Legal Question in Employment Law in California
Leave of Absense
I am on an approved leave up until the end of this year and my doctor will determine my condition then. My FMLA has run out. Now, I have stated in my earlier post that the company might shut down our department and lay us off. Severance package will be provided, I assumed.
My state disability has run out so I applied for unemployment insurance (EDD), which was advised by Social Security Office. However, my HR called and she stated that she wasn't sure if I can apply for unemployment during my leave. Also, what happens to my vacation hours if I was to be laid off?
At this point, it seems like my employer are trying everything they can to get rid of me without giving me severance package. Other employees at work mentioned to me that my manager told them she won't give me severance package and she will do anything to make sure I don't get it as well.
3 Answers from Attorneys
Re: Leave of Absense
Hello.
It is possible that you are subjected to unlawful discrimination and retaliation for exercising your lawful right to FMLA, but of course more facts are necessary to determine that.
Vacation hours are vested when earned. Therefore, your employer must include the unused vacation time in your final paycheck.
You are not eligible for unemployment yet, as your employment hasn't been terminated yet.
Thanks, and if you would like to follow up and discuss this further, feel free to contact me.
Arkady Itkin
California Employment Attorney
San Francisco Bay Area & Sacramento
http://www.arkadylaw.com
Re: Leave of Absense
One of the conditions to receive unemployment benefits is that you must be able to work. If you are disabled, you cannot get unemployment.
As for the severance, ask your human resource representative for a copy of the severance plan the company applies for layoffs. You will want to know what conditions are necessary to receive severance, in order to determine if you meet those conditions.
Re: Leave of Absense
You would be unwise to try to defraud the Unemployment fund by claiming benefits while on medical leave. That's grounds for legal action against you. To collect unemployment, you have to swear you are ready, able and willing to work, and are actively seeking work. Are you?
You probably don't qualify for severance, since you're not on active status at the time of layoff. You can ask for it though, and try to persuade them. Check your company policy on leave and severance, that is what determines the answer; there's no law requiring severance.
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