How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Patrick, Esq. Your Own Question

Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6685
Experience:  Significant experience in all areas of employment law.
Type Your California Employment Law Question Here...
Patrick, Esq. is online now
A new question is answered every 9 seconds

Im currently on workers compensation related medical leave,

Resolved Question:

I'm currently on worker's compensation related medical leave, post-surgery. I'm eagerly waiting for my doctor to clear me to return to work. Two weeks post-operation, my boss was still sending me work to do (pretty sure that wasn't legal on his part), and we ended up having a disagreement. He has not communicated with me since then, though I have made a few attempts.


Six weeks later (and a week from being allowed to return to work) I've been informed by my co-workers (many of whom I am responsible for supervising) that my direct supervisor has developed a paranoid fantasy that I am out to get him, and as a result, he's discussed the possibility that he might fire me "because she clearly doesn't want to be here, or she would have come back already." He's slandered my name to others, and I am concerned that he is about to fire me, without cause. I want to go back to work, and my contract is "employment at will", as it is in California.

Can I complain to HR about workplace defamation? What can I do to protect my job at this point? If he's going to retaliate against me for following my doctor's orders (even if I come back within the 12 weeks allowed for FMLA), do I have any way of preventing him, or do I still lose my job?
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. I'm very sorry to hear about your medical leave and your difficult employment situation. I hope I can help by providing you with some useful information about your situation.

As you have already noted, employment in the state of California is generally "at will." More specifically, California Labor Code Section 2922 provides that: "employment, having no specified term, may be terminated at the will of either party on notice to the other." What this means is that your employer is free to terminate you for any reason whatsoever, even a reason that is entirely unfair, unless the underlying motivation is discriminatory or otherwise in violation of California law.

One instance in which termination is "in violation of California law" is if an employer terminates an employee in retaliation for them taking FMLA protected leave. If an employee can prove that they were terminated as a result of electing to take such leave, they would have a cause of action for wrongful termination against their employer.

While FMLA leave does not "guarantee" an employee's position or prevent them from being fired for reasons not relating to their absence from work, courts will look at any case with great scrutiny in which an employee was terminated during the 12 weeks of protected leave or shortly after returning from such leave.

Beyond the protections of the FMLA, the at-will employment doctrine does typically permit an employer to terminate an employee for any reason or no reason. It doesn't matter if the basis is fair or not.

You mention slander, so let me address that as well. An individual can collect damages on a theory of slander for any false statement of fact made to a third party that causes damage (note that in certain rare cases, damages will be presumed).

The most important thing to understand is that statements of opinion are not actionable. A statement of opinion is anything subjective that is not verifiable as true of false. For example, "Bob was arrested for cocaine" would be a false statement of fact, but "Bob is always out of it" would be a statement of opinion because different people could agree or disagree as to whether this is true.

A statement that someone 'doesn't want to be at work or they'd already be back' would likely be construed as a statement of opinion, since it is speculation and different reasonable people could disagree as to the true reasons why someone is missing work. Thus, such a statement would not typically be actionable.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

My greatest concern is that you are satisfied with the answer I provide, so please do not hesitate to contact me with follow-up questions. Although I cannot always provide good news, I hope that my answer gives you a better understanding of the law and your rights so that you can obtain the best possible result under the circumstances. Also, please bear in mind that experts are not credited for unaccepted answers, so I greatly appreciate you taking the time to "accept" my answer and leave positive feedback.

Finally, none of the above constitutes legal advice nor is any attorney client relationship created between us.
Customer: replied 2 years ago.
I'd like to get answers to the rest of the questions from my initial contact:

What can I do to protect my job at this point?

If he's going to retaliate against me for following my doctor's orders (even if I come back within the 12 weeks allowed for FMLA), do I have any way of preventing him, or do I still lose my job?

Similarly,
Since he has already stated to a colleague that he is considering firing me (based on his belief/conclusion/paranoia that I don't really want to be at that job, as evidenced by my following my physician's recommendations for post-operative rest), how much(or what type of) proof of this would I need to make a decent case for wrongful termination or violation of FMLA in court, should it come to that?
Expert:  Patrick, Esq. replied 2 years ago.
Hello again and thank you for your followup. Sorry for not addressing those issues in my initial answer. I will do my best to address them for you here:

What can I do to protect my job at this point? If he's going to retaliate against me for following my doctor's orders (even if I come back within the 12 weeks allowed for FMLA), do I have any way of preventing him, or do I still lose my job?

The law does not typically provide preventative remedies. If an employer is going to wrongfully terminate you, the law will only provide recourse in the form of monetary damages and in some instances, reinstatement in your former position.

Since he has already stated to a colleague that he is considering firing me (based on his belief/conclusion/paranoia that I don't really want to be at that job, as evidenced by my following my physician's recommendations for post-operative rest), how much(or what type of) proof of this would I need to make a decent case for wrongful termination or violation of FMLA in court, should it come to that?

Whether termination occurs in retaliation for taking FMLA leave is a "question of fact," meaning that ultimately it is up to a judge or jury to decide, in consideration of all the unique facts of your situation.

No particular type of proof is required to prevail on a claim for wrongful termination. The courts recognize that "smoking gun" evidence (i.e. a memo stating "Fire Jane because of her FMLA leave request") of this kind of thing rarely exists, so circumstantial evidence is very important. For example, if an employee is terminated shortly after returning from FMLA leave, it is reasonable to assume that the employee's leave was the reason for their termination, absent the employer presenting proof of an alternative basis for termination.

Any statements that an employer may have made complaining of your absence will also be considered, as such statements tend to indicate that they didn't like the fact that you were taking leave and were inclined to retaliate against you for it.

In short, ANY kind of evidence can be presented, provided it tends to prove retaliation.

It is also worthy of note that plaintiffs alleging retaliation bear the burden of proof in proving their claim. This means that they must demonstrate "by a preponderance of the evidence" that retaliation was the reason for termination.

Again, my number one goal is that you are satisfied with my answer. If you are, I would greatly appreciate your "accept." If you still require further clarification, I am happy to continue assisting you.
Patrick, Esq., Lawyer
Satisfied Customers: 6685
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • LawTalk

    Attorney

    Satisfied Customers:

    912
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    912
    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Attorney

    Satisfied Customers:

    827
    JD, 16 years experience & recognized by ABA for excellence in employment law.
  • http://ww2.justanswer.com/uploads/PI/PIExpert/2012-7-1_152453_Attorney.64x64.jpg Brandon, Esq.'s Avatar

    Brandon, Esq.

    Lawyer

    Satisfied Customers:

    320
    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • http://ww2.justanswer.com/uploads/PH/phoenixrising119/2012-7-26_11214_043.64x64.jpg melissamesq's Avatar

    melissamesq

    Attorney

    Satisfied Customers:

    47
    Represent clients to maximum recovery in employment cases.
  • http://ww2.justanswer.com/uploads/IG/Iggy1001/2013-11-20_23344_JApic.64x64.jpg Joseph's Avatar

    Joseph

    Lawyer

    Satisfied Customers:

    3098
    Extensive experience representing employees and management
  • http://ww2.justanswer.com/uploads/JK/jkiani22/2013-11-18_15348_JacobKiani1copy2.64x64.jpg jkiani22's Avatar

    jkiani22

    Attorney

    Satisfied Customers:

    20
    Attorney
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel

    Lawyer

    Satisfied Customers:

    32
    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.