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Joseph
Joseph, Lawyer
Category: California Employment Law
Satisfied Customers: 4975
Experience:  Extensive experience representing employees and management
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I was a part time permanent employee. I had been employed with

Customer Question

I was a part time permanent employee. I had been employed with this company for approx. 8 years. I had an accident which I injured by left ankle. I was out for approx 6 weeks. I had a boot on the injured leg when I went back to work. That day after work I fell again injuring my right knee and broke my left arm.
While I was home I received a letter from Human Resources stating that my work status had been changed to part time. Within approx 2 weeks I was let go stating that since I was part time now they couldn't hold my job therefore I was let go.
My question is can they changed a employee's status like that when you are injured?
I hope this makes sense to you.
Therese Garcia
California
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Joseph replied 1 year ago.
Hello Therese,

I'm very sorry to hear about your situation and hope I can help.

My goal is to provide you with excellent service today.

I need a little more information from you today before I can provide you with a complete and thorough answer to your question.

Can you tell me if you were on FMLA leave when you were out for your injuries or were you just out on workers' compensation?

Were you told that you were changed to part time and terminated relatively shortly after filing a workers' compensation complaint?
Customer: replied 1 year ago.


I believe I was on some kind of disability. Sorry I am not sure if it was FMLA. I did not file workers comp because it didn't happen at work. I was changed to part time status after the second accident. Within approx 2 weeks after the second accident I was changed to part time and then 2 weeks after that I was terminated. Hope this helps.

Expert:  Joseph replied 1 year ago.
You can be out on disability but not on FMLA leave. In order to have been on FMLA leave you would have needed to apply through your employer (your employer needs to have at least 50 employees at your worksite or within a 75 mile radius), so it's unlikely that you were out on FMLA status.

However, if you were eligible for FMLA leave and your employer failed to tell you, that would entitle you to the same protections that you would have been afforded under FMLA.

This unfortunately really matters, since you can actually be reduced to part time and/or terminated while on disability if you are not on FMLA leave, since being out on disability doesn't automatically afford you any protection from discrimination or retaliation by your employer.

FMLA, however, gives employees 12 weeks of unpaid leave (that would run at the same time at disability). As long as they can return by the end of those 12 weeks (which you did) their employer is REQUIRED to return them to the same or similar position.

If the employer does not it, violates their rights under FMLA, and a complaint should be filed with the Equal Employment Opportunity Commission. As I mentioned above, you would also have a legitimate cause of action if your employer failed to inform you of your rights under FMLA.

You can file a charge with the EEOC online here:

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


Otherwise, your employer is still required to provide you with a reasonable accommodation for your disabilities, if you would have been able to perform the essential functions of your job with one. For instance, if your employer could have changed you to a stationary position where you would only have to use one arm, then that would be a reasonable accommodation.

You can file a complaint with the DFEH using the information available online here if you believe you were discriminated against on the basis of your disability:

http://www.dfeh.ca.gov/Complaints_ComplaintProcess.htm

However, if your employer could not have provided a reasonable accommodation or it would have caused an undue burden to your employer that would not violate the ADA or Fair Employment and Housing Act.

Both the EEOC and DFEH will investigate your complaint on your behalf and either file suit on your behalf or issue you a right to sue letter so you can pursue your claim against your employer through a private attorney.


I realize some of the news above may not have been what you wanted to hear, and I sincerely XXXXX XXXXX had better news to give you but I hope you appreciate a direct and honest answer to your question. It would be unproffesional of me and unfair to you to provide you with anything less.

Since my goal is to provide you with the best service today, please don’t hesitate to ask me any follow up questions you may have.

If you don’t have any, please remember to rate my answer positively so I get credit for my work.

Thanks and best of luck!
Joseph, Lawyer
Satisfied Customers: 4975
Experience: Extensive experience representing employees and management
Joseph and other California Employment Law Specialists are ready to help you
Expert:  Joseph replied 1 year ago.
Thank you for your positive rating of my service!

Please contact me on JustAnswer should you have any further legal issues.

You can contact me by placing ‘To Joseph’ at the beginning of your question and/or requesting me directly in the California Employment Law category.

When you receive your Customer Satisfaction Survey from JustAnswer, please rate me highly (9-10)! High customer satisfaction scores ensure that I will continue to provide you and other customers with excellent service and they are greatly appreciated!

Thanks again and best of luck!

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