What do I do after being terminated unfairly?

UPDATED: Sep 30, 2022

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What do I do after being terminated unfairly?

I was fired from work due to absence and tardiness because of a recent back injury that occurred at work. I believe I was fired unfairly and need to find out where to go from here. I asked for time off from the doctor he said to ask employer. I asked employer and he said you have to get it approved by a doctor to have time off. If I was fired unjustly should I file forms out through the state or federal?

Asked on June 27, 2017 under Employment Labor Law, New Mexico


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

There is no right to take time off from work due to an injury, even a work-related injury, unless:
1) The employer *voluntarily* lets you take the time--and I stress, this is voluntary on the employer's part.
2) You had earned or accrued sufficient paid time off (PTO; e.g. sick days) as to cover your absence and used those days--they can't terminate you for using time you earned as part of your compensation. 
3) Your employer was covered by the Family and Medical Leave Act (FMLA), which means it had at least 50 employees within a 75 mile radius, you were eligible for FMLA leave, which means you had worked there at least a year and had worked at least 1,250 hours in the past year, and you requested FMLA leave. If you did this, they are not allowed to fire you while on leave (though if you miss more than the 12 weeks you get under FMLA, they can terminate you) or in retaliation for having used it.
Also, even if you had PTO or FMLA leave to cover your absence, you have to use it properly: if you did not inform your employer of your lateness or absence but simply did not show up, you could be terminated. You have to use PTO Or FMLA time properly.
So only if you were voluntarily allowed to miss work (situation 1), above), or had enough paid (PTO) or unpaid (FMLA) time under 2) or 3) above and properly used it for your lateness or absence could you not be terminated for tardiness or absence. If that was the case, contact the state department of labor to file a complaint about being fired despite FMLA if 3) occured, or else speak with an employment law attorney about possibly suing if it was situations 1) or 2) (fired despite approval to be out, or for using paid time off).
But if wasn't 1), 2), or 3), you could legally be terminated and would not have a viable case.

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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