Can I be downsized after coming back from FMLA if my past performance was always rated excellent ?

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Can I be downsized after coming back from FMLA if my past performance was always rated excellent ?

I recently was downsized by a large company right after coming back from FMLA regarding severe anxiety problems. Right after I came back, I received a bad review from my boss after receiving excellent reviews the prior 12 years. I followed the internal dispute process regarding my review but they conveniently delayed addressing that process, and then downsized me. I was the only manager out of 50 to be downsized; the reasoning was that I was the only manager rated a “2”. I think it was because I went on FMLA.

Asked on March 14, 2011 under Employment Labor Law, Pennsylvania

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You should speak with an employment attorney, since you may well have a cause of action for wrongful termination. While people who were on FMLA leave or who are disabled in some fashion (including by recognized mental health conditions) may be fired for reasons unrelated to those factors--e.g. because their department is being eliminated; because of violating company policy; e tc.--companies may not fire them because:

1) They used FMLA leave;

2) They have a qualified disability; or not related to the above, but still possibly relevant

3) Workers over age 40 are in a protected category and may not be fired for age-related reasons.

In addition, if there is a sufficiently strong internal review policy, that *may* create an implied contract which the company had to follow in taking action.

With several possible grounds, it would be well worth consulting with an employment attorney to discuss your situation. Good luck.


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