Post-Operative Firing May be Grounds for Suit

Employee Rights Attorney

Mission Viejo, California

Q: “My husband recently had two serious eye operations that required him to be absent from work for a total of four weeks over a six week period. He is in middle management at a construction/engineering company with well over 50 employees. He notified the personnel officer in writing of his surgeries and cleared the absences with his superiors.

“When he returned, his supervisor told him on Monday afternoon that if no work came in by the end of the week, he would not have a job. The company offered him no severance pay.

“He is 53 and has a spotless record for eight years with the firm. We have two young children and suffice it to say he and I are devastated. We feel that his company has violated both the letter and the spirit of the Family Leave Act of California and the U.S.

“Are we correct in these assumptions? If so, what are our options, including legal recourse?

A: “Both the California and federal family medical and leave acts require employers to reinstate an employee after returning from family care or medical leave to his or her former position or an equivalent position.

“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.”