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LawTalk, Attorney
Category: California Employment Law
Satisfied Customers: 34922
Experience:  I have 30 years of experience in the practice of law, including employment law and discrimination law.
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I was out of work for 4mos on medical leave from 4-2-13 to

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I was out of work for 4mos on medical leave from 4-2-13 to 8-5-13. I am a dental hygienist who was working 4 days a week before the accident. My doctor advised me to start back part time (about 10 hrs a week ) and then ramp up to full time by 9-1-13. On 7-26-13 ( while still on leave) I was told I would only be offered 3 days a week. On 8-19-13 I was informed I would be cut back to 2 days a week.
I believe this cut back is due to my medical leave and not job performance. I was told my leave caused a financial hardship to the practice and one of the temporary hygienists was permanently hired to always have a back up.
Is this a legal move from an employers standpoint?
Thank you for your help
Cindy Schmoke [email protected]

Good afternoon Cindy,

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. Were you eligible for, and did you take FMLA leave?


Customer: replied 3 years ago.

I did not take FMLA leave and don't think I was eligible. I fell in my own home and fractured my left shoulder in 3 places and soft tissue damage from shoulder to finger tips. That's why the time off was so long. I am collecting CA State Disability income.

Hi Cindy,

I am so sorry to hear of your serious injury. I hope that you make a full recovery. I to have a shoulder problem and I empathize with the pain and limitations you have while you are recuperating.

Unfortunately, under CA employment laws, an employer is not obligated to even hold an employee's position when they go out on disability. The fact that you are receiving state disability does not have a job protection component it.

What that means is that you have to return to work on the terms set by the employer. It is not even illegal for them to discriminate against you because you were out on leave. Only the FMLA program actually gives an employee any kind of job protection.

The only remedy you have is to try and reason with your employer and get an agreement from them that as soon as you are up to full speed physically, that they will bring you back to 4 days a week. If they are unwilling to do that for you, then you will have to make a decision whether to stay with your employer, or seek more full time employment with a different dental group---I'm sorry.

I understand that you may be disappointed by the Answer you received, as it was not particularly favorable to your situation. Had I been able to provide an Answer which might have given you a successful legal outcome, it would have been my pleasure to do so.

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

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I wish you the best in your future.


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