Worker Fired for Taking Vacation May Have a Case
Q: Recently, my daughter was fired a day before she left for vacation. She was an excellent employee and was considered to be very successful with all her clients in personality, efficiency and performance. She worked for this company for three years and requested her vacations in advance. When she was absent, it was mostly for surgeries. No more surgery was planned for at least six months. The day before our scheduled vacation, she was informed at 5 p.m. that she was terminated because she was taking a vacation. Is it legal for a company to fire for this reason?
A: Your daughter may have a case against her employer, even though the law does not specifically forbid firing an employee for taking a vacation.
California follows the traditional legal rule that an employee can be fired or can quit without prior notice and for any reason or for no reason. This rule, called the at-will doctrine, is subject to several exceptions. For example, an employee cannot be fired in violation of a law or an important public policy, such as laws against discrimination. An employee also cannot be fired in violation of a contract, including a union contract, a written or oral employment agreement or even some well-established company policies.
It would be helpful to know more about your daughter’s case, of course. But judging from your letter, it sounds as if her termination may fall under one or both of these exceptions.
Depending on the nature of your daughter’s medical condition, her termination might have been unlawful if it was based, in whole or in part, on her absences for surgery. The federal Family and Medical Leave Act and the California Family Rights Act protect an employee from being discharged for taking a medical leave for a serious health condition.
Your daughter’s termination could also be illegal if it violated an agreement or a well-established company policy granting employees the right to take scheduled vacations. She should consult an attorney to learn more about her legal rights.
--Joseph L. Paller Jr.
Gilbert & Sackman
Compensation for Vacation Work
Q: During my vacation time, the company asked me to write a computer program for them, and I worked on the program at home. If the company isn’t willing to pay me the predetermined rate after I finished the job, what can I do?
--D.L., Hacienda Heights
A: If you were required to work during your vacation, either the company would owe you vacation time you never really received or the specific amount it agreed to pay.
It isn’t clear from your question if the company paid you anything for the work. It would be easier to prove your case if the “predetermined rate” were confirmed in writing. If you haven’t done so already, send a letter formally requesting the appropriate compensation. You might also try to get your supervisor to acknowledge, in the presence of a witness, that such an agreement was reached.
If the company fails to honor the agreement, you could file a claim with the California labor commissioner’s office, which would then investigate the matter for free. If your claim is under $5,000, you could pursue a small-claims action at your local court.
If you don’t want to follow those procedures, an attorney might be able to persuade your employer to pay what is owed.
As long as you are still employed there, however, you might want to limit your request to a respectful letter or informal conversation. If the amount in question is nominal, think twice before turning a relatively minor disagreement into a major battle.
Remember that you can retain your rights to this compensation for a while, perhaps until after you no longer work for the company. The statute-of-limitations deadline for filing a claim may be as long as two years from the date they failed to pay you.
--Don D. Sessions
Employee rights attorney
Return Is Not Required by Law
Q: I recently requested and was granted a voluntary demotion because of a serious family illness. I needed to be in a more flexible job and at a work station closer to my parents’ house. Soon after I assumed my new job, the family member died, and the crisis has stabilized.
Does my employer have any obligation to restore me to my original position level (my old job has been filled) if I decide to make such a request?
A: There is no state or federal law that would require your employer to restore you to your old position under the circumstances you have described.
There are laws that require employers with 50 or more employees to provide certain eligible employees with a leave of absence in situations involving the serious illness of close family members. But those laws would not appear to apply to your situation.
Of course, if your employer promised to reinstate you once your family situation stabilized, you may be able to argue that it breached its contract with you.
--Diane J. Crumpacker
Employment law attorney
Fried, Bird & Crumpacker
If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626 or e-mail firstname.lastname@example.org. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.