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FMLA rules as thick as a phone book? Be prepared for FMLA interference lawsuit

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in FMLA Guidelines,Human Resources

Here’s a warning for employers looking for ways to cut ab­­sen­­teeism: Don’t do anything that makes it harder for employees to use FMLA leave.

“Creative” rules that end up discouraging legitimate FMLA use or punishing those who take FMLA leave are bound to cause trouble, as one large company facing multiple lawsuits has discovered.

Recent case: Thirty-seven current and former Verizon Communications employees sued the company and its affiliates, alleging that Verizon had a set of FMLA rules that discouraged and punished taking legitimate FMLA leave.

Here’s how the process worked. When employees knew they were going to be absent, no matter the reason, they were supposed to call their supervisor or an absence administrator, who would enter the information into the company’s Absence Tracking System. That triggered a basic determination if the employee was eligible for FMLA leave, based on having worked the requisite hours and length of employment.

Eligible employees then got a letter directing them to have a medical certification form filled out, documenting the serious health condition, the date leave should start and its probable duration.

Employees had 25 days to have the form completed.

If Verizon didn’t think the em­­ployee was eligible, it notified the employee, who had 14 days to seek an administrative review.

In practice, the company denied all review requests that did not in­­clude the language, “I am requesting administrative review.” However, it never told employees they had to use the “magic phrase” or why their request was denied.

In addition, any certification about which the company had questions had to be returned with the health care provider’s initials next to each questionable section. Plus, employees weren’t allowed to request FMLA leave before actually missing work, even if their leave was clearly foreseeable. That put some employees in the position of not knowing whether their leave was FMLA-protected.

Finally, the company had a no-fault attendance policy that progressed in steps. Employees could earn a step back with six months of perfect attendance—unless they took FMLA leave during that six-month period. When that happened, they wouldn’t have a step erased until six months plus the length of their FMLA leave had passed.

That effectively benefited em­­ployees who didn’t take FMLA leave during the six months. An additional absence after six months of perfect attendance but during the additional FMLA time could be the difference between termination and keeping one’s job.

The court hearing the case was highly critical of the draconian and confusing rules. It reasoned that the company was trying to decrease legitimate FMLA use by making the process difficult. It was particularly critical of the “magic words” appeals process.

It also questioned the fact that employees who had already produced forms certifying their need for FMLA leave sometimes had to get the forms filled out again. As the court pointed out, employers already have a remedy if they don’t believe an employee’s health condition is serious; they can request a second medical opinion, and possibly even a third tiebreaker. That’s the process Congress approved.

The court said the individual claims could go to trial. (Oakley v. Verizon Communications, No. 09-CIV-9175, SD NY, 2012)

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{ 9 comments… read them below or add one }

JC March 21, 2014 at 12:38 pm

Could someone let me know how to contact those running this lawsuit. I was fired from Verizon NY several years ago. I was Verizon NY’s public enemy #1 for FMLA (as stated by BOTH the company AND the Union; Local AND National) and I had a 3rd liner after me for many years. He didn’t like that I had FMLA (permanently partially disabled from an on-the-job injury caused by Verizon’s negligence to provide and/or inform me of the existence of a certain piece of safety equipment for rolling ladders!) After MANY unsuccessful attempts to fire me, the company resorted to falsifying information in my G550 and charging me with wrong and illegitimate disciplinary steps. The Local NEVER did anything about it and let the steps proceed no matter how much I complained. Eventually I was fired from the disciplinary steps. I threatened the Local to contact the DOL and report not only the company, but also the Local for not acting on my complaints that led to false disciplinary steps being allowed to remain over the course of a couple of years. Of course they wanted to cover their butts and proceeded with grievances and eventual arbitration. It took them 3 years to finally sit my case. I met with the lawyer (Local chose to hire an outside lawyer, from 30th St[?] that they work with rather than their own) and the Local and National Reps on a few occasions. She, the lawyer, was salivating from the evidence and documents I had, as well as from contradicting documents provided by Verizon (the company provided her with one set of documents stating one thing and then another set contradicting the 1st set they gave her!). She was anxious and eager to get at them in the arbitration and expose things. I guess someone tipped the company off because next thing you know they were willing to give me back my job, partial $, ALL steps wiped away, and time bridged on as if I HAD worked those 3 years. I was getting screwed on (not getting!) compensation for medical expenses during those three years and from the majority of wages I would’ve made, but I had no choice since it had already been over 3 years, my unemployment had already run out, I had exhausted all my savings, & was at the point where I could no longer borrow $ from people. I am a single father and felt I had to accept their pathetic and insulting gesture for the benefit of my daughter. The lawyer was disappointed, but understood that I felt I couldn’t gamble with an arbitrator siding with Verizon and me not getting my job back (she admitted that even if the arbitrator found Verizon at fault, they could still decide that getting my job back was not a viable option and only a monetary award would be; so I HAD to take the safe bet for my daughter’s benefit!). I have been back to work for a few years now, but I would LOVE to continue to pursue ANYTHING that may get me some actual justice for what they have done! I am still dealing with financial issues that started from me being wrongfully fired. Again, I am in NY with Local 1101. I have had 1st hand experience with Verizon’s harassment towards those who have FMLA. My FMLA paperwork was ALWAYS in order and this is what made them mad. Calls and visits to my Dr’s, constant calls and visits to my house (I was there EVERY time to answer the door which pissed them off since they expected me to be out galavanting!), rules and procedures applied to me but not others, CONSTANT temporary transfers to other CO’s AND to different departments that were NOT related to my title, I had to report absences to a 3rd line mngr while EVERYONE else reported to a 1st liner, etc, etc, etc. Please let me know who I can contact so that I may join in the lawsuit and/or help in any way to expose this company and their ways!!!!

