laid for family emergencie boss told me told me to use my vaction days shortly laid for attandance

can i sue or collect money in this matter

1 answer  |  asked Apr 21, 2015 10:30 PM [EST]  |  applies to California

Answers (1)

Marilynn Mika Spencer
I'm not sure exactly what happened here; it looks like there were some typos. It appears that you were laid off for attendance reasons.

If you family emergency was due to a serious health condition that you had or an immediate family member had, you may have recourse under the Family and Medical Leave Act (FMLA). The Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) applies 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, or a spouse, parent or child has, 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): http://www.avvo.com/legal-guides/ugc/family-and-medical-leave-fmla-summary-of-key-provisions or http://i.oc.gs/rodat

If there was a medical issue involving your own disability, you may have recourse under the ADA or the DFEH. Please look at my Avvo guide on the ADA: http://www.avvo.com/legal-guides/ugc/disability-discrimination-in-employment. Please look at my Avvo guide to 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.

If the emergency was not medically-related, then unfortunately, employees and job applicants have very few employment rights, and employers have a lot of leeway in how they choose to run their businesses. In general, an employer can be unfair, obnoxious or bad at management. And an employer can make decisions based on faulty or inaccurate information. An employer has no obligation to warn an employee that he or she is not performing as the employer wants. It’s not a level playing field. An employer hires employees to provide work for its benefit, not for the benefit of the employees. Don't expect the employer to take care of its employees; it doesn’t have to and it rarely does.

There are some limitations on what an employer can do, mostly in the areas of public policy (such as discrimination law or whistle blowing), contract law, union-employer labor relations, and constitutional due process for government employees. Please see my guide to at-will employment in California which should help you understand employment rights: http://www.thespencerlawfirm.com/pdf/tslf-at-will-california.pdf. After you take a look at the guide, you may be able to identify actions or behavior that fits one of the categories that allows for legal action. If so, an experienced plaintiffs employment attorney may be helpful.

Employment rights come from the state and federal legislatures. One of the best things people can do to improve their employment rights is vote for candidates with a good record on pro-employee, anti-corporate legislation. Another way to protect employment rights is to form or affiliate with a union, or participate in a union already in place.

I hope there is a good resolution to this situation.

posted by Marilynn Mika Spencer  |  Apr 22, 2015 12:51 PM [EST]

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