California  |  Medical Leave

Legal Question

Asked on: 3/06/08, 11:46 pm

Laid off while on intermittent family leave

I was recently laid off while on intermittent family leave. My father suffered a severe stroke to his spinal cord. I was told my position was eliminated as the company ''right sized'' the organization and consalidating two offices. However, the question I have is, there are two of my position. One person still remains in the same position at the office within the same area. By law, should I have been laid off? My family leave rarely interferred with work. I would take 1-2 days per month on average, most of the time making up my time and / or maintaining the same workload. I took 2 family leave days in February, just 2 weeks prior to being laid off. When I was being laid off, I asked about how this could happen while being on FMLA. The HR person stumbled over their words and said they didn't realize I was still on leave, but it didn't matter since my position was eliminated. Was I wrongfully terminated?

2 Answers


Answered on: 3/07/08, 1:13 pm by Terry A. Nelson

Re: Laid off while on intermittent family leave

You'll have to somehow prove that the leave was the 'motive' for them selecting you for layoff over other people. Downsizing is a valid business reason for layoff, and FMLA or other such leaves do not prevent your layoff, as long as the company can show a valid business reason for their decision. You've got a tough case, at best. IF you've got any facts or arguments that have some basis, it might be possible to leverage them into a negotiated settlement of your claims, i.e., work out a deal for severance or something like that. If you're serious about doing so, feel free to contact me.


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Nelson & Lawless 18685 Main St., #175 Huntington Beach, CA 92648

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Answered on: 3/07/08, 12:43 am by Thomas Pavone

Re: Laid off while on intermittent family leave

There are several issues. First, if your job was truly eliminated, you will most likely have no claim. Your FMLA leave doesn't insulate you from a layoff, only that you not be selected for the layoff because of the FMLA leave. The second issue relates to the selection process. If you and your coworker are equal in every way, the employer need only be able to articulate a reasonable basis for the decision. If there are significant differences, as to skills, abilities, versatility, training, seniority etc, and the employer selects the employee with clearly lesser status to remain, a claim for retaliation may exist for the superior employee.

You should speak to an experienced employment lawyer in your area to discuss the specific facts of your case and to determine whether you have a claim.


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Pavone & Cohen 16055 Ventura Boulevard, Suite 1130 Encino, CA 91436

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