Can I be Terminated...... California

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Can I be Terminated...... California

Post  MOB2007 on Mon Sep 08, 2008 2:11 am

I have worked for my current company for 3 years. They have offices located in almost all of the continental United States. Corporate headquarters is in Colorado where, to the best of my abilities, there are at least 50 people when counting the corp. ofc. site and the other offices in the area.

When I asked for my CA Paid Family Leave I was told that if I took it I would not have a job. I returned to work 6 weeks (even though I had had a C-section and was allowed 8-weeks) after having my child because they had an opening for me and they were not going to wait the additional 2 weeks for me to return. All said, I lost 2 weeks of my 8 week disability that I was able to take and that protected my job.

I have been a faithful, dedicated worker. I am salaried and am scheduled to work 32 hour weeks. I typically work 40+. I have never asked anything of my company except to understand that I have disabled children who have health issues. I told the company, up front, when they offered me the job. I told them that I wanted them to know the situation. They told me that they saw no problem with me taking the time I need to take care of my children, when they are sick, because they are a family friendly company. I accepted the position.

In Feb. of this year I received a written warning that I had had too many abscences. They said I had been absent 4 times in a 6 week period. Two of the abscences were scheduled and approved in the year before and the other two where two of my children coming down ill, having to be take to the M.D. and kept at home because of fever (Daycare does not allow them when they have a fever).

I was taken from being salaried to being hourly. I was also given 90 days to "correct this issue".

I responded with a 5-page letter explaining what i had been told at my interview/offer of employment. What I had said, and was told when I accepted the position. I explained my children being preemies with developmental and health issues. I explained the fact that my husband is gone by 530 and the kids are not up until 630 so I am the only one left to care for them, once they are up.

I never heard anything back. I have continued to be on the time clock. The 90days came and went and nothing has been said.

My oldest children returned to school this past week and we were told that the Daycare provider could no longer provide transportation for them.

I wrote to my HR person and asked about moving my schedule around so that I could take them to school 3 days a week. The move of the schedule was from 8-230 to noon to 530 Tues. thru Thurs. and add a couple of hours on Monday.

Their response was that was not beneficial to the patients or the company and, by the way, I have had 12 absences since my first written warning.

Mind you, three of those days were when the whole family was involved in the salmonella outbreak and 3 of us ended up in the hospital (I have a note from the E.R. Doctor).

And, without going through the papers, I can think of 3 of those absences being prior approved for M.D. appointments and my children's first day of school.

I actually suffer from depression/Bi-polar and opted to return to work three years ago. I left being on Social Security to return to the work force so I am actually a working disabled person. I have not informed the company of my situation because I did not feel it necessary to tell them all about my medical conditions.

Needless to say, I have to answer their written warning tomorrow. I have been doing research, online, all weekend and I am soooo confused now.

What I think I understand is that if a company has 50 employees within a 75 mile radius at any of their locations, they are bound by FMLA laws at any of their locations. Is that correct?

I have also learned that, if they are bound by FMLA that they could not deny me my Paid Family Leave (by telling me I wouldn't have a job to come back to) because if they are bound by FMLA they must hold the job for PFL. Is that Correct.

I have also learned that the job cannot retaliate/discriminate for using or attempting to exercise the right to use sick leave to attend to the illness of a child, spouse....... (CA Labor Code Section 233).

My company does not have anything written about what is excessive absences. We do not have anything called "sick-leave". We are given 4 hours of Paid Time Off (PTO) every pay period which is twice a month. I have not gone over the amount of PTO accrued.

I have been told, in this second warning, that I am to make accommodations for all unforeseen absences (children illnesses or other) and that I am not to be absent (for the rest of the year), other than the prior approved days I have already submitted for (which is 1) which they will end up counting against me anyway.

Any thoughts, suggestions, corrections to my understanding........ are appreciated.

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Re: Can I be Terminated...... California

Post  JoeC (McGruff) on Mon Sep 08, 2008 2:31 am

Possible retaliation for exercising CA Paid Family Leave . Possible violation Ca Pregnancy discrimination act. Contact an attorney. Oral assurance of a job may give rise to a wrongful termination suite as well. Could be violation of E.R.I.S.A for changing an established welfare plan (Your disability benefit) Do you have an employee hand book?
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Re: Can I be Terminated...... California

Post  MOB2007 on Mon Sep 08, 2008 2:55 am

No Written handbook about any of this.

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FMLA

Post  Admin on Mon Sep 08, 2008 5:25 am

We have to distinguish carefully two things here. An employer must abide by FMLA rules, however the employer is not obligated to accommodate employees' personal needs and personal life circumstances. It sounds like some of your issues are protected under FMLA while others might be personal. FMLA leave only extends for 6 weeks as you know, so at this time - you should think of the long-term solution to your family circumstances.

With regard to the warning letter, you must make sure that you submit a rebuttal, in which you address and refute each and every allegation of your employer specifically.

Thanks,

Arkady Itkin
California Employment Lawyer
http://www.sanfranciscoemploymentlawfirm.com

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Re: Can I be Terminated...... California

Post  bears00 on Tue Sep 09, 2008 1:54 pm

Admin wrote: FMLA leave only extends for 6 weeks as you know, so at this time - you should think of the long-term solution to your family circumstances.

Just so the original poster is clear, FMLA allotment is 12 weeks per year.

There are SEVERAL different possible issues here.

First, the leave itself. How many employees are there working within a 75 mile radius of YOUR SITE. It doesn't matter how many nationally, how many LOCALLY? How many hours have you worked in the last 12 months.

Second issue: possible wage an hour claim. When you say that you were "salary," do you mean that you were never paid overtime? Salary has no standing under the law; salary is merely a pay method. A person is either overtime exempt or they are not under federal law. What are your JOB DUTIES? Your employer MAY HAVE been violating wage and hour laws. Also, how much were they paying you per week when they called you "salary."

As far as converting you to hourly, it is NEVER a violation of law to pay someone on an hourly basis. Short of a bona fide contract to the contrary, your employer has no legal obligation to keep you on a "salary" basis, and may switch you to hourly at any time.

Finally, could you give me a bit more detail about how what was discussed between you and the employer PRE-HIRE regarding your children AND did your employer know pre-hire that you were coming off disability (in case the rest of you are wondering where I am going with this, promisory estoppel and detrimental reliance).
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