Does my daughter have a case if she was still in a probationary period?

by Leslie

My daughter moved to TN in October and got a job as a medical assistant at a small town doctors office. She had several incidents where she had pointed out to LPN's that they were in violation of OSHA regulations and attempted to explain proper procedures to them.

She had previously worked at a large correctional facility in Colorado Springs where they were very strict regarding OSHA and she feels she had knowledge to share from her experiences. The LPN's were not appreciative of her advice and met her with hostility when she tried to give them advice.

Yesterday, she had to call into work because her 2 year old was terribly ill and we had been at the emergency room the night before. She told them she could not work, but needed to bring the baby in to see the doctor. They gave her an appointment and she took the baby in to be seen and treated.

This was the baby's 4th doctor visit in 6 weeks, plus she has been to the ER twice, and has been extremely ill, but this was the first day that my daughter has missed work because of it. This morning I took the day off of work to watch the baby so she could go into work.

The office manager met her when she got there and called her to a back room and told her it wasn't working out and she was being laid off. He reminded her that he had asked her during her interview if she had children and reliable child care and she had stated that she did, and they were too busy for her to be missing even one day.

She asked if she had done something wrong as far as her work performance and he said no, that they just wanted to try something different. Is this wrongful termination? I know it isn't fair and was very low of them to terminate a single mother with a sick child, but were they within their rights to do so? Thank you.

Visitor Question:
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ANSWER for "Does my daughter have a case if she was still in a probationary period?":

Leslie (Tennessee):

You state your daughter now works at a small town doctor’s office. Because of that, we will presume the office has less than 50 employees. If so, the Family Medical Leave Act (FMLA) will not apply to her.

The US Department of Labor enforces the FMLA. The FMLA applies to "...all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees."

Under the FMLA, employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

-For the birth and care of the newborn child of an employee;
-For placement with the employee of a child for adoption or foster care;
-To care for an immediate family member (spouse, child, or parent) with a serious health condition; or
-To take medical leave when the employee is unable to work because of a serious health condition.

Under the FMLA... "Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles."

Unless your daughter was working for the doctor under a written employment agreement which provided guidelines for the termination of employment, the doctor was within his or her legal rights to terminate your daughter's employment.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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