Winning Unemplyment for wrongful termination

Hello,

My wife was on pregnancy disability for 6 weeks before and after the childbirth. The fifth week after the birth, she returned to work to pick up a check, talked to a HR rep, and her direct supervisor telling them she planned to take the FMLA (bonding) for an additional 6 weeks. Both said it was a good idea, stating "then we can expect your return in mid December". A few weeks later she recieved a termination letter stating she never returned to work after the Pregnancy Disability ran out. Said "voluntarily Quit". The date they provided as the last day was the day she talked to them and told them? They never mentioned any forms etc.. This date was one week before the last of the six weeks disability. Then the denied unemployment, appeal in two weeks, does she have a chance or is this  regular practice?

Thanks for your reply

Sam

ddjembeman:

A few weeks later she recieved a termination letter stating she never returned to work after the Pregnancy Disability ran out.

FMLA provides job protection for up to 12 weeks.  The California Pregnancy Disability Act provides for a total of 4 months.  This is in conjunction with FMLA NOT in addition to. If she took 6 weeks before and after the birth that is 12 for FMLA and she would get an additional 4 weeks under the CA pregnancy disability leave NOT another 6 weeks.

 In order to determine if the employer is acting legally you need to add up ALL the time off your wife had in the year related to the pregnancy and other illnesses that would qualify for FMLA/pregnancy protection.  If it adds up to 4 months then they broke no laws.  If it does not then she can file a complaint for an FMLA/PDL violation with the CA Department of Labor.

ddjembeman:

Then the denied unemployment, appeal in two weeks, does she have a chance or is this  regular practice?

Yes, in order to qualify for UI benefits she must be available and actively seeking work.  If she was not working to stay home with baby then she does not meet either criteria.  The state makes this determination not the employer.  Telling the state you are out on disability leave generally kills any UI claim.

FMLA requires 12 weeks of leave, anything after that is up to the company. If your wife failed to return after 12 weeks than they don't have to take her back.

Arthur3:

FMLA requires 12 weeks of leave, anything after that is up to the company. If your wife failed to return after 12 weeks than they don't have to take her back.

The OP and his wife are in California.  CA is one of the few states that provides for additional leave for pregnancy that is protected beyond FMLA.  

She was off 6 weeks before, 4 weeks after birth. Total 10 weeks. Fired before even started FMLA! They said she resigned by not showing up after the 4th week after birth.

She was fired before FMLA started. Day after PDL ended.

ddjembeman:

She was off 6 weeks before, 4 weeks after birth. Total 10 weeks.

That time IS included in FMLA not in addition to.  She would have two weeks FMLA protection left at that point and 4 weeks of CA pregnancy disability leave.  Did she take any time early in the pregnancy outside of the end of the pregnancy?  If she did that time also is included in the 4 weeks California pregnancy disability leave.  

ddjembeman:

Fired before even started FMLA!

No she wasn't.  FMLA runs concurrent with CA pregnancy leave NOT in addition to.  By law the employer must count the time she is out towards FMLA.

ddjembeman:

They said she resigned by not showing up after the 4th week after birth.

If she was truly only off a total of 10 weeks in that year then by my calculation she had 2 weeks of FMLA protection left and 4 weeks of CA protected leave for a total of 6 weeks.  Have her call the CA DOL and file a complaint of an FMLA and CA PDL violation first thing tomorrow.

Laymans guess:

There is both a Federal FMLA and a near equivalent CA protection act-- I think you need/want to file separate complaints with each the Feds DOL and State .DFEH

I think factually there are your strongest claims  if you are correct you were fired while under  protective umbrella as a premptive move to prevent you from using it as requested. that if you are now unavailable for work

Me, I'd also  file for CA UC --as simply fired--be prepared for them to fight and you'll need to appeal. .

But note if you are unavailable for work anr/or not to be seeking work that most likley is a killer and you may win the point you were fired but lose any UC money.

I misread--the appeal is already a go.  Ordinarily I'd suggest a routine round 1 appeal is no big deal, go do best you can--BUT I think if you were fired while under protecive FLMA or State  coverage and your time line is not clear as you post it  then the firm has a very big incentive to win the UC claim or get you to say something wrong at that level so it can then posture a big problem in contect of we didn't fire her--she quit.   Were I in your shoes---I'd go into even this round with skilled counsel--the stakes are too high NOT to be using counsel.

Your post is very hard to follow as to time lines and you need to sort it out as to if you have a case under FMLA or CA equiv.

