Court Obligation Can’t Put Job in Jeopardy

Q: I have been employed for the past two years with the same company. In the near future I will be required to testify in a case that may require I be away from work longer than my vacation time.

Human resources told me that I will be forced to take a leave of absence, and that it will not guarantee my job upon return.

Is this true? When you are served with a subpoena you must be there or face severe charges.

--J.W., Bellflower

*

A It is illegal under the California Labor Code for an employer to retaliate against an employee who is required to appear in court as a witness and has to take time off. The employee, however, would need to give reasonable notice to the employer before taking the time off.

The labor code specifies that any employee who is subjected to retaliation for serving as such a witness is entitled to reinstatement and reimbursement for lost wages and work benefits. Any employer who refuses to rehire, promote, or otherwise restore an employee to his or her former position may be guilty of a criminal misdemeanor.

When you’re served with a subpoena, you must comply, or you may be held in contempt and face criminal charges and jail time.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Can They Take My Job While I’m Sick?

Q: Recently, I had surgery and went on medical leave that was expected to last six to eight weeks. I received notification I was covered under the Family and Medical Leave Act (FMLA).

Less than two weeks after going out on leave, without any prior communication or warning, I received a call at home from my manager saying I was being replaced.

I am 54 years old with 30 years of service. I was replaced by someone younger, at less salary and with less experience.

My manager said that he is required to give me a “comparable” position, but that it could be at a different location, working with new people, etc., although my title would be the same.

I complained to my Human Resources Department, which after investigating criticized the decision and said I have the right to return to my old job, that I can “bump” my replacement.

Management is balking, standing by its interpretation of FMLA. This will come to a head when I can return to work. What can I do?

--J.S., Lakewood

*

A: Under both the state and federal family leave laws, an employee is entitled to be reinstated to his former job at the end of the leave.

The California law, known as the California Family Rights Act, provides that the employee be reinstated in “the same or comparable position.”

The federal Family and Medical Leave Act states that the employee must be restored to the same or equivalent position, “with equivalent benefits, pay, and other terms and conditions of employment.”

Under the FMLA regulations, an “equivalent position” means one that is virtually identical to the employee’s former position in pay, benefits, and working conditions, including privileges, perquisites, and status. The new position must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility and authority.

The employee’s right to be reinstated is not affected by either the fact that the employee has been replaced during his or her absence or because the position was restructured to accommodate the absence.

The federal regulations also state that the employee must be reinstated to the same position or an equivalent one at a location that does not involve a significant increase in commuting time or distance, has the same or an equivalent work schedule, and provides the same or an equivalent opportunity for bonuses, profit-sharing, and other similar discretionary and nondiscretionary payments.

If you believe that the new position that you have been offered does not fall within these definitions, you may file a complaint under the federal law with the U.S. Department of Labor.

The complaint must be in writing and must be filed within a reasonable time after you discover that your FMLA rights have been violated but no more than two years after the violation occurred or three years for a willful violation.

You may also file a civil action within two years in federal or state court.

If you wish to pursue your rights under the state law, you must first file an administrative complaint with the California Department of Fair Employment and Housing.

After you have exhausted this administrative remedy, you may file an action in court.

--Diane J. Crumpacker

Management 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; dictate it to (714) 966-7873, or e-mail it to [email protected]. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice. Recent shoptalk columns are available at http://ukobiw.net./shoptalk.