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  1. #1
    Join Date
    Jun 2016
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    8

    Post Claiming Wrongful Termination if Fired Within 90 Days of Return from Disability Leave

    My question involves labor and employment law for the state of: Texas.
    Company : Software.
    Role/designation : Managerial/executive

    1) I am a permanent resident of US. Was on short term disability leave (STD) that ended on end of Feb. It was not FMLA, as I was not eligible. The 60 days Leave was approved by the company & paid in full by insurance with multiple doctor notes.
    2) Job responsibilities upon return to work were substantially changed : No work or work structured to be a failure.
    3) Responsibilities transitioned to another employee of the company in India who is planned to be bought to USA on L1 visa. I trained this employee.
    4) After 90 days suddenly fired on pretext of "performance" while performance review feedback document has excellent comments & no performance improvement plan was offered. It was cited that relative performance was at the bottom of the ladder although as per the employee handbook the relative performance measurement is scheduled to happen in July and not yet happened!
    5)Acute Shoulder pain due to the side effects of disability still persists, but have taken no leaves for it. Just managed by physical therapy.

    Is there any case of discrimination/wrongful termination. Why or Why not? Employment attorneys say that there might be a case but I am skeptical because there motive might be fees

  2. #2
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    At a minimum, file for unemployment benefits.

  3. #3
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Quote Quoting davidg1
    View Post
    My question involves labor and employment law for the state of: Texas.
    Company : Software.
    Role/designation : Managerial/executive

    1) I am a permanent resident of US. Was on short term disability leave (STD) that ended on end of Feb. It was not FMLA, as I was not eligible. The 60 days Leave was approved by the company & paid in full by insurance with multiple doctor notes.
    2) Job responsibilities upon return to work were substantially changed : No work or work structured to be a failure.
    3) Responsibilities transitioned to another employee of the company in India who is planned to be bought to USA on L1 visa. I trained this employee.
    4) After 90 days suddenly fired on pretext of "performance" while performance review feedback document has excellent comments & no performance improvement plan was offered. It was cited that relative performance was at the bottom of the ladder although as per the employee handbook the relative performance measurement is scheduled to happen in July and not yet happened!
    5)Acute Shoulder pain due to the side effects of disability still persists, but have taken no leaves for it. Just managed by physical therapy.

    Is there any case of discrimination/wrongful termination. Why or Why not? Employment attorneys say that there might be a case but I am skeptical because there motive might be fees
    Is the attorney willing to take the case on contingency? If so, it likely a viable case, if not, it likely is not a viable case.

  4. #4
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Had this been a FMLA-protected absence, I might have been skeptical. As it was not, there's nothing that's jumping out at me as being inherently illegal or that transforms this into a wrongful term.

  5. #5
    Join Date
    Jun 2016
    Posts
    8

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Quote Quoting llworking
    View Post
    Is the attorney willing to take the case on contingency? If so, it likely a viable case, if not, it likely is not a viable case.
    They are asking for 1500 fixed plus 35% of settlement. I am not very familiar with contingency arrangements - should it be upfront zero fees to represent?

    Quote Quoting cbg
    View Post
    Had this been a FMLA-protected absence, I might have been skeptical. As it was not, there's nothing that's jumping out at me as being inherently illegal or that transforms this into a wrongful term.
    Thanks for quick reply. Will this not be considered retaliation when I have verbally complained that my job responsibilities are changed because of the sick leave / STD leave I have taken?

  6. #6
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Quote Quoting davidg1
    View Post
    They are asking for 1500 fixed plus 35% of settlement. I am not very familiar with contingency arrangements - should it be upfront zero fees to represent?



    Thanks for quick reply. Will this not be considered retaliation when I have verbally complained that my job responsibilities are changed because of the sick leave / STD leave I have taken?
    What makes you think that:

    1. Your job responsibilities can't change? Even with FMLA all they have to do is provide a substantially similar duties, not necessarily the same. As you were pointed out above, this isn't even covered by FMLA most likely. The employer is free to change your responsibilities at any time.

    2. Employers can't fire you for complaining? There are very limited times when an employee can make a complaint and be protected. This doesn't sound like one of them.

    Just because you don't think it's fair, doesn't make it wrongful termination. As pointed out, file for unemployment and see where that goes, meanwhile look for another job.

  7. #7
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Quote Quoting davidg1
    View Post
    Thanks for quick reply. Will this not be considered retaliation when I have verbally complained that my job responsibilities are changed because of the sick leave / STD leave I have taken?
    Most retaliation is legal. If the company fired you because you were exercising some protected right (e.g. taking FMLA leave, making an ADA reasonable accommodation request, organizing with other employees to better wages or working conditions, filing a complaint about illegal discrimination against you, filing a complaint with OSHA over work place safety issues, etc) that would be illegal retaliation and a wrongful termination. But since your leave from work appears to have not been one that you had a right to under the law, like FMLA leave, there wasn’t any protection for you against the company changing your job responsibilities. In general a private employer can change your job responsibilities at any time unless the reason for doing it is illegal discrimination ( your race, color, national origin, citizenship, religion, sex, age (if age 40+), disability, or genetic test information under federal law) or illegal retaliation. Complaining about that legal change to your job responsibilities is something for which a company may indeed fire you. I'm not seeing any obvious wrongful termination case here. If a lawyer you have consulted thinks there is a good case here, ask him/her to explain the basis for the lawsuit: what does the lawyer think the company did that was prohibited by law?

  8. #8
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Quote Quoting davidg1
    View Post
    They are asking for 1500 fixed plus 35% of settlement. I am not very familiar with contingency arrangements - should it be upfront zero fees to represent?



    Thanks for quick reply. Will this not be considered retaliation when I have verbally complained that my job responsibilities are changed because of the sick leave / STD leave I have taken?
    thats not terrible for an attorney fee and it appears they Actuslly believe there may be a case.

    It it is not unlawful to terminate you for missing time due to medical issues. It isn not unlawful to change your job duties for any reason they choose.
    Whether they were covered by std or not is generally irrelevant

  9. #9
    Join Date
    Jun 2016
    Posts
    8

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Quote Quoting flyingron
    View Post
    What makes you think that:

    1. Your job responsibilities can't change? Even with FMLA all they have to do is provide a substantially similar duties, not necessarily the same. As you were pointed out above, this isn't even covered by FMLA most likely. The employer is free to change your responsibilities at any time.

    2. Employers can't fire you for complaining? There are very limited times when an employee can make a complaint and be protected. This doesn't sound like one of them.

    Just because you don't think it's fair, doesn't make it wrongful termination. As pointed out, file for unemployment and see where that goes, meanwhile look for another job.
    Thanks. It seems from reply on this board there is no case. Just two more questions:

    1) I worked in MN state last year for 3 month and I am eligible to file unemployment in that state.should I do that since its better pay than TX ?
    2) I haven't signed any release but still paid 1 month severance for 1 year which was as per original employment agreement. Is there a situation for the severance to be renegotiated?

  10. #10
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: Fired Within 90 Days of Return to Work of a Disability Leave/Wrongful Termination

    Since there is NO legal requirement to pay severence, while you could attempt to renegotiate it, you might find yourself negotiating yourself into no severence pay.

    As to where to file for UI benefits; file in the state you can with the best benefits.

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