discrimination law

Can I Be Fired While On Disability Leave?

Can I be fired while I am on disability leave – what’s the deal?

Short answer – yes, but....

Can I be fired while I am on disability leave –but I’m on short term/long term disability leave?

Short and Long Term disabilities are not job protected.  But, there are cases where you may qualify for leave under the FMLA and/or the ADA.  The FMLA provides you with job protection, and the ADA protects you from discrimination on the basis of your disability.  We detail your protections under the FMLA and ADA below.

Can I be fired while I am on disability leave –isn’t it discrimination?

Not necessarily, but it might be.  There are plenty of legal reasons for an employer to fire you.  One reason may be that you are on leave indefinitely and that cannot be accommodated by the employer.  Another reason may be economic/business necessity.  Just because you were terminated and disabled/on leave is not enough – you need to prove that you were terminated because you were disabled/on leave.

The Americans with Disabilities Act (“ADA”) prohibits employment discrimination on the basis of disability (or perceived disability).  The ADA also requires the employer engage in an “interactive process” to determine whether your disability can be “reasonably accommodated.”  Sometimes, a leave of absence may be a reasonable accommodation – at a minimum, your employer is required to investigate/consider (i.e. engage in the interactive process) whether this is possible.

Ultimately, it comes down to why the employer made the decision to terminate.  If the decision is made because of your disability, it very well may be illegal.

Can I be fired while I am on disability leave –what about the FMLA?

The Family Medical Leave Act (“FMLA”) is a federal law that applies to employers that have 50 or more employees. Under the FMLA certain employees may take up to 12 weeks of unpaid leave for certain reasons, like a serious health condition.  Although FMLA is “job-protected” (meaning you should be returned to your prior or equivalent position), you can still be terminated while on FMLA if the reason is not related to the leave and is not otherwise not discriminatory.   If your employer can show that the decision to terminate is unrelated to the FMLA leave, it is legal.

I was fired while I was on disability leave - What should I do?

Call us!  Or e-mail.  We can help. 

Should I Sue My Employer?

Should I sue my employer?  Maybe. Speaking in very general terms, there are three major categories of laws protecting employees. These categories are: (1) discrimination law, (2) leave law, and (3) wage payment law. Below is a very brief discussion of each:

  1. Discrimination: Discrimination against individuals on the basis of their membership in a protected class is illegal. Protected classes include: gender, race, disability, age, national origin, religion and others. It is unlawful for an employer to discriminate against an employee based on their protected status. The discrimination can be failure to hire, decisions related to pay, discipline and decisions to terminate employment. The principle is that you cannot be treated differently than similarly situated employees on the basis of your protected status.
  2. Leave: Certain employees are entitled to leave by state and/or federal law. If you are entitled to leave, it is illegal for your employer to interfere with your leave, or retaliate against you for taking leave.
  3. Wages: There are also many wage payment laws which govern how your employer must pay your wages. These laws relate to payment of overtime lawful deductions from wages, and what constitutes “work” such that you have to be compensated.

If you are having issues with your employer, you should speak to an employment lawyer. You may have a viable lawsuit against your employer, and a good employment lawyer can help guide you in reviewing your situation.

should I sue my employer?
should I sue my employer?

Have I Been Unlawfully Terminated?

Wrongful Termination
Wrongful Termination

We get this question frequently. Fortunately, there is a simple answer: there is no such thing as wrongful termination. However, under some circumstances, the decision to terminate an employee may be unlawful.

Below are the two most common examples of what most people refer to as “Wrongful Termination”

  1. Discrimination. When someone’s employment is terminated because they belong to a protected class (like age, race, gender, disability, etc.), the decision may be unlawful.
  2. Retaliation. Generally speaking, it is illegal for an employer to retaliate against an employee for engaging in a protected activity. Protected activity includes making an internal complaint of discrimination (it doesn’t have to be about you), or some other illegal activity going on in the workplace. Even if the complaint is incorrect, it is illegal to retaliate for making the complaint.

It’s never easy to prove discrimination or retaliation. You are never going to see a memo that says “let’s fire all the old people.”  Instead, these cases are typically won and lost on circumstantial evidence. This evidence often includes a comparison between how a protected (e.g., older) employee was treated as compared to a similarly situated employee outside of the protected class (i.e., how a younger employee was treated).

If you think you are being treated differently than employees who are outside of your protected class, you should consult with an attorney. While an employer does not have to be fair, it is illegal to make decisions which are influenced by discrimination or retaliation. A New York wrongful termination lawyer can help you understand your rights and fight back.

Contact us today for a free consultation and protect your rights.

Retaliation Claims Upheld in Supreme Court

Title VII of the Civil Rights Act of 1964 was put in place to protect employees from discrimination based on national origin, religion, race, color, and sex; it also protects employees from retaliatory actions by their employer for any Title VII claims the employee may make against their employer. Over the years, courts have had varying opinions on what proof was necessary to support a retaliation claim by an employee. In the case of retaliation claims, some courts feel the plaintiff need only prove that the retaliatory action was a ‘motivating factor’ in the opposed action, where other courts feel that the plaintiff should prove the retaliatory action was the ‘but-for’ cause of the opposed action. In the case of Nassar v. University of Texas Southwestern Medical Center, the US Supreme Court reinforced that retaliation claims are subject to ‘but-for’ causation.

Nassar v. University of Texas Southwestern Medical Center

The retaliation for Nassar begins at the University of Texas Southwestern Medical Center where Dr. Nassar served as a university faculty member. Dr. Nassar also served as a Parkland Memorial Hospital staff physician through an agreement between the school and hospital that university faculty members would fill vacant staff positions within the hospital. Dr. Nassar, of Middle Eastern descent, felt that his supervisor at the university, Dr. Levine, showed bias secondary to his ethnicity and religion and presented his complaints to Dr. Levine’s supervisor, Dr. Fitz. An arrangement was made where Dr. Nassar could continue to work at the hospital while no longer being a member of the university faculty. At a later date, Dr. Nassar chose to resign, sending a letter to Dr. Fitz and others communicating his reason for leaving, which was secondary to Dr. Levine’s harassment. Dr. Fitz subsequently protested the hospital’s job arrangement with Dr. Nassar and consequently, the hospital position was withdrawn.

Retaliation Claims

In Nassar’s retaliation case, Dr. Nassar claimed two Title VII violations: 1)Dr. Nassar claimed that his supervisor’s religiously- and racially-motivated harassment resulted in his constructive discharge from the university (a violation of the antidiscrimination provision); 2)Dr. Nassar alleged retaliatory actions by Dr. Fitz because of his complaints against Dr. Levine (resulting in the loss of his job opportunity).

Using the "But For" Standard of Causation

The jury found in favor of Nassar. The Fifth Circuit affirmed finding that Nassar had demonstrated that retaliation was a "motivating factor" of the university’s actions, which had caused Nassar to lose his employment offer with the hospital. The Supreme Court reversed the Fifth Circuit’s decision and held that Title VII retaliation claims must be proven using a "but for" standard of causation rather than the less burdensome "motivating factor" standard. The Court focused on the language of Title VII’s anti-retaliation provision, which "makes it unlawful for an employer to take adverse employment action ‘because of’ certain criteria."

Contacting Us

If you feel you've been the victim of retaliatory conduct contact our team today. Our New Jersey retaliation lawyers can help you.