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Tina, Attorney
Category: California Employment Law
Satisfied Customers: 33167
Experience:  JD, 17 years experience & recognized by ABA for excellence in employment law.
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I have worked with this company for over 5 years. In that

Resolved Question:

I have worked with this company for over 5 years. In that time I have only received one review and one merit increase and that was the first year I worked here. I have gone to HR, and asked about my reviews and not gotten any help. I have confronted my boss (who is also the CEO) and been told that I have an attendance problem.
We are allowed 10 days a year and if you use more than 5 of those days, you are deemed being excessive.
In 2006 I got my first review and merit increase. It was a good review and I earned a 3% increase.
In 2007 I was out frequently with medical issues.
In 2008 I had a hysterectomy and was out for 6 weeks.
In 2009 I was out of work (LOA) for 3 months due to emotional distress.
This year I have been out of the office 3 days only. -- I keep copies of all my time cards and attendance sheets.
I have tried to talk to my boss and he tells me 'yes, you will get a review' - but it never happens. I have written my own review for him, I have emailed him reminders. Everyone else gets their review and merit increases - it is me that is not getting anything.
Do I have a case for discrimination??
Submitted: 5 years ago.
Category: California Employment Law
Expert:  Tina replied 5 years ago.
Hello and welcome,

Were you on FMLA leave when you were out on leave?

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 something else?

Customer: replied 5 years ago.
I am 58, white professional woman. "He" is a 70 something old Chinese man, and I am his Purchasing Manager. I do not have a degree and that also seems to be a point of contention.
Expert:  Tina replied 5 years ago.
So you were not on FMLA leave when you took leave in the prior years?

Does the company have at least 50 employees?

Customer: replied 5 years ago.
yes, the company has ~350 employees. When I was out in 2009 - it was per the FMLA. When I had my hysterectomy I was on Disability.
Expert:  Tina replied 5 years ago.
I see.

The reason this is important is the FMLA prohibits employers from retaliating against individuals for taking FMLA leave typically. So it is typically best to request FMLA leave when you are eligible since the employer cannot legally count those absences against you. If you did not take FMLA leave when you had your hysterectomy, then the employer can normally use those absences against you in refusing a raise and any claim of discrimination based on age could be thwarted because the employer could justify their actions by pointing to the absences.

Since the employer raised the issue of your absences, this does not appear to involve age discrimination and discriminating against you because you do not have a degree is not protected under state or federal law, so the employer can legally use that against you in refusing a raise.

Because of these facts working against you, it is likely any claim of discrimination against the employer would fail. I'm sorry.

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Customer: replied 5 years ago.
Are Disability and FMLA the same thing?? Am I protected by Disability? Aren't absences on Disability deemed 'excused'??
Expert:  Tina replied 5 years ago.
Disability and FMLA are not the same thing. Disability indicates you were receiving benefits either from the state or through the employer's plan, but with either of those, there are no legal protections against retaliation typically as there is with FMLA leave. So it is important to determine whether you also took FMLA leave during that time.

Excused absences indicate the employer's policy was not violated by the absences, but the employer is not prohibited from then using those absences against you for purposes of determining whether to grant you a raise unless they are protected by the FMLA or state leave laws.

Tina and other California Employment Law Specialists are ready to help you