"Call an Attorney," Says California Labor Board

Sacramento, CA Bruce was terminated from his job while on medical leave and he contacted the California Department of Labor, hoping to file for unemployment. "When my case worker found out why I was fired, he told me that was illegal and advised me to call an attorney," said Bruce. According to the California Labor Law, even terminating "at will" employees while on medical leave is a violation of the California labor code.

"I was hired as a desktop support specialist at Dell in November 2009 and everything was going well," said Bruce. "My supervisor said 'Don't be surprised if you are contacted to discuss a promotion to a much higher level' and this was great news.

"But it was short-lived. Right after New Year's I was hospitalized with heart irregularity and stayed there for almost two weeks. After one week of home rest, I went back to work. I was still receiving accolades, but my heart problem came back in February and it landed me in intensive care for a week. I was told to take it easy and I was in constant contact with my employer.

"At the same time, I was the 'guinea pig' regarding how to file disability benefits with the insurance company. My benefits were up in the air at this point because I was originally hired by Perot Systems, which was acquired by Dell - when I was sick.

"It took a few months to get benefits so I was very stressed-out, which didn't help my recovery. While I was in hospital this second time, the director of computer services for the Sacramento area (AKA big shot) visited me with a fruit basket, assuring me that I had a job to go back to and quit worrying??"my health was priority. I was on all kinds of meds, including antidepressants. My brain became Swiss cheese.

"I filed for California disability that gave me 60 percent of my wage and decided to recover in Hawaii where I had friends - I didn't know anyone in Sacramento. I made travel arrangements and arranged a return-to-work date with my doctor - May 15, 2010. (My insurance company has a copy of the return-to-work form.)
"I received a letter in Hawaii from Dell that said my position was being terminated effective May 14. I read the following:

"You have been on a leave of absence from Dell…due to the expiration of your approved leave and/or your absence of 6-plus months in a rolling 12-month calendar period, Dell can no longer continue to accommodate your extension of leave. We sincerely regret to inform you that your employment with Dell is now terminated."…this termination is not a reflection on you or your time at work with Dell. This is due to a review of the completed medical information stating your situation.

"From what I understood, they are within their rights to fire me because California is as an 'at-will state,' but when I contacted unemployment they asked me the reason why I was terminated and I explained it was because of a medical reason. I sent them a copy of Dell's letter and they approved my unemployment without question. That's when they suggested I call an attorney."

Further, by telling Bruce that he would be "eligible to re-apply when I am ready to return to work," the company may have dug open a wider door to litigation.

"Because of the Privacy Act, there is no way that Dell would know about my depression issues or how serious my heart problems are," Bruce explained. "I think the insurance company told Dell about my medications - the Privacy Act went out the window.

"And here's another thing: I was hired November 9, 2009, and my termination was effective May 14, 2010. I was hospitalized in January and terminated in May - I can do the math and that doesn't add up to six months. I didn't exceed 6-plus months of absence either. And I was terminated without severance pay - Dell simply considered me a liability because my medical condition sucks."