Wrongful Termination/Retaliation at Private Daycare in New York.

[Myni2024]

I was terrminated on 08/29/12 for not being flexible with my classroom daily schedule which is a schedule that each teacher has to follow. Before I was fired on 08-16 I left work early for vomitting blood in my classroom which parents witnessed. I had a few doctor appt and on 08-23 right after a doctors appt I told my director that I was getting surgery on 09-21 due to a large mass in my left breast which is infected, growing at a fast rate, and turning that infected area skin red. I would need 3 weeks to a month to heal which means I needed time off. I had my doctor papers in which my director viewed so she can see that I was telling the truth. My director said she couldn't give me those days off & I could be fired at any time b/c I am an at will employee. I said but in our handbook we are protected by the FMLA policy. She said ok. The next day the assistant director said to another teacher while i was passing the office an employee is getting fired soon & I hope they don't do another empire state building shooting. On 08/26-08/29 my director put 9 kids in my room which is illegal & a violation of the department of health policy. I'm only allowed 8 kids max in my room. The ratio is 4:1. My assistant & I were over the ratio. I complained to my director & she said there was nothing she can do. When I contacted head quarters everyone was always in a meeting. I was fired on 08-29. Can I sue?

 

[Mass_Shyster]

• I told my director that I was getting surgery
• My director said she couldn't give me those days off & I could be fired at any time b/c I am an at will employee.
• in our handbook we are protected by the FMLA policy
• I was fired on 08-29

Can I sue?

You should certainly speak with an attorney.

 

[commentator]

You've got more issues than you need in your question. Can I sue because of their denial of FMLA? Perhaps. How many employees does this daycare have? How long have you worked there?

Can I sue because they put too many children in my room Very doubtful. Who would you be supposed to report this to? Had you spoken to anyone or tried to resolve the situation?

Can I sue because I was very sick and throwing up and had to leave work and will have to be off work for a few weeks, and so I was fired? Will depend only on whether or not they were federally mandated to give you FMLA. Otherwise, they can fire you "at will" as they said, regardless of how ill you are, but what you need to do is, pretty quickly, file for unemployment benefits.

This is in addition to any other action you might take if they didn't give the proper FMLA leave. This is what you do in addition to and before you speak to any lawyers or try to go any further with this issue. You file very soon, and then if you have enough wages to set up a claim, and you have enough wage credits, you set up the claim, and then as soon as you are released by your doctor to return to work, and your employer has fired you for being too ill to work, you're ready to start drawing it, while you're looking for another job.

Most people are inclined to think they have more rights than they do, that the employer should be required to treat you fairly, and justly and kindly and have no retaliation against you, but unfortunately, employers have pretty much all the power in these situations.

They are not required to do much of anything except provide FMLA if it is required in your situation by federal law and the minute that is up they can give you the boot freely. As far as "retaliation" that's not really an issue you need to address, if they were going to fire you anyway for being out, there was no real reason to worry about how many children are going to be in the class you're not going to be teaching anyhow. You've already been fired.

 

[ecmst12]

I suspect there are not enough employees at this private daycare to be subject to FMLA, even if it's in the handbook. There needs to be 50 within 75 miles.