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LawTalk
LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 27889
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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my Employee left with no notice on her PDL. She left her Dr.

Customer Question

my Employee left with no notice on her PDL. She left her Dr. note in my mail slot and I have not heard from her otherwise.
Before this happened I had numerous conversations with her whether she planned to keep her position, if she wanted to work part-time, and maybe even from home on some things. We are a company of 5. So her leaving with no communication on if she plans on returning is a huge stress for us as we could be training someone else.
What are my rights as an employer.
Do I have to wait out the 4 months of PDL before I can start training someone else?
Her position takes at least a year or two to develop unsupervised.
From what I can tell if she is not back after the 17 1/3 weeks I can fire her.
But isnt there something on the employee to communicate with her employer?
How is it legal to just leave with no communication? I want to let her go now not because she is pregnant but because she wont communicate with me if she is coming back or not.
Submitted: 1 year ago.
Category: California Employment Law
Expert:  LawTalk replied 1 year ago.
Good morning Jennifer,

I'm Doug, and I'm very sorry to hear of your situation. My goal is to provide you with excellent service today. In order to give you a clear and concise answer, I will need some additional information about the circumstances, please.

1. You say you are company of 5, but how many employees does your company have?
2. As the employer, did you require your employee, who planned to take a leave, to give you reasonable notice of the date the leave was to begin and the estimated duration of the leave?

Doug
Customer: replied 1 year ago.
My husband and I own 2 businesses. 1 business is a gift shop and has 8 employees.The business this employee works at including me has 6. So 5 employees.I had 3 total meetings with her. In those meetings I asked what her intentions were with her employment. Being a small business in a small town we were also on friendly terms. lesson learned. TO future employers dont do it! keep it professional. She said she was seeing her doctor on May 20th to plan for her PDL.At that time from the date her Dr. gave her she would give me 30 days.I left town for recreation and I received upon my return ,a note in my business mail slot she was on immediate leave effective May 20th. The week leading up to her May 20th Dr. appointment she was give a written warning for overspending company funds. She was also verbally disiplined for verbally abusing fellow employees and also for closing our business early with out approval.Not sure if that had anything to do with her leaving with out notice but all disipline actions were done with respect and she blamed being pregnant for her behavior. Mistakes happen her behavior was not enough for me to want to let her go.I feel as an employer I deserve to know if I am keeping a position open. When should it be okay for an employee just to leave with no verbal communication?AND if it is okay for her to do such a thing what can I do in the future to avoid this mistake again. What could I have done to avoid this situation?
Expert:  LawTalk replied 1 year ago.
Good morning Jennifer,

Under the law, as an employer, you pursuant to CA Government Code §12940, "...An employer may require an employee who plans to take a leave pursuant to this subdivision to give the employer reasonable notice of the date the leave shall commence and the estimated duration of the leave."

Up until the time she left on leave, and based on her behavior and your discipline of her, you had every right to terminate her employment with you---whether she was pregnant or not. Now that she is on leave, terminating her will raise a red flag and may well draw a discrimination complaint to the EEOC or the CA DFEH.

While you may urge that you requested that she give reasonable notice, and that she did not---the fact is that if her physician directed her to go on disability the very day of her visit (which you and I both know was likely heartily pushed for by the employee), then circumstances prevented her from giving advanced notice, and therefore she is relieved of that obligation.

While you do legally have to hold her position for her there is nothing preventing you from hiring a temporary replacement, and waiting to see if she returns. You are free to train a new employee, however, you would have to allow her back to the same, or equivalent, position if she returns within four months.

As the employee's demeanor appears to be somewhat insubordinate, I have little doubt that upon her return the same contentious behavior will likely continue, and you may then immediately terminate her for cause,m siting the new violation(s) along with the ones that you have set out in your question here.

In terms of preventing a no-notice departure, given similar directions by a physician, it is not possible to protect against that. I'm sorry.

You may reply back to me again, using the Reply to Expert link, if you have additional questions.

I wish you the best in your future,

Doug
Customer: replied 1 year ago.
That sounds reasonable.

Okay so then Can I ask her if she plans on returning?
Or is this something she is not obligated to divulge?


Also her Dr. has her out past the 17 1/3 weeks according to my calculations. Can I terminate if she is not back by Sept 20th?

If she left officially May 20th. Sept. 20th is the return date correct? not Oct. 20th?

She is a body piercer so there is no way to hire a temp for her position unfortunately.
That would be me filling in for her until she returns.
Which I am happy to do if she plans on returning.
However I hired her specifically to ease up my customer relations so I can focus on retail growth.

I understand legally now there is nothing I can do until she returns.

However legally is she not obliged to tell me if she is returning. And if she is not communicating with me about her desire to return is this considered a voluntary resignation if I have asked her for a return date?



Expert:  LawTalk replied 1 year ago.
Good morning Jennifer,

An employer has every right o inquire as to the employee's intent to return, and the anticipated date of return. However, if the answer is equivocal, and anything less than an emphatic no, the employer is still obligated to hold the position.

In terms of date calculation, the day she gave notice by putting the information in your mail slot does not count. You need to understand the calculation of the 4 months---it is not always simply a matter of counting days. See paragraph 3:

http://www.wsgr.com/WSGR/Display.aspx?SectionName=publications/PDFSearch/wsgralert-california-pregnancy-leave-changes.htm

Because she is on disability based on her doctor's decision, it must be her doctor who decides whether she is still disabled. You may ask for an estimated date of return---but until she has had her baby and is seen by her doctor, it is too early to expect her to give a specific return date.

You may reply back to me using the Continue the Conversation or Reply to Expert link and I will be happy to continue to assist you until I am able to address your concerns, to your satisfaction.

Please remember to rate my service to you when our communication is completed.

I wish you the best in 2013,

Doug


LawTalk, Attorney
Satisfied Customers: 27889
Experience: I have 30 years of experience in the practice of law, including employment law and discrimination law.
LawTalk and other California Employment Law Specialists are ready to help you
Expert:  LawTalk replied 1 year ago.
Thank you for your positive rating of my service, Jennifer. It has been my pleasure to assist you and I hope than you will ask for me on JustAnswer should a future need ever arise.

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-lawtalk/

Thanks again.

Doug

When you receive your Customer Satisfaction Survey from JustAnswer, please do rate me highly (9-10) there as well. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

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