Employer didn’t advise me my position was going to be backfilled. Any recourse?

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Employer didn’t advise me my position was going to be backfilled. Any recourse?

My employer backfilled my position while I was out on medical leave. My leave was extended beyond the protected FMLA period, so I understand that aspect. The issue is that I didn’t find out until three months after it had been filled, when I was ready to come back to work. The person who was supposed to have informed me emailed me the wrong attachment, and I received no communication from my employer via USPS. I’m now without an income because I had no opportunity to either discuss with my doctor returning to work early, or to network/look for something else in the months leading up to my return-to-work date. It doesn’t seem right that I would have no recourse following an error on behalf of my employer. Did my employer have a legal obligation to inform me my position was going to be posted and backfilled?

Asked on January 13, 2017 under Employment Labor Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

If you are out of work past the alloted time given under FMLA or without covering your absence via PTO, sick time and/or vacation days, then your position could have legally been filled. Additionally, your employer was under no obligation to have informed you of this. The fact is that absent actionable discrimination/retaliation or an employment contract/union agreement to the contrary, your company was free to set the conditions of your employment much as it saw fit. This is known as "at will" employment.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It was not an error on your employer's behalf: they have no obligation to inform an employee who is absent from his or her job beyond the permitted time (e.g. "beyond the protected FMLA period," as you write) that the position may be filled by another. Once you are out of work without using FMLA (or longer than FMLA permits) and/or without covering the absence by using paid time off (e.g. sick or vacation leave) you'd earned, you may  be terminated or replaced at any time, and the employer has no duty to warn you of this or give you a chance to come back to work.


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