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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 30795
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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I have 2 seperate issues: 1. I am on medical disability

Resolved Question:

I have 2 seperate issues:

1. I am on medical disability and my employer changed my job discription and duties without speaking to me about the details fo the changes and she has already made the changes and hired someone to take over partial of my duties

2. My employer is also changing my pay structure and asked me to sign the new proposal, which I have not as it is not only differnt than when I was hired but it's less pay

Do I hae any legal recourse for with of the above?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  NonEstateEsq replied 1 year ago.
Hello and thank you for using the JA website. Please remember that this site is intended to provide general legal information only.

When you say that you were out on medical disability, were you out on FMLA leave? If yes, how long were you out for?

Customer: replied 1 year ago.


I am currently still out on disability. What is FMLA leave?

Expert:  NonEstateEsq replied 1 year ago.
FMLA leave is Family and Medical Leave. How many employees does your employer have and for how long have you been out?

Customer: replied 1 year ago.

I had shoulder sugery so yes I guess that counts as FMLA? I have been out for 6 weeks as of yesterday.

Expert:  NonEstateEsq replied 1 year ago.
No, it's a little more complex than that :) Did you fill out FMLA paperwork? How many employees does your employer have? This information is vital. Thanks.

Customer: replied 1 year ago.

I did not fill out any paperwork than EDD. Im sorry If i am not 100% understanding of FMLA and regular disability. I'm not sure the exact number my employer has but I would say between approx 35-45? I can find out the exact number but I would need a few minutes to call someone.

Expert:  NonEstateEsq replied 1 year ago.
Are you in California? If so, I will have to transfer this to the California employment category because the site has a separate category for CA and so I am not allowed to answer your question. My apologies!

Customer: replied 1 year ago.


Yes I am in Califonia

Expert:  Tina replied 1 year ago.
Hello and welcome,

I am licensed in CA and would be happy to assist you.

Why were you out on leave, do you have a disability? Were you on leave for a condition that substantially limits one or more major life activities?
Customer: replied 1 year ago.

Hello Tina,


I had shoulder surgey, and I currently still on and have been on disability for 6 weeks. My surgery has a 95% success rate so once I return I will have full range of motion again and be able to do my job as I left it.


 

Expert:  Tina replied 1 year ago.
I see. Thank you very much for the additional information.

YOUR QUESTION:

1. I am on medical disability and my employer changed my job description and duties without speaking to me about the details of the changes and she has already made the changes and hired someone to take over partial of my duties.

ANSWER: If you were on FMLA leave, which is typically provided where an employer has at least 50 employees, then your job would normally be protected and this action by the employer would be illegal. However, since your employer appears to have fewer than 50 employees, they would normally be free to modify your job duties upon return from leave, subject to my discussion of the ADA below.

YOUR QUESTION

2. My employer is also changing my pay structure and asked me to sign the new proposal, which I have not as it is not only different than when I was hired but it's less pay.

ANSWER: Since FMLA leave does not appear to apply, the only basis for recourse against the employer for taking such action would typically include either unlawful discrimination, retaliation, or violation of an employment contract or employer policy.

First, if you have a disability under the ADA, which is not clear to me, or are being treated less favorably than similarly situated younger workers and are 40 or older, or are a member of another protected classification, that could provide a basis to pursue a claim of discrimination against the employer.

Here is a link that discusses what is a disability under the ADA. If this appears to fit your situation, then you could allege disability discrimination with the HR department and ultimately file a charge with the state Fair Employment and Housing Commission if the matter is not promptly resolved (your former pay and duties restored).

http://www.infinitec.org/live/citizenship/adadefine.htm

Or, if the employer is retaliating against you because you filed a worker's comp claim or asserted some other legal right, that would typically consistute a violation of law.

Finally, if you have an employment contract setting out the terms of your employment and the employer is violating that, then you would typically have grounds to pursue a breach of contract suit for your lost wages and benefits due to the breach.

It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:

http://www.justanswer.com/law/expert-tina/



Do I hae any legal recourse for with of the above?
Customer: replied 1 year ago.

Thanks you for so much information, I will look at the link now but I still have a few more questions. How do I know if I have ADA disability... I filed a claim with E.D.D and thats who I am recieving benefits from. Yes I am over 40 (43 to be exact). Why does an employer need to have 50+ emplyees for my job to be secure against changes?

Expert:  Tina replied 1 year ago.
Hello again,

Whether you have a disability under the ADA is evaluated on a case by case basis. I provided a link to you above which sets out the definition of a disability. If you appear to be covered by that definition, then you could be considered disabled and the employer cannot discriminate against you (negatively change the terms of your employment) because you have a disability.

Congress passed the FMLA and it was signed into law by the president. Having it cover only employers with 50 or more employees was a compromise with the opposition who did not want to vote for the FMLA at all. It is better than nothing, but far from perfect unfortunately.

If you can point to other significantly younger employees who went on leave and did not receive reduced pay and fewer job duties when they returned, then you may be able to pursue a claim for age discrimination.

If you believe age or disability discrimination may be involved after reviewing my answers and the link I provided, it would be best to retain a local employment law attorney to guide you through the process of resolving this situation or seeking damages against the employer.

You are very welcome. It has been my pleasure to assist you. Please remember to press the smiley faces/stars on the right of your screen when we are finished with our communication so I will be credited for my time. Kindly remember to ONLY rate my answer when you are fully satisfied. If you feel the need to rate anything less than OK, please stop and reply to me via the REPLY TO EXPERT or CONTINUE CONVERSATION button with whatever issue or clarification you may need. I will be happy to continue further and assist you until I am able to explain your concern to your satisfaction. Please also remember that I cannot control whether the law is favorable to you or not, so please don’t shoot the messenger.

Thank you very much and all the best to you,

Tina

Please feel free to bookmark the following link so you can request me to answer any future legal questions you may have:

http://www.justanswer.com/law/expert-tina/

Tina, Attorney
Satisfied Customers: 30795
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
Tina and 4 other California Employment Law Specialists are ready to help you

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