Employee Rights Attorney

Mission Viejo, California

Q: After working three months at a company, I suddenly had to go on sick leave for bladder problems and rheumatoid arthritis. After my first week, off, the company direct deposited a week’s pay into my bank account. I thought it was sick pay. Then it happened again. I immediately called, and they said they were retrieving the money and also requested that I pay back the first check. I agreed to do so when I returned to work. When they found out my return date was uncertain due to upcoming surgery, they fired me. They said they needed to replace me and “clear the books.” They also requested the money back. Is that legal?

A: “Although you are not eligible for the statutory 12 weeks’ unpaid medical leave because of short tenure with the company, you may have other rights,” says employee rights attorney Stephen C. Kimball of Don D. Sessions Law Corp., Mission Viejo. “If they fired you because of your illness, not your absence, you may have a claim for discrimination. If your work contributed to your illness, you may have a workers’ compensation claim and a retaliation claim as well. Review company sick, vacation or personal leave policies, if any, to make sure they were followed.

“If the company agreed to be paid back only if you returned to work, they may have breached the agreement because they terminated you. Otherwise, the company has the right to request a return of the money and expect you to pay it back. If you refuse, they could sue you.

“As a practical matter, you could request to keep the money, in light of your termination. They may allow this. It doesn’t hurt to ask.”

“But the employer can terminate your husband if he would have been laid off regardless of the leave.

“The employer also can refuse to reinstate a ‘key’ employee-one who receives a salary and ranks among the top 10% of the employees in pay. The company also can refuse to reinstate an employee if that is considered necessary to prevent substantial and grievous economic injury to the employer’s operations.

“There are certain notices that the employer must give to be able to use the ‘key’ employee exception.

“Evaluate if the lack of work excuse is simply a pretext. If your husband has more experience and tenure than his peers, perhaps other people should have been laid off instead.

“He also might be protected under other rules that prohibit discrimination. The employer might be liable, for example, if it decided to lay off your husband rather than attempting to make accommodations for his worsened eye condition.

“Have your case evaluated by an attorney and attempt a forced reinstatement, a reasonable settlement with termination, or a lawsuit. In the alternative, you could file a claim with the Department of Fair Employment and Housing or the Equal Employment Opportunity Commission for the medical leave or discrimination violations.”