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  • Termination after scheduled surgery and rehab.

    This is a question regarding Massachusetts labor laws. I worked for a company as a customer service rep (CSR). answering phones, taking orders, completing e-mail orders and answering questions. I needed to have a total hip replacement and the time came to get it done. It was well worth it! I talked to my supervisor since August 2005 when I decided to do and told him the date was for October 2005 and it would be a minimum of four weeks off. Prior to leaving I was advised by the HR person on how many days I had coming from vacation and sick time. I said I would try to come back as soon as possible, even part time like I did in 2004 when I had a triple bypass. He said there may not be a position for me when I get back. The company is about 50 strong and there are some part time CSR's. I decided to wait it out because as far as I could find out they couldn't let me go for having surgery.

    I called my supervisor at least once a week advising him of my progress and asking how business was going and what was new. On Friday December 2 I went back to talk to my supervisor, HR person and the CSR manager. I was told they had hired someone to replace me and would be starting on the following Monday, the same day I would have started back. The doctor's note said I needed to have two weeks of modified work but sitting in front of a computer talking to people is not physical and would not have affected my hip.

    The question is: Is this wrongful termination? I have a copy of a employees handbook that outlines time off for disability that was passed out by the previous HR person but I can't be sure if it was signed by the management.
    As an added point, even though there is no proof I was the oldest CSR and will be 60 in January 2006. Thank you.
    Last edited by Capt. Fred; 12-28-2005, 03:32 PM.

  • #2
    Do you know if the company has to comply with the Family Medical Leave Act? And if so, do you meet the requirements?

    1. Does the employer have at least 50 employees at your job site or within a 75-mile radius of your job site?

    2. Had you worked there for a least one year prior to going out for the surgery?

    3. Had you worked at least 1,250 hours in the either the calendar year or the immediate 12 months preceding your surgery?

    4. How long were you out altogether?

    Congratulations on the successful surgery.
    I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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    • #3
      Termination after surgery and rehab

      1. There are 30 people on the phone list plus two new people that I know of, my replacement and a COO, and the people in the warehouse. I believe there are more than 50 people.
      2. I've worked at the company since 2/11/04.
      3. I worked for 40 hour weeks since last June.
      4. I was out six weeks and was notified by letter on Dec. 18.
      Last edited by Capt. Fred; 12-28-2005, 08:29 PM.

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      • #4
        Since the employer has less than 50 employees, they are not subject to the federal Family Medical Leave Act, which could have protected your position for up to 12 weeks. However, I believe that MA has a state version, and one of our MA experts will be along shortly, I'm sure.
        I don't respond to Private Messages unless the moderator specifically refers you to me for that purpose. Thank you.

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        • #5
          The MA version applies ONLY to pregnancy.
          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
            Cathy, Thanks for catching the last piece of the post. I didn't see it until now. I agree. The only similar type policy in MA is the MMLA (the Massachusetts Maternity Leave Act, c.149, sec.105D).
            Phil
            This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

            This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

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            • #7
              Termination after surgery and rehab

              Originally posted by Pattymd
              Since the employer has less than 50 employees, they are not subject to the federal Family Medical Leave Act, which could have protected your position for up to 12 weeks. However, I believe that MA has a state version, and one of our MA experts will be along shortly, I'm sure.
              Is there anywhere in Massachusetts where I can find out the total number of employees in a business?

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              • #8
                No that I know of of the top of my head. I'm not sure the number of employees an employer has is public record, or even tracked except by state agencies such as the unemployment office or a workers compensation carrier. Phil?
                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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                • #9
                  I usually find that out in depositions during a law suit. Otherwise you could try:

                  Dunn & Bradstreet.

                  SEC filings.

                  A Freedom of Information Act request to the Dept. of Industrial Accidents (DIA) for the company's worker's compensation filings OR to the Division of Unemlpoyment Assistance (DUA) for unemployment insurance filings. Or maybe you could just call DIA or DUA.

                  Good luck,
                  Phil
                  This post is by Philip Gordon, a Massachusetts employment attorney (www.gordonllp.com).

                  This post is NOT legal advice. It is for general/educational information purposes only. You should not rely on this post if you are making decisions, and it does not create an attorney-client relationship. This post may be considered "advertising" under the MA professional rules for attorneys.

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