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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32721
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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After a year and a half of enjoying a successful, exceed expectations

Customer Question

After a year and a half of enjoying a successful, exceed expectations career, a new boss was hired. After 17 days, she issued me a final document with no specifics. I fought back but eventually signed with comments that I did not agree but would move forward. 4 months later the boss gave me a MEETS expect on my mid year and agreed we could put the document behind us. 2 months later, she is fired and I receive an annual review which is also a MEETS evaluation from the VP of stores who became my supervisor. 2 months later I get a new boss and 2 weeks after that the VP resigns. 2 weeks after her resignation, the new boss attempts to put me on probation for 30 days with no prior coaching or documentation. In the same time frame of 24 hours prior to the documentation, I apply for FMLA due to my mother being coincidently seriously ill. I have been on FMLA and due to return to work August 9th. In my conversation with HR this week, we agreed that regardless of my performance, the new boss is going to fire me in 30 days so there is no logical reason to return and they have offered a severance package of 8 weeks and medical for 3 months. I think they should pay a year's salary, medical for a year and give me the company car. I am 60 years old and I have looked for employment with no success. No business wants a 60 year old retail District mgr when they can hire someone for significantly less money. What do you believe is a fair settlement amount?
Submitted: 1 year ago.
Category: California Employment Law
Expert:  Tina replied 1 year ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. I am sorry to hear of your difficult situation. Before I can give you an accurate answer to your question, please provide the following additional information:

What is the reason you expect to be terminated when you return from FMLA leave regardless of your performance? Do you have reason to suspect the employer is retaliating against you for taking FMLA leave or discriminating against you based on your age?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 1 year ago.

New Boss told me that given the choice of working with her own previous team or working with someone new, it's a no brainer who she would pick. she has hired 3 dm's from Cold Water Creek which is her previous employer. I don't believe it has to do with me personally. I am just not wanted any more. and I believe there is a higher up directive to get rid of me for my w/c injuries. I potentially have 3 more surgeries left. and I am 60 so time to let me go and she is ready with a new team. It's not about performance. My resume' is impressive from Limited Brands and VSS for 20 years plus Gap, chicos, disney and brighton collectibles. I have never failed.

Expert:  Tina replied 1 year ago.
I see. Thank you for providing this additional information.

The fact that the employer placed you on probation within such a short time after requesting FMLA leave would typically indicate that they may be engaging in retaliation for requesting FMLA leave. It is also unlawful under state law to retaliate against an employee for filing a worker's comp claim.

Therefore, even though you do not believe this is personal, the employer cannot simply terminate you because you filed for worker's comp benefits or took FMLA leave and doing so would typically increase the amount of severance I would demand from them in order to settle your claim.

If you do not reasonably believe you can locate other comparable employment in a year, then a year's pay would typically be reasonable to demand, but I suspect the employer is not going to agree to that based on the offer they have made to you.

What I would do under these circumstances is retain a local employment law attorney to threaten legal action for retliation under the FMLA and worker's comp laws to gain leverage in obtaining a larger amount of severance.

The employer is typically under no obligation to pay severance, but if you can convince them that you have viable legal claims, that would provide incentive for them to settle the case for a higher amount than they would otherwise be willing to pay.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Tina, Attorney
Satisfied Customers: 32721
Experience: JD, 17 years experience & recognized by ABA for excellence in employment law.
Tina and other California Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

So, I should tell them that in my case, it's not a simple case of severance but they are paying me to not go further with legal action against them?


and I tell them that I do believe I have a case for retaliation under FMLA and worker's comp laws. What about being replaced on FMLA? I am not sure I mentioned that in the probation meeting, my boss gave me the advice to quit because she did not believe I would survive the 30 days probation. Do those comments give more weight to my negotiation?

Expert:  Tina replied 1 year ago.
Hello again,

Yes, you would be seeking to settle your claims, not just pursuing severance pay. Yes, I would indicate you reasonably believe you have viable legal claims for retaliation.

The fact that the employer was encouraging you to quit when you requested FMLA leave would typically constitute circumstantial evidence of retaliation and bolster your case, yes.

It would be best to retain an experienced attorney to aid you in negotiating a settlement of your claims here since the employer will likely attempt to avoid paying you unless they reasonably believe you are prepared to pursue your legal claims.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 1 year ago.

thank you. Do you work out of sacramento? Are you available to represent me?

Expert:  Tina replied 1 year ago.
Hello again,

The TOS we both agreed to prevent me from representing you. I wish I could, but if you contact the state bar association, they can provide attorney referrals for you. Their website is at calbar.org.

You are very welcome and all the best to you!

Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 1 year ago.


thank you and yes I will rate you the top score. Your help has been great and I would hire you in a minute.

Expert:  Tina replied 1 year ago.
Hello again and thank you so much for the wonderful feeback. Good luck with this and I hope you get well soon too!
Expert:  Tina replied 1 year ago.

Thank you very much for your positive rating of my service. It has been my pleasure to assist you and I hope you will ask for me should a future legal need arise.

If you receive a Customer Satisfaction Survey from JustAnswer, please consider scoring me a 9 or 10. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and all the best to you.

Tina

Note: Please feel free to request me if you have future legal questions by typing your new question in the question box on my profile page. Here is a link to that page, which you can bookmark or add to your favorites: http://www.justanswer.com/law/expert-tina/. I look forward to hearing from you again should the need arise.

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Tina
Tina
Attorney and Counselor at Law, Mediator
890 Satisfied Customers
JD, 17 years experience & recognized by ABA for excellence in employment law.