I really do loathe working in retail. (vent)

Yes, this will be a emo thread. I just needed to vent, since all of my local friends seem to have dried up on me. You've been warned.

Last August, in the midst of uncertainty with my shoulder, I took a job working for Napa. Mine is a locally-owned joint, by a guy who owns it and 8 others. And to be honest, it was a pretty fun job. Within two months I had made assistant manager, passed the ASE parts specialist test, and received two raises. Not great money mind you, but enough until I knew the fate of my shoulder. My doctor and I decided to try surgery in December, scheduled for January. Now, I was very transparent about this with the store manager, so as far as I knew, everything was on the up and up. The week before I was to have my surgery, my store manager received word from the owner that he (store manager) was being demoted to assistant, and that the old assistant was coming back to be the store manager. The reason for his demotion? He was honest with the owner about looking for a "retirement" job after the owner bought the store last May. Bad move on his part, but they both seemed to have a mutual understanding and respect so it seemed OK. I was peeved, but as I was still going to keep my rate of pay and hours, I wasn't too upset about being bumped back to counter.

That was at the end of January. I saw my doctor a bit short of two weeks after my surgery, and after discussing work with her, she decided that it would be best given the nature of the work I had done to hold off until I saw her again, which was scheduled for March 4th. I went to to store and told them what was going on, and that I would be out until then. During this time, my doctor had to reschedule me until the 11th, and the old store manager, now the assistant, found a retirement job, and so he took it. The new store manager and I spoke during this time, and he was becoming increasingly pushy about coming back as soon as I could, but my hands were tied. So the 11th comes. I see my doctor, she clears me for light duty, and so I drive over and deliver my release to be faxed over to HR (the owner's sister [ah, nepotism.])The new store manager informs me that HR is on vacation this week and will be back on the 18th. Dandy. The 18th rolls around. Nothing. So I stop in after PT on the 21st. The store manager is acting weird, almost dismissive. I can tell something's up, but no one is talking. He claims HR is still out. The rest of the week is silent. So Monday the 28th, I call the owner directly. He doesn't answer, but to his credit he calls me back in about an hour. Gives me the same excuse, that his sister just got back for vacation and hasn't had time to look at the release yet. OK, fine, but now I am good to go, right? Wrong.

Still reading? You're a trooper, you are. This is the good part. He tells me that in my absence, they've had to make some changes, and it seems that there's no longer any work available for me at the store. He tells me they hired someone, that the auto parts industry is a volatile market. But, he said, he has some part time work available at two of his other stores, if maybe that's something I am interested in. One is not too much further than my 25 mile trek to my old store, but the other is about an hour each way, which is quite frankly untenable for what he pays me. I tell him I'll think about it, and we leave it at that. His sister calls me the next day to inform me that the wording of my work release is a such that they have no work available for me, so I either have to have my doctor reword it, or not work there.

So the new store manager knew. He hid the fact that they hired someone in my place. A part timer at that. It also means that they are going to keep the guy who the hired to fill my old position when I made assistant. He's nice and all, but makes frequent mistakes, is not ASE certified, and rubs some of the commercial customers the wrong way. I'd try to fight this, but as I understand it, Ohio is an "at will" state, which benefits employers, not employees. So here I am, 34, nearly jobless, and still recovering from surgery, making finding another job a bit difficult. I was going to use this job as a way to go back to school and complete my bachelors (I put it on pause while teaching, stupid, I know,) and start my Masters, but now all of that is on hold. Yay!

But hey, I have my cars and my health, so there's that!

This sounds a bit fishy to me. Since you didn't terminate your employment before your medical stuff, I thought they had to guarantee you a position when you were able to work again. Even if it is at will. It may not have to be in the same capacity or store, but the same pay and hours per week.

If they can't accommodate your restrictions, then you stay on medical leave until things change. They still have to have a position for you.

I'm no lawyer though...

if you were out on disability, aren't they required by law to keep your position open for your return?

If you filed for FMLA, they're screwed. What they did is unlawful.

825.100

(c) An employee generally has a right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave. The taking of FMLA leave cannot result in the loss of any benefit that accrued prior to the start of the leave.

You may want to do some reading on the Family and Medical Leave Act of 1993 (FMLA) and then meet with the owner with a copy before he decides that your position is no longer available.

