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Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 20363
Experience:  Licensed Attorney with 29 yrs. exp in Employment Law
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On xmas day of 2013 I broke my leg. I suffered a displaced spiral fracture of the lower fi

Customer Question

On xmas day of 2013 I broke my leg. I suffered a displaced spiral fracture of the lower fibula on my right leg. I gave updates with every appt, along with pics of X-rays. In May the company hired a temporary girl till my return. In September I contacted the office due to lack of communication from them (even though I continued with my medical updates). It was then I found out they hired the temp and I no longer had a job. I was given no notice I actually found out over text messaging that I did not have a job any longer. In March the company placed an ad on Craigslist for a part time help. I called and asked for my job and was told no again. They hired the temp at my rate and the new girl at a lower rate. Can I sue for wrongful term? This doesn't seem fair to me. I will await your response.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Marsha411JD replied 2 years ago.
Hello,Thank you for the information and your question. In order to assist you I will need some additional information. Can you tell me about how many employees your employer has? Were you on FMLA initially with your injury? How often were you updating HR and did they ever say that your position would be yours when you got better? Did you have medical insurance through them and, if so, did you ever receive your COBRA rights notice from them?
Customer: replied 2 years ago.
Thank you for your response. Here are your answers to the questions.
This was a small business, 1 girl office (me), 1 estimator, the owner / president, 8 guys on construction site.
I did not take FMLA, seasonal company, we basically shut down outside work for winter, boss told me take as much time as needed.
My boss received updates via email, phone and text, every 3 weeks after each of my apps.
It was never said I would not have a job. In fact in May they offered to pick me up and drive me, since I couldn't but doc said no.
My insurance benefits are thru my husband.
I hope these answers help.
Expert:  Marsha411JD replied 2 years ago.
Hello again and thank you for your reply, it was very helpful. You would have not been eligible for the 12 week job protection provided by FMLA because your employer has less than 50 employees. In addition, the Americans with Disabilities Act, which provides some protection from discrimination on the basis of an employee's disability (temporary or permanent), does not apply to employers with fewer than 15 employees. The one bit of good news here is that Illinois law does protect employees from discrimination on the basis of a disability even if the employer only has one employee. All that said, Illinois is an employment "at will" state, which means that an employer can terminate an employee for any, or no, reason and with no notice or writing unless the termination would violate a contract or employment discrimination law. The law allows for termination of an employee who cannot meet attendance requirements. In other words, if they can't work, an employer may terminate them as long as they would terminate any employee, whether disabled, sick, or not, for missing the same amount of work as you did. Therefore, unless there is evidence that your employer was in the habit of giving other employees indefinite leave with the ability to retain their job, there would not be a cause of action for wrongful termination tied to discrimination (which would be the only type of wrongful termination open to you because of the "at will" rule.) If you do believe there is such evidence, then you can file a discrimination complaint with the Illinois Department of Human Rights and then speak to a local employment law attorney about whether you want to wait for the State to try to resolve the issue or you want to file suit. Please feel free to ask for clarification. I would be glad to assist you further if I can.
Expert:  Marsha411JD replied 2 years ago.
Hello again,
I wanted to touch base with you and make sure that you did not have any follow up questions for me from the answer I provided to you on the 13th. For some unknown reason, the Experts are not always getting replies or ratings (in the pop up box for this question, which is how we get credit (paid) for our work) that the customer thinks have gone through. In your case I received neither. If you are having technical difficulties with reading, replying or rating, please let me know so that I can inform the Site administrator.
In any event, it was a pleasure assisting you and I would be glad to attempt to assist you further on this issue, or a new legal issue, if needed. You can bookmark my page at:
Thank you.
Customer: replied 2 years ago.
Hello Marsha,
I apologize for not responding. After my boss replaced me with a lady part time, they put an ad in the paper for a second girl in that office. This is even after asking for my job back repeatedly. The girl hired cost less and was younger. I just feel like I got screwed. After 25 years, not 1 bad mark on my file, the new owners inherent 35 yr old son wanted me out. When I broke my leg he got his way. You did your job and answered my question.
Thank you
Elizabeth Downing
Expert:  Marsha411JD replied 2 years ago.
Thank you for your reply and I can understand your frustration and disappointment and wish you the best. If you could leave a positive rating in the pop up box that comes with this response I'll get credit for my work. thanks again