fired ,and is the reason legal?
ramirez302
6 Posts
firday i called into work to say that I would not be able to make it in. She replied with "well you have to youre the only other closer!" well I was in a car accident (rear ended) back in april and since then i have had chronic back pain and every now and they it flairs up BAD. and that was one of the days. well 5 min after we hung up she called back and said "you know dont bother coming in next week....just come in the pick up your check....i notice you have alot of pain...." blah blah blah. so what i am wonding....was it legal for her to fire me....i mean she implicated my back problem in her litte speech. i had never missed a day due to that....i left early ONCE and that was because of my morning sickness...it had nothing to do with my back. ANY ASSISTANCE WOULD BE GREATLY APPRECIATED!!!
Comments
Your absences....resulting from your back injury and your pregnancy....MAY BE covered under federal Family and Medical Leave Act and California's Family Rights Act and the Pregnancy Disability Leave Act (since you idncate you're in California).
Basically, FMLA/CFRA and PDLA absences may be prohibited from being "counted against the employee" if they meet the following criteria: FMLA and CFRA require an emplyer to have at least 50 employees, and requires the partiuclar employee to have worked for at least one year for the compnay and within the previous 12 months prior to taking the leave, have worked 1,250 hours. PDLA covers a California emplyer who has at least 5 emplyees and there is no time requirement for an emplyee. FMLA/CFRA give up to 12 weeks unpaid leave while PDLA allows up to 4 months. For FMLA and CFRA, the employee must have a serious health condition that is certified to by the physician. There is more definiton to serious health condition, especially if intermittent leave is involved, that you need to look at.
I bring these laws up because it is possible that your back injury may qualify for intermittent leave under FMLA/CFRA if all requirments are met. I'm not saying that it does, but certainly that possibility needs to looked at.
Take a look at the US Department of Labor Website, e-law advisor for FMLA ...
[url]http://www.dol.gov/elaws/fmla.htm[/url]
Take a look at California's Department of Fair Employment and Housing regarding CFRA ... [url]http://www.dfeh.ca.gov/Statutes/cfra.asp[/url]
You don't say too much about the pregnancy and it's impact on your ability to work.
The basic question of whether it's legal or not for them to hold your absences against you as you have indicated, can't be answered until FMLA/CFRA is looked at and what you told your supervisor at the following the auto accident about your need for time off because of it, why you are taking time off, what the doctor is saying on your need for time off that results from your back injury, whether your absences can fall under intermittent leave.
Did you and your supervisor discuss the need for time off since April and whether FMLA/CFRA would be applicable? Was there any doctor's statement?
The immediate problem is that this is all after the fact. So, it depends on what you and your superivsor discussed when the need for the absences first due to the back injury and the pregnancy and whether or not you gave the supervisor enough information to put your employer on notice that your absences COULD fall under FMLA/CFRA and PDLA. It would have then become your employer's responsibility to discuss those laws and your rights with you (if your employer and you met the requirements) and then determine if your particular medical condition and need for absences due to your medical conditions (back injury and pregnancy).
I strongly suggest you take a look at those websites and get the information as it applies to your particular situation and then talk to your supervisor if it looks like your absences COULD or SHOULD have been covered under FMLA/CFRA and PDLA but weren't because your former employer didn't do what it was required to do. You may need to also talk to a lawyer. The nuances of who said what and when may be important.
Now, back to the case at point. I have/had never missed a day due to my back pain. I left work 3 hours early ONCE because of my morning sickness, and I had never been late, including back from my breaks and lunch. the thing about this boss is that she does not have the experience that is needed for the position she is in. the assistant managers have pointed that out many times and one did so, to her, just a week 1/2 ago. she is irrisponsible to put it nicely. on my last pay check seh forgot to add 13 hours, and when i pointed it out the THIRD time was when she finally looked into it. she changes schedules at the last min and expects everyone to drop every plan they have. and when she does change the schedules....she does not even tell the person. now i know this is a job and i have a responsibility as a responsible employee to work when i am scheduled, but i am sure that everyone makes plans around their schedules...some you cannot change...how does that make you feel when you suddendly find out you do have to work. (I had a final and my group was only able to meet on monday at 5pm and she changed my schedule so i then had to work from 1-8...I called in and asked if she wanted me to come in from 1-4 and she said NO!) also....BEFORE i was even hired, i told her I had school and what hours i was there, 3 times she scheduled me durring school hours and i had to tell her, she never changed the hours that day she just said "i'll take care of it." is there any other background that you feel i should provide? and i appologize for not giving the full info in the first post....it was 9pm and i was just browsing the web for help in theis matter and stumbled upon this, thanks for the help.
