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The 14th Amended of the Constitution provides that no state shall deprive any person of… property without the due process. Before the state deprives someone of a protected property interest, the right to some kind of prior hearing must be provided. Regents of State Colleges v Roth (1972). Property interest is not created by the Constitution. Rather, it is created and defined by the existing rules and understandings that stem from an independent source, such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

The Supreme Court explained that government employees can have a protected property interest in their continued employment, if they have a legitimate claim to tenure or if the terms of their employment make it clear that the employee can be fired only for cause. Perry v Sindermann, 408 US 593 (1972). Thus, such employees as assistant college professors, who are hired for a fixed one-year term and are not tenured, do not have a property interest in their job if their contract is not renewed after its expiration.

Thus, the first main step in determining whether an employee has property interest in his/her job under the 14th Amendment is asking whether the position can be terminated only for cause and/or whether it is tenured.

The Board of Chiropractic Examiners may impose discipline against a licensee-chiropractor in California only when that chiropractor’s misconduct is substantially related to the qualification, functions or duties of such a license. It has been held that sexual misconduct with a patient and a conviction involving use of dangerous drug alcohol, such as DUI, are events that can lead to a discipline against a chiropractor’s license. Further, certain types of advertising are forbidden and constitute ground for discipline.

Like in disciplinary actions against other types of professional licenses, a chiropractor may and should present evidence of mitigating circumstances during the license defense proceedings.

Hiring the right attorney, experienced in professional license defense, who can present the case and the mitigating circumstances in the most favorable light without overreaching can be critical in reducing the discipline from revocation to probation with or without suspension, or reducing the penalty from suspension to a letter of admonishment, which letter can also be appealed subsequently.

The California Board of Registered Nursing is charged with investigating licensed nurses and taking disciplinary actions when appropriate. These kinds of actions are brought under the Administrative Procedure Act. The Board’s executive officer files the disciplinary action against, but the board itself is the ultimate decision maker in any such action. The board may only impose discipline against a licensed nurse only when the licensee’s misconduct or violation is substantially related to qualifications, functions, or duties of the nursing license. The criteria for determining whether such substantial relationship exists is outlined in the board’s regulations. The typical disciplinary actions involve penalties ranging from a citation to license suspension or revocation.

The most common charges leading to disciplinary actions against registered nurses are “incompetence” and “gross negligence” as well as “substance abuse” and “charting errors.”

disciplinary action against registered nurses in CaliforniaOne of the very important elements of making the case for reducing the discipline imposed is showing either rehabilitation or other mitigating evidence. This is especially important in substance abuse cases, where showing active rehabilitation can be critical to maintaining a license or at least not having it revoked. Usually, simply attending AA meetings or similar meetings is not enough to show rehabilitation at a disciplinary hearing, and being involved in a more formal rehabilitation program is required in order to demonstrate to the board that the nurse is on the right track toward recovery from addiction.

Many workers don’t realize that the performance reviews that they receive from their management and their content for the most part are not regulated by law. Employers have sound discretion in determining how to review their employees’ performance, how often to do it, in what format, and whether or not to do it all. The content of performance reviews is also not subject to legal review. In other words, the fact that an employee believes that his/her performance review is unfair has very little, if any significant. The only way it can be used in a wrongful termination claims as additional, circumstantial evidence of otherwise discriminatory or retaliatory firing.

Employers have an unqualified right to use their subjective opinion in evaluating their employees’ performance. The courts do not interfere in that process. Thus, if you have a dispute with your employer over the quality of your performance, you must remember that you are hardly helping yourself by simply getting defensive and disagreeing with your employer’s opinion.

Receiving an unfavorable performance review can be a stressful and frustrating experience, especially when the employee tries his hardest to do the best job he can and truly believes that he does well. However, in the absence of evidence of unlawful discrimination or retaliation, the right way to address bad performance reviews is constructively – by both asking for the more specific feedback and criticism in your performance issues and by trying to improve at least some aspects of your work.

Getting FMLA leave approved can be a frustrating process, especially at a large company or governmental agency where every decision, even a relatively small one, has to be run by and approved by a number of supervisors. It’s possible that when you request medical leave, you will have to do a few trips back and forth between your doctor and your employer, where employer will request for additional information or clarification of your condition, symptoms, limitations and reasons for your anticipated leave.

In most cases, cooperating with the employer or even putting your employer directly in touch with your doctor is a good idea. You want to show that you reasonable do everything in your power to ensure that the employer is on notice of your condition and the need for FMLA.

Some employees decide to play “hardball” with their management, withholding information due to confidentiality concerns, etc… Unless you have some kind of embarrassing condition or are concerned that your management will not maintain confidentiality of your personnel records, you should disclose the required information, because the employer has the right to know the basic information about the reasons for your need for medical leave before granting that leave.

Many large companies have “no fault” attendance policies, where an employee gets a point or half a point for every absence or for being late regardless of the reason for that. Often these kinds of attendance policies are part of the negotiated bargaining agreement between the union and the employer. Under that policy, once the employee accumulates a certain number of points, he is automatically terminated. Such attendance policies do not override the state and federal laws that provide for disability and medical leave, and time off due to qualifying disability or a medical condition should never be counted toward the above-mentioned points. However, it is critical that you notify your management and HR as soon as possible that the reason for any given absence is your medical condition or a disability. If you don’t put your employer on notice, then employer will have no obligation to protect you from the consequences of their policy.

