San Francisco Employment Law Firm Blog

One common issue with regard to leaves of absence between an employment and an employee arises when the employee is absent due to being sick or other health-related reason. The employer may try to avoid it's obligations under FMLA (Family Medical Leave Act) or CFRA (California Family Rights Act) by claiming that the employee's absence while being sick was unexcused and thus unprotected under the law, if the employee didn't specifically request FMLA / CFRA.

This argument is without merit, however, according to California courts, which repeatedly held that an employee doesn't have to use "magic words" such as FMLA and CFRA to be eligible for a qualified leave of absence. It is generally sufficient to place the employer on notice triggering the employers obligation under California law if the worker contacts the employer shortly before or shortly after being absent, advising the employer of the reasons of his absence and providing medical documentation or other objective proof of having the underlying health condition.

This position of California courts makes sense, as it would be unreasonable to expect an employee to be familiar with the specific legal terms, such as FMLA and CFRA, and actually use them in order to receive the medical leave of absence benefits that he or she would be entitled under the law. It is sufficient that the employer is placed on reasonably clear notice of its employee's medical condition to trigger the employer's FMLA/CFRA obligations.

The California Labor Code section 132(a) is yet another device prohibition discrimination against injured workers (in addition to California Fair Employment and Housing Act or "FEHA"). This section prohibits employer discrimination against an employee based on:
* Applying or intending to apply for workers' compensation benefits; or
* Receiving a rating, award or settlement; or
* Testifying or intending to testify in another employee's case.

By enacting this section, the California legislature expressly intended to declare its general policy in favor of preventing all discrimination against injured employees resulting from workers' compensation injury.

Discrimination as used in this section means treating injured employees differently, making them suffer disadvantages that do not apply to other employees because the employee was injured or had made a claim.

It is important to note that employers are not bound to reinstate or retain an injured worker where "business realities" dictate otherwise, that is, where these workers are not long competent to perform their jobs, or their positions are no longer available. In other words, an employer is not guilty of retaliatory discrimination when the employee cannot perform the customary work without risk of either being re-injured or suffering further injury. But employers may not discriminate in any manner against employees who remain competent in their former positions are still available to work.

As stated earlier, section 132(a) is not an exclusive remedy to address discrimination of an injured workers, as an injured employee may also file a civil action in court for disability discrimination, failure to accommodate disability, wrongful termination in violation of public policy and possibly other claims if apply.

California Labor Code section 432.7 generally prohibits California employers from using as a factor in hiring, or asking an applicant to disclose, an arrest or detention that did not result in conviction or participation in pre- or post-trial diversion programs.

However, the above general rule is subject to various exceptions. For example, the rule does not apply to applicants for peace office, Department of Justice, or other criminal justice agency positions. Further, employers may ask applicants about arrests for which the applicant is currently out on bail or on his own recognizance pending trial. Employers that are health facilities may ask applicants for positions with regular access to patients to disclose information regarding arrests for sex offenses, and ask applicants for positions with access to drugs and medication to disclose information regarding arrests for controlled substance offenses.

The penalties for violating the above laws are relatively mild, and generally amount to a few hundred dollars plus costs and reasonable attorneys fees. An intentional violation of this section by the employer is also considered a misdemeanor. In addition, this section doesn't prohibit pursuing remedies for violation of other laws, such as California Fair Employment and Housing Act (FEHA) provisions that may come into play and other prohibitions on discrimination in hiring and promoting employees.

You have been dedicating yourself to your company for years. You have been working hard, proved yourself and your efforts weren't wasted. You have been promoted multiple times and now you are manager holding an executive/supervisory position. You are happy and proud of your achievement and are excited about the authority you will have at your company to make bigger and more critical decisions about the financial, administrative or a marketing direction that you company will be moving in.

But not everyone is as happy as you are. You former co-workers, or your new subordinates might become jealous and bitter about your success especially if their work ethic doesn't match yours and/or if they feel that they should have been promoted and not you. There is a chance that they will conspire against you and will try to hurt your career by falsely accusing you of misconduct, harassment or even violence at workplace.

You feel upset, especially if those allegations are unfounded and if they are likely to slow down your further promotion in the company. How should you handle a situation in which your superior or a human resources manager contacts you out of the blue, informing you that an investigation has been initiated against you into certain allegations filed by your co-workers or subordinates?

Here are a few important steps that you can and should take when an investigation is initiated against you by your employer:

1. Do not be upset at anyone! Don't get angry or emotional, as it will only confirm your likelihood to be hot-headed, which is the last thing you want to show to anyone. Do not be angry at your company, and remember that your company has an affirmative obligation to conduct a full, thorough and unbiased investigation of any allegations of harassment, violence or other misconduct at workplace, whether these accusation are credible and truthful or not. So, remember - your company is just doing what it's supposed to do. Don't threaten anyone with legal action and don't ruin the good relationships you with the company by being angry or demanding toward your superiors.

2. Request your personnel file to review all the documents and make sure that there are no other documents filed in there, which you are not aware of, and which might case negative light on who you are as an employee. Under California labor code, you have a right to access your personnel file and obtain at least those documents that you have signed.

3. Request a copy of an investigation report with all its findings and conclusions. Review the report carefully and submit your rebuttal to the investigation report, in which you will specifically address every allegation and deny those accusations which are not true. Failing to do so, while not critical, might create an impression that you agreed with the accusations.

4. Keep a copy of every e-mail and other communications regarding the discussions of the accusations against you between you and any other employees or investigators.

