wrongful demotion fmla nv loss of insurance

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Post  Ginnylends on Wed Sep 10, 2008 2:42 am

[b]I am in need of an answer!

I work for a large casino in Vegas that has quite a few properties. I took an FMLA leave on May 20, 2008 (approved through HR) for surgery, and WAS a full time employee on May 20, 2008. On June 5, 2008, I received a call from HR stating that I was demoted to an On Call position, along with 4 other employees from my department, and that my insurance expired on May 31, 2008 and I no longer would receive benefits. I paid for my Cobra policy at a premium of $309 per month as I have long term physical therapy for my surgery. On July 1, 2008, the company changed insurance plans, and my cobra went to $525/month, which I have been struggling to pay. Now, I am back to work, but am having complications due to the surgery (not affecting my job performance), and may need another surgery, therefore, cannot go get a different insurance policy due to pre existing conditions. Also, if I need to be off work again, I no longer can get my short term disability, as I am no longer considered full time.

My question is, can they demote me while on FMLA? They state the reason to be, reduction in work force, when in all actuality, they have cut full time positions, and hired more on call employees. (On call employees are scheduled up to 32 hours a week, each week.) My department has more employees now, than when I went on FMLA, and has been consistently hiring more employees prior to and during my FMLA. Also, with FMLA, am I not correct in assuming, that they should have found me another position in the company with equal pay and benefits? I have been a model employee for 3 years.

My HR department is standing their ground with the basis of reduction in work force, and have given me the # to our corporate office.

If I am correct, will I need an attorney? Also, I have heard that the NV Labor Board is not very aggresive with the larger casinos. Any suggestions?

Thanks to anyone that can help!!!


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Post  JoeC (McGruff) on Wed Sep 10, 2008 2:51 am

Yes you definitely should contact an attorney, since the company is claiming a legitimate business reason for the force reduction,and demotion. Only a court process will get the employer's attention. All administrative remedies are limited and the agencies have little interest in pursuing a claim apart from minimal investigation. The NV Labor Board the U.S.D.O.L are administrative remedies that do not have to be satisfied under the F.M.L.A.
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Post  bears00 on Wed Sep 10, 2008 4:30 am

Joe is correct, you don't have to go through the DOL administrative process to seek legal remedy.

To answer your question about returning you to a job with equal pay and benefits, the answer is yes AND no. If your previous job still existed, then yes. If your previous job no longer exists, then no.

It is going to seem as though I am contradicting myself in my answer, but stick with me. If a company can prove that your status would have been change DESPITE you taking leave, then the company has no legal obligation to keep the terms and conditions of your employment the same while you are on leave. For example, let's say the health insurance premiums went up for EVERYONE. Your company isn't required to keep your portion of the premium the same JUST BECAUSE you are on FMLA. So if they can prove the status change would have happened with or without your taking FMLA leave, that is permissible under the law.

As an aside, just because the company changes your "status," it doesn't mean that you are no longer eligible for FMLA leave. In order to continue to receive the company paid portion of your benefits while you are on leave, you must remain eligible for each benefit. For example, if the the employer's Summary Plan Description (SPD) for their disability insurance states that they will only cover employees through age 65, and you turned 66 while on leave, you are no longer "eligible" for that benefit, and the company would not have to maintain that benefit for you after you turn 66 simply BECAUSE you are on FMLA leave.

The specific numbers of your case make a difference. You could make the argument that the company changed YOUR STATUS to avoid paying their portion of health premium while you were on FMLA. You said that you and 4 others were changed to "on call." The answers to the following questions make a difference (approximates are okay). Prior to the reduction in force, how many employees were in your department? How many were full time status? A total of 5 have been converted to "on call"....and How many on call employees have been hired into your department total?

Honestly, this is an all or nothing case. If the company can prove that this would have happened to YOU anyway, you have no case. On the other hand, if you can prove that you were selected for this change so that the company would not have to pay your full benefit package while on FMLA, then you have a good case.

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