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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4890
Experience:  Extensive experience representing employees and management
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will my name and information apprear on the web if I write

Customer Question

will my name and information apprear on the web if I write to you?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello and welcome to JustAnswer.

No, your name and information will not appear on the site, but your question will, at least for the duration of the question and answer time. After then, I can request that your question be made private so no one will be able to view it.

How many employees does your employer have?

Are you sure you're going to be fired tomorrow?

Most employers will try to avoid firing employees with disabilities to avoid potential liability for discrimination on the basis of disability. Or, at least try to provide reasonable accomodations, which can include transfering you to a different position.
Customer: replied 1 year ago.

I need my question to be off the internet. or I cannot proceed. I am afraid to be honest. So I am requesting it.


they have around 120 employees. As I said they will not provide reasonable accomodations any longer

Expert:  Joseph replied 1 year ago.

As I mentioned, I can have your question taken off the internet after the Question and Answer session (which will probably not last more than 15 or 30 minutes), but I cannot do it before, as it would lcok the question and prevent me or you from posting on it.

Is it okay for me to proceed with your answer?

You have not yet mentioned any details that would identify you.

Customer: replied 1 year ago.


Yes, please proceed.

Expert:  Joseph replied 1 year ago.

You wouldn't have any need to apply for FMLA leave if you are going to be terminated.

However, if you apply for FMLA leave, as soon as you apply, you are protected for discrimination against you for your use of FMLA leave.

So, if your employer were to terminate you after you put in for FMLA leave, that can constitute discrimination and retaliation against you for your use of FMLA leave.

Additionally, as I mentioned, your employer is obligated to provide you with a reasonable accommodation for your disability (or at least engage in that process). Even if you were 'hired' for a particular position, your employer cannot just state this and terminate your employment.

Instead, your employer would need to prove that it was an undue burden to them to move you to a different position. Otherwise, you would have a cause of action against your employer for discrimination in violation of the Fair Employment and Housing Act and Americans with Disabilities Act.

You can file a complaint with the EEOC (within 300 days of your termination) by using the information available online here:

http://www.eeoc.gov/employees/charge.cfm

So, I would suggest that you apply for FMLA leave (and disability) immediately.

If you are terminated, you can either apply for disability or unemployement benefits. You cannot receive both simultaneously, since you need to be ready and available to work in order to receive unemployment benefits. (While unemployment benefits used to provide for significantly longer periods of benefits compared to disability, they now do not, so it would be best to go with disability instead of unemployment).

I hope the above information is helpful. Please let me know if you have any follow up questions.

Thanks and best of luck!

Customer: replied 1 year ago.

 


They did provide the accommodation but now saying the want me on the phones which I cannot do. So do I get them to put it in writing that they cannot accommodate me?


Tomorrow when I go in I will provide the FML and disability papers. The problem is I need the FML to put me over to 5 years. As I said this is one month shy of my 5 years with the company which makes a difference in my state disability.


What if they have my termination papers before I can hand this information in?

Expert:  Joseph replied 1 year ago.
Yes, it would be helpful to your discrimination case if you get in writing that they are unwilling (or allegedly 'unable') to accomodate you.

If they have your termination papers ready at the time, as long as they had some reason to suspect that you would be putting in for FMLA leave, you would still be covered from discrimination on the basis of your use of FMLA leave.

However, your main cause of action would be discrimination on the basis of disability (and also possibly age), which would not be impacted by this.
Customer: replied 1 year ago.

Can you explain this... you would still be covered from discrimination on the basis of your use of FMLA leave. I am not sure I understand it.


 


If I handed in my FML before I get the termination letter would that work? Also if they asked me to sign something could I say I need a day to look it over?


 


Are you a lawyer in California? I know we have different laws here.


 

Expert:  Joseph replied 1 year ago.
Yes, as long as you had signaled some intention to use FMLA leave, or your employer would have had reason to believe you would be putting in for it, you would still be protected by the anti-discrimination provisions and protection from termination that FMLA provides.