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bumpy February 6, 2014 at 7:03 pm

I sent in anticipated disability form to get approval to go out 1 month early before having my baby and was told they can not process my request till I go out then what is the point of doing anticipated disability paper work I thought doing this ahead of time would give me the ok and let me know about pay status what a waste of time so now I have to sit a wonder if I will get approvedor denied like I need this stress in my 8th month

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cwa June 25, 2013 at 6:34 pm
Lisa March 19, 2013 at 12:44 am

I was recently under review for separation for use of FMLA and was terminated. I was told I had hours that were not covered and I had no more hours available but oddly enough received a letter from met life 5 days later informing me of hours that were approved and when my FMLA would expire . I would be interested in joining the lawsuit myself. Serious hardship setting in for myself and my children and I had vacation time that could have been approved:

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Fed Up December 16, 2012 at 10:24 pm

Who is handling the lawsuit and how can I contact them?. I’d like to join.

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Elina October 5, 2012 at 5:30 pm

Well, I just found out that I am under “separation review” with Verizon Wireless. I had used all my allotted time with my FMLA. Although, my claim is approved, I can not use it for my medical needs, as no hours. You guessed it all the hours now denied, are placed under sick time. I suffer from IBS, and am an expectant mother. I have no control over my IBS condition and the effects it takes. I thought FMLA was there to assist. In my case apparently it doesn’t and I have no control over it. I feel this is not legally correct, and am looking for some answers or legal options, when and if I get terminated. elinasavon@gmail.com

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donna June 26, 2012 at 5:25 pm

I would like to add in my opinion it all depends of the reps attendance manager I know my manager would always tell us if need paperwork reviewed what to put on it and when need to be in I will agree metlife is a waste of time when it comes to the forms u apply for intermitten fmla and the say no cause the way the doc put it covered current absense then please tell me why it is called future intermittent dose future not mean has not happen yet not my present or past sickness. I got so mad just let it go and guess what moved to a step cause doc and I got so frustrated with the paperwork. As for the central office manager if u have a medical restriction or fmla guess who is on a list u bet fmla reps r and I know for a fact just had it happen the put me on a code of conduct violation on a day I could have been off phone but I choose to be on phone as I could handle and it hurt me wont ever do it again and know I have anxiety attacks wondering every day what will they get me on know

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Rick Hamedl June 22, 2012 at 3:44 pm

I have a Federal law suit against Verizon & MetLife on many issues, including FMLA discrimination and the crooked IME doctor used by MetLife to railroad me and other workers. A 2nd level mgr. in my former Verizon shop said, ” I don’t like workers taking out of tour assignments, then going out on FMLA”. I hope my Judge sees through Verizon’s lawyers lies and smoke screens (closing arguements) and makes them stand trial. A jury of my peers will decide the damages caused during this nearly 5 year battle. If you have any info. against Verizon & or MetLife who administered the health plan for VZ, pls. call me @ 631 848-1059.

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brutha paul February 6, 2014 at 6:34 pm

Hi Rick Hamedl
I am in the same boat as you. I have filed a lawsuit against Verizon and Metlife for denying the remainder of my short term disability and my long term disability. As you stated in your post above…some third party doctor (paid quack) ran through my file and determinded that I am mentally stable. Why thank you doctor….that is not my medical condition that is causing me from being at work. My conditions warrant me from being able to do the job that I was hired to do. Does not have anything to do with my mental status at all. If you are able, i would like to speak with you about your current case.

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