About a month or so ago, My mother went to the hospital because of an inflamed pancreas and was pretty much bedridden for 2-3 weeks before and after the surgery(they removed her gall bladder and fixed her plumbing). Afterwards, she spent a week getting strong enough to drive and learning to eat regular food again. She’s better now, but now she has a new problem.
She worked at small(less then 50 people) Morgage Company, who, when she called them to tell them she was going back to work, told her that she no longer had a job there. She found out now that she had lost her job before she had gone into surgery, weeks before(but no one bothered to tell her). They paid her sick leave and vacation time, but that’s all. Her boss gave her an excuse that she didn’t talk to the boss personally(of course, the boss never bothered to actually call her or visit her in the hospital either).
Now my question is, is it legal to fire someone while they are ill and cannot come into work because they can barely get out of bed(and have to eat through a IV)? She has been wondering if under the “Americans with Disabilities Act”, she would have good grounds for a lawsuit. I was wondering if anyone knew anything about this or how to get in contact with those who would.
Generally, small companies are exempt from federal laws like the Family Medical Leave Act and such. Laws will vary greatly from state to state. If you are in an “at will” state (such as California) you can be let go (or quit) at any time for any reason. It will also make a huge difference if she was fired for cause or laid off. Her only real chance of collecting would be if this was in violation to a written company policy.
She can certainly sue. Anyone can sue for about anything. The question is whether she has a snowball’s chance in Hades of winning the suit. And for that, you need to talk to a labor lawyer.
It will depend on the laws of your state and on the specific circumstances of what she was told and when. For instance, if the boss said, “She’s too old” or “She’s black” or “We’re going to fire her and hire a man” or … then you’ve likely got a discrimination case. So, it depends on exactly what she was told and when and how. You need to see a lawyer. The most well-intended people on this board would be just spouting generalized comments which might or might not be relevant to your circumstances.
For federal laws, “small companies” usually means less than 15 people. If she got fired because of her illness, she may have a case. Look up the relevant federal labor laws, usually the feds will investigate the case if you have a legitimate complaint.
[quote] http://www4.law.cornell.edu/uscode/29/2612.html]Family and Medical Leave Act
Depending on the exact circumstances she may have a beter case under FMLA than under ADA. IANAL and she should consult a lawyer licensed in her jurisdiction.
Rather than wading through volumes of federal law (which may or may not be applicable, there may be state law that is more advantageous to you), I repeat: find a lawyer who specializes in labor law. Most/many lawyers will hear you out without charge, and then will tell you whether they think it’s worth pursuing. If you can’t afford a lawyer, check with legal aid (or the equivalent in your area).
If the employer is in violation of any of the federal labor laws, the gov’t will take them to court and resolve the problem.
You can also hire your own lawyer and pursue a civil case, but if the employer is breaking the law you should get the government help listed above, first.
quote:
The Wage and Hour mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation’s workforce.
The WHD enforces Federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act. WHD also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, wage garnishment provisions of the Consumer Credit Protection Act, and a number of employment standards and worker protections as provided in several immigration related statutes. Additionally, WHD administers and enforces the prevailing wage requirements of the Davis Bacon Act and the Service Contract Act and other statutes applicable to Federal contracts for construction and for the provision of goods and services.
This just seems a little too convenient. They claim they fired her before she got sick, so then they are off the hook for the FMLA. Some judges will see it as adhering to the letter of the act. Other judges will see it as a violation of the spirit of the act. IANAL, but there may be something here for a labor lawyer to consider on contingency.
It looks like the company was following the rules by paying sick leave and vacation, then at some point changed their mind. Without notice.
She may have a hit against her since no request for leave had been made, but it could be argued that her condition could be certified in accordance with the FMLA.
All in all, Otto’s link is a nice, fairly clear, and informative link that may be worth your while.
I am pretty sure that companies of less than 50 employees don’t legally have to follow FMLA. Whether they have some kind of standard written policy that they follow just because they want to is another story.
I am unclear on the chain of events: did she ever speak to her supervisor during her illness? Did she just call in one day saying she was going in the hospital and a month later call to say she was coming back, with no communication in between?
I apologize for neglecting this. She called in the day she after she got sick(the day she got sick was late on a sunday) and she called them to tell them she wasn’g going to be into work for an indefinate period. I believe she did keep in touch, although she had no idea at the beginning how long it was going to be before she was well enough to come back.
It certainly looks like she fulfilled her duty under the FMLA, now you just have to figure out if her company is required to follow it. They could nit pick on the letter of the law, but it could be argued that she did what a reasonable person would do as far as notification. Now all that has to be figured out is if they are covered, and that comes down to state and local laws. I’d think a consultation with a labor lawyer might be a good idea. Heck, they might rehire with back pay just from a scary letter signed by an attorney. It may very well be a case of them not knowing the rules, or the person responsible for the firing not making it clear what the situation was to Human Resources.
Now IANAL, but I spent many years as a clerk, and found that many judges out there do in fact use common sense on a regular basis. (the ones who do not are for another thread)
Ask not who you’re country can sue for you, ask who you can sue for your country.
Seriously, DO NOT wait for the government to defend you. We are living under a republican*, small-business-friendly administration which is looking for places to cut costs. These types of enforcement actions are the first to go when money is tight. Unless a pattern of behavior can be shown by this employer, it is highly unlikely that government will come to your mother’s aide.
Take everyone else’s advice and higher a lawyer…and if you happen to be in the Chicago area, e-mail me. Just kidding, while I am a lawyer, I generally defend employers, not employees.
*This reference is not a slam on repuplicans. Rather, it is a reference to the generally held (and possibly true) perception that republicans tend to be more employer friendly and democrats tend to be more worker friendly. If people disagree with me, please start a debate thread in the GD section rather than discussing it here.