Complicated FMLA question about retaliation

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maydaymayday

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Hey folks, I sure hope someone is able to assist me in this because it just seems to overwhelming for me to wrap my mind around.

In September of this year I was approved for FMLA by my employer (My mother is terminally ill, originally given til December to live).

I work as a security guard for a large contract security company. I have worked at my last site for about 2 1/2 years and was a shift supervisor.

Last week the computer I was logged into contracted a virus. I initially accepted that it was most likely my own fault. This later changed after I did some investigation.

What I had found was that the computers (which we share but have seperate logins) were already infected by at least 1 and possibly 2 Malware programs that I found pre existing the date of infection that I was being blamed for (I have a Technical Support background and am Certified on Microsoft XP Professional which is the Operating System we use).

On Thursday 11/10/11 I was called to my Site Managers office. While there I presented him and the site supervisor with everything I had found. They did not seem interested in the least in what I had to say, even after I presented to them verifiable proof that there were preexisting malwares on these computers with both date and times when these files were installed (files were time and date stamped at the time of installation by the computers they were installed on).

Anyway, I was told that it was out of their hands and I was to be removed from the site because 'I downloaded' programs which was against both company and client policy. I explained to them that I had never downloaded a program. I never agreed to download a program and my permission was never asked if I wanted to download a program. I insisted that it was more than possible that the malware ALREADY INSTALLED on the computer was the culprit and that they should be checking to see who worked during the dates and times I gave them rather than removing me from the site.

My issue is although I have been removed from the site, I have not been terminated. My worries are that they will.
  1. Deny me the ability to collect unemployment
  2. Keep me barely employed by having me run from site to site at a moments notice a few times a week despite my FMLA
  3. Use my refusal to work a certain day or time without notice as a means to deny unemployment
  4. Use my removal from the site as a way to usurp the hour and wage protection provided by FMLA

First off, because I was able to prove beyond a shadow of a doubt that malware preexisted on these computers. I feel that I was wrongly removed from the site and that I may have been targeted because of my FMLA. I also feel like this is the companies M.O. when handling situations such as this (My former supervisor was removed from this site shortly after injuring himself at work).

There also feels like a racial issue at this site. In the past 18 months 9 Caucasian employees have either been removed from the site or left because they felt they were being unfairly treated (not all 9 felt this way, but a majority did). In contrast a single black person has been removed from the site in the same time period.

Employees have witnessed african employees dictating to our site manager what they will and won't do on the site. While employees of caucasian decent are made to follow their duties without question (with the exception of one employee who is a relative to the site supervisor).

Anyway, I know this is a long build up so let's get to the question...
What can I do at this point?
 
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You can do anything any other citizen can do.

If you're asking whether you have a cause of action, the answer is no.

Barring a CBA, an employer is not required to justify why you're reassigned, hired, or fired.


The incidents you cited, have no bearing on FMLA. In fact, none of these things is remotely related to FMLA.


As far as any racial discrimination, forget it. If you're Caucasian, you're not a member of a protected class, as far as racial discrimination is concerned. Which, by the way, is non-existent in your thread. What you characterize as racial discrimination, is nothing more than coincidence or rumor or supposition or happenstance.


If you meant that blacks are given preference, so what? Nothing illegal in treating one group with preference, as long as you don't disparage or discriminate against another group.

Sorry, I see nothing irregular or illegal in anything you've said. However, you're free to hire an attorney, or even a dozen attorneys to prove me wrong. I wish you well.

I also pray that your mother recovers, or proves her physicians wrong. My sister was told she had 30 days (stage four breast cancer) last November. She's better and improving everyday.

She's already proved those docs wrong. I pray your mom will, too!
 
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Thank you for the response and your prayers!

"Barring a CBA, an employer is not required to justify why you're reassigned, hired, or fired."

I understand this. NC is an at-will state. They have the right to fire or reassign me at any time. In not firing me, they've put me into a position where they will have me work on an on-call basis rather than a permanent basis at a lower pay scale. This is effectively a demotion.

As I've provided proof that these computers already had malware on them. I don't believe they have any justification for demoting me.

"The incidents you cited, have no bearing on FMLA. In fact, none of these things is remotely related to FMLA"

I'm not exactly understanding this. FMLA as I understand it, guarantees me that I keep my job or a similar job/similar pay with similar responsibility. As they have no cause in removing me from the site (which we established they don't need), they are demoting me on both an hourly level and a pay rate level. My issue is that because they have no justifiable reason for demoting me and because they've carried out similar actions to other employees in the past, I can only assume that they are acting in retaliation.

