FMLA protectionMany employees (and employers) misunderstand what FMLA protection means. They assume that this protection provides them with a certain immunity from being terminated – i.e. that they cannot be terminated while on FMLA leave no matter what. This is not entirely correct for at least two main reasons:

First, an employee who requested FMLA leave or who is already on FMLA leave can be terminated for any legitimate reason that any other employee could be fired. This includes such typical reasons as misconduct, insubordination, policy violations, and performance issues.  That employee can also be laid off like anyone else due to workforce reduction, restructuring, etc. The fact that the reason provided does not seem to be fair does not make that termination illegal. FMLA prohibits discrimination on the basis of exercising FMLA rights; it doesn’t mean that the employee should be treated better or with more lenience than other employees. Thus, if you were terminated anyway, requesting FMLA leave is not a shield from that termination. Of course, if you are terminated while on medical leave or shortly after requesting it, it creates a suspicion that the true reason for your termination is exercising your FMLA rights, which would be illegal. However, timing of termination relative to FMLA leave is generally not enough to provide FMLA discrimination and retaliation. An experienced attorney should be able to evaluate your termination in light of all the circumstances surrounding it to advise you whether there is sufficient evidence to make a claim of FMLA violation against your employer.

Secondly, even if your termination would be illegal under FMLA, the employer can still choose to violate the law and fire you, and then deal with the legal consequences of illegal firing, if and when you decide to pursue a case against them. In fact, employers often intentionally violate the law and fire employees illegally because they just don’t want them around any more and they are willing to pay for it by spending money on defending the case against them and paying out settlements.

employers actions not illegalThe following is is a list of things that employers often do, which might seem unfair or hurtful, but generally not illegal (in the absence of specific evidence of discrimination or unlawful retaliation) in an at-will employment setting:

(1) Issuing unfair performance reviews or warnings

An employer is entitled to a subjective view and opinion of your  job performance. The fact that you disagree with your review or believe it’s false or unfair, and the fact that you think that you are very good at what you do, doesn’t make that evaluation illegal. The same applies to warnings or any other disciplinary action.

why employers offer severance Employers in the San Francisco area routinely offer severance package to the employee they lay off or fire or even to those employees who choose to resign. This severance may include monetary compensation, additional stock options, continued health insurance coverage and other possible benefits. The amount of severance can be more or less generous and it can be more or less negotiable. The fact that an employer offers you severance doesn’t mean that you have or don’t have some kind of legal claim against them and it doesn’t mean that they believe that they violated any of your workplace rights.

The main two reasons employers offer severance are –

(a) A gesture of good will – employers offer severance because they have an interest in preserving a good will in the industry and make the transition of a separated employee to another job easier, and discourage the employee from saying about things about the company by making that employee a confidentiality and non-disparagement agreement.  Of course, severance payment is not guaranteed to achieve this goal, but softening the overall impact of termination is a good business practice.

dealing with workplace issuesHaving been working with hundreds of employees on dealing with their workplace issues in San Francisco and Sacramento area over the past ten years, I see the same five common misconceptions about California employment law that many employees have, and their repeat themselves over and over:

1. I can sue my employer because I am being treated really badly. 

The are many ways in which an employer can treat an employee badly – from unfair performance reviews, false rights ups, to micromanaging, yelling and using degrading language. However, the vast majority of those types of behavior are not illegal. Being treated badly, whether you think it’s bullying or harassment, is not against the law, unless there is specific evidence that the actual reason for that bad treatment is discriminatory, i.e. your rage, age, sexual orientation, disability, familial status, etc… or retaliatory (due to complaining about unlawful actions of a specific kind). Otherwise, no legal claims can be made based on unfair or harsh treatment by the employer.

puzzled-employeeHere are five very common misconceptions that many employees have about California employment law, including discrimination, retaliation, and wrongful termination laws:

  1. “If I file EEOC of DFEH charge, my employer cannot terminate me.”  – This is not correct. Your filing of a charge with one of the agencies might or might not be a protected activity depending on, among other things, whether you have a good faith, reasonable belief that you are being discriminated or retaliated against. However, the employer can still choose to terminated you, if they want to, and then deal with any type of legal consequences of that termination if you decide to pursue a claim against them. In other words, submitting a discrimination or retaliation complaint does not grant you immunity against termination.
  2. “EEOC / DFEH will be fighting for my rights.” Equal Employment Opportunity Commission and Department of Fair Employment and Housing receive thousands of complaints every year. They have limited resources and they have to pick very few cases which they would look closely into and pursue. With regard to the vast majority of cases, they close their files and issue a right to sue letter to the complainants, informing them that they can hire a private attorney and proceed with their case in court, if they wish. Thus, you should not be expecting those agencies to pursue a case against your employer.

disability discriminationRecently, the Fifth District Court of Appeal made a very important distinction in its disability discrimination opinion Wallace v County of Stanislaus, which is highly useful to employees-plaintiffs. The court clarified, among other things, what it means to be discriminated “because of” disability. For years, the employers have been fighting disability discrimination, and often effective, by arguing in court that the employee cannot prove that the employer intended to discriminate against an employee because of his medical condition, or that the employer had some kind of ill will toward an employee because of his disability.

