I have been caring for my wife after cancer surgery. I was placed on unpaiid leave after my PFL ran out. The company has since reorganized and now wants to bring me back as a part time employee. Previously I was a fulltime salaried employee. Can they do t

First, I hope your wife's surgery was successful and her medical team was fully successful.

An employer has the legal right to reorganize as it wants UNLESS the "reorganization" is a mask for discrimination or another illegal motive. If the reorganization truly affected a large number or percentage of the employees – not just you or a few who the employer thought were trouble – it may be legit. Or it may be that the company had a legitimate reorganization and included you in it for an improprer reason.

There are various sources of POTENTIAL protection related to your wife's medical status.

The Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection because both laws protect an employee from discrimination based on association with a person with a disability. Please look at my guide to the ADA: http://www.thespencerlawfirm.com/tslf-ada.php and also on the differences between the ADA and California’s more generous FEHA: http://www.thespencerlawfirm.com/tslf-feha-vs-ada.php. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees.

You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) and the California Family Rights Act, Government Code section 12945.2 (CFRA) 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, a child, a spouse or a parent, 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. Upon return to work, the employer is reqired to place the employee in the same or substantially similar position unless that position was eliminated for a legitimate reason or unless another legitimate reason exists.

Please look at my guide to 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.thespencerlawfirm.com/tslf-fmla.php. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Your rights under both of these laws are independent of one another. That is, you may be entitled to protection from each of these laws at the same time.

The only way to know if you were illegally penalized is to analyze the detailed facts of the reorganization and your employment. Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. 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, and you can search for attorneys by location and practice area. Many CELA attorneys represent clients throughout the state.

I hope there is a good resolution to this situation.

posted by Marilynn Mika Spencer  |  May 7, 2016 4:57 PM [EST]