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Patrick, Esq.
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In 2012 I took FMLA to have surgery. After 3 months I was

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In 2012 I took FMLA to have surgery. After 3 months I was ready to return but received a letter from my company stating there would be no job to return to as the company was going to close. I was a Vice president, $75.000 per year plus bonuses and had been employed there for 17 years.
Before I took my FMLA leave my employer was discussing with me that he may have to start laying off the higher salaried staff as the company was not doing well. He told me that he could offer me a high severance package if this happened but he told me that he hoped I would be able to return to assist him.
Three months later I asked to return to work but received a mailed letter informing there would be no job to return to as the company was not doing well and they were going to wind down the business and eventually close it down. I believe the latter eventually happened.
Just wondering, do I have any financial recourse?
Thank you,
Patricia Goodwin

Good morning and thank you very much for your question. I'm sorry to hear that you were let go following your FMLA leave and completely understand your concerns.

Generally speaking, employers are required to return employees who have taken FMLA leave to the same or a substantially equivalent position. However, where an employer can demonstrate a legitimate business necessity for denying an employee a return position, such as the company is in the process of shutting down, they are under no obligation to re-hire. When denying an employee who has taken FMLA a return position, the employer bears the burden of proving that there was legitimate economic reasons for not hiring them back. McDonnell Douglas Corp. v. Green, (1973) 411 U.S. 792

It would seem under the circumstances you descirbe that your employer likely would satisfy this burden of proof because the company did eventually shut down and so it is reasonable to assume that you position would have been eliminated anyway at the time you notified your employer of your intent to return.

My only question is how long it actually took the company to go under and how many other employees were laid off at the time you were told your position was no longer available. If a substantial amount of time lapsed before the company went out of business and most other employees were kept on, you may be able to argue that your position was eliminated prematurely and it was a result of your FMLA. That may give rise to a modest claim for loss of earnings--the idea being that had you not taken FMLA, you would have been employed with the company past the date you were let go. However, given that the company is no longer in business, it may be extremely hard to collect on such a claim, if even possible, and the claim value would probably be small and be difficult to prove.

This is the extent of recourse that I see on the basis of the facts you have described. Again, since employers are not required to re-hire individuals on FMLA if the employer can demonstrate a legitimate economic inability to do so, and your employer did shut down, they likely can satisfy the burden of proof that their motives for refusing to rehire you were not improper. It may be possible to argue that you would have had a few more weeks of employment but for your FMLA and that you were essentially terminated prematurely as a result of it, but such a claim would be difficult to prove and particularly hard to collect on, since the company is now out of business. Thus, it may not be worth the time and effort of pursuit.

Please do not hesitate to let me know if you have any questions or concerns regarding the above and I will be more than happy to assist you further.

If you do not require any further assistance, please be so kind as to provide a positive rating of my service so that I may receive credit for assisting you.

Very best wishes to you and thank you so much for coming to Just Answer.
Patrick, Esq. and other California Employment Law Specialists are ready to help you
Hi Patricia,

The system is alerting me that you have responded, but I do not see anything from you. In the event this is a mistake, I apologize. Either way, please let me know if I can assist you further.

Best wishes.

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