I worked for an automotive dealership in Burlingame California for about 1 year. We were advised by our doctor that my wife may have lymphoma and we need to do a biopsy. Felt like we were hit by a truck. After about a month of this evaluation I have had challenges with PTSD although I tried to work through this. I decided to ask for fmla after consulting with my doctor and being advised to do so. I took about a month off and when I returned I was let go and was initially advised that I had customer complaints while I was gone?? About 2 months after being discharged by them I found out that they are telling prospective employers that I aboadoned my job. What course would I have in both cases against these cold hearted assholes ?
It is illegal to fire someone because they were out on FMLA/CFRA leave. You must be allowed to return to your own job, or a substantially similar one, upon your return.
Sometimes, employers come up with other reasons to terminate employees who take protected leave. Your case will hinge on the credibility of those reasons. Here, the idea that you were fired because of customer complaints while you were gone sounds like it can be attacked readily, but you will want to have more details of what happened.
Moreover, it is illegal for your old employer to lie to prospective employers about why you aren't at your old employer anymore. They may try to say that you weren't on FMLA/CFRA leave, which is about the only thing they can say to claim that you abandoned your job.
Lawsuits alleging retaliation for FMLA/CFRA leave can result in compensation for backpay, frontpay, emotional distress, attorney's fees, and punitive damages in rare cases.
If you believe that your rights have been violated, and you decide that you want to take legal action, make sure to do so within your statute of limitations, or your rights could be lost forever.
Good luck with your legal issues.
Craig T. Byrnes
Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.
We don't have enough information to give you a precise answer. The law in this area is highly fact dependent. It appears you believed you had asked for FMLA leave and received FMLA leave. It also appears the employer does not think you were entitled to FMLA leave. So, while you were off work believing your leave was job-protected, your employer was thinking you decided to stop showing up even though they didn't grant your FMLA leave request. Another possibility is that either FMLA does not apply to your employer or, if it does, that you were not eligible for FMLA leave at the time you stopped attending work.
You need to discuss the details of your situation with a locally licensed attorney familiar with employment law to better understand your options. To complicate the matter, you may also have rights under the California Family Rights Act, but the same general questions and concerns would need to be addressed.
If you found this information helpful, please click on "Mark as Helpful" and/or designate my answer as the "BEST ANSWER" so I can tell if I am serving the AVVO community well. The foregoing is for informational purposes only and neither creates an attorney-client relationship nor provides a substitute for consultation with an attorney apprised of all the facts.
Your question does not provide enough information. Employees are entitled to FMLA leave only under certain circumstances. It is unclear whether you were entitled to FMLA leave & whether such a leave was granted by your employer. If FMLA applies, you cannot legally be fired for taking the leave. Seek legal counsel right away with an experienced employment lawyer. Use avvo.com. Many attorneys like me provide an initial free consultation.
Gary R Basham
Northern California Employment Attorney
You might have a legitimate claim for wrongful termination and disability/FMLA discrimination, but more facts would be necessary to determine that, including the specific stated reasons for your termination (and how legitimate they appear) as well as other facts.
You should consult with a local employment attorney to discuss your options.
San Francisco Employment Lawyer
If you worked for that company for at least one year and they had at least 50 employees within a 75 mile radius of your workplace and you worked at least 1250 hours in the year prior to your leave, you would have probably been eligible for protected leave under FMLA/CFRA (the Calif. equivalent of FMLA which is a federal law.) That means your job was protected for up to 12 weeks unless the company would have terminated your employment due to reasons other than your illness or related leave. If you believe that they fabricated the reason for termination and you were out on approved FMLA, call an employment law attorney to discuss. As to their claim that you abandoned your job, you may want to retain legal counsel to write a letter to your former employer threatening defamation as a claim along with a potential wrongful termination claim. You can find employment law attorney contact info on Avvo.com. Kristine Karila, Employment Law Attorney and Mediator
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