Am I entitled to keeping my pay rate after coming back from FMLA? 2 Answers as of July 22, 2011

I am currently 7 months pregnant and planning on taking FMLA. I was under the impression that I would be entitled to 12 weeks of unpaid leave, and am entitled to the same pay and benefits upon my return. But my employer its telling my that they are only giving me 8 weeks of unpaid leave, and if I take more, they will reduce my pay rate to base level (Basically terminating my employment and re-hiring me). Is this a violation of the FMLA?

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David B. Sacks, P.A.
David B. Sacks, P.A. | David Sacks
The way you describe the circumstances if your employer carried through with what they are saying then it would be a violation of the FMLA. But you have to let the situation play out because chances are they will not do it, but are simply trying to make you think they will. The only way they could legally do it is if they can prove that they were going to do it anyway, regardless of your taking FMLA and in this situation, based on the facts as you present the facts, I don't see how that would be possible.
Answer Applies to: Florida
Replied: 7/22/2011
Carnes Law Firm
Carnes Law Firm | William J. Carnes
You bring up issues that warrant consideration. You fact scenario sounds like there could be a violation of the FMLA and Title VII of the Civil Rights Act of 1964. There are various federal and state statutes and common law causes of action that you might wish to pursue in order to best serve your interests. These include, but are not limited to the following: breach of contract, oral and written, misrepresentation, negligent or otherwise, fraud, defamation, libel, battery, assault, slander, intentional infliction of emotional distress, workers' compensation retaliation, interference with an advantageous business relationship, negligent hiring, negligent retention, discrimination, claims or rights under state and federal whistle blower legislation including Sections 448.101-448.105, Fla. Stat., claims or rights under the Family Medical Leave Act ("FMLA"), Fair Labor Standards Act ("FLSA"), as amended, the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), Employee Retirement Income Security Act (` ERISA") of 1974, as amended, the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), the Equal Pay Act ("EPA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, the Florida Civil Rights Act of 1992 ("FCRA") Fla. Stat Chapter 760. There are one or more statutes of limitation for these causes of action. If you wish to pursue a claim, you must file the complaint prior to the end of the limitation period, or the claim will be barred. Many statutory violations have to be initiated through the proper administrative agency which is frequently the EEOC office and/or the Florida Commission on Human Relations. If you feel that your rights under these laws have been violated, I encourage you to seek redress with the proper agency as soon as possible. These have reduced periods of time during which an action can be commenced, or the cause action will be barred if not timely commenced. Please remember that many, but not all, federal discrimination claims must be filed appropriately within three hundred (300) days after the alleged act(s) of discriminatory conduct. Many, but not all, state claims of discrimination must be filed within three hundred sixty-five (365) days after the alleged act(s) of discrimination. The statute of limitations may be less or greater for other causes of action. While the EEOC/Commission on Human Relations administrative process can operate without the assistance of a private attorney, you may wish to retain private counsel to assist you in filing a claim. A privately retained attorney can assist in investigating the claim, recognizing the issues, identifying the defendants and drafting the charges. It is important to remember, however, that you must file the charges in a timely manner or the action will be barred. The date of these occurrences is very important and should be determined in order to avoid the statute of limitations. Unfortunately, this firm cannot render a competent legal opinion based on an unsolicited factual scenario. Your query requires more facts to allow for proper consideration by an attorney. A consultation with an attorney at this office frequently requires more than two hours of the attorney's time to complete. The attorney and the client meet to discuss the facts and review any documentation. We conduct a general discussion of the law, and the attorney advises the client of the options the client may wish to consider. After the consultation, the attorney reviews the notes, researches the law, if necessary, and drafts a summary follow-up letter to the prospective client. During our consultation, we may discuss, among other things, the general nature of employment law in Florida, statutory discrimination claims, unemployment compensation benefits and claims strategy, workers' compensation benefits and filing requirements, common law causes of action, severance benefits, contractual considerations, benefit continuation considerations and the administrative procedural requirements for filing a discrimination claim against an employer. Should you decide to pursue this matter, it is important to remember that you will have the burden of proving your case. You must provide the witnesses and other evidence, direct and circumstantial, necessary to prove the elements of the specific charge against your employer. I urge you to do what is necessary to make a sound decision on whether to pursue or to abandon your case. The above is not a legal opinion and cannot be relied upon as such. There is no attorney-client relationship created by responding to this inquiry. Should you wish to get a legal opinion upon which you can rely, the only way is to hire an experienced employment attorney in your local area who can get all of the facts, research the law and explain your options to you.
Answer Applies to: Florida
Replied: 7/22/2011
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