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Took a job while on FMLA
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Took a job while on FMLA
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
HI I am wondering if anyone can help.
I was approved for FMLA and out for a week then I started anohter job and my employer found out that I'm out there working for another company. They called me in
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Forums » Topic Forums » Legal Forum » Took a job while on FMLA
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Took a job while on FMLA
posted at 7/17/2009 12:35 PM EDT
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Posts: 1
First: 7/17/2009 Last: 7/17/2009 |
HI I am wondering if anyone can help.
I was approved for FMLA and out for a week then I started anohter job and my employer found out that I'm out there working for another company. They called me in for a meeting. Should I go in for the meeting? would I be facing any legal action or do I need representation from a lawyer? I need help. Thank you. |
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Took a job while on FMLA
posted at 7/17/2009 12:47 PM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
Post your question on www.freeadvice.com
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Took a job while on FMLA
posted at 7/17/2009 1:13 PM EDT
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Posts: 3870
First: 2/12/2002 Last: 11/2/2009 |
Taking FMLA and then starting a new job is nearly as low as it gets. While I would love it if there could be substantial consequences for you, most likely the worst that's in the cards for you is that your previous employer fires you for cause.
And quite rightly. |
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Took a job while on FMLA
posted at 7/17/2009 7:56 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
If I were the employer, I would be very careful about disciplining you for taking FMLA...even if you used the time to look for and take another job. Everything I have read states that the employer has little control over what an employee does while on FMLA leave. The best example I can remember is an employer finding the employee vacationing at the beach while on FMLA leave.
All the court cases I have read seem to depend on which Circuit Court is hearing the case-- it can go either way regarding whether the employer has to prove suspicsion of fraud or actual fraud to terminate and not be charged with violating the employee's rights under FMLA. "But cases of FMLA fraud and abuse often are not categorized as retaliation cases. Thus, the courts often do not ask whether the employer genuinely believed that the employee was not entitled to the leave taken. Rather, the courts tend to focus on the question whether the employee actually had a serious health condition, in which case the employer is strictly liable for any failure to give the employee his or her full FMLA rights. In addition, when the courts ask whether the employees conduct while on leave was appropriate, an employers disapproving judgment is not dispositive. The employee and his or her medical professional may say that the activities were consistent with the purposes of the leave...The case law is mixed, and the courts may eventually settle on a standard that is more favorable for employers. In the meantime, however, employers should be aware of the hazards in this situation. If an employer intends to terminate an employee because the employer believes the employee has engaged in FMLA fraud or abuse, the employer had better be correct.." from http://www.halleland.com/enews/winter2005/FMLA.htm But the employer has the right to ask for recertification if they suspect the need has changed and/or if they suspect fraud. I do agree however that it is unethical for an employee to use FMLA for the wrong purposes. And I don't understand why you don't just give the prior employer notice of intent not to return -- except that you are trying to keep benefits. |
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Took a job while on FMLA
posted at 7/17/2009 7:58 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
One other quote/court case from the article above: "For example, employers can adopt a written policy prohibiting employees from engaging in certain conduct while on FMLA leave. Such a policy proved worthwhile in a recent Tennessee case in which the court upheld, on summary judgment, the termination of an employee who spent his FMLA leave working in the family-owned business instead of staying home with a newborn child. The court relied on a company policy prohibiting unauthorized work for personal gain while on leave, and the employee did not dispute the violation of that policy. Pharakhone v. Nissan North America, Inc., 324 F.3d 405 (6th Cir. 2003). "
So another way the employer could protect themselves is to have this written in their FMLA/leave policy. |
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Took a job while on FMLA
posted at 7/19/2009 12:17 PM EDT
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Posts: 464
First: 6/30/2004 Last: 11/22/2010 |
The original poster does not really say that he or she is not going to return to work at the end of fmla.
I do know it is ok to do other work while on fmla, and there can be some bona fide reasons to do so that do not effect the reason for fmla. If the poster just took another job and does not intend to return, then I would agree that this is bogus. Did a doctor certify the leave? If so, there is another person whom the ethics police should look at. Lots more to this story I think. |
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