Employment Law Questions? Ask an Employment Lawyer.
Hello and thank you for your question. If the employee was on California or FMLA leave, under that law, an employee must be restored to same position or one equivalent to it in all benefits and other terms and conditions of employment. This law applies if you have 50 or more employees. The law is very complex and applies to employees who worked at least 1,250 hours for employer during 12 months preceding leave. According to the FMLA regulations, “An employee has no greater right to reinstatement or to other benefits and conditions of employment than if the employee had been continuously employed during the FMLA leave period. An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment” So if these conditions apply, the law has not been broken if you can prove she would have been terminated even if she was not on medical FMLA leave. I hope all of this helps and ask for your positive rating after reading this or the service will not pay me for my work.
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