can an employer legally lay-off one employee when he/she returns from medical leave (did not ask to use FMLA). reason for lay-off is directly related to performance while on the job. No other lay-offs would occur. Does the law change for firms with less 50 employees compared to firms with more than 50 employees?
1 Answer from Attorneys
Yes, if the employee is an at-will employee and not one with a written contract to be hired for a specified period of time, an employer may lay off (not enough work) or fire (poor performance, personality conflict, etc., etc. - choice to terminated employment made by employer and not based on lack of work) for ANY reason as long as it is not because the employee is a member of a protected class (age, race, gender, pregnancy, medical condition, disability, religion, etc.) or because he/she asserted his/her legal right (example: overtime pay). FMLA only protects the employee's job IF the employer would not have laid off or fired the employee anyway. At-will employment laws are the same for employers with 50+ employees or less.
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