Legal Question in Medical Leave in California

Terminated but position still vacant - reinstatement mandatory?

I used my entire 12 weeks of leave while recovering from neck surgery. My employer sent me a letter of termination effective December 15, 2008. In that letter I was told I would be reconsidered for my position if it was still vacant. In February 2009, I was cleared to go back to work. I checked with my employer and my old position still had not been filled. I applied but received a notice that I was not qualified for the exact same position that I had worked in for over 13 years. Do I have any right to reinstatement if my former position is vacant and/or if a similar position is vacant?


Asked on 5/28/09, 8:10 pm

2 Answers from Attorneys
Terry A. Nelson Nelson & Lawless

Re: Terminated but position still vacant - reinstatement mandatory?

Not once your protected leave ended.

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Answered on 5/29/09, 4:00 pm
Arkady Itkin Law Office of Arkady Itkin

Terminated but position still vacant - reinstatement mandatory?

Hello.

Unless your employer had a legitimate, independent reason to terminate your employment, this sounds like retaliation for asserting your rights under FMLA and/or disability discrimination in violation of FEHA, as the employer must reinstate you at the end of your leave to the same or comparable position.

Thanks, and feel free to follow up.

Arkady Itkin

San Francisco/Sacramento Employment Lawyer

http://www.arkadylaw.com

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Answered on 5/28/09, 11:52 pm


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