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Spouse Terminated while on disability in California

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  • Spouse Terminated while on disability in California

    My wife had knee surgery about 8 months ago and had been on disability since then and had faxed over all her paperwork and called and stayed in contact with her employer on the matter. She had known that her employer had hired someone to take her place while she was out on disability.

    A week before she was going to be released for work she had called the regional manager and talked to him about what was going on and then talked to her new manager(who had been promoted while she was out) about coming back. The regional manager told her he would call back letting her know what was going on while the new manager told her that they were full and there was no room for her. Also when the regional manager called back he had said that they would not deny her unemployment.

    My wife had kinda suspected that this might happen, so she filled for unemployment. A week later, EDD had called for a phone interview and my wife was told her former employer is now denying her claim for unemployment due to "job abandonment" even though she had kept in contact with not only her manager, regional manager, and one of the owners of the company, but she regularly faxed over all paperwork.

    My wife did everything she was told she had to do, and even kept in contact with her company over the phone, and through txt messages. Can they still deny her unemployment? And if they can't, what options do we have on this?

  • #2
    The only thing your wife can do is appeal the UI decision.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    • #3
      If they kept your wife on leave of absence status for eight months, that's five months longer then they were required to. In theory, she did "abandon" her job - that is, at the end of her FMLA leave (the first 12 weeks), she did not return to work even though work was available. She had a valid reason of course - she wasn't medically capable of returning to work yet.

      Your wife's employer cannot grant or deny her unemployment benefits; only the State can do that. All her employer can do is contest her eligibility. Your wife should appeal the State's decision and request a hearing.

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      • #4
        Originally posted by Beth3 View Post
        If they kept your wife on leave of absence status for eight months, that's five months longer then they were required to. In theory, she did "abandon" her job - that is, at the end of her FMLA leave (the first 12 weeks), she did not return to work even though work was available. She had a valid reason of course - she wasn't medically capable of returning to work yet.

        Your wife's employer cannot grant or deny her unemployment benefits; only the State can do that. All her employer can do is contest her eligibility. Your wife should appeal the State's decision and request a hearing.
        But job abandonment is stated as missing work without calling in. My wife had in fact called, faxed, and even appeared in person which is not considered to be job abandonment.

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        • #5
          There is no legal definition of "job abandonment". If the employer wishes to term failure to return at the end of protected medical leave as job abandonment, there is nothing in employment law that is going to force them to change that position.

          Now, whether the unemployment office will agree that it is job abandonment or not, no one here can say. In fact, I would venture to guess that they will not, and that as long as she is NOW able to return to work and actively looking for work, she will be eligible for benefits.

          Please note that even if she prevails with unemployment, the employer is still not obligated to change their description of her term.
          The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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          • #6
            Stated by whom?

            There's no specific legal definition of job abandonment. Each employer is free to have its own definition.

            All we can tell you is that your wife should appeal the decision.
            I am not able to respond to private messages. Thanks!

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            • #7
              If she is denied UI, she should appeal.

              http://www.edd.ca.gov:80/Unemployment/FAQ_-_Appeals.htm
              Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

              Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

              Comment


              • #8
                Originally posted by cbg View Post
                There is no legal definition of "job abandonment". If the employer wishes to term failure to return at the end of protected medical leave as job abandonment, there is nothing in employment law that is going to force them to change that position.

                Now, whether the unemployment office will agree that it is job abandonment or not, no one here can say. In fact, I would venture to guess that they will not, and that as long as she is NOW able to return to work and actively looking for work, she will be eligible for benefits.

                Please note that even if she prevails with unemployment, the employer is still not obligated to change their description of her term.
                It's stated in her empolee handbook, she followed every procedure according to that, and she was laid off before even being eligable to return to work.

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                • #9
                  I understand. That still does not make anything that the employer has done illegal. Nor will it force them to re-categorize her termination in their records.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                  • #10
                    The thing is she didn't return to work (even though she couldn't) when she no
                    longer had any job protected leave.
                    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                    Comment


                    • #11
                      The state will make the decision on whether or not she will collect benefits. "Job abandonment" is not a magic phrase that automatically generates a decision in the employer's favor. They weigh each side's story and then make the call. She can appeal the decision if she is denied benefits. Your wife, when asked, should tell the truth about staying in touch with the company throughout her leave, and speaking to them regarding her return to work during the week leading up to her termination.

                      Hope that helps. Good luck to her.

                      Comment


                      • #12
                        I would lean toward her receiving benefits if she is now ready, willing & able to
                        work but only the state can say for sure if she will receive UI or not.
                        Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

                        Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

                        Comment


                        • #13
                          Based on what you have said here, I would suggest that she file a complaint with the Department of Fair Employment and Housing for disability discrimination. While it's true that she exhausted any applicable protected leave, it is well known in employment law that a leave of absence can be a reasonable accommodation for a disability. She most certainly had a disability under California law. The only potential issue is whether the employer will be able to assert an undue hardship. However, given that they granted her the entire time off and had placed a temporary worker in her position, and only terminated her shortly before she was to return to work, I don't see how they could legitimately argue undue hardship. But that would be an issue for the DFEH to investigate.

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