And its not clear from you post how your firm counts leave. The law does not require that firm  permit linking various types of leave --but some firm do stack it up by policy, practice , or contract.

If you were at say week 11 of properly used FMLA and properly counted and expressed a need for 4 more weeks -- that would be more thanlaw  requires and firm can demand otherwise politely or less soand if you go into week 13 you are dead meat to be fired for cause HOWEVER if the firm got it wrong and fired you in week 12 , firm got it wrong  and very likley is going to have to eat it.    Not the likley problem of your not being able/willing to work come week 13  is not material --you got fired wrong first.

But your need for leave must be inside the correct ballpark as necessary  --and being a new mother is not a free get to stay home card --though it seems that way in many circles.  "Bonding" is not something I'd consider a pressing medical need--but my views don't count--what counts is you double check that  all your needs and steps fit within the rules to qualify for need.

Look I've been there when people requested time off to go home to try to get pregnant

And if its a small employer or you were there for less than a year or so you may want to check if you are covered by the various acts --and state laws mya have lower limits protecting more people--I think for FMLA 75 employees in that area  and  Min of 1yr and 1250 hrs are critical for coverage

Doesn't CA also have several weeks of paid leave--and that covers bonding  but not ones job--strange stuff..

The Federal FMLA is 50 employees within a 75 mile radius, AND a minimum of 12 months employment, AND 1,250 hours in the 12 months immediately preceding the start of the leave.

Thank you. Actually she has been applying for work and is available, Thats their spin, "that she quit", they never sent her the forms and just fired. Was only 11 weeks of leave, she was actually at the office on the date she was fired; just to pick up a check. :hand written: (last check) the day fired and said she resigend. No supervisors said a thing. EDD forms were approved!

At least as you post it there are two major issues that do not neccessarily overlap yet are interwined  and EACH has major $$ consequences for your wife --and while there is a modest time window to sort out issues as they may arise under FMLA and its  CA counterpart, the UC wheels are already in motion.

I think it very important that your wife be represented by labor law counsel who is up to speed on her  case history for the upcoming  UC appeal . Mandatory in my personal view . The opposition will simply outgun her otherwise.

It reads as if employer bungled her firing  and she was covered by FMLA --but there are lots more details to sort out  and even higher  $$ at stake. In general, the DOL is the correct place to start a formal complaint under FMLA  (different steps for CA's own version--I suggest both)  IF you follow the DOL steps and you then need private counsel the stakes get even higher --in short , the law mandates that employer  pay your legal bill if you prevail in court.  Thus little people with solid legal points can often get very skilled counsel  because counsel knows if he or she wins they get a payday assured by employer . Oversimplified--but you get the general drift!

Therefore an employer who bungled it has great incentive to rewrite history or show "you quit."

Yes, I know what happens in UC doesn't determine what happens as to FMLA matters --but if she says or does the wrong things in UC it may well matter.

Its also possible that your wife failed to properly exercise some step or didn't qualify for that step.  Far too technical to sort out w/o  1. Locking in a formal complaint and 2. detailed analysis by pro

ddjembeman:

telling them she planned to take the FMLA (bonding) for an additional 6 weeks

In re-reading the California Pregnancy Disability Leave site, this may be what got your wife into some trouble.  The CA PDL only allows time off for when the mother is actually DISABLED by the pregnancy it does NOT cover bonding time.  So while the CA law provides for up to 4 months of disability coverage for pregnancy once her doctor released her back to work then the PDL would no longer be effective.  

That said, FMLA still provides up to 12 weeks which by law the employer must start counting when she is absent due to a qualifiying condition.  If she had used all 12 weeks then her job was no longer protected and they could legally fire her if she was only off for bonding with the baby and cleared by her physician.

It costs her nothing to complain to the CA agency or the DOL.  I would do both.  If the employer got this wrong they will handle it for free.  If the employer got it right, she loses nothing in trying. 

But  CFRA does provide for covered time off for bonding  (unpaid not paid coverage)

And then there are issues of when employee must request leave for forseeable needs and when employer must advise emloyee of rights and who did want .

And even if HR has fancy detailed statemets of rights and oblications that are used and signed by individuals requesting any sort of covered leave its entirely possible that some midlevel manager did it wrong as much as the employee failed to follow the rules or was beyond the coverage time.

A very careful layout of time sequence of everything as  she sees the event sequences , on paper  is one key  any pro would need to sort out what  options seem to exist, waht mistakes if any were made--etc.

And she needs to confirm that employers size and her length of employment fit under the umbrella in question.