can I take legal action against my proir employer

I had foot surgery and was to be out for 8 weeks. My previous employer had me come back one week after surgery even though I provided a doctors note not releasing me from my doctors care. While at work my foot bone broke again and now I have permanent damage. The VP of the company was so upset that I was not able to work he scheduled a counseling session with me and the owner of the company. He also verbally attached me (behind my back) to all the persons at the corporate office. I decided to leave that job and accept another position with another company immediately after. Can I sue them for damages? I struggle to walk now due to the damage that was created.

1 answer  |  asked Apr 14, 2015 05:58 AM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
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) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection. Please look at my guide on the ADA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada and also on the differences between the ADA and California’s more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require 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 can 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) 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.

Please look at my 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/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. You can find a workers' compensation attorney on the California Applicant Attorneys Association (CAAA) web site: https://www.caaa.org. CAAA is the strongest California bar association for attorneys who represent injured workers. On the home page, click on the picture of the wheelchair above the words "Injured Workers." On the next page, click on the link to “Attorney Search” on the left side. Enter your city or any other information and click “Search.”

Your rights under each 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.

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  |  Apr 19, 2015 01:05 AM [EST]

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