California Employment Law

Have California employment law questions? Ask a lawyer.

Ask a Lawyer,
Get an Answer ASAP!

My wife went on disability mastectomy breast ca. Her

Customer Question
my wife went on disability...
my wife went on disability for a mastectomy breast ca. Her director told her that she had no more FMLA. She responded she was put on disability per DR. order and that she never filed for FMLA. Her director told her that she filed it for her in order to keep her job. My question is can she file FMLA for my wife without her consent to do so. how is it that having surgery be considered as job abandonment.
Submitted: 3 years ago.Category: California Employment Law
Show More
Show Less
Ask Your Own California Employment Law Question
Answered in 16 minutes by:
6/18/2015
California Employment Lawyer: socrateaser, Lawyer replied 3 years ago
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,978
Experience: Retired
Verified
Hello, Your question is actually quite novel. There appears to be no appellate case law on whether an employer can allocate FMLA leave for an employee without providing prior notice of the allocation. DOL regulations clearly state that an employer interferes with an employee's rights under FMLA by "refusing to authorize FMLA leave" and "discouraging an employee from using such leave." 29 C.F.R. § 825.220. It follows that an employer has discouraged an employee from taking FMLA leave when his or her supervisor interferes with the length and dates of leave, including denying leave out right. See, e.g., Williams v. Shenango, Inc., 986 F.Supp. 309, 320-21 (W.D.Pa. 1997) (holding that periodic denials of FMLA leave requests and limitations on which week the employee was allowed to take it presented a genuine issue of fact as to whether the employee's rights under FMLA were denied). The statute and the accompanying regulations protect an employee from any employer actions that discourage or interfere with the right to take FMLA leave. 29 C.F.R. § 825.220(1). See generally, Xin Liu v. Amway Corp., 347 F. 3d 1125, 1134 (9th Cir. 2003). The question in your case is whether or not the employer interferes with the employee's lFMLA benefits by allocating them without notice to the employee. The argument in favor is that the employee may not have needed all of the leave allocated, in which case the employer would have definitely interfered in violation of federal law. The counterargument is that without the allocation, the employee would have been terminated immediately, rendering the entire issue moot. If I were the judge, I would rule than an employer has the right to terminate an employee who doesn't request FMLA benefits. By failing to do so, the employer accepts that the employee was not terminated, and the employee retains her right to the FMLA benefits. If your wife wants to fight about this, she will need an employment rights attorney. If you need a link to a reputable lawyer referral service, please let me know that my answer is helpful, and Iwill be happy to provide further information. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using justanswer.com!
Ask Your Own California Employment Law Question
Customer reply replied 3 years ago
my question is if you are put on disability due to surg. is fmla required. I thought she would be protected being put on disability by her DR. and fmla is not required.
California Employment Lawyer: socrateaser, Lawyer replied 3 years ago
FMLA is the only means of holding a job while unable to work due to a serious health condition. Disability leave does not, by itself, provide any job protection. Your wife's only argument to avoid termination is that the employer voluntarily maintained her employment, while unlawfully utilizing FMLA benefits at the same time. And, then only person who will be able to negotiate a settlement with that legal argument is a lawyer, who must be prepared to sue the employer, if the employer terminates your spouse. I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer -- otherwise, I receive nothing for my efforts in your behalf.Thanks again for using justanswer.com!
Ask Your Own California Employment Law Question
Was this answer helpful?

How JustAnswer works

step-image
Describe your issueThe assistant will guide you
step-image
Chat 1:1 with a california employment lawyerLicensed Experts are available 24/7
step-image
100% satisfaction guaranteeGet all the answers you need
Ask socrateaser Your Own Question
socrateaser
socrateaser
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 39,978
39,978 Satisfied Customers
Experience: Retired

socrateaser is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

LawTalk

LawTalk

Attorney

1,285 satisfied customers

I have 30 years of experience in the practice of law, including employment law and discrimination law.

Tina

Tina

Attorney

923 satisfied customers

JD, 17 years experience & recognized by ABA for excellence in employment law.

Brandon, Esq.

Brandon, Esq.

Lawyer

348 satisfied customers

Has received a certificate of recognition from the California State Senate for his outstanding legal service.

melissamesq

melissamesq

Attorney

47 satisfied customers

Represent clients to maximum recovery in employment cases.

legalg

legalg

Other

53 satisfied customers

General Practitioner. Research Attorney

Roy Hadavi

Roy Hadavi

14 satisfied customers

Attorney at Law Offices of Rosenstein & Associates

Attorney2020

Attorney2020

Lawyer.