"As far as any racial discrimination, forget it. If you're Caucasian, you're not a member of a protected class, as far as racial discrimination is concerned. Which, by the way, is non-existent in your thread. What you characterize as racial discrimination, is nothing more than coincidence or rumor or supposition or happenstance.

If you meant that blacks are given preference, so what? Nothing illegal in treating one group with preference, as long as you don't disparage or discriminate against another group. "

So giving preferential treatment based on race is legal? You're the retired judge and I value your response very highly, but I find this very hard to believe.
 
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FMLA's guarantees are related to FMLA only. They guarantee that you will keep the job you have or one that is equivalent, only as relates to the time you took off for FMLA. They cannot demote you BECAUSE you took FMLA - they can demote you because they believe, even if they are wrong, that you were responsible for Malware being resident on their server. FMLA guarantees do not protect you from that.

As for the racial issue, I agree with you, and disagree with AJ, that any race is excluded from protection. It is just as illegal to discriminate against someone because they are Caucasion as it would be to discriminate against someone who is Hispanic, or AA, or Asian. I'm not convinced that there was any race involved in the instance you describe, but I'm not there and you are. If you feel there is, you are free to contact the EEOC and run it past them.

Your employer does not have the authority or the means to approve or deny unemployment. That is a decision that is made only by the state. The employer has the right to contest, just as you have the right to file and either party has the right to appeal if the decision goes against them. But it will NOT be your employer's decision when you do and do not get unemployment.
 
Thanks for the response.

I agree with you completely in regards to the FMLA. It's my belief that 'their belief' that I did something wrong is based almost solely on the fact that they can't 100% rely on me to be at their site when they need me to be. I suppose I'd have a hell of a time trying to prove that.

The racial issue is more of a preferential issue more than outright racism. I only have some documentation that can back up my claims, but there are a number of former as well as current employees that have related their issues to me. Many feel as I did, that they have no recourse and must keep there mouths shut in order to keep their jobs and their security in this economy.

Sometimes just keeping your mouth shut isn't enough...

I do have some options available to me still (as far as employment).

I don't feel comfortable leaving this issue alone. It feels like this company is getting away with questionable activities over and over and over again and no one is able to do anything concerning it. I'm going to continue to seek more opinions, but so far things are looking pretty bleak.
 
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Able? Or willing?

Nothing is going to change until someone takes action. I understand that in this economy it can be quite frightening to think of losing your job, and I'm not judging anyone for not taking action. Everyone has families to feed, and they have to take the actions they think will result in the best benefit. But the way to invoke change is not to write to message boards - it is to alert the appropriate regulatory agencies of the irregularities.
 
On the race discrimination issue, you appear to have an "apples and oranges" situation. You have observed or heard that black workers receive preferential treatment in some areas. Even if this contention is true, it does not necessarily support a race discrimination demotion claim on your behalf. In contrast, if you could establish that a black employee was cited for a computer with malware and management took no action against him, then you may have a cognizable claim for racial discrimination. This hypothetical, however, does not appear to coincide with the facts you presented.

On the other hand, with regard to the FMLA issue, you present facts which may buttress a cause of action. If (1) no performance or other business related issues existed warranting your transfer and (2) you can establish that the malware rationale given to you was false, then you could possibly maintain a retaliation claim. Based on what you reported, it appears that your employer may have retaliated against you by transferring you to the less desirable position because you exercised your rights under FMLA, and that the malware explanation was a pretext for the company's retaliatory motives.

You should consider filing an administrative retaliation complaint with the Wage and Hour Division of the U.S. Department of Labor and/or conferring with a local attorney experienced in employment law matters.

As an aside, why did you initially believe that the virus problem "was most likely [your] fault" when you had not downloaded any programs to the computer?
 
Thank you for your response.

"As an aside, why did you initially believe that the virus problem "was most likely [your] fault" when you had not downloaded any programs to the computer?"

The program, which was a scamware pseudo anti-virus (the kind that tells you, you have a virus and if you pay to get the full version they will fix it for you). Started running while I was logged into the system. I don't know if the program was already installed on the system or not. Only that I did not initiate a download of the program, nor did I give the program permission to download.

The malware that I later found on the system was due to employees downloading an unauthorized program on our system and installing knowing full well that this was against company policy. This malware preexisted the program that started running while I was logged in.

Thanks again.
 
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