What are my rights if I was laid off after returning from FMLA but my position wasn’t eliminated just given to a fellow employee?

UPDATED: Nov 17, 2011

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What are my rights if I was laid off after returning from FMLA but my position wasn’t eliminated just given to a fellow employee?

I took 9 weeks of FMLA leave. I was laid off 5 days after returning to work. My position wasn’t eliminated but given to a fellow employee. They told me that they need to make cuts because the branch was losing money. Do I have a right to sue for wrongful termination?

Asked on November 17, 2011 under Employment Labor Law, Idaho


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You *may* have a cause of action for wrongful termination. The issue is whether your being terminated was retaliation for having used FMLA leave--which would be illegal--or whether it was for some reason unrelated to FMLA leave--in which case you could be terminated even if you had just returned from leave. For example, say that the company reorganized (even if only your department) to save costs and reduced total headcount--if you were the least senior person, or had lower reviews/ratings, or didn't have the experience/skilss of those who were retained, etc., then laying you off while moving someone else into your position may be justified and might not have been retaliation.  The issue therefore is factual; you should meet with an employment law attorney to discuss the specifics of your situation in detail.

Again, if it turns out it was retaliation (no legitimate non-retalitory reason), you should have a cause of action or claim. Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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