Terminated for being injured.

[tithulta]

My girlfriend is from California and has been treated very poorly by her employer.

Long story short... She was told she was not allowed to return to work for three weeks, then, at the end of the three weeks, they told her she was terminated without ever being allowed to return to work. She still has not received her final check, or paperwork that explains why she was terminated.


She was told she was terminated over the phone over a week ago. Managment assigned my girlfriend's subordinate to inform her of her termination over the phone. Management did not bother to do it themselves, provide her with any paperwork, or even a final check.

She broke her leg outside of work, and is in a cast. Her job is "floor supervisor" and it is her responsibility to make sure everyone on the floor is doing their job, along with doing refunds and exchanges.

After she injured her leg, she was told that she was not allowed to return to work for 3 weeks because whe was a liability. This was after she had already returned to work for a few days and managed to supervise the floor without any trouble. Obviously, she was able to handle her responsibilities.

This is all amid untrue rumors that she was dating her boss. These rumours were being spread by management.

One person in management was caught saying that the decision was made to terminate her because "We can't have her limping around the store. It looks bad."


So my questions are...

1. Is is legal to fire someone for being injured?

2. Is it legal to assign someone's subordinate to fire them over the phone?

3. Does an employer have to tell you why you are being terminated? Or provide some sort of documentation that accompanies a termination?

4. How long does an employer have to issue a final check?

5. What is the best recourse for this sort of thing?

6. If there is legal recourse, what kind of damages are there?

 

[cbg]

1.) She was not fired for being injured. She was fired for being unavailable for work. That might or might not be legal, depending on the answers to the following questions:
a.) How long has she worked for this employer?
b.) How many employees does the employer have within 75 miles of her location?
c.) In the 12 months immediately preceding her being off work, did she work a minimum of 1,250 hours?
d.) How much time did she miss before being told not to return to work?

2.) Yes. Assuming that the termination is legal at all, it can be done by anyone the employer authorizes to do it. Despite a surprisingly widespread belief to the contrary, there is NOTHING illegal about being termed over the phone.

3.) No. Unless she worked for a public utility, nothing in California law requires them to provide her with a reason for the termination (and if she did work for a public utility, they do not have to provide a reason unless she requests it in writing). There is no documentation that is immediately due; she will need to be provided with information about COBRA and any other applicable benefits but the employer has time before that is due.

4.) In CA, since she was terminated, the final check was due on the last day she was officially employed. She can file a complaint with the CA DLSE if this did not occur; she may be entitled to waiting time penalties as well.

5.) I've already told you the available recourse for the final check; we don't know until you answer the questions in #1 if any other recourse is available.

6.) See above.

 

[tithulta]

Answers to 1

1. She was available to work and even worked several days after her injury. They told her she was not allowed to come back to work for three weeks because she was a liability. So, technically, I think that makes her available.

a) She worked for the employer for just over three months.

b) 17 for the regulars, over 50 if you count the temps they use.

c) She had not worked 1250 hours at this job. But she has been consistently full time for the past year.

d) She was in the middle of her shift when they told her she could not come back to work.



Thank you.

 

[cbg]

Because she had worked for the employer for less than a year, she was not entitled to FMLA and CA has no state-mandated leave that applies in this situation. They therefore were not required by law to provide her with any medical leave at all and her absence was not protected.

A broken leg is not a condition that would qualify her for any protection under the ADA.

Since she broke her leg outside of work hours, workers comp does not apply and she has no protection there.

So while I do not agree with her employer's position, I can't see any legal violation in her termination.

If they did not provide her final check on the last day of her employment, that is a violation and I told you in my first response what to do about that.

If she was covered on the company health plan, they have 44 days from the last day of her coverage (which may or may not be the last day of her employment) to provide her with information about COBRA. If they fail to do so, she can contact the US DOL as they are the regulatory agency for COBRA.

Other than that, her recourse is to file for unemployment and look for another job.

 

[tithulta]

unemployment

When was the employer required to provide her with her check? The first day they asked her not to come back, or the day they had her subordinate tell her over the phone (the day before she was supposed to come back) that she was, indeed, terminated?

I doubt unemployment is retroactive. I would guess they both start on the day she was notified of her termination, even though the decision was made weeks before hand.


My concern here is that they seem to have intentionally denied her money by not allowing her to apply for unemployment and by not giving her the final check. It seems malicious in intent the way that it was handled, especially when everyone in the whole store knows about her termination weeks before she did.

 

[moburkes]

The company does not control when she applies for unemployment.

If they knew about her termination weeks before she did, someone should have told her.

 

[tithulta]

Ignored

The employer still has not delivered the final paycheck, so my girlfriend has filed a claim the the DLSE, who says that it will take 30 days before anyone even reviews the case.

She has notified the employer every two days since being terminated that she has not received her check. They have chosen not to respond, even after being informed of the claim withe DLSE.

Of course, she will not be able to pay her bills, and will incur late fees for several items because they refuse to send her her check. Employees of the company who receive regular payroll checks have been payed for the following pay period, while, 24 days later, my girlfriend has been completely ignored.

Unfortunately, it would seem that it is perfectly legal to fire someone for being injured in California. That is sad, especially when the injury will heal in another week and a half.

 

[ecmst12]

If she qualified for FMLA, it would NOT have been legal for them to fire her. However, FMLA(and the CA law in the same family) would be the only law to offer this protection.

 

[VeronicaLodge]

it was already established in the thread that she did not qualify for FMLA

 

[mlane58]

it was already established in the thread that she did not qualify for FMLA

Was that statement neccessary?

 

[tithulta]

In writing

It is true. To qualify, she would have had to worked there for 1250 hours, which is not the case. Here is what was provided with the termination.

(I can't believe they still cannot spell her name right, but I edited it out.) It says Sales Associate here, which would have been a demotion that they never bothered to tell her about. Originally, she was hired as a Floor Manager, and then she was given keys to the store by the owner of the store. She was able to perform her duties immediately after her leg was broken, so a lot of this is untruthful.

What is also left out of this letter is the fact that she was told not to come back to work for three weeks in the beginning of January because she was a liability. The 17th was the day before she was to return to work. In effect, she was intentionally denied unemployment for this time since the decision to terminate her had already been made.

Another important item left out of the letter is the fact that someone else had told her thatr she had been terminated and that the whole store had known about it for weeks. Since management was too cowardly to inform ****** ofthis, they simply assigned one of the sales associates to go to her house after work and pick up the keys from her on the 8th of January.

When asking for penalties on the final check, does anyone know if the day of non-payment should begin when the decision was made, when everyone in the store knew about it, or when management finally told her (only when she specifically asked) on the 17th?

1/22/08

**********:

****** broke her leg in December leaving her unable to work as a Sales Associate at Leaping Lotus. Working in our 21,000 sq. ft retail establishment requires our sales associates to circulate on the floor for 8 hours per day. ****** cannot circulate nor perform normal sales associate duties at this time. A replacement was hired on January __, 2008, we currently have no position for hire at this time. On Thursday January 17, 2008 ****** was told she would not be put back on the schedule at this time as there was no position to fill. She asked if that meant she was terminated, I told her at this time yes, since she cannot be put back on the schedule.



(name removed),


Executive Director