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This has got to be somehow illegal
This is happening to my sister...she is more mad rather then prepared to do something but I'm hoping to empower her.
She works (worked?) for an National Insurance Company but in a small office of her boss, boss's son, and like 1 or 2 other people. My sister went out of work suddenly, emergency surgery on her back. She had no vacation/sick time built up. Her office hired a temp but has now told her that when she returns she has been demoted to a lower position with a lower salary, I think one that didn't even exist in this office. They made her drop her keys off, and when she did, they handed her a box with all of her stuff in it. My mom asked (because she had driven because my sister can't drive yet) "Are you firing her"...they said "No, but we can't be liable for her possessions".
Her manager is claiming she finds my sister incompetent, citing all these things she was doing wrong when she worked there (my sister says she wasn't trained properly) and petty things like a customer had seen her walking before the back surgery and asked if she was okay and my sister responded "I have a bad back"...her manager says she is appalled that she shared that with a customer.
It seems to me, that this woman has such a small office that she cannot handle an extended absence, which I understand, but aren't there laws protecting you from getting demoted because you are temporarily disabled. I think she's smart enough not to let her go but I think she's tryiing to make it so she doesn't come back and she can just keep the "temp".
My sister believes that she did not need to file FMLA since the office is so small it wouldn't apply, I'm not sure since technically it's part of a larger chain.
Where would you start to see if this is appropriate.
Re: This has got to be somehow illegal
How long did she work there before the surgery? (You mentioned she didn't have time off built up, so I'm not sure. That implies she hasn't worked there for very long, in which case she wouldn't have been eligible for FMLA anyway.)
You may be right that the company is too small. There have to be at least 50 employees within a 75 mile radius to qualify for FMLA. I'm not sure how it would have worked in this case since it's a chain.
Obviously, if she was eligible and had filed FMLA, this would totally not be allowed. So her employer may be taking advantage of the fact that she didn't/couldn't file. I would contact someone from the DOL in her state and talk to them about next steps. Since she didn't notify the company of intent to take FMLA leave already, she might be out of luck.
It's possible there could be an argument that intent to take FMLA was implied, but that's doubtful. I would just contact someone from the Labor Department and see what they have to say. She should also decide if this is worth hiring a lawyer over. Though I'm not sure it's technically illegal, it could be.
I'm not really an expert though; I sometimes write about issues related to benefits, but I've never written on FMLA specifically, so maybe someone else can help.
She needs to find out if FMLA applies to her or not. Because if it doesn't, then she may be SOL. There is no other "job protection" out there for businesses that are too small to qualify for FMLA. Honestly, this situation may be why FMLA exists only for larger companies - it's too hard for a small company to keep someones job open or have another job for them when they come back. Small companies don't have the same resources.
~Benjamin Franklin
DS dx with celiac disease 5/28/10
DS1 born June 2008 | m/c at 9w March 2011 | DS2 born April 2012
FET - transferred two embryos (boy and girl) - Nov 2014 - BFP!