Fired 5 days after surgery (5 weeks total off work) California California

[nicole70]

I was taken off of work in Sept for numbness and pain in my left arm. I was taken off of work and did physical therapy for 3 weeks. With no change, I was told I needed surgery to replace two disks in my neck. I had stayed in contact with my job (I have been there for 4 years) and have provided them all the paperwork asked of me. (note from doctor saying date etc of my leave) The company I work for is small (less than 50 employees) I worked a desk job in Accounting. I was not given anything when I left, no paperwork etc. 5 days after surgery, I got a call from the Office Manager/HR person saying they were firing me and that it was a "business decision". When I told them I was on disability, they told me I was not even though I am. They then told me they would call me back and for me not to do anything "rash". A day later, they called me back to say yes they were firing me and I was in no "protected class". There are other issues with my employment (an affair between two married people in our office and I was the only one who knew about it. One of them told me.) One of the persons involved in this was the one who fired me. Ah...I could go on and on. But for now, I just wondered what my options are or where to go from here.

[Blessed123]

FMLA would not be applicable since there are less than 50 employees and the state version, CFRA, would not apply as I believe it is 50 or more employees as well. California is an at-will state so the company can terminate your employment for any non-discriminatory reason. If you have been released to work, you can apply for UI benefits and should be eligible. From what you posted it does not appear as if the company did anything illegal.

[nicole70]

What if I felt there was some type of retailiation because of the affair etc? I was told I had 12 weeks of disability before they could fire me etc. Our handbook even states that they have to offer me my position or a position equivilant.

[Endeavor]

You will very likely be deemed "disabled" as defined by CA law (mostly any condition can be a disability in CA). Given that you were not eligible for CFRA, the issue here is whether the employer should have granted you a leave of absence as an accommodation. Did you have a specific return to work date following surgery?

The reasonableness of an accommodation will depend on a number of factors and without more information about your employer, it's difficult to say whether a LOA would have been reasonable. However, the employer is required to grant accommodations unless there is some undue hardship.

You can file a complaint with the Department of Fair Employment and Housing.

[nicole70]

I did have a return date of Nov 2nd. Two weeks after they fired me. I was told they needed someone in the office to do my work even though I know two of the employee's there were splitting my work and they hired a temp. I was told the Director of Finance was "unable" to do my job. She could not do daily cash or balance the bank statements. This person happens to be the one who had an affair and told me about it. She was having an affair with the GM. It does on and on. I will be filing a claim and am looking into other avenues. Me being out was not a hardship on them. The job was getting done. I feel like I was let go due to other factors like knowing about the affair and letting a "higher up" know of some things going on. Like text messages on business phones between these two people. 600 texts in one month for each of them.

[Betty3]

I would go ahead & file a complaint with the Dept. of Fair Employment & Housing as suggested by Endeavor. They will investigate & determine if a leave of absence would have been a "reasonable" accommodation.

[CAIW]

I was taken off of work in Sept for numbness and pain in my left arm. I was taken off of work and did physical therapy for 3 weeks.

I worked a desk job in Accounting. I was not given anything when I left, no paperwork etc.

I was told I needed surgery to replace two disks in my neck.

I'm sorry to edit your org/post, but did anyone mention the words ''workers compensaton''? (Ok, don't everyone scream at the same time....lol)

What you are describing could be a CTS/Cumulative
Trauma Syndrom injury. How long had the symptoms been manifesting ?
Was there any type of sudden, specific onset ? ie. did you lift a heavy box, twist/turn to get out of someone elses path, any number of things could cause aggreviation/exacerbation to an underlying condition...ie DDD or Degenerative Disk Disease comes to mind. DDD in the cerivcal spine could/would be cause for the symptoms you suffered, and need for disk replacement surgery.

It would be difficult to prove, but your ER/HR could be reading the wall here, and in anticipation of your filing a claim for WC benefits, saw what they feel may be to get you out of the picture now, vs later when you would be on firmer ground.

The reason I say these things is because you wrote When I told them I was on disability, they told me I was not even though I am. They then told me they would call me back and for me not to do anything "rash". A day later, they called me back to say yes they were firing me and I was in no "protected class". Your ER has hired a very astute HR person. Obviously with a certain amount of "ESP" and enough whereabouts to check with their attorney.

I feel like I was let go due to other factors like knowing about the affair and letting a "higher up" know of some things going on. Like text messages on business phones between these two people. 600 texts in one month for each of them.

MOO/My Op Only, I think I'd leave this issue out of things here... what you ''heard'' or text messages between other EE's isn't really your concern, unless you had supervisory capability over them. Besides those EE's truning the table on you and claiming you are calling sour grapes for the termination.


I said this about.... (Ok, don't everyone scream at the same time....lol)
, because even though I don't believe all injury/illness are work related or necessarily encourage EE's to file claims, in this case I would. I think nicole should discuss with her PCP the underlying cause of her injury, and whether or not s/he would consider this may be compensable on a industrial basis.
There is a one year statute of limitations to file a claim for WC benefits...clock begins ticking from the first date there is knowledge of the injury, or in a CTS injury/illness, the DOI is the date the claim is filed.
Through evaluation and medical evidence/opinion, the parties will determine where there may be liability, or shared liability if there are multiple ER.

nicole, If you discuss this with your doctor, he can file the Physicans Report of Injury, you won't have to deal with your former ER.
You can get more information on WC here http://www.dir.ca.gov/dwc/InjuredWorker.htm#1

Good luck to you.

[nicole70]

The employee Handbook clearly states under Medical Leaves, page 27 of the Employee Handbook, “Eligible employees are normally granted leave for the period of the disability, up to a maximum of four months every two years.”

In accordance with the Employee Handbook, effective February 2008, page 18, Problem Solving and Alternative Dispute Resolution, this correspondence will serve as my formal request for arbitration in the matter of my discharge from employment.


I am writing a letter now requesting ADR. Any more advise based on this information?

thanks,
Nicole

[ElleMD]

If the "real" reason you were let go was because you knew about an affair and tattled on coworkers for texting excessively, that is legal. The law doesn't protect those who know about affairs or who report the type pf inappropriate behavior you describe.