The Wallace court rejected the above notion and stated that no such requirement exists in the law. The court distinguished between disability discrimination and other types of discrimination cases and concluded:                     “… an employer can violate section 12940, subdivision (a) by taking an adverse employment action against an employee “because of” the employee’s physical disability even if the employer harbored no animosity or ill will against the employee or the class of persons with that disability”. This means that technical violation of disability laws, such as failing to engage in the interactive process and / or failing to provide reasonable accommodations in violation of ADA / FEHA can be the basis for employers’ liability, whether those action was taken with malice or innocently.

eeocRetaliation claims increased by nearly five percent in 2015 and continue to be the leading type of cases filed by workers across the US. Various disability law violations, including ADA  disability discrimination claims  increased by six percent from last year and are the third largest category of claims filed by employees.

The U.S. Equal Employment Opportunity Commission (EEOC) released breakdowns of the 89,385 charges of workplace discrimination that the agency received in fiscal year 2015.  The year-end data shows that retaliation again was the most frequently filed charge of discrimination, with 39,757 charges, making up 45 percent of all private sector charges filed with EEOC. Race, disability and sex discrimination were other most commonly brought charges in 2015,. EEOC said it resolved 92,641 charges in fiscal year 2015, and secured more than $525 million for victims of discrimination in private sector and state and local government workplaces through voluntary resolutions and litigation.

Charges raising harassment allegations made up nearly 28,000 charges of the total number of claims, or 31%.  Employees claimed harassment or hostile work environment based on race, age, disability, religion, national origin and sex, including sexual orientation and gender identity.

signs of age discrimination at work in CaliforniaThis day and age, most employers are far too sophisticated and careful to make their desire to get rid of the older workers and replace them with younger ones obvious, because they are so afraid of being hit with an age discrimination / wrongful termination lawsuit by the older worker who is fired for some bogus reason. Our courts recognize how easy it would be for an employer to cover up the true reasons for terminating older employees behind such vague and hard to disprove reasons as performance, attitude, insubordination, etc. Therefore, the courts allow indirect evidence to be used as proof of age discrimination at workplace. Here are some of the typical signs of age discrimination at workplace that are often just the beginning of an employer’s campaign to push older workers out and replace then with younger employees:

(1) the managers’ comments about the need to bring more younger workers;

(2) referring to older employees by ageist nicknames, such as “father” or “father time”.

disability leave mistakes under ADA FEHAThe most important advice we have for communicating with your employer during your disability leave is doing it in a way that would make it clear to them why and how long you will not be able to work for. While you, of course, have a certain right to medical privacy and confidentiality, the employer is entitled to know that information which is relevant to your limitations and to your request for disability leave under ADA / FEHA or medical leave.

Many employees, while on leave, make this common disability leave mistake of ignoring the employer’s letters that request additional medical information or clarification of previously provided medical notes. This is not a good idea, and this can often give the employer a legitimate reason to terminate an employee who would otherwise have all the protections that are otherwise available to disabled employees.

For instance, suppose you provide your employer some type of medical notes that states that you are sick and you won’t be able to work for 30 days. Your employer is puzzled and they want to know why exactly you wouldn’t be able to work. While they might not be entitled to know your exact diagnosis, they are entitled to know  the limitations that affect your ability to work or prevent you from working. For instance, if you need some type of surgery, the employer is not entitled to know what the surgery is, but they are entitled to know that you, for instance, won’t be able to move or walk for a certain period of time.

cfra medical leave rightsCFRA medical leave is intended to give employees an opportunity to take leave from work for certain presonal or family medical reasons without jeopardizing their job security. Nelson v United Technologieis (1999). Generally, CFRA makes it illegal for an employer of fifty or more employees to refuse to grant a request by an emloyee to take up to 12 weeks off work in any twelve month period for family care and medical leave. The goal of CFRA is to both prevent the effects of employment discriination and also promote CFRA’s specific goal of promoting stability and economic security in California families.

Employers subject to the CFRA medical leave laws are required to provide notice to thier employees of the right to request CFRA leave. Cal. Code. Regs, tit. 2, §7297.9(a). At the same time an employee who wishes to exercise his right to leave under CFRA should compy with Cal. Code Regs, tit. 2 §7297.4(a)(1): “An employee shall provide a tleast verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even moention CFRA of FMLA, to meet notice requirement however, the employee must state th reason the leave is needed, such as for instance, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken by that employee.

For example, in Mora v Chem-Tronics, Inc. (1998), the court held that when an employee stated to his employer that his son was HIV positive and had a very high fever and that the father could not leave his son when he was so ill, it was sufficient notice of the son’s serious medical condition as a matter of law for the purposes of obtaining CFRA leave.