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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
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It is not a good a good idea to terminate an employee the same

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It is not a good a good idea to terminate an employee the same day when an employee returns from FMLA leave? I know it is possible - the employer can terminate for other reasons when an employee returns for work for non FMLA (so called at-will) reasons.

This situatuion would raise a big flag for the jury at trial, right?

#2 - Can an employee have a non-employee present when an employee is being 'counseled' by HR in a meeting at the employer's office?

thanks!
Hello and thank you for entrusting me to answer your question.

You are correct that although an employer can fire an employee the day that employee returns from FMLA leave (and in fact, even while the employee is OUT on FMLA leave), the employer will face HEAVY scrutiny regarding his or her motivation for the termination. The employer must prove that the termination was for reasons not relating to the employee's FMLA leave. Without performance write-ups or other hard evidence of employee misconduct warranting termination, this would be inviting legal problems.

According to the U.S. Supreme Court in NLRB v. J. Weingarten (1975), unionized employees have the right to have a union representative present during a management investigatory interview. However, non-unionized employees do not enjoy a similar right. Even for union employees, the right is limited to having a union rep present, it can't simply be a "non-employee."

I sincerely XXXXX XXXXX this information helps you and I wish you the very best of luck. Bear in mind that non of the above constitutes legal advice nor is any attorney client relationship created between us.

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