Some employee, who are very concerned about their medical privacy, do not disclose any significant details about their medical condition and choose to be vague and say “I wasn’t feeling well.” This kind of general statement does not put the employer on notice that you have a “serious” medical condition within FMLA/CFRA or that you might have a disability within FEHA or ADA. When your job and disability rights are in jeopardy, this is not the time to safeguard your medical confidentiality, but instead you should find out what information your employer needs in order to be properly informed that you need time off due to the medical reason and possibly other accommodations.

Despite the fact that FEHA (Fair Employment and Housing Act) has been enacted several decades ago, most people who are familiar with the basic ADA disability protections against discrimination at workplace, are not familiar or have not even heard about the FEHA. Fair Employment and Housing Act – a California version of the federal ADA, is similar and in some ways far more protective of employees than its federal counterpart.

One of the significant differences between the two laws which favors employees in the FEHA is the definition of disability. Under ADA, disability is an impairment that substantially limits a basic physical or mental function of the body. Under FEHA, on the other hand, there is no requirement of “substantial” limitation and basically any limitation of a basic physical or mental function is considered disability, entitling a worker in California to the protections, and generally triggering the employer’s obligation to engage in interactive process and provide reasonable accommodations. California Government Code 12926.1 codifies the definition of disability which is very broad and includes a wide range of chronic and non-chronic conditions that would qualify as a disability at workplace.

For more information, read the full text of the California Fair Employment and Housing Act.

One of the common mistakes claimants make is coming to the mediation with a set, firm “floor” settlement figure in their mind. This approach has seriously downside. First and foremost, mediation is a process that requires at least some compromise from both parties. Statistically, most cases that go to mediation settle, but it is also true that to be successful at mediation you have to take less than you were initially willing or give more than you initially wanted.

Being open minded about the settlement of your case during the mediation is particularly important in wrongful termination and other employment cases, as these are particularly challenging cases, in which liability is almost always an issue. Unlike in other cases, such as car accident, in which it’s typically clear and uncontested whose fault the accident is, and the only questions is how much the innocent victim should recover in damages, discrimination, retaliation, and other wrongful termination claims require proving motive. Direct evidence of illegal motive by the employer, such as open admission of guilt, is almost never available, and the aggrieved employee has to rely on circumstantial evidence to prove his/her case. In addition, the employer often have defenses that are hard to disprove, which include misconduct, insubordination and poor performance, which are inherently subjective and so easy for the employer to argue, unless you have a stellar, long-standing performance record.

The above and other factors all suggest that it is in your best interest to be open minded about the settlement value of your case at a mediation. It does not mean that you have to sell short a good case with compelling facts and reliable witnesses, but it does mean that you should listen carefully to the arguments of everyone else who shows up at mediation about the strengths and the weaknesses of your case, as all of the other present at the proceedings likely have much more experience in employment law and with trials and juries than you do.

The recently published case, DFEH v Lyddan Law Group, decided by the agency that reviewing DFEH decision, reaffirms that fact that an employee is unlikely to prevail on a racial discrimination/harassment claim when his/her boss makes racial jokes, off-color comments with regard to different races in an apparent desire to entertain himself and his colleagues and staff members. As inappropriate and as offensive racist jokes at workplace might be, especially when they originate from a manager who is an attorney-partner in a San Francisco law firm, like it was in this case, these jokes do not mean that the alleged harasser discriminates or that he creates an hostile work environment, especially if the relationship between him and the alleged victim is otherwise good and if the alleged victim does not complain about the harassment and does not make it known in any way that he/she is unhappy about the comments she hears.
Both, the Department of Fair Employment and Housing and the Court will require more than isolated racist jokes to find racial harassment or discrimination at workplace. Not all conduct at workplace that can be described as harassing creates liability under FEHA and the related anti-discrimination laws. As the Supreme Court has stated, the statutory protections against harassment do not create a “general civility code.” Oncale v. Sundowner Offshore Services (1998) 523 U.S. 75, 81. There has to be a showing that the employer created or failed to remedy objectively intolerable working conditions for the victim. The requisite standard involves a shoring that the harasser’s conduct would have interfered with a reasonable employee’s work performance, seriously affecting the psychological well-being of a reasonable employee and that the alleged victim was actually offended. As the court stated in Aguilar v. Avis Rent A Car System, Inc., (1999) 21 Cal.4th 121, 130, “not every utterance of a racial slur in the workplace violates the FEHA or Title VII.”

In this particular case, the DFEH also hinted in their decision that they also believe that at least one reason the employee brought a claim for racial discrimination against her boss was that she was denied her annual bonus and salary increase in a prior year.

The protections afforded to employee under the Federal and State disability laws are quite expansive and go far beyond protecting just those employee who have a “disability” the way an ordinary person would understand the term, such as being handicapped, or having suffered from a major traumatic injury. The US Supreme Court case School of Board of Nassau County, Florida, v. Arline, 481 U.S. 1024 (1987) is an illustration of this broad application of the disability laws at workplace. In that case, a school teacher was fired from her job solely because of her susceptibility to tuberculosis. The school argued that in removing the teacher from her position, they were protecting the safety of others by preventing the teacher from infecting students and administration with the contagious effects of tuberculosis during a possible relapse. However, the Supreme Court was not persuaded, noting that allowing discrimination based on the contagious effects of a physical impairment would be inconsistent with the basic purpose of section 504 (Rehabilitation Act) which is to ensure that handicapped individuals are not denied jobs or other benefits because of the prejudiced attitudes or ignorance of others. The fact that some persons who have contagious disease may pose a serious health threat to others under certain circumstances does not justify excluding from the coverage of the Act all persons with actual or perceived contagious diseases. Such exclusion