Should I speak with an employment law attorney regarding an unlawful termination?

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Should I speak with an employment law attorney regarding an unlawful termination?

I was on FMLA leave for the past 2 months; it ended yesterday. When I returned to work I was promptly discharged. The reason given was that the stores sales could not support my position anymore. This was just an excuse to let me go as they posted my job position on their website (posted 3 days after I had to take FMLA leave due to a medical emergency.) Also, there was another employee working “offsite” which they brought back into the store. I asked if the other store had any openings and they told me no. Yet they posted a full-time position as open on their website the same day that they fired me. They also made me sign a no compete agreement when I was hired. Is that still good after this? Is there anything that I can do? I’m in Waco, TX.

Asked on October 18, 2011 under Employment Labor Law, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

1) Generally speaking, a non-competition agreement only applies if the employee leaves--not if he or she is fired.

2) While a company can replace a FMLA leave employee for a valid reason not related to the leave--such as other performance issues, restructuring, layoffs, etc.--the reason MUST be valid; it can't be a pretext or a cover for retaliation against that employee, since it is unlawful to retaliate against someone for using FMLA leave. From what you write, it may be the case that the reasons your former employer gave are pretextual and you were retaliated against; it would seem to be well worth your while to consult in detail about your situation with an employment law attorney. Good luck.


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