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Patrick, Esq.
Patrick, Esq., Lawyer
Category: Employment Law
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Experience:  Significant experience in all areas of employment law.
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I have worked company 22 years. About 4 years ago I was

Customer Question

I have worked for a company for over 22 years. About 4 years ago I was diagnosed with Epilepsy. I filed my FMLA papers as I had a problem with memory. Over the last 12 months I have been written up every time I would make a mistake. Two weeks prior to my FMLA papers being renewed last December, they no longer allowed me to answer the telephone. They stated it made me stressed, which was incorrect. I explained to them I was comfortable answering the phone as I always had been. I was written up for every infraction, yet no one else in the office seemed to be written up for the same things. I was terminated Wednesday, February 17 with the explanation it was an at-will state. They want me to sign a paper saying I resigned, not that I was terminated. What do you recommend? Vicki Bertok
Submitted: 1 year ago.
Category: Employment Law
Expert:  Patrick, Esq. replied 1 year ago.

Hello and thank you for entrusting me to assist you. My name is ***** ***** I will do everything I can to answer your question.

Your employer is correct that Virginia is an "at will" employment statement. This means that an employee can be terminated for any reason not amounting to discrimination on the basis of a legally protected trait (race, religion, gender, etc.) or retaliation for engaging in certain forms of legally protected conduct. It doesn't matter whether the basis for termination is fair, reasonable or even true.

This doesn't mean you have no claim, though. It is illegal to terminate an employee in retaliation for their use of FMLA. Given that other employees were not disciplined for making similar mistakes and that you were removed from phone duties for no good reason shortly after renewing your FMLA, you can certainly try to make the argument that your employer was retaliating against you for taking FMLA leave.

Therefore, it would be a very bad idea to sign any documents stating that you resigned. First, you didn't resign and it is never wise to sign something that isn't true. Second, sighing such a statement will essentially preclude you from claiming wrongful termination, since you will be admitting that you weren't terminated. Finally, signing such a statement may preclude you from collecting unemployment benefits.

You can pursue an FMLA retaliation claim either by filing a lawsuit in civil court with the assistance of an attorney or filing a complaint with the Department of Labor. Hiring an attorney is preferable because the DOL is understaffed and does not "represent you." They are a neutral agency that will investigate, but they have very limited power to actually resolve disputes.

Lawyers take viable FMLA retaliation cases on a contingency fee basis. If you don't know, a contingency fee arrangement is one in which the attorney receives a portion of the client's settlement or award as his payment, typically 1/3 of the total amount. If there is no recovery, the attorney does not get paid. The client never pays until the settlement or award is obtained (except perhaps to cover the filing costs for his claim). You can locate a lawyer in your area here.

You also may wish to consider paying a lawyer out of pocket to negotiate a severance agreement with your employer in which you waive your right to bring an FMLA retaliation claim in exchange for financial compensation. This is essentially an early kind of settlement. It may be appropriate here, and while attorneys can probably do this for you on contingency, it might make more sense to simply pay them out of pocket hourly since it could be that they can negotiate a settlement very quickly and you will save money by paying hourly rather than giving them a percentage of your recovery.

I hope that you find this information helpful. 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 moving forward.

Expert:  Patrick, Esq. replied 1 year ago.

Hello again,

I just wanted to followup with you to make sure that you did not have any further questions or concerns. For some unknown reason, the experts are not always getting replies or ratings (which is how we get credit for our work) that the customer thinks have gone through. In your case I have not yet received either. 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.

Very best wishes.