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Terminated Emplyee Denied Severance After Raising FMLA

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  • Terminated Emplyee Denied Severance After Raising FMLA

    I would appreciate any thoughts on the following situation in CA:
    1. Employee terminated the day after coming back from paternity leave.
    2. Employee offered 4 months severance.
    3. Employee raises issue of FMLA and gets attorney who calls company.
    4. Company outside attorney responds (possibly correctly) that it is too small to fall under FMLA guidelines.
    5. Company withdrew severance offer due to bringing up issue of FMLA (in part, because it cost the company money to get a lawyer to examine issue). Company offered severance to other similarly situated employees.

    Do any FMLA or other laws regarding retaliation apply to company that is too small to fall under FMLA leave?

    Additional note: Terminated employee's wife had severe medical problems during pregnancy (including being bedridden for 2 months) which prevented him from travelling. Baby was also born with medical problems that would have caused employee to take leave - so seems that company didn't want to risk having an employee who could not travel.


    Last edited by treckerj; 03-15-2009, 06:55 PM.

  • #2
    Duplicate post. Please post each question only once as all the responders read all the forums - multiple posts only serve to confuse.
    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.


    • #3
      There is no law that requires an employer to pay severence


      • #4
        Retaliation v Severance Requirements

        Acknowledged that there are not any laws requiring severance, but there are laws prohibiting retaliation against an employee for exercising FMLA rights. So, there are two questions:
        1. Assuming the company was subject to FMLA (and in fact, they thought they were and routinely discussed FMLA leave), would the withdrawl or denial of severance be a form of prohibited retaliation?

        2. Assuming yes above, does the restriction on retaliation apply to a company that does not have sufficient employees to be subject to FMLA (and does fact that they thought they were subject to FMLA have any impact).


        • #5
          Wait for cbg but since severence is not required by law I dont see the fit


          • #6
            I made the other thread the duplicate thread since this one has more posts/answers than
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            • #7
              Okay, let's clarify a few things here.

              Exactly how many employees does the employer have?

              How much time, in total, did the employee take?
              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.


              • #8
                Employee took some intermittent leave (less than 2 weeks) to care for his wife while she was bed ridden prior to the birth and then less than 3 weeks at the birth.
                Company had just under 50 employees (probably around 45).


                • #9
                  Both FMLA and CFRA require 50 employees. Neither law prohibits an employer from offering the same time/amount of leave that a larger employer is required to, but the fact that it is offered does not mean that the employer then becomes subject to those laws. So, no, I don't think that you have a case for retaliation given that FMLA does not apply to the employer.

                  It sounds like what happened is that you burned some bridges by raising a spurious claim that cost the employer money to research and respond to. Unfortunately, that's not illegal.
                  I am not able to respond to private messages. Thanks!


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