Taking time off for a medical condition, a new baby or to care for a family member should not cost you your job. If you were let go during or shortly after your time off, you may have grounds for legal action. Understanding how the law defines protected leave and what counts as an unlawful firing is the first step in figuring out your next move.
Which absences qualify as protected leave?
California recognizes several types of job-protected leave, each with its own rules around eligibility and duration. The California Family Rights Act, known as CFRA, covers up to 12 weeks of leave for bonding with a new child, a personal serious health condition or caring for a family member with one.
Pregnancy disability leave offers up to four months for conditions related to pregnancy, childbirth or recovery. Workers may also take time under paid sick leave laws, jury duty rules, military leave protections and laws covering domestic violence situations.
Federal protections under the Family and Medical Leave Act (FMLA) run parallel to CFRA in many cases and cover up to 12 weeks of unpaid leave for similar reasons.
When can your employer legally terminate you on leave?
Under California and federal law, your employer cannot fire you because you took a protected leave, requested one or planned to use one. Retaliation is also prohibited when you choose to exercise your right to an absence.
However, not every situation fits the bill. The company may still let you go for legitimate reasons unrelated to the leave, such as documented performance issues that predate the absence, a company-wide layoff or the elimination of your role.
What red flags point to a wrongful termination?
The following patterns might appear when a firing connects to protected leave:
- Your termination happened shortly before, during or immediately after your leave
- Your employer gave shifting or inconsistent reasons for the decision
- Performance reviews turned negative only after you made a request
- Coworkers who did not take leave received more favorable treatment in similar circumstances
None of these alone proves an unlawful firing, but together they can point to a pattern worth examining.
How can you respond after an illegal firing?
If you believe that your termination is because of your time off, you may file a complaint with the California Civil Rights Department. The deadline to do so is three years from the date of the alleged violation.
Once the agency receives your petition, they will conduct an investigation. If you wish to bypass the agency and file a lawsuit, you can do so by requesting a right-to-sue notice from the agency.
For FMLA-related claims, complaints go to the U.S. Department of Labor’s Wage and Hour Division, where you generally have two years to file, or three if the violation was willful. Unlike with state claims, you can file an FMLA lawsuit directly in court.