Published on May 12th, 2011 by Alan L Sklover
Question: I started working for my employer in Nov. 2004 and in April 2009 I had a little boy that we would soon learn had a lot of medical conditions, I took 12 weeks maternity leave and then had gotten a sabbatical leave, without pay. My employer also had me use all of my vacation time before my sabbatical leave. This leave lasted 14 months, my son underwent 4 surgeries during this time 2 open heart surgeries, 2 eye surgeries and also a heart cath.
I returned to work in June of 2010. Though I came back to work with no vacation time, or FMLA, with them knowing of my child’s heart condition and eye conditions, they told me that they would work with me and that I was a good employee. I then became ill and needed surgery, then my son had kidney problems, eye appointments, cardiology appointments, neurosurgeon appointments, genetics appointments, and many other doctor visits.
My son then needed brain surgery due to a cyst on his cerebellum that was putting pressure on his brain stem and causing seizures, more time missed from work. Since I didn’t have my 12 weeks of FMLA since you have to work 1250 hours not counting vacation days or holidays, I had no time to take off work. The company did allow me to ask for vacation donations from other employees I did this and asked for 3 weeks which I got and many other people wanted to donate but they would not allow more then the 3 weeks, since that was all I asked for.
I had also asked my employer if I could again request vacation donations knowing that we as employees there are allowed to request once every fiscal year and this was a new fiscal year to my prior request. After having numerous people coming up and asking me if they could donate vacation to me, the hours were there to be donated but my employer denied me this right. Since I could not come back, they terminated me.
Now they are contesting my unemployment and I have a phone hearing set up for next week to discuss the disagreement, with my previous employer and an Iowa Unemployment representative. What are my legal rights? Please any advice would help. A mother has a right to do what is best for their child and still work. Thank you.
Answer: Dear Kayla:
Though I am not licensed to practice law in Iowa, where you worked, my brief review of Iowa law on this subject indicates that Iowa law is quite similar to the law in most states.
1. According to the Iowa Court of Appeals decisions I’ve seen, people who are absent from work without permission – even to care for a sick child – are generally not “legally” entitled to collect unemployment benefits. In Iowa and most other states, in general, if a person is terminated for absences not related to his or her own illness, and not the fault of the employer, the employee does not have a legal right to collect unemployment benefits. This is the case with those who must care for a sick child.
2. That said, despite the law, your situation is a very compelling case for “ignoring” the usual rule. I want you to know that in many cases, judges, juries and Unemployment authorities make decisions to “go around,” or “ignore” the law, when they feel sufficiently moved to do so. Honestly, it happens all the time: people are moved by a deeply compelling situation such as yours. With your son’s very serious challenges, and then your own, it’s literally amazing that you have held up this long. If you can convey to the Unemployment representative what transpired here, he or she just might feel compelled to “help you out,” whatever the law may be.
For many people, it’s a great idea to ask your former employer not to oppose your Unemployment Benefits applications, and to give them great reasons why not to do that. Use our “Model Letter Requesting Employer’s Assurance Not to Contest Your Unemployment Application” with Ten Great Reasons. “What to Say, How to Say It.”™ To get your copy, just [click here.] Delivered by Email – Instantly!
3. I think you may have one very good “argument” on your side, that I strongly encourage you to bring up next week on the Unemployment telephone hearing: that your employer is actually “at fault” here when they terminated you. It seems to me that your employer’s refusing to permit you to accept “donations” of vacation days the second time, just before they terminated you, may just get you the unemployment benefits you seek.
The “argument” that your employer was “at fault” in terminating you has three parts, each of which you should raise on the telephonic hearing:
(a) your employer “acted arbitrarily and capriciously” (in simpler words, “with no good reason”) in refusing to permit you to accept donations of vacation days the second time;
(b) your employer “violated its own policies” (in simpler words, “broke a promise to you”) in not permitting you to accept donations of vacation days the second time; and
(c) your employer “acted in a retaliatory way” (in simpler words, “got cranky”) for your having exercised your legal rights to accept donations of vacation days the second time.
By “retaliation” I do not mean to say they are mean people, but that it is quite likely they may have said to themselves, or felt inside, “Enough is enough.” However, an employer is not supposed to get cranky, upset or frustrated with people exercising their rights, no matter how hard it may be to keep themselves “un-cranky.”
I encourage you strongly to tell the Hearing Officer the factual chain of events, as you did for me, and then to present your “good argument,” above, including each of its three parts. It would probably be very, very helpful if you could have another employee speak on the telephone and tell the Hearing Officer, “She’s right. I wanted to donate more of my vacation days, but our employer refused, for no good reason.” That could really help.
First, Kayla, I want you to know that I will pray each day for your boy’s health, and for your health, as well.
Second, I want you to know that I admire you so, so much: you are a “Mother of a Mother,” in the greatest sense of that great word. Your son is a lucky boy to have such a strong, dedicated, and determined Mom. You are a tribute to your own mother, and to all other mothers.
And, third, I do hope so very, very much that you will be successful on your telephonic hearing. If you are, would you please let us know? If you are not, I would suggest an appeal, and I might have some ideas about that for you, as well, if you write back.
Be strong, continue in your calm determination, and know that God is with you every single moment.
Best, Best, Best, Best
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© 2011 Alan L. Sklover, All Rights Reserved.