Appleseed wrote: 825.100 (c) An employee generally has a right to return to the same position or an equivalent position with equivalent pay.....

How "general" is that "right?" I wonder.....

The last two jobs I have worked, we can't go on FMLA until we have been at the job for a year. Being a privately owned store, they may have their own rules.

He may have not been at the job long enough to procure any FMLA.

Another thing fishy about the store is a lack of an employee handbook with which I could refer to. Surely one exists, but it's not anywhere to be found in the store. Unfortunately, I don't think I can go on FMLA after the fact.

And technically the owner did offer hours equaling my old hours, but at a greater burden to me. Honestly, I think it's his way of griefing me into quitting.

In reply to Esoteric Nixon:

A similar thing happened to SWMBO's cousin, also at a Napa...the owner doesn't happen to also own stores in IL do they?

In reply to Esoteric Nixon:

You and I talked about this briefly late last summer but I still have a real opportunity for a driver to cover Ashtabula and Trumbull Counties.
With your surgery, could you drive a car 25k miles per year?

I don't trust that PM works well for me here so ping me at jwelsh02...yahoo...
Send me your number and we can talk it through.

I came to say FMLA and am glad that others have chimed in with it already. Let your surgeon know about the situation as well, their office will send some pretty threatening letters to HR. If you have any questions regarding FMLA you can email me, dzajano (at) Gmail, as I have more experience than you'd like to gain, but it sounds like you're in the midst. As the owner owns 9 locations he likely has more then 75 employees, bottom line is that they have to offer you an equivalent position. Also never rush a shoulder back, especially if a labrum tear is involved. If you have any shoulder rehabilitation questions regarding range of motion, stretches, strengthening or pool exercises for it, you can email those to me as well. External rotation is a pain in my ass, I'm seriously glad that wiping isn't a part of my life anymore.

In reply to SyntheticBlinkerFluid:

No worries about their ruled as FMLA is a requirement as per federal law. Regarding notification to the employer, if they knew surgery was scheduled, that's all that was required as long as lines of communication remained open and timely during the recovery period and a time line regarding the potential, not hard and fast deadline, be provided during the recovery process and throughout any post surgery developments.

Your loathing isn't towards retail, it's towards these individuals. Don't lose track of that. You seem to have actually enjoyed the retail aspects of the job. At the least, you weren't frothing about customers.

You likely can fight, as NAPA isn't a small company. But, if this is franchise, and it sounds like it is, you've likely got a looser on your hands. Should you win, do you want the victory? How long you do you think you'll keep the job if you win before they fire you for something else? Coming in late, discipline problems, theft, etc.

So, maybe you take the part time work to help cover things for a time, and contact your previous manager who you liked to see if he's got anything, as well simply looking for a different job.

In reply to Esoteric Nixon:

That is what they are doing. Even if you go back, they will try to make you so miserable you will quit.

I read this and then I hear about companies who whine that they can't get good people.

Yup, I've seen this kind of behavior from less-than-good employers. I wouldn't be surprised if such violations are quite common. My wife was cut loose and her career (certified elementary teacher) pretty much destroyed by a charter school after taking a few weeks medical leave. In retrospect, we should have probably brought a suit over that, but I was fairly convinced the rage/stress of continuing the saga wasn't worth it and encouraged her to move on. I sometimes feel I made a huge mistake considering it made her expensive degree and ten years of professional experience somewhat worthless and she has not really recovered from the psychological blow anyway.

In reply to foxtrapper:

Don't be discouraged by an impending legal battle against a former employer no matter what the size is. Truth be told, they have insurance coverage for these suits and it's the insurance company that will call a hearing with one of their attorneys and ask what you'd be looking for in settlement. Then the bargaining will begin. It's far cheaper for the insurance company to avoid going to court, they'll lean on the employer about the benefits of an out of court settlement in exchange for you signing a nondisclosure agreement as then it's not publicly filed that they violated federal law regarding labor rights. It saves them money, being under the microscope of the feds, time and you get paid. Trust me, they want a suit to go to court far less than you do and their insurance company knows this and will practical force them to settle. Just be steadfast and don't cave on the settlement amount, stand up to shake their hand and say I'll see you in court when they lowball, because they will repeatedly, and they'll claim that you're being unreasonable. When they do, ask if that's in violation of federal law and question if they're fit to judge what is ethical let alone reasonable.

mad_machine wrote: if you were out on disability, aren't they required by law to keep your position open for your return?