69 satisfied customers

I have significant experience in employment law.

< Previous | Next >

Related California Employment Law Questions
I believe I am being defrauded by former employer Bank of
I believe I am being defrauded by former employer Bank of America with my pension … read more
Phillips Esq.
Phillips Esq.
Attorney
JD
19,837 satisfied customers
I have an employee that is exempt and has lots of medical
I have an employee that is exempt and has lots of medical issues regarding his daughter. Our company only has 21 employees in CA the rest of the employees are out-of-state. The problem we are having i… read more
legalg
legalg
Other
Juris Doctorate
53 satisfied customers
I was classified as an independent contractor for the past
I was classified as an independent contractor for the past 10 years. I believe that was a misclassification due to my recent research. My job title was IT computer technician and I was responsible for… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
12,040 satisfied customers
Is it legal for my employer to call and verify my Dr notes
Is it legal for my employer to call and verify my Dr notes from a year ago … read more
Alex Esquire
Alex Esquire
Managing Attorney
Doctoral Degree
153 satisfied customers
I met an attorney here. He suggested that I apply for a job
I met an attorney here. He suggested that I apply for a job with the same company that terminated my contract. If they rehired me what will this do to my claim?… read more
socrateaser
socrateaser
Lawyer
39,978 satisfied customers
We are a small employee and have an issue with a recent new
We are a small employee and have an issue with a recent new hire. … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
Requesting Yepez we need to reduce our staff and will have
Requesting Eric Yepez Eric we need to reduce our staff and will have to RIF two employees do to financial situation Can you ask employees to volunteer or is there a specific criteria for the lay off p… read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
I used to work by someone. I was paid extra a good amount of
I used to work by someone. I was paid extra a good amount of $ stating in my pay-stub that this was because of a settlement, but I have never agreed to any settlement whatsoever with them. Now, becaus… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I suffer from anxiety and sometimes insomnia due to sleep
Hi there, I suffer from anxiety and sometimes insomnia due to sleep anxiety and was recommended by my doctor that I would treat my anxiety with medical THC. It made my anxiety go away and I was succes… read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
Yepez Another situation yesterday, on a roll One of our
Eric Yepez Another situation yesterday, on a roll One of our vehicles was broke down and under repair for the day, Our employee clocked in stayed at home and said that it is not her fault that the van… read more
Eric Y., Esq.
Eric Y., Esq.
Law/J.D.
291 satisfied customers
I was terminated for cause in California. I have been
I was terminated for cause in California. I have been stationed overseas on a long-term work assignment in Europe and have personal belongings in this apartment. The company has agreed to gather my pe… read more
socrateaser
socrateaser
Lawyer
39,978 satisfied customers
Damion Bosco, We have recently installed GPS tracking to our
Damion Bosco,We have recently installed GPS tracking to our vehicles Legally do wehave to inform the employees that they are being tracked This is in the State of California… read more
Eric Y., Esq.
Eric Y., Esq.
Law/J.D.
291 satisfied customers
I was hired to create and apply a special makeup effect of a
I was hired to create and apply a special makeup effect of a fat prosthetic makeup. The client made a few missteps early on, but I provided their makeup. They had me work overtime and made me believe … read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
Is this a straight forward response to performing my job
Is this a straight forward response to performing my job duties with the use of a support brace?… read more
LegalPro54
LegalPro54
Doctoral Degree
1,258 satisfied customers
My employer is not paying me my full wage because they say
my employer is not paying me my full wage because they say they have legal papers allowing them to do so and i have shown them that they are wrong and yeet they are going ahead with it anyway … read more
AlexiaEsq.
AlexiaEsq.
Managing Lawyer/Advocate
Doctoral Degree
37 satisfied customers
I am doing some independent contract work for a company that
I am doing some independent contract work for a company that I used to work for. Would you recommend that I set up a LLC. I don't know if this will be long term because they are looking to hire an emp… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
12,040 satisfied customers
I am an in care home provider of developmentally disabled
Hello,I am an in care home provider of developmentally disabled people. Last Tuesday, I received a phone call from the day program wanting to know if I knew what happened to my client. I was well awar… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
12,040 satisfied customers
In your experience is it impossible to get another job after
In your experience is it impossible to get another job after a alcohol related suspension of a credential (60 days) … read more
Olivia Kent
Olivia Kent
Managing Partner
Doctoral Degree
3,523 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x