Legal Question in Medical Leave in California

Can an employer who paid an employee while out on medical leave demand repayment

I was on a medical leave from Jan 03 - Mar 03. Due to the amount of overtime I put in at this job my General Manager agreed to pay me while I was out. I had put in approximatley 350 hours of overtime in a six month period. Now this employer is asking me to pay this back. We had a verbal agreement that I would be paid!!! I never filled out any paperwork that said I would agree to pay this back and I never filled out any forms for the Medical Leave. The employer is saying that I didn't qualify for an ''FMLA'' but that is not what I was asking for. This was not a family member that I needed to take care of it was me who needed to have surgery. What can I do????Can the employer sue me for these wages???? They have given me until the 15th of May to resond. Should I send them a letter reminding them of the agreement we had??? HELP??


Asked on 5/06/04, 2:18 pm

1 Answer from Attorneys
Michael Kirschbaum Law Offices of Michael R. Kirschbaum

Re: Can an employer who paid an employee while out on medical leave demand repay

As a matter of law, the employer is under no obligation to pay an employee while the employee is out on medical leave. This is true, regardless of whether you qualify for FMLA.

However, if the employer made an agreement with you to pay you up to the 350 hours of overtime worked, you could claim this is a contract that is binding on them. Yes, I would definitely confirm, in writing, the terms of the verbal agreement to see how they respond. Don't be surprised if your employer denies making such an agreement. If so, it is up to you to prove it.

I have to assume you are an exempt employee, because if you are not, you should have already been paid those 350 hours at the applicable overtime premiums. If you were non-exempt, you may have a sizeable claim for wages due.

You also should have been able to exhaust any sick pay or vacation time available, if you are an exempt employee to offset any overpayment made.

By the way, the employer cannot help themselves by deducting the money they claim you owe from your wages, without your consent.

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Answered on 5/07/04, 2:32 pm


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