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Patrick, Esq.
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Auto dealer in So California. Employee that did not qualify

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Auto dealer in So California. Employee that did not qualify for FMLA. went out for surgery, no documentation was offered employer, including no anticipated return date. Numerous attempts to contact employee were made by upper management, no return calls. No letter sent to employee as to job abandonment. Employee showed up two months later and demanded his job back. Do we have to let him come back?
Hello and thank you for entrusting me to answer your question.

The Family Medical Leave Act and its California corrolary, the California Family Rights Act, are the only laws that would provide any sort of job protection to an employee who is absent as a result of surgery.

To be eligible for CFRA leave, an employee must be either a full-time or part-time employee working in California, have worked for more than 12 months for their employer, have worked at least 1,250 hours in the 12-month period before the date the leave begins, and have worked at a location in which the employer has at least 50 employees within 75 miles radius of the employee's work site. The requirements are essentially the same as those for FMLA leave (the only differences aren't relevant), and so if an employee does not qualify for FMLA, they almost certainly won't qualify for FMLA.

If an employee is not eligible for FMLA or CFRA leave and does not have a contract that guarantees their employment for a set period of time, they are by default an "at will" employee. 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 an employer is free to terminate employees at any time and for any reason, regardless of whether the basis is fair and regardless of whether the employee was physically unable to work.

Thus, an employer in your circumstance would ordinarily be acting within their rights to refuse to rehire an employee who has been gone for two months following surgery.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, I would be most grateful if you would remember to provide my service a positive rating, as this is the only way I will receive credit for assisting you.

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

Very best wishes and happy holidays to you.
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