5. Consult your employee handbook to make sure that the company complies with its own policies in conducting investigation and that it follows its own progressive discipline policy (if any).

6. Focus on avoiding having any communication with the accusers, if you know who they are or you believe you know who they are. It's much easier for them to misinterpret your words than to argue that you had a conversation with them, if in fact you haven't.

7. Consider requesting supplemental/new investigation that will consider newly discovered facts and circumstances.

8. Avoid the temptation to retaliate against the employees who falsely accused you of misconduct.

The above tips should help you deal with false accusations, clear up your name and move forward with your work and career in a healthy, productive way.

Both ADA (Americans with Disabilities act) and its California counterpart - FEHA (Fair Employment and Housing Act) cover disabled employees as well as employees whom the employer has regarded or treated as having had any physical or mental disability or medical condition that makes achievement of a major life activity difficult.

California Government Code section 12940(m) requires covered employers to make reasonable accommodations for the known physical or mental disability of an employee, unless undue hardship on the employer's business would result. Under section 12940(f)(2) states that an employer may require any examinations of inquiries so long as they are job related and consistent with business necessity to determine its employees' health condition for the purpose of compliance with disability laws.

The FEHA's requirement of reasonable accommodations is triggered when the employer becomes aware of an employee's disability, which may occur because it is an obvious disability, the employee has disclosed the condition,or the employer has obtained a medical opinion through a fitness for duty examination. The three primary results of a medical examination are: (1) the employee is qualified to perform the job without the need for any accommodation and poses no safety risk; (2) the employee will be able to perform his job with a reasonable accommodation; or (3) the employee is not qualified to perform the job due to his condition or due to a safety risk, and there are no reasonable accommodations that would enable for that worker to perform the essential duties of his job.

If the employee is qualified and requires no accommodations, the employer must return the employee to the job. If the employee requires a reasonable accommodation upon returning to work, the employer must explore if and how this can be done through an interactive process. Accommodations can include a wider variety of job or work station modification.

If it has been determined that the employee is not fit to return to work, the employer must consider whether the employee is temporarily unable to perform the essential functions of the job, and if so, whether a leave of absence is required or appropriate under the provisions of FMLA (Family Medical Leave Act) or CFRA (California Family Rights Act). Other California leave laws may also come into play.

If the employee cannot perform the essential functions of the job with or without accommodation, the employer may be able to lawfully terminate that employee's employment or refusing reinstatement.

Many workers intuitively believe that just because their co-workers act toward them in a rude or unfair way or just because they are not friendly to them, this is ground for harassment claim in court. It is important to remember, however, that under California law, a conduct is considered harassment only if it's "sufficiently severe and pervasive to alter the conditions of the alleged victim's employment." This standard is quite high, and isolated incident of rude or inappropriate behavior usually don't qualify as harassment.

Thus, in one recent case, the Second District court considered a situation where the worker sued her employer for harassment hostile/work environment after several of her co-workers teased her on several occasions in front of the customers and called her a "retard," and refusing to change her schedule so that she could avoid working during the same shift as those employees who teased her. Young v. Exxon Mobil Corp. The court held that, as a matter of law, the evidence did not establish harassment sufficiently severe and pervasive to be actionable under the FEHA (Fair Employment and Housing Act) to alter the condition of Young's employment.

Admittedly, it takes a more egregious conduct to constitute harassment. Many companies can be characterized by being stressful workplaces with office politics, "backstabbing," and other manifestations of people's dissatisfaction of being forced to work together, but to constitute harassment, these working conditions must clearly be beyond the typical disagreements, and conflicts between co-workers, and a common stress that is brought about by most jobs.

Under California law, to be actionable/unlawful the harassment at workplace must be sufficiently "severe and pervasive." This means that, generally isolated comments and incidents, unless egregious, do not rise to the level of sexual harassment as defined by FEHA (California Fair Employment and Housing Act). But, what about staring? Can staring be grounds for a sexual harassment claim? On one hand, staring might be a very subjective complaints, as some people might think that someone is staring at them when in fact no one does. On the other hand, overt staring might be very threatening and indicate a kind of obsession and other threatening behavior.

The California Court of Appeal confronted the issue of whether staring can be considered sexual harassment in Birschtein v. New United Motor Manufacturing, Inc. (2001). In that case, a forklift driver approached the female assembly worker and asked her out several times. After she refused his propositions, he started sharing his explicit sexual fantasies about her, and drive around and look for her when she was not around. After the claimant complaint about harassment to the management, the forklift driver stopped speaking to her and never spoke to her again. Instead, he began staring at her. He would drive to her work station five or more times per day and stare directly at her for at least several second each time. He would also sit behind the forklift and stare at the plaintiff for five to ten minutes at a time.

When the female employee sued her employer for sexual harassment and failure to prevent harassment, one of the arguments that the defense attorneys had was that staring is not a sufficiently severe and pervasive behavior to constitute harassment as a matter of law. The court disagreed. In its holding, the court suggested that staring is particularly likely to be actionable as harassment if there is a prior history of prior acts between the harasser and the victim of harassment that would cause the victim to feel threatened and intimidated when the harasser, who engaged in the more overt acts of harassment, engages in staring in retaliation for the victim's complaints. In other words, the court seemed to suggest that while staring alone might not be sufficient to constitute harassment, when combined with other (prior acts) by the same harasser, it may be sufficiently severe and pervasive to constitute sexual harassment.