No, my dad went through this the end of 99. Took short term disability from work for cancer treatments because halfway through he couldn't handle 2 hour travel (each way) after radiation treatments and working 14 hour days getting salary for 10 and nothing for the other 4. About 2 weeks before he was due to return, the owner called and they had changed the name of his position, thus eliminating his position, and leaving him jobless. That's in PA, and we fought the hell out of it, but the FMLA is really quite useless, from my experience, for helping employees. Remember, even Somalia has paid maternity leave, but not US.

A member of my wifes family is dealing with a similiar issue. He's an EMT who worked for a private ambulance company. The ambulance was hit and he suffered a broken back. Recently cleared to go back to work and they told him they have nothing for him. The only other local ambulance company went out of business 4 months back so hes a guy certified and experienced in this field who has been applying anywere he can. Its strange they treat people this way.

captdownshift wrote: In reply to foxtrapper: Don't be discouraged by an impending legal battle against a former employer no matter what the size is. Truth be told, they have insurance coverage for these suits and it's the insurance company that will call a hearing with one of their attorneys and ask what you'd be looking for in settlement. Then the bargaining will begin. It's far cheaper for the insurance company to avoid going to court, they'll lean on the employer about the benefits of an out of court settlement in exchange for you signing a nondisclosure agreement as then it's not publicly filed that they violated federal law regarding labor rights. It saves them money, being under the microscope of the feds, time and you get paid. Trust me, they want a suit to go to court far less than you do and their insurance company knows this and will practical force them to settle. Just be steadfast and don't cave on the settlement amount, stand up to shake their hand and say I'll see you in court when they lowball, because they will repeatedly, and they'll claim that you're being unreasonable. When they do, ask if that's in violation of federal law and question if they're fit to judge what is ethical let alone reasonable.

Well, having been down this path before, with employers that were large enough FMLA applied to them, I can say from experience it just isn't always so sweet or easy.

But lets start with accuracy regarding FMLA. Best read here: http://www.ecfr.gov/cgi-bin/text-idx?type=simple;c=ecfr;cc=ecfr;rgn=div5;idno=29;q1=825.308;sid=c912eed1ac18853d4e3ee6a366484bd9;view=text;node=29%3A3.1.1.3.54

It's a tedious read, but there are two very significant things.

1. 825.100 An employee who has gone out on FMLA generally has a right to return to the same position or an equivalent position with equivalent pay, benefits, and working conditions at the conclusion of the leave. That has been met, and in this case, the employee has at least tentatively rejected it.

2. 825.104 It only applies if the employer has 50 or more employees. NAPA is a franchise operation, which protects NAPA, and with "HR" being a sister or sister-in-law (forget which), I strongly suspect the employer doesn't reach the 50 employee applicability threshold. So FMLA would never apply.

This is all wild speculation with regards to the OP having gone out on FMLA. He may not have. FMLA does nothing to prevent a business from reorganizing itself while an employee is out. That too appears to have happened.

Don't get me wrong, I'm not anti-FMLA. But I know it's not some sort of magical impenetrable shield of protection.

In reply to Craig_F:

Well, 50 employees within a 75 mile radius, which, doing the math, does not work out in his favor. Needing to have been there for a year, however, rules me out.

In reply to JohnRW1621:

Received and replied!

Craig_F wrote: It's posted about 5 comments up, with a link to the actual law. I guess no one actually reads before commenting?

Actually, that's a link to a handy guide. It's not the law. That guide has no legal force and is not definitive in any legal sense.

That's why I gave a link to the Federal Register, which is the actual law. The Federal Register is what will be fought over and enforced in a court, should one go there.

A handy guide is indeed handy and usefull, but it is not the law and does not contain the exact details spelled out in the law.

Are you looking for a cordial working environment or are you looking to get a payout? Either way, I don't see you receiving the first from you're current/past employer, and do you really want to be caught up in a legal battle?

Keep it business like and continue acting like an adult; even when they are not.

Move on to greener pastures.

In reply to RossD:

I don't think he's looking for a payout. I'm pretty sure that he liked the job and he's frustrated in the fact that even though they were aware of his surgery and recovery time, they went ahead and hired someone to take his place then were not very professional about him coming back.