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?

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 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.


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