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Tina
Tina, Attorney
Category: California Employment Law
Satisfied Customers: 32183
Experience:  JD, 16 years experience & recognized by ABA for excellence in employment law.
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I was layed off 5/30/12 with my previous employer citing budget

Resolved Question:

I was layed off 5/30/12 with my previous employer citing budget cuts, and recently found out my job was given to someone else internally.

The job title has been changed, and so has the reporting Supervisor.

Can I recover damages for lost wages and NIED bc I was not re-offered the job, nor notified that someone internal has my job now?
Submitted: 12 months ago.
Category: California Employment Law
Expert:  Tina replied 12 months 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:

Do you have any reason to believe you may have been discriminated against on the basis of your race, age (40 or older), gender, disability, or other protected status?

 

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

Customer: replied 12 months ago.
Yes. I had submitted a doctor's note stating I should go on stress leave for 6 weeks and then received a backdated Layoff Notice via Fedex the next day.
Expert:  Tina replied 12 months ago.
I see. Were you requesting FMLA leave or disability leave based on the employer's internal policy? Had you been employed for at least one calendar year and worked full-time?
Customer: replied 12 months ago.
The note simply said I needed 6 weeks off medical leave.
Expert:  Tina replied 12 months ago.
I see. Were you eligible for FMLA leave as far as you know? It is important as there are additional legal protections where an employee is eligible for and requests FMLA leave.
Customer: replied 12 months ago.
What is the eligibility criteria?
I had not asked for it.
Is an employer supposed to re-offer me the job before re-assigning my duties?
Is there an applicable statute of limitations?
Expert:  Tina replied 12 months ago.

Hello again, Monica.

To be eligible for FMLA coverage, the employer must be a public employer or have at least 50 employees, and the employee must typically have worked for an employer a full year and at least 1,250 hours during that year prior to requesting leave. Your request for leave would normally be construed as a request for FMLA leave if you were eligible for it and that federa statute prohibits employers from retaliating against employees for requesting such leave, which is what appears may have occurred in your case.

The statute of limitations for filing suit alleging unlawful retaliation under the FMLA is typically two years, so you would still have time to pursue such a claim.

I hope this helps clarify the situation for you. My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Kindly rate my service when I have answered your questions so I will be compensated for my time assisting you. Thank you!

Tina

Customer: replied 12 months ago.

Is an employer supposed to re-offer me the job before re-assigning my duties?
Is there an applicable statute of limitations?
Expert:  Tina replied 12 months ago.

It is not required by law that the employer re-offer a laid off employee their job back, but could be required by the employer's internal policies. There is no statute of limitations for requiring that an employer offer a laid off employee their job back since there is no such requirement under the law.

However, since you were promptly laid off after requesting leave and your duties were reassigned, that would typically suggest that the employer violated the FMLA if you were eligible for FMLA leave. If you were not, then other causes of action would have lapsed at this point unless there was an internal policy requiring the employer to offer your job back before reassigning it to someone else. That would normally involve a breach of contract claim for which the statute of limitations is 4 years.


I hope this helps clarify the situation for you. My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Kindly rate my service when I have answered your questions so I will be compensated for my time assisting you. Thank you!

Tina



Tina, Attorney
Satisfied Customers: 32183
Experience: JD, 16 years experience & recognized by ABA for excellence in employment law.
Tina and other California Employment Law Specialists are ready to help you

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