I have been on disability since April, after having a cervical surgery. I remained on disability while the doctors were trying to decide if I needed the 2nd surgery on my lumbar area, on Aug. 16 the decision was made to go forward with the surgery, I called my employer at 10 am on the 16th to let them know the decision had been made, and that I would be back to work in mid October. 2 hours later that same day, they called me to tell me I had been laid off, due to lack of work. I feel there is discrimination here, I was the only one laid off, and the phone call came and is just too big of a coincidence for me to believe the reason to be true. Do I have a case?
You may. The timing is very suspicious. I would consult with an attorney at your first opportunity. I would be happy to discuss the matter with you.
Employment / Labor Attorney
I am a California attorney and cannot give legal advice in your state. My comments are information only, based on federal law and general legal principles. YOUR STATE MAY HAVE ITS OWN LAWS THAT OFFER SIMILAR OR GREATER PROTECTION. If I mention your state’s laws, it only means I did a quick Internet search and found something that looked relevant. You MUST check with an attorney licensed in your state to learn your rights.
There are various sources of POTENTIAL protection related to your medical status.
If the condition is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) may provide some protection. Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment. There must be at least 15 employees for the ADA to apply. This law protects you from discrimination (adverse treatment) DUE TO disability and also requires the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence may be a proper reasonable accommodation.
There is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law.You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you have a serious medical condition as defined by the FMLA. The FMLA allows employees to take leaves of absence from work without repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour.
Please look at my Avvo guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions.
Finally, if the condition is due to on-the-job injury or is caused by work, your state’s workers' compensation laws may provide some relief.
Employment law is complicated and fact specific. You may wish to consult with an experienced plaintiffs employment attorney in your state. To find a plaintiffs employment attorney in your area, please go to the web site of the National Employment Lawyers Association (NELA). NELA is the largest and most influential bar association in the country for attorneys who represent working people. The web site is www.nela.org, and you can search for attorneys by location and practice area.
Also, NELA has affiliates in every state and in many cities. On the NELA web site, you can look at the list of affiliates. Some attorneys will be listed in the affiliate membership list, some in the national organization membership list, and some in both. Being listed in one or both lists should not influence your selection because attorneys can choose whether or not to purchase the listing in the national directory. Each local affiliate has its own rules for listing.
I hope you can resolve your situation and wish you the best.
*** 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. ***
Employment / Labor Attorney
I agree with Mr. Wyatt. The critical issue is whether holding your position was an undue hardship on the employer.
-Alex J. Higgins