San Francisco Employment Law Firm Blog

Two critical aspects of proving (discriminatory) workplace retaliation for filing a workers compensation claim or engaging in other protected activity are: (1) proving causal relationship between the filing of the the workers compensation claim (or engaging in other protected activity) and the discriminatory actions by the employer; and (2) proving tat the employee was qualified and able to perform his or her job at the time when discrimination took place.

Careful investigation of the facts and circumstances of the employee's employment and wrongful termination is essential. Obviously, with respect to establishing the causal relationship, the closer in proximity of time the discriminatory conduct is to the employer's learning of the employee's filing a workers compensation claim, the more likely the causal link will seem to the judge, jury, or an arbitrator.

The first very important component of proving retaliation is in disproving a possible legitimate reason for termination, the most common of which is poor performance. Thus, in a case of alleged retaliation, like in most other discrimination claims, an attorney should seek evidence such as the employee's productivity and performance records, including all evaluations, commendations, promotions, raises, and any disciplinary measures.

The second component of demonstrating unlawful retaliation is the evidence specific to the workers' compensation system. Information to obtain of this type includes the number and disposition of all workers' compensation claims that have been filed against the employer, and information about the whereabouts and subsequent histories of employees who had filed claims.

The third piece of evidence essential to proving retaliation claim is the aggrieved employee's hospital and medical records, with special attention to the timing of visits to health care providers. The employer may have likely retaliated for an employee taking time off to see a doctor or get treatment, which in many cases is also considered an unlawful retaliation and disability discrimination.

It is also important to obtain documents evidencing the employer's position with respect to the underlying workers' compensation claim. i.e. Was your workers compensation claim contested by the employer? On what grounds? How vigorously? What was the outcome?

It is hard to overestimate the importance of documentary evidence in proving retaliation and disability discrimination claims in California. As in most individual discrimination claims, the testimony of the employee and employer generally ends up in flat contradiction regarding key elements of the claim. Proper documentation is likely to be crucial in corroborate the employee's testimony and disprove the testimony of the employer, casting doubt on the truthfulness of the employer's stated motives for discriminating and/or terminating your employment.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Disability at Workplace , Retaliation

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A qualifying employee (who worked for his employer for 1,250 hours or more during the past year for a company with 50 or more employees within a 75 mile radius) invokes his CFRA / FMLA rights when she asks for leave for her own serious health condition or that of a family member, and need not mention CFRA or FMLA by name in order to be entitled to leave. The employer may grant the leave without ever requesting medical certification. However, if the employer requires such certification, it should do so either at the time that the employee gives notice of her need for leave or within two business days thereafter, or - if the leave of the employee was unforeseeable - within two business days after the employee's leave starts. Cal. Gov. Code section 12945.2(j)(1), (k)(1).

Under CFRA, the certification is legally sufficient if it includes the dates on which the condition started, and the estimated time the employee will require the leave. Once an employee provides adequate certification of her serious health condition, the employer must grant the leave, unless it has "reason to doubt the validity of the certification." The employer may request an employee to undergo a second or third opinion of his condition if and only if the employer has a reason to doubt the validity of the original certification provided by the employee. Employers are required to obtain the opinion of a second and third doctor before denying leave or terminating an employee because of doubts about the validity of certification.

If you believe that you suffered an adverse employment action or were wrongfully terminated in retaliation for exercising your rights under FMLA / CFRA, contact San Francisco employment lawyer Arkady Itkin to discuss your rights.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Unemployment Benefits

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California Family Rights Act (CFRA) is a part of FEHA (Fair Employment and Housing Act) and generally provides that it is unlawful for an employer to refuse an employee's request for up to 12 weeks of family care and medical leave in a year. An employer is also forbidden from discharging or discriminating against an employee who requests family leave or medical leave. Family care and medical leave includes leave because of an employee's own serious health condition that makes the employee unable to perform the functions of his position. "Serious health condition" means an illness, injury, impairment, or physical or mental condition that involves either of the following: (a) Inpatient care in a hospital, hospice, or residential care facility; (b) Continuing treatment or continuing supervision by health care provider.

To be eligible for CFRA leave, an employee must have more than 12 months of service with the employer and have at least 1,250.00 hours of service with the employer during the previous 12 months of employment. It is important to note that this condition must be satisfied not at the time the employee suffered an adverse employment action (termination, suspension, etc.), but whether the employee was eligible to take CFRA leave when she took the leave that resulted in adverse employment action.

It is also unlawful to retaliate against an employee for exercising his rights under CFRA. The Dudley v. Caltrans 90 Cal.App.4th 255 was the first court to outline the elements of proving CFRA retaliation, adopting FMLA retaliation analysis used by the federal courts. The court concluded that the elements of retaliation claim under CFRA are as follows: (1) the defendant was the employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercise her right to take leave for a qualifying CFRA purpose, and (4) the plaintiff suffered an adverse employment action, such as termination, fine, demotion, or suspension because of her exercise of her right to CFRA leave.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: California Family Rights Act (CFRA) , Family Medical Leave Act (FMLA) , Retaliation , Wrongful Termination

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California statutes prohibiting retaliation bar termination of (or other adverse employment action against) employees asserting their legally protected rights, exercising political affiliations, opposing unlawful discrimination at workplace, or seeking statutory redress (such as investigation of discrimination, harassment, etc.)

To show retaliation under California Fair Employment and Housing Act (FEHA), an employee must show that (1) he or she engaged in protected activity under FEHA; (2) he or she suffered an adverse employment action (such as demotion, transfer, suspension, termination or other action by the employer that materially affects the terms, conditions, or privileges of employment, and/or would tend to discourage a reasonable employee from complaining about the unlawful conduct at workplace); and (3) there is a causal connection between the protected activity and the adverse employment action.

FEHA specifically prohibits an employer from retaliating against employee for opposing any unlawful discriminatory practice prohibited by FEHA, and filing a complaint, testifying, or assisting in any proceeding under FEHA.

Note, that the great power of the anti-retaliation law is in that the employee only needs to show that he or she had a "reasonable belief" that the employer practice that the employee was opposing was unlawful. It doesn't matter that a court later determines later that the practice complained of, or opposed to, is actually not illegal, as the California Supreme Court held in Yanowitz v. L'Oreal USA, Inc. (2005) 36 C4th 1028, 1043.

Posted by Arkady Itkin | Permalink | Email This Post

Posted In: Retaliation , Wrongful Termination

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