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melissamesq
melissamesq, Attorney
Category: California Employment Law
Satisfied Customers: 157
Experience:  Represent clients to maximum recovery in employment cases.
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I was employed by Sprouts Farmers Market and went out on disability

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I was employed by Sprouts Farmers Market and went out on disability on 9/23/2011 After months of going back and forth with the docters at Kaiser permanete they decided to operate on december 29th 2011 which was a failure and they had to replace my knee on april 29th 2012 on August 16th I was released to go back to work with restrictions which were no lifting over 30lbs no bending squating stair climbing or ladder climbing these restriction are permanet. I was a full time emloyee as an asst produce manager makeing 17.80 an hour with benefits. Upon returning to work I was notified of the restrictions and told that I used up My FMLA and the only position available to me was part time bakery clerk, bagger or cashier and my pay would be reduced to 13.00 an hour. They are only giving me 16 hours a week which is causing extreme hardship on my family. I applied for unemployment but havent heard anything yet. On Saturday the store director asked me to sign a paper saying that I agree to give up my asst manager position at 17.80 and agree to be a bakery clerk at 13.00 I refused to sign the agreement. I tried to contact the doctor but my health insurance has been terminated any advise would be appreciated
Submitted: 2 years ago.
Category: California Employment Law
Expert:  melissamesq replied 2 years ago.

Welcome! I am here to educate and help you. Please positively rate my answers, including follow ups, so that I may get credit for my work. Thank you!

Hello and thank you for contacting JA. My name is XXXXX XXXXX I will be answering your question today. I am a practicing employment lawyer in CA and my goal is to provide you with legal insight and information in to your question. I am so sorry to hear about this situation, and I ask that you please understand that the law is sometimes unfair and does not support the position we would prefer. My duty is to give you an accurate answer, even if it is not really what you want to hear! With that said, in CA you are deemed an at will employee since you do not have an employment contract, nor are you a government employee. If you have a union, file a grievance immediately. I am so sorry that your insurance has been terminated due to part time status, but your doctor would not be able to be of much help at this point. By law, an employer is generally not required to keep your job longer than the 12 weeks of FMLA. After that, the employer is allowed to fill your position, and in turn, it is allowed to reduce your hours and offer you employment that is 'less than' your job duties and status prior to disability.

The one caveat here is that if you remain able to do your job even with the restrictions, and there is a same or similar position available, you are entitled to that position. However, if your restrictions render you unable to perform the essential functions of your job duties, or the position has been permanently filled, there is not much in the way of legal recourse. You may petition HR for reinstatement, especially if another assistant manager has similar restrictions, or if you are able to perform the essential functions of your job, and the same, or similar, job and pay grade is available. If you feel you are being discriminated against based on your disability, you may file a disability discrimination complaint with the CA DFEH (Department of Fair Employment and Housing) pursuant to the FEHA (Fair Employment and Housing Act) which prohibits discrimination based on protected class status like race, age, gender, disability, etc.

In sum, your employer is generally allowed to take this action, even though the consequences are distressing and dire. The only viable way to combat this pursuant to CA law, and the ADA, is to argue that the restrictions do not limit your ability to perform the essential functions of your job. If another asst. manager has similar restrictions, you have a frame of reference for that argument. Similarly, if your former position is available, but the employer is unreasonably taking adverse employment action against you, you may have a viable claim for disability discrimination.

I wish I had better news for you as I fully understand your situation. If you have a follow up, please click reply to expert and I will respond.

I only ask that you kindly rate me positively, otherwise I will not receive any credit for my work.

