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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 12554
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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Hi~ hope can answer this... My mom is 71 and working in a

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Hi~ hope can answer this...
My mom is 71 and working in a deli. She is collecting ss and a pension. Her boss called her and told her she doesn't need her to come in until she hears from a manager and they might be able to get her 20 hrs a week. She also had surgery and they didn't offer FMLA. They just called her back and asked her to work tomorrow and the rest of the week and they will see when they need her again. should she go in? Alsow is there anything she can do about this>

Hi, Toni, and Welcome to JustAnswer, My name is XXXXX XXXXX I am a Pennsylvania Licensed, Practicing Attorney, and my goal is to provide you with Excellent Service, but need a bit more information, if you do not mind,



1. How long had your mother been working at the deli (Month & Year) when she had to have surgery ?



2. How many hours per week was she working ?



3. How many employees does the deli have ? (I am asking this because in order for the employer to be required to offer unpaid medical leave under the Family Medical Leave Act ("FMLA") there must be a certain number of employees)



4. Please clarify your questions, i.e., what do you mean by


(a) Should she go in ? and


(b) Is there anything she can do about this ? About what ?



Thank you and I look forward to your reply and to assisting you,







Customer: replied 4 years ago.

She has been working there for about 16 years.

She works 6 days a week (48 hours).


They have 3 stores (supermarket) with over 50 employees.


It sounded like they fired her over the phone and then called her casue they don't have anyone to do the inventory tomorrow or Monday. Also they said she can work the rest of the week but after that they don't know when she will work again. The also said they will not give her unemployment cause she is receiving a pension and they will not pay her benefits. Will this make her a part time employee and have to start over as a new employee.


Please let me know if you need any more information.


She is hoping she can get unemployment until she can find another job.

Hi, Toni,


I am typing your Answer. Just wanted to let you know that the site is experiencing tech problems again, We are having a little difficulty in getting back into questions to post the customers' Answers. So, if there is a minor delay, please do not think I have forgotten you,


Thank you again for your kind patience,








Thank you so much for your reply and your additional information, God Bless your Mom, Today['s youth needs people like your Mom as a role model for the work ethic,


Please give me a few minutes to type your Answer. There are several issues here and I would like to cover all of them so that you can discuss them with your Mom.



By the way, I see that the site is experiencing tech problems again, Thank you for your kind patience,







Thank you for your patience,


Your Mom's employer appears to have violated several Federal Statutes which I discus below, but first please permit me to Answer the questions you posed,


1. You stated that it appeared that the employer fired your Mom over the telephone, but then asked her to come in for inventory. You asked if your Mom should go in for the inventory,


Answer 1


It would be best if your Mom did go in and do the inventory so that the employer cannot use her refusal against her and use that as an excuse to terminate her when, in fact, the real reason might be her age and which would be a discriminatory action on the part of the employer and for which your Mom has a cause of action for age discrimination;


You also stated that the employer told your mother that she was not eligible for unemployment compensation because she was receiving a pension.


Answer 2


If your Mom's employer terminates her, she will be eligible to receive unemployment compensation benefits because these benefits are payable to her on account of being terminated and any pension, or other retirement benefit she might be receiving is irrelevant for purposes of determining eligibility for unemployment compensation benefits. It appears that employers will often say this to employees in order to keep their unemployment insurance premiums from increasing because of the number of claims employees have filed. Tell your mother that she has every right to file a claim for unemployment compensation benefits if her employer terminates her;



3. Will that make her a part time employee and will she have to start all over again


Answer 3


An employee's status as full time or part time is contingent solely on the number of hours the employee works and not contingent on the type of benefits the employee is receiving. Whether she will lose seniority will depend on the employer's policy on this issue and he can easily find this out by asking the HR Department for an employee's handbook which addresses this specific issue,



Rights Under FMLA, Under the Civil Rights Act and the Equal Employment Opportunity Commission


If your Mom's employer terminates your Mom, but does not terminate the younger employees who hold similar positions as that of your Mom, it would appear that the termination was based on age discrimination. If such is the case, your Mom should file a formal Complaint (called a "Charge") with the Equal Employment Opportunity Commission ( the "EEOC") for age discrimination. This Complaint must be filed within 180 days of the discriminatory event, or else, she will be time barred. The EEOC will investigate and will then issue your Mom a "Right to Sue" letter at which time she can sue the employer for discrimination based on age. Your Mom does not have to observe the 180 day rule, or wait for a "Right to Sue" letter if she chooses to file a lawsuit against the employer for discrimination based on age under the Civil Rights Act.


With respect to your Mom's rights under the Family Medical Leave Act ("FMLA"), the employer may have violated FMLA if he did not allow your Mom to take the medical leave as provided by FMLA.


FMLA is administered by the US Department of Labor, Wage and Hour Division and applies to any employer who has "50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year" and provides that an employer must post Notices in conspicuous places where employees will be apprised of their rights and must allow an employee to take up to 12 weeks of unpaid medical leave without jeopardizing their job status. . An employee who has worked at least 12 months and at least 1,250 hours during the immediately preceding 12 months is entitled to take up to 12 weeks of unpaid medical leave and the employer must maintain that employee's position open so that the employee may return to their position. If the position is such that the employer cannot hold it open, the employer must place the returning employee in a comparable position upon their return, with comparable seniority, and comparable compensation and benefits. An employer cannot terminate or penalize an employee for exercising their rights under FMLA.



If your Mom's employer terminates your Mom so close to herreturn from surgeryand medical leave, it becomes very suspect and it would appear that she is being penalized for any leave that she too because she required surgery. So, this is another area that your Mom should explore.


If I have not Answered your question completely, please let me know by using the "Reply" button and I will be glad to explain further,


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