, just seems silly. you get pregnant, you can't do your job, but you're now guaranteed a job you can't perform for the next one year +. there is nothing else you can voluntarily do to yourself that gets you this guarantee.

[Sox]

Knowing how the USPS operates, I agree with this 100%. If they mess with you, a "retaliation" case is even harder to prove in most instances than an EEO.

 

I am impressed with your desire to protect your wife and family, but there is, at least in my opinion, little to gain and a lot to lose! I'll look a little more, but I don't think there is much that can help (and I hope I am wrong)!

 

This is hardly the first EEO filed against the USPS here.They've only gone after one or two people afterwards,and I know they've paid for it.

 

The bottom line to me is this:What happened is not only wrong,it is against the law.By filing this EEO,we have done nothing wrong.It is a right and protection under the law that we are taking advantage of.Everybody has to make their own choice...if you're scared of reprisals,don't file one and shut up and don't whine when something else happens,because you've already let them know you won't do anything about it.

 

Don't like us filing it?Then don't terminate pregnant employees because of their pregnancy.

[TheShiznit]

This is hardly the first EEO filed against the USPS here.They've only gone after one or two people afterwards,and I know they've paid for it.

 

The bottom line to me is this:What happened is not only wrong,it is against the law.By filing this EEO,we have done nothing wrong.It is a right and protection under the law that we are taking advantage of.Everybody has to make their own choice...if you're scared of reprisals,don't file one and shut up and don't whine when something else happens,because you've already let them know you won't do anything about it.

 

Don't like us filing it?Then don't terminate pregnant employees because of their pregnancy.

 

Definitely makes sense.....I can go both ways on this....and this only TimC!

 

BTW...for Keggerz:

 

I found another case...this one from the Ciruit in Michigan. For the record, the new case law 2006 and 2007 is showing that employers are now going to have to keep records on every employee from the beginning of time...since there is no cutoff on how far one can go back to achieve the requisite 12 months. I find this a little bit unreal...and certainly wasn't the interpretation our lawyers gave us at the company I used to run locally...but if the courts want to make the law mean something it is not...then I guess we all have to follow it:

 

http://www.ceridian.com/www/content/10/124...oconnorcase.pdf

[detlef]

ya know, I don't know if she qualifies for the FMLA, looks like she probably does as far as I can tell, but isn't that kind of screwed up? you take a job under the condition that you can be gone any day. if they have a slow week, you can be gone. if you break your ankle rock climbing, you can be gone. if you're late one day, you can be gone. but then we have laws that say, if the cause of your inability to work is pregnancy, well then suddenly your totally temporary, totally undependable work situation just became a guaranteed job for the next nine months (even though you can no longer perform the duties) and for at least 6 months after that whenever you happen to decide you want it. that is kind of a funky set of laws.

 

well no schit sherlock, that was the whole premise of my post, that those laws probably apply but they also don't make much sense. that you can't discriminate based on one particular condition that renders you unable to do your job, but you can "discriminate" based on any other whim of the employer, just seems silly. you get pregnant, you can't do your job, but you're now guaranteed a job you can't perform for the next one year +. there is nothing else you can voluntarily do to yourself that gets you this guarantee.

:D

[yo mama]

I think the lesson here is that Sox' finance shouldn't have insisted on gender-neutral road signs.