Legal Question in Employment Law in California
Hello Sir: First background of the query: I was working for a CA corporation and was posted overseas. I had some work place issues with my supervisor ( additional work related requirements). I took a stand on those. In retaliation, he wrote unfair negative assessments (in my opinion) about my performance and behavior. I made several representations to the mgmt that this was not right, but got no feedback. I was then asked to return to US. Before I could travel, I fell sick and went on a disability leave. Now two questions:
A) When I returned to office in US after disability,I was told that I am being terminated for performance issues at the overseas work location as per the supervisor's negative unfair inputs. Then. I was given an option to resign by signing a company form. I took the option as being lesser of two evils. Would this be considered a unlawful termination? They never investigated my representations and never discussed termination with me. It seemed they just took supervisor's word in consideration only
B) My disability was initially determined as FMLA approved in addition to company approved (accrued sick leave), so wouldn't the termination/resignation option be considered a violation of FMLA? Then on the the day I resigned, a revised determination was issued that the disability wasn't FMLA approved and only company approved. This after the fact change seemed to be done to give cover to my separation? Wasn't that a violation of FMLA again?
Thanks in advance
1 Answer from Attorneys
If you were a 'foreign' worker, no protections. Your work overseas does not place you under the protections of FMLA or other laws unless you are classed as employed in US but on assignment overseas. Sounds like your situation.
Assuming that, if your CA employer has at least 50 employees, and you are employed for at least 12 months, have at least 1,250 hours worked in the 12 months prior to the leave, then you would be eligible for 12 weeks of unpaid FMLA / CFRA medical leave when you are unable to work [or must care for an immediate family member] because of a �SERIOUS health condition� [that is properly confirmed and documented by the doctor], continuation of group health benefits, restoration to the same or an equivalent job upon return to work, with accrued benefits. The employer can require you to use all accrued unused vacations and leave[s] as part of the 12 weeks, so as to make that portion 'paid'. Being out sick with minor illness or injury does not fall within the protections.
Overriding those stated protections, just because you are on leave does not mean you can�t be terminated. You have no special exemption against lay offs or termination due to business reasons. A company in downsizing can lay off a FMLA / CFRA leave person, as long as they can show they aren�t targeting �because of the leave�.
Upon termination from employment, you are entitled to COBRA conversion of your medical benefits [if any], allowing you to pay for and retain your insurance coverage.
Even without 'cause', there no laws against 'unfair treatment' or poor management, but in general, unless an employee is civil service, in a union, or has a written employment contract, they are an 'at will' employee that can be disciplined or fired any time for any reason, with or without �cause�, explanation or notice. You were terminated for actual stated 'cause', valid on its face.
Collect your unemployment benefits if necessary, and look for another job.
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