Do I have a lawsuit against my employer for lost wages and emotional damage?

In April I found out I had a brain tumor, and had emergency surgery. I went on disability and FMLA. When the FMLA expired I was not recovered from my ordeal. The HR dept. for my employer sent me paperwork so I could request more time to recover, however it was not disclosed to me that they would no longer have to hold my position. All that was said was fill out these paper and we will be able to hold your job for you. Now that my doctor has relesed me to return to work, I have been informed that my position has been filled (I was a full time manager) and they have offered me a part time position with a pay decrease. I am appaled that after being a dedicated and very successful manager for this company that I am being punished in this way for something that was completely out of my control. What I went through was emotionally damaging enough, and now I have the stress of not being able to survive financially and support my daughter (I am a single mother) because they will not give me my job back. Do I have a case here?

2 answers  |  asked Aug 25, 2011 6:37 PM [EST]  |  applies to California

Answers (2)

Arkady Itkin

The employer must have allowed you to return to a vacant, comparable position. The issue of course is whether such position was available and whether you applied for such a position. Only you and your employer know. If this part time position was truly the only one reasonable available, there is no violation. If demoting you is just a way to try to push you out or due to lack of effort to comply with the law, then you might have a legitimate disability discrimination claim.


Arkady Itkin
San Francisco & Sacramento Employment Lawyer

posted by Arkady Itkin  |  Aug 26, 2011 12:53 PM [EST]
Elisa Ungerman
The sad news is that once your 12 week entitlement to CFRA-FMLA leave is exhausted, the Employer has no legal requirement to place you back in the same or a comparable position. It does have a duty to accommodate you with additional leave, if there is some finite time that you will be able to return to work, but under accommodation laws, they only have to provide you with an available position that you can do. If nothing is available, they do not have to create a position. By offering part time work, it appears that your employer is complying with the law, unless there is a full time position available that you can do.

posted by Elisa Ungerman  |  Aug 25, 2011 6:49 PM [EST]

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