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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 7122
Experience:  Significant experience in all areas of employment law.
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My nephew has been working at his ex stepfathers food warehouse

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My nephew has been working at his ex stepfather's food warehouse for over two years. He works odd hours, until midnight, full time on the floor with the laborers because he is unable to find a job. He is a college graduate. The only time he is not working full time is when there isn't enough work at the warehouse, which did happen when the economy first dipped. His ex stepbrother who is a drug addict sits in an air conditioned office and does nothing other than being the blood relative of the CEO. There is minimal air condition, Fresno, CA, and the other workers call him "cinderella." He is a hard worker and is very sensitive, so the constant harassment by the Hmong laborers is hard on him. He is white. He has been having extreme anxiety issues and desperately needs to take some time off. He cannot ever ask for time off unless he gives two weeks notice but he needs help now. His mother lives in LA, as do I, and he has no one to help him if he can't get time off. He is seeing a psychiatrist next week, as well as a urologist. He has lost a ton of weight, but his physician has said he needs to see these other doctors first to rule out other problems. His bloodwork is fine. At the doctor's office his BP was over 200/150, and they gave him nothing. He can't sleep.

His ex stepfather asked him if he was o.k. and he said yes because he was embarassed, but that isn't the case. Now he boss/ceo/ex stepfather is off to France for a month.

His employer has stated from now on that anybody who takes time off for medical not only has to provide a doctor's slip (reasonable) but that they will post the reason for the medical issue on the board for all to see.

What should he do?
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. My goal is to answer your question completely and thoroughly and to provide excellent service.

I am so sorry to hear about your son's work situation. Can you please tell me whether his employer has 50 or more employees?

I very much look forward to assisting you regarding this matter.
Customer: replied 2 years ago.

Yes. Manta show this incorporated company employs 50 - 99 people (I believe 80) and has an annual revenue of at least $20 million.


 


Also, as far as health insurance is concerned, it is complicated because of the divorce. This is my nephew. I believe his mother was supposed to be paying his co-pay, and I don't know what the arrangement is. She got pretty screwed in her divorce - he remarried the day after it was final.



 

Expert:  Patrick, Esq. replied 2 years ago.
Susan,

Thank you for your reply. Sorry for my confusion in calling your nephew your son.

It's good for your nephew that his employer employs at least 50 employees because that means he may be eligible to take leave pursuant to the Family Medical Leave Act for up to 12 weeks if a doctor determines that his stress and anxiety constitute a "serious health condition."

The FMLA is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave on account of, among other things, an employee’s own serious health condition which prevents him/her from working.

In order to be “eligible” the employee must have worked for the employer for at least one year, and worked roughly 30 hours per week (on average) during that year. Also, only employers with at least 50 employees within 75 miles of the employee’s work site are required to provide FMLA protections.

Where an eligible employee takes FMLA leave, he or she has the right to return to work in his or her own, or to a substantially equivalent position, if he/she returns on or before the expiration of the 12-week leave period. In other words, an employer cannot refuse to permit FMLA leave or retaliation against an employee for their decision to take it.

For more information regarding FMLA leave, visit this link: http://www.dol.gov/dol/topic/benefits-leave/fmla.htm

In addition to FMLA, in certain very limited circumstances California courts will recognize job-related workers compensation claims, and an employer cannot retaliate against an employee for filing such a claim. However, insurers vigorously fight these claims (for stress and anxiety) and treat them with great skepticism. Further, the burden of proof is on the claimant and typically requires them to show that the behavior of co-workers or their employer "shocked the conscience." This is a very hard thing to prove. Accordingly, it is quite rare that a workers compensation claim for job induced stress is successful.

The big caveat to all of this is that, while an employee cannot be retaliated against for taking FMLA leave or filing for workers comp, these things do not prohibit an employer from terminating an employee for reasons not related to the FMLA or workers comp. In other words, employees can't "evade" termination by filing for workers comp or FMLA. Since it doesn't seem as though your nephew is at risk for termination for performance issues or economic circumstances, this is likely not an issue.

Aside from taking FMLA protected leave or making a claim for workers comp, an employer is free to terminate an employee for missing work due to health issues, typically speaking. Further, an employer is under no obligation to provide time off for an employee's health condition and violates no law by telling other employees what the reason for the employee's absence is.

The sole exceptions to these general principles are FMLA and workers comp, as discussed above, but those exceptions, particularly FMLA, may provide your nephew with the protection that he seeks.

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

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 7122
Experience: Significant experience in all areas of employment law.
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