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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 89072
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I was unable to make it to 2 scheduled shifts because i went

Customer Question

I was unable to make it to 2 scheduled shifts because i went into labor. I called at 2am and 6am. There wasnt a manager on duty to speak to but I had a fellow employee rely the message to my boss. I got a termination letter yesterday stating that because I failed to show up for these 2 shifts and also for not arrange leave of absence they terminated my employement. My boss and i have discussed that we would touch base after the holidays and now this. She knew nothing of my termination from H.R.? Can they do this?
Submitted: 4 years ago.
Category: Legal
Expert:  Ely replied 4 years ago.
Hello,



My name is XXXXX XXXXX I am one of JustAnswer's attorneys. I'll be helping you resolve your matter today.




What is the size of your business - how many employees?



Customer: replied 4 years ago.
Estimated employees at the front desk 15 - Total employees at the hotel is roughly 100
Expert:  Ely replied 4 years ago.
You may be able to litigate under the FMLA - Family and Medical Leave Act of 1993. The FMLA is a labor law allowing an employee to take job-protected unpaid leave due to a serious health condition that makes the employee unable to perform his or her job. The FMLA further guarantees the following rights to eligible workers:
Restoration to the same position upon return to work. If the same position is unavailable, the employer must provide the worker with a position that is substantially equal in pay, benefits, and responsibility.
Protection of employee benefits while on leave. An employee is entitled to reinstatement of all benefits to which the employee was entitled before going on leave.
Protection of the employee to not have their rights under the Act interfered with or denied by an employer.
Protection of the employee from retaliation by an employer for exercising rights under the Act.

Seems to me you might have a claim.

Lawsuits are made up of causes of action, in other words, to file suit, you need a cause of action (at least one).

You can file multiple causes of action together. All causes of action have different elements you have to satisfy. For example, “negligence” is proven if there is (1) a duty owned to Plaintiff and (2) the Defendant breached that duty.

It takes too long to explain all elements of each cause of action, but from my knowledge, you have a lawsuit for the following causes of action: statutory FMLA breach claim - federal, or the state equivalent. Some elements of the causes of action different by state due to different evolution of local law, but they are generally nearly identical.

If the hearing is by Judge (“bench trial”), the Judge decides. If the hearing is by Jury (“jury trial”), a majority of the Jury has to decide towards one way. Although a lawsuit is automatically set up to be heard as a bench trial, either party can request a jury trial. Defendants usually prefer a jury trial since it’s harder to convince a few minds, rather than one.

In the end, the Judge or Jury that decides whether or not the elements for each of the causes of action were satisfied, and if so, what damages are needed to rectify the situation.

Know, however, that 85% of such cases are resolved with a stern demand letter from your attorney and perhaps a draft petition included with it. That usually scared them to make a deal to avoid litigation. When you hire an attorney, make sure to hire them on a contingency basis, i.e. they don't get paid unless you do (usually about 33%, or 40% if reward is from trial). I can help recommend someone in your area. Also, your friend would be protected by whistleblower laws if you due litigate.

Best of luck in your matter! I'm here if you need any more clarification or follow up info. I hope you found my answer helpful, and if so please click on the GREEN ACCEPT button for my answer. This is the only way for me to be paid for my work. Your question will not close, and you will still have the opportunity to follow-up if and I would be happy to answer any and all of the follow up questions.

There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!

You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to being the question with “This Question is for Eli…”
Customer: replied 4 years ago.

i have been employed with the hotel since 10/19/09. Does fmla cover me? When they hired me I was 7 months pregnant and they knew my due date later down the line. Technically my last scheduled day of work was to be 12/13 because my boss didn't want me risking anything. Obviously I was in no condition to call while in surgery and recovery. But several colleagues informed me that my boss and H.R. were well aware of my situation. The termination letter also stated that not only did I fail to call for my scheduled shifts I also neglected to arrange leave of absence. I'm confused because it was prior to christmas week that my boss and i exchanged text messages and she said she and i would talk after the holidays.

Should I seek an attorney here in washington? If so, can you recommend any?

 

Can they dismiss my employment under these terms? I have not heard back from my boss after our conversation via text msg yesterday, should I contact H.R. directly?

Expert:  Ely replied 4 years ago.
No, it does not cover yo - you need minimum 12 months. Dang. BUT, WA's state version might! Plus, if you do like I recommended, like I said, very likely they will just agree to work this out after they get an attorney letter - most businesses do. Your attorney can also threaten to go to the press, call BBB, etc - the works - BELIEVE me, it'll be effective.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.



I hope you found my answer helpful, and if so please click on the GREEN ACCEPT button for my answer. This is the only way for me to get credit for my work. Understand that when you put in your payment info, you still have not paid until you press ACCEPT.



Your question will not close, and you will still have the opportunity to follow-up if and I would be happy to answer any and all of the follow up questions.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to being the question with “This Question is for Eli…”














Customer: replied 4 years ago.

Eli,

 

Thank you :) This is information is helpful. Can you please give me a few recommendations of attorneys here in Seattle.

 

Also, before I "accept" can you please clairfy for me whether or not WA FMLA covers me or not... If not, is it because my length of employment with this company?

 

thanks a bunch :)

Expert:  Ely replied 4 years ago.
No problem. Washington's FMLA is divided into a bunch of laws...http://www.lni.wa.gov/WorkplaceRights/LeaveBenefits/FamilyCare/LawsPolicies/default.asp...and I am simply not qualified to tell you even if I look. Only a Washington attorney is qualified. I am DYING to do it, but I don't want to mislead you. :\ Don't worry - an attorney should be able to tell you at the free consultation.I'd like to refer you to the WA Bar's Referral program. The program is free. The attorneys are vetted, qualified, and affordable. If memory serves me right, you also get a free consultation once you are matched up with an attorney from the category that you need (or at least the consultation is very cheap - I know this for a fact). The link to the Bar's referral service is below.http://www.wsba.org/ATJ/contact/lawref.htmLook for an employment attorney.

Best of luck in your matter. I'm here if you need any more clarification or follow up info.



I hope you found my answer helpful, and if so please click on the GREEN ACCEPT button for my answer. This is the only way for me to get credit for my work. Understand that when you put in your payment info, you still have not paid until you press ACCEPT.



Your question will not close, and you will still have the opportunity to follow-up if and I would be happy to answer any and all of the follow up questions.



Remember, sometimes the law under which your situation falls does not give you the outcome or the choices you wanted - please understand that this is not the attorney's fault, but the way of circumstance.



There might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.



Leaving a bonus and positive feedback is not required, but doing so is certainly appreciated!



You can always request me for a future legal consultation through my profile at http://www.justanswer.com/profile.aspx?PF=7286322&FID=7 If you do this, make sure to being the question with “This Question is for Eli…”














Customer: replied 4 years ago.

I will consult the referrals you've listed.. Thank you so much!!

Happy New Year!

Expert:  Ely replied 4 years ago.
Happy New Year to you too. Good luck!

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Ely
Ely
Counselor at Law
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Private practice with focus on family, criminal, PI, consumer protection, and business consultation.