What has your overall attendance been like since you started with the company? Is this the first time that your sueprvisor has said anything about your attendance and your need to be at work?
I think you need to talk to your supervisor and her manager as well as to your employer's HR. Find out what he company's policy is on attendance.
God luck.
However, I must say that I find it strange that she says she only missed twice (once for her back and once to leave early due to morning sickness) and then goes on to state that she couldn't work one time when she got scheduled to work during finals. Ramirez302, if I was the employer I would consider that a time when you let me down, at least partially, even if it wasn't exactly your fault. Did you try to find someone to fill in for you, or just leave it up to the manager? If you know she changes the schedule around, do you check it frequently to make sure all is ok and you won't be letting the company down if there is a schedule conflict? Having a manager with poor management skills is not an excuse for being a poor employee. Also, I can't help wondering how many other times you weren't there that you DIDN'T count as an absence but your manager did.
I guess we'll just have to agree to disagree on this one.
>01:09 PM (CST)[/font]
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>Pardon me if my inferences are wrong; but, I think your posts are
>replete with suggestions that you are struggling to get encouragement
>and input from others on how quickly, under what statutes and for how
>much you can sue your employer. And the personal attack on the
>supervisor does little to shift the responsibility from you to her.
>You mention 'sue happy' and 'building a legal case' and your primary
>interest seems to be gathering opinions of support that you should 'go
>after somebody'. No employer is obligated to accommodate such things
>as final exams or attendance at night classes or repetitive absences
>or tardies, even when you can tie those absences (weakly) to your own
>medical diagnoses and excuses for how you feel physically. Sorry, but
>employers do have a right to expect performance and maximum work
>output from employees rather than constant ill feelings and lack of
>reliability. The employer has a limited ability to operate in your
>world of unexpected absences and questionable dependability. Nor does
>she have an obligation to accommodate your schooling schedule unless
>she agreed to do that. I sense that you are rather young and I
>hesitate to suggest (but will anyway) that if you don't step your
>'work maturity' up a notch or two, you are in for years and years of
>unhappiness in the workplace, not to mention a long string of job
>changes. Please seek a way to find common ground and work WITH your
>employer rather than adversarily. Good luck to you.
Ummm...here I go...butting in again...but I fell like playing the
contrarian for the moment: Her employer IS required to accomodate her if the medical condition prevents/interferes with a major life activity and her ability to do the essential functions of her job. Its called ADA. I'm sure you've heard of it?. Seems to me the timing of the discharge would create the inference that the discharge was retaliatory if she had invoked FMLA. Too bad she wasn't there a couple of months longer to trigger an FMLA claim. The inference would certainly defeat any employer's motion for summary judgement. And allow the case to go to trial on an FMLA claim.
As far as trying to get along with coworkers/emploryers, yes that is definately the best advice considering you have to be there 8 hours day. Might as well make it a happy 8 hours. On the other hand, at-will employment does give employers/managers a license to screw around with you and to harass those they feel are vulnerable or ignorant of their rights. Does not appear as common in places where employees are covered by a collective bargaining agreement(aka union) or civil service protection. I can tell you stories that would make your hair curl up on the back of your neck some of the things I've seen employers do
to their employees for a variety of reasons. Its been my experience that most employers are not concerned with getting the "best" person for the job. Rather, they are looking to find the most "acceptable" person. I speake from personal experience. I consider myself to be the elite at what I do and as such have always gotten exceptional performance reviews. Yet I can show a long history of job changes,layoffs, firings, reassignments (i.e adverse employment actions)
I hate to say that I've lost faith in my fellow man, but I find myself putting things in writing more now than ever before and summarizing oral conversations with coworkers/management via e-mail.
All the Best..