Legal Question in Employment Law in California
Short term disabilty and termination
I am currently on medical leave (STD) (stress) from my employer for which I am close to 8 years employment with this company. My FMLA ends on 12/24/08. It's my understanding they can fill my position after FMLA 90 day period is up ''based on the business needs. However, if I am filing a charge with Calf. Fair Employment and Housing Dept. against my supervisor for discrimination and harrassment will this protect my job at all if they try to terminate when I come back to work. I have already notified my employer that I am filing this charge, however since I have been off on STD I don't have to speak to HR until I return. I also understand they can make me move (anywhere in the country) to an open territory upon my return to work. Moving due to family and econonic situations would be very difficult and almost impossible. What are my rights? What am I to expect. Is there anything I can to to protect myself. Any advise you can provide would be really appreciated.
3 Answers from Attorneys
Re: Short term disabilty and termination
If your disability and leave due to stress is work-related you can file for worker's compensation benefits and under Labor Code 132(a) if you get terminated there is penalty for your termination while under disability. Feel free to call us at 213.388.7070 for free consultation.
Re: Short term disabilty and termination
FMLA does not protect you from a non-retaliatory 'business necessity' lay off, but they would want to be pretty sure of their defenses and facts before doing so to avoid risk.
Filing a DFEH claim also does not protect you from non-retaliatory 'business necessity' lay off, but again, they risk the additional 'retaliation' claim unless they can show good support for their lay off basis.
Either way, the burden of proof is on you to show retaliation or violation of the law. Admissible evidence of that is usually hard to come by, but enough circumstantial evidence could be compelling.
I do not believe a company can 'make you move anywhere in the country'. If offered such a move to keep your job, you probably would be entitled to unemployment benefits if you declined.
If they do terminate or retaliate against you, and you think you have evidence and grounds for legal action, feel free to contact me. If you fear they might do this, and you think a lawyer intervening would help prevent it through 'persuasion', contact me.
Re: Short term disabilty and termination
If you are located in Orange, San Diego or Imperial counties, you can email me your contact info, so we can discuss your particular situation. There is no charge for consultation.
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