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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6785
Experience:  Significant experience in all areas of employment law.
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I have been employed and just found my unique position has

Resolved Question:

I have been employed and just found my unique position has been posted to job boards. I have not been notified casually or formally by my superiors that my employment is in jeopardy. Do I have rights or a case?
Submitted: 1 year ago.
Category: California Employment Law
Customer: replied 1 year ago.
Relist: Other.
Expert seemed to be offline, I would like an answer promptly.
Expert:  Patrick, Esq. replied 1 year ago.
Hello and thank you for entrusting me to answer your question.

Do you have a contract that guarantees your employment for a particular period of time? Are you a government employee? Lastly, do you suspect that you are being targeted for termination on the basis of your race, gender, religion, or something else?

I very much look forward to assisting you regarding this matter.
Customer: replied 1 year ago.

Per Employee Handbook I am an "at will" employee, with no employment contract.


 


I perform my duties well, meet all deadlines and tasks asked to perform. I did not foresee this happening, nor was I lead to believe I was not performing to par. It just became a shock and my manager has not mentioned anything to me.


 


The only reason I can come up with is that I have taken several of my earned vacation hours and sick days off to attend to my medical needs. My superior seems annoyed when I am unable to make it to work due to illness or if I have a doctors appointment that requires me to take time off. With my company's standard work hours between 9:00am- 6:00pm it's very difficult to seek medical attention before or after these hours. And there's a strict policy that you can take your lunch hour between 12:00-2:00pm but have to be back at your desk working regardless by 2:00pm.


 


My main concern is if I stay until notified of my termination date if I will be eligible for EDD-CA Unemployment. would you say typically "at will" companies would challenge unemployment be paid?


 


On a personal note, I'm not going to lie, it hurts my feelings to find out this information without context to support the company's actions, and to carry on each day as if I am oblivious to this entire situation.


 


 

Expert:  Patrick, Esq. replied 1 year ago.
Lori,

Thank you for your reply. I completely understand why your feelings may be hurt by something like this. Have you considered that maybe they aren't planning on replacing you but rather simply adding another employee who will have the same responsibilities?

If you are an "at will" employee (as all employees in the state of California are absent an agreement to the contrary), you can regretfully be terminated at any time and for virtually any reason without advanced notice of any kind. To this end, 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."

It is not ordinarily illegal for an employer to terminate an employee due to absences, even if those absences are medical-related. The only notable and potentially relevant exception would be if the absences qualified for protection under the Family Medical Leave Act.

The Family Medical Leave Act (commonly abbreviated "FMLA") is a federal act that guarantees eligible employees up to twelve weeks of unpaid leave (which by the way can be taken sporadically) on account of, among other things, the 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 worksite 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.

If your leave qualified for FMLA protection, your employer would be prohibited from retaliating against you for your absences. Although FMLA leave is a formal designation and must be applied for, an employer who has reason to know an employee may be entitled to FMLA leave has a duty to notify the employee of that right and facilitate the application process, so even if your leave was not properly designated, you may still be entitled to protection.

Regretfully, it seems this would be the only protection that would conceivably apply to an individual in your circumstance. Otherwise, with employment being "at will," you are freely subject to termination without notice.

If it is any consolation to you on this point, I believe that the doctrine of "at will" employment is extremely unfair in this respect, and you have my fullest sympathies if you are indeed let go without notice or cause.

With regard to unemployment benefits, an individual will be eligible to receive benefits provided that they have received enough wages during the base period to establish a claim (either $1300 in one quarter of their "base period," or at least $900 in their highest quarter and total base period earnings of 1.25 times their high quarter earnings), they are physically able and available to immediately accept work, actively seeking work, and unemployed through no fault of their own.

An employee will be found to be unemployed "through no fault of their own" provided they do not voluntarily quit and are not terminated for willful misconduct. "Misconduct" will include such things as showing up to work drunk, stealing from your employer, and things of that nature. You have not indicated anything that would remotely justify termination for misconduct, and so provided you satisfy the other requirements for benefits, an individual in your circumstance should have no problem getting your claim approved with the EDD.

For information on how to file a claim for unemployment benefits with the EDD, visit this link: http://www.edd.ca.gov/unemployment/filing_a_claim.htm

I truly hope that you are not let go. Regardless of the outcome of your employment situation, I sincerely XXXXX XXXXX you find the above information helpful in understanding your rights (or the unfortunate lack thereof in some respects), and I wish you the very best moving forward.

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: 6785
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and other California Employment Law Specialists are ready to help you

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