Yes, it would be better if you handed in your FMLA request before you get your termination letter.

Yes, you should definitely request some time to look over anything. It they wanted to have you sign a severace agreement, you would have at least 45 days to look over it since you are protected under teh ADEA (Age Discrimination in Employment Act).

Yes, I am an attorney in California. It is the only state that I practice in and I am familiar with California-specific employment laws. However, FMLA leave and the ADEA are federal acts, that are not altered by state laws.

If you wanted to, you could file a complaint with the Department of Fair Employment and Housing for discrimination in violation of the Fair Employment and Housing Act (on the basis of disability and age), but you'd have to ifle a separate complaint iwth the EEOC for discrimination/retaliation/ violation of your rights on the basis of your use of FMLA leave.
Customer: replied 1 year ago.


Are you in the Bay Area? How can I speak to you after tomorrow?


 

 

Also please take this off the web after you anwer this.. thanks so much!

 

Expert:  Joseph replied 1 year ago.

No, I'm in the Los Angeles area.

Unfortunately, I cannot give you personal contact information due to the rules of the site, but you can contact me online here, by requesting to speak to me directly, or putting 'to Joseph" at the beginning of your question.

Please remember to rate my answer positively so I get credit for my work!

I will request that your question be made private.

Thanks and best of luck!

Joseph, Lawyer
Satisfied Customers: 4890
Experience: Extensive experience representing employees and management
Joseph and 2 other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.


My doctor filled out the FML for 6 weeks and will hand it in tomorrow, making tomorrow my last date. Assuming they do not have the papers to fire me.


I requested 6 weeks because I used 6 weeks FML in August for my surgery.



Once the 6 weeks are over I am not sure what will happen since I know they will not extend my work accommodations. What do you think their next step will be in 6 weeks?



I also have the disability papers filled out which will start 10 days after 2/5/12. My doctor requested 3 months which can be extended. Do I have to make the FML and Disability for the same time- 6 weeks and then extend it?



I have several doctors to see to hopefully find a cure which could take a while.



If I am no longer working for the company can I still get disability?


I wasn’t clear about this.

Customer: replied 1 year ago.

Important!


I am about to go back into work and hand in 6 weeks of family leave which is all I have left due to a 6 week leave for surgery last year. I know my company does not want to prove work accommodations for me and will fire me 1 month shy of 5 years. It has become extremely difficult for me to work with my disability which is not getting any better and I really can no longer juggle my health and work in an extremely stressful hostile environment.


I wanted to ask a question that was asked of me. To get disability do I have to be employed or if they let me go can I apply for disability? Once the family leave is over in 6 weeks and they do not want me back can I continue to get disability? My doctor wants me off for at least 3 months to take the tests and see the doctors I need.

Expert:  Joseph replied 1 year ago.
Unfortunately, I cannot really predict what their next step will be in 6 weeks after your FMLA leave expires.

Your disability payments are not contingent on your being employed, so you can still receive disability whether you are employed or not.

You will continue to receive disability for as long as your doctor states that you are unable to work. You are eligible for a maximum of 52 weeks of disability, which can be taken whether you're employed or not.
Customer: replied 1 year ago.

 


I handed in the FMLA in this morning and now I am home. I just gave it to my HR manager and not my manager. I didn't even talk to my manager since she created the hostile work environment for me.


HR said since this is the same issue as before I did not need a waiting period for disability. I thought I had to be employed to get it disability and didn't know if I could get it past the 6 weeks so that is good.


 


I also asked HR what happens in 6 weeks and she couldn't say. I told her my accommodations would not change but she did not commit. I guess I will have to see what happens.


 


Thanks again- it was a very anxious and sad time for me as you can imagine.

Expert:  Joseph replied 1 year ago.
Happy to help. Thanks and best of luck!

I really hope you're able to find a cure out there somewhere!

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