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Can my employer in California terminate me because I returned to work three days late due to the loss of a family member?

Richmond, CA |

I was granted time off to go back home (out of the country) to take care of my ailing mother. Upon her passing, I requested 3 extra days off. My employer told my wife via phone that it was ok. Upon returning to work, I was terminated because I returned 3 days late even though they told me it was ok. My actions were based on the information my employer told my wife. My former employer reneged on their word in order to terminate me after 20+ years of employment. I'd like to know if I potentially have a legal case against my former employer? Does California have a bereavement leave? What options do I have to utilize?

Attorney Answers 3

Posted

While an effort was made to pass a bereavement law, it was vetoed by Governor Brown. California does not now have a state statute providing for bereavement leave. Some employers have written bereavement leave policies- you should check to see if your former employer had one.

Regardless of whether the employer had a written policy, as you describe the situation, it sounds like it would be worth your while to meet with an employment attorney at your earliest opportunity to go over the facts of your situation in detail, to evaluate whether you have a viable breach of contract claim. Also, remember to apply for unemployment benefits.

Harvey Sohnen
Law Offices of Sohnen & Kelly
2 Theatre Square, Suite 230
Orinda, CA 94563-3346
tel: 925-258-9300
fax:925-258-9315
hsohnen@sohnenandkelly.com
www.sohnenandkelly.com

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Posted

Definitely discuss this with an employment attorney. If your religion paid any part in this, you may have been entitled to reasonable accommodation for your religious practices. Alternatively, there is a remote possibility that this is national origin discrimination. You need to provide facts on how similarly situated employees were treated in order to rule this out. Most employment attorneys offer a free telephone consultation. You should take advantage of this.

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Posted

Employment law can be terribly harsh and unfair. If your employer did nothing more than make a mistake, such as not realizing you had been approved for the three extra days, then it did not violate the law because employers are allowed to make decisions based on inaccurate information. However, given the length of your employment and the circumstances you describe, you really should consult with one or more experienced employment law attorneys with whom you can discuss the details of your situation. Ms. Pitt suggested a few possible paths for a resolution. I would add two more. One is age discrimination; I assume you are at least in your 40s based on how long you've worked for the company; age discrimination protection kicks in at age 40. The other possible avenue is promissory estoppel. This doctrine allows a court to enforce a promise in the interest of justice if all of the following elements are present:

-- one party makes a gratuitous promise to another (that is, a promise it was not required to make, such as a job offer); AND
-- a second party changes its position, circumstances or actions in reliance on that promise (moves, quits another job, stays away from work for three extra days, etc.); AND
-- that reliance was reasonable; AND
-- the second party was harmed due to its changed position, circumstances or actions.

In a promissory estoppel situation, a court could determine the employer was at fault for causing you to change what you did in the expectation of continued employment.

The interactions between the parties are significant. It is helpful if there are written communications, such as e-mail messages, that show the employer knew you were relying on the promise.

The devil is in the details, so you must present your facts to an attorneywho can give you the dedicated attention your situation deserves.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope you can resolve your situation and wish you the best.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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