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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6240
Experience:  Significant experience in all areas of employment law.
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I was voluntarily terminated by HR on Friday taking leave for

Resolved Question:

I was voluntarily terminated by HR on Friday taking leave for personal reasons (Kaiser related issues). I was absent for two weeks and had to spend the the entire day (Friday), getting medical proof that I was being treated. Prior to treatment, I adamantly requested Kaiser to fax all pertinent documentation to my HR department and this task was not performed. HR was in contact with a person at my old address which they (HR) FEDEX'ed packages containing leave policy and subsequent termination paperwork during my treatment (I provided a change of address 2 years ago but HR says it was my fault for not creating a papertrail via email). Now (Monday), they want me back and to forget everything that happened. But, I will be on a PIP (Performance Improvement Plan) for 90 days. I've seen this before. I don't trust them. It's ITT, which had the biggest slap in the face in history for ITAR violations. They changed their name to Exelis to pretend they are a new entity for contract bidding. What should I do?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.

LegalPro54 :

Hello and thank you for entrusting me to answer your question.

LegalPro54 :

I am very sorry to hear about your troubles at work and hope I can help.

LegalPro54 :

First, can you tell me whether the leave that you took was designated as FMLA?

Customer:

i don't know what fmla is?

LegalPro54 :

FMLA leave is protected leave pursuant to the Family Medical Leave Act for "serious health conditions."

LegalPro54 :

You would have had to file certain paperwork for your leave to be FMLA protected.

Customer:

oh yes, that is the first fedex package that was sent (to the wrong address)

LegalPro54 :

I see.

LegalPro54 :

Well, if an employee's leave would qualify for FMLA protection, an employer has a duty to make the option to take such leave available to the employee.

LegalPro54 :

Since they sent the paperwork to the wrong address and this was by their mistake, it would seem that they did not satisfy this duty.

LegalPro54 :

So, if your leave was FMLA or your employer failed to make FMLA leave available to you (which seems may be the case), your employer is prohibited from taking adverse employment action against you as a result of you taking that time off.

Customer:

correct, they blamed me for not creating a papertrail by emailing my change of address.

LegalPro54 :

I see.

LegalPro54 :

Well, an individual in this circumstance would at least have the argument that the employer failed to satisfy their duty to make FMLA available and thus, that FMLA protections still apply even though the leave was not official designated as such.

LegalPro54 :

But see, all that has happened so far in your situation is that you have been put on a performance improvement plan.

LegalPro54 :

If your pay hasn't been docked, you haven't been demoted, or something else hasn't changed, this may not qualify as an adverse employment action, typically speaking.

LegalPro54 :

If they eventually take adverse employment action against you and you can trace it back to this two weeks of leave, you may have a claim for violation of your FMLA rights.

Customer:

they sent my last paycheck via FEDEX along with "voluntary termination" and asked me to return the check as soon as possible

LegalPro54 :

But they have since given you your job back, correct?

Customer:

my job is back when i get the doctor's approval

LegalPro54 :

I see.

LegalPro54 :

That makes sense, though, because your job would only be protected if your leave truly qualified as FMLA, and in order for them to confirm that, they need a doctors note. This would be required if you actually took FMLA, so it seems reasonable for them to request it here.

LegalPro54 :

They are almost certainly aware of their FMLA obligations here, since they are a large employer and are familiar with these laws.

LegalPro54 :

Likely, if you provide a doctors note that verifies your condition, your employer will not take action against you because it wouldn't want to risk you arguing that their failure to provide you with the FMLA paperwork constituted a breach of their FMLA obligations.

Customer:

right, but to be on PIP and come back after they said you are fired on Friday, but have open loving arms because they want me back is weird...I've seen others get fired this way

LegalPro54 :

Yes, I would agree that is weird, and if they actually terminate you after they put you on the PIP then that may be wrongful termination.

Customer:

i'm just worried about retaliation which i know will happen.

LegalPro54 :

Unfortunately, though, merely being placed on a PIP itself is likely not sufficient to have a case, at least not one worthy the cost of litigation to pursue, typically speaking.

LegalPro54 :

I hope that this makes sense to you. I am trying to be as forthcoming about this as I can, so I hope you appreciate my candor.

LegalPro54 :

Yes, I completely understand where you are coming from.

LegalPro54 :

The best I can say is that so long as you can provide proof--even circumstantial proof--that any future adverse employment action was taken against you as a result of this incident, you will have a cause of action against your employer.

Customer:

Okay, so do I pursue litigation with the termination documents or go back to work with the probability of being fired?

LegalPro54 :

What I'm trying to say is that you wouldn't have a case--at least not one worth pursuing--until you are actually fired, demoted, given a paycut, or something else.

LegalPro54 :

At this point, you have sustained no monetary damage.

LegalPro54 :

If and when you are terminated (which I hope is unlikely), you may then have a case at that point in time.

LegalPro54 :

Does this answer your question?

Customer:

Okay, understood and I thank you...One more question though since I'm in a hole.

LegalPro54 :

Of course.

Customer:

The folks that work under me were granted 1.5 and double time after ITT was busted for not providing this pay. There are several rules that apply to acheiving 1.5 and double time. My people received their pay accordingly, but I did not because I am supervising 2 or more people. When we challenged management, we were guaranteed a nice increase which wasn't that much. In return we were to be quiet about or walk out the door.

LegalPro54 :

I see.

LegalPro54 :

This is really a quite separate inquiry, which should technically be addressed in a separate question per site rules. But I will do my best to address it for you here...

LegalPro54 :

It sounds like they may have been trying to fit you into a management exemption for overtime. Certain managerial employees are not eligible for overtime, but they must spend a certain amount of their time ACTUALLY managing in order to be exempt.

Customer:

no problem, it is a separate issue. i just wanted to know if i should go back to work or not

LegalPro54 :

Sure...

LegalPro54 :

If you are actually exempt, this would not be an issue. However, if you were NOT exempt, you would have the right to make a claim to the DLSE for unpaid overtime and your employer would be legally prohibited from retaliating against you for it.

LegalPro54 :

I suggest you take a look at this useful guide for more information on overtime exemptions. http://www.management-advantage.com/products/overtime-exempt.html

Customer:

I'm hourly salary exempt which I still don't understand

LegalPro54 :

Take a look at the above, which should help explain.

LegalPro54 :

I do not mean to rush out of this chat, but I do unfortunately have a meeting I must attend.

LegalPro54 :

I would be very grateful for your "accept" if I have adequately addressed your concerns.

Customer:

much appreciated...thank you very much for your time

LegalPro54 :

If you have any more concerns about overtime, please feel free to followup and I will address those concerns later this afternoon at no additional charge.

LegalPro54 :

Also, please remember that none of my answer should be construed as "legal advice," simply legal information

LegalPro54 :

Very kindest regards.

LegalPro54 : I see that you have signed off. Please be so kind as to accept my answer so that I may receive credit for assisting you. This will not terminate our dialogue and you will be free to request follow up as necessary. Thanks again.
Patrick, Esq., Lawyer
Satisfied Customers: 6240
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you
Expert:  Patrick, Esq. replied 2 years ago.
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Expert:  Patrick, Esq. replied 2 years ago.
Hello again.

To follow up on your question about overtime exemption, there is a "managerial" (often referred to as "executive") exemption to overtime in the state of California.

However, merely classifying someone as a "manager" does not make them exempt. The relevant question is how the employee's time at work is actually spent.

California law provides that in order to be exempt pursuant to the managerial exemption from overtime, an employee must spend more than 50 percent of his or her time performing the following duties.

- Customarily and regularly directing the work of at least 2 or more employees
- Customarily and regularly exercising discretionary power
- The authority to hire and fire employee
- The ability to make comments and suggestions about personnel matters that are given weight by the employer.

The employee must also make a salary of at least $640 per week to be eligible for the exemption.

As noted above, an employee is always protected from retaliation from an employer for making an overtime claim.

To file a wage claim with California's Department of Labor Standards Enforcement, visit this link: http://www.dir.ca.gov/dlse/howtofilewageclaim.htm

Again, I kindly ask that you "accept" my answer if I have adequately addressed your concerns.

Very best regards.

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