Thanks and take care,

melissamesq

melissamesq, Attorney
Satisfied Customers: 157
Experience: Represent clients to maximum recovery in employment cases.
melissamesq and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

i appreciate your answer . what about unemployment will they make up the difference or will that be denied

Expert:  melissamesq replied 2 years ago.
Hello and thank you so much for the positive rating. With respect to your follow up question, the answer is yes! CA EDD will kick in to pay you the difference in lost wages. The standard for unemployment eligibility, whether full or partial, is that you are out of work or hours through no fault of your own. Your situation would surely qualify, as you would clearly prefer to be working your former full time position. The sooner you file with EDD, the sooner you will begin receiving partial unemployment while you work this part time position until things change. Your employer will have no valid basis to object, since it is the reason your hours and pay are being drastically reduced. Again, I am really sorry that your employer is being difficult. BotXXXXX XXXXXne: how employers handle disability leave is more of a reflection on the quality of the employer and management. Some employers are fantastic and hold positions until the employee returns, while others hide behind the law and create problems. In your case, you may have a case if your employer is denying you the same or similar job if a position exists, and you are able to perform the duties. The same applies if there is a job available with a similar pay grade, and you are able and willing to perform those duties. If any of these are options and you are being denied the opportunities because of the stated restrictions, please consider filing with the DFEH.
Thank you so much and I wish you the best going forward. If I can help you with employment questions in the future, you may direct them to me by beginning your question with 'to melissamesq.'
Take care.
melissamesq, Attorney
Satisfied Customers: 157
Experience: Represent clients to maximum recovery in employment cases.
melissamesq and other California Employment Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks for your information its been helpful. Now I recieved two pay checks covering the month of august for $0.00 Dollars. When I called pay roll I was told that the company paid my health insurance for the months of Jan,Feb,and March of 2012 and that I owe sprouts that money. So the hourss that I worked went to the arrears in medical coverage. The payroll person felt bad called me back and said I was not being treated properly so she said she would void the checks out and I would be recieving a new check for about 80.00 dollars and that she would work out some kind of payment plan but it would be about half of my wages I need any advise u can give me

Expert:  melissamesq replied 2 years ago.

Hi, Nick. Thanks for contacting me again, and I appreciate your patience as I was offline for a couple days. I am sorry to hear that your employer is again giving you grief, but I ask you to remember that the law can sometimes be unfair! In this situation, the employer does not legally have to pay for your insurance after your 12 weeks of FMLA is up. Employers generally pay for medical benefits for about 3 months, then if an employee is not back, they cut benefits, which is allowed by law. Bear in mind, this is more a creature of recent years as the byproduct of increased health care costs for employers. It used to be that employers would keep employees on medical benefits for as long as the disability lasted, but those days age over, at least in retail. Again, this is a decision that reflects on the quality of your employer, as there is no legal right to medical benefits. In fact, most people are shocked to learn that no employer, even in CA, is obligated to provide any employee with health insurance. When they do, it is a benefit of employment, and they are allowed to set policies and terms regarding when they will stop paying your benefits. Since you went out on disability last September, your employer paid the first three months, then they are correct in saying they can stop paying because you were not working at the time, and therefore not entitled to that particular benefit of employment.

They should have notified you at the end of the 12 weeks and offered you COBRA, but that is often prohibitively expensive, so many people are unable to afford several hundreds of dollars a month on medical insurance. In that case, if you qualify, you can apply for Medicaid. In sum, your employer unfortunately does have the right to ask you to repay the wages, but it should not be deducting the repayment from your paycheck. It is not strictly unlawful to do so if they have a policy stating that they can make such deductions, but the better and more legal policy would be to have you sign a repayment contract with terms for repayment that you can afford.

Consider speaking to payroll and stating that these deductions are unfair and that you want to see the employer policy specifically allowing them to take your entire pay as a deduction for an unrelated amount owed. If they cannot produce such a policy, ask that your check be processed and paid correctly and agree to enter into a repayment agreement wherein you make payments voluntarily [but per repayment contract], not via involuntary deduction.

At the very least, unemployment should pick up the difference and give you full benefits for the period you are having your wages withheld.

I sure hope this helps and I wish you the best in getting everything straightened out with your employer. Please rate me positively for credit! Thank you and take care.

melissamesq

melissamesq, Attorney
Satisfied Customers: 157
Experience: Represent clients to maximum recovery in employment cases.
melissamesq and other California Employment Law Specialists are ready to help you

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melissamesq
melissamesq
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Represent clients to maximum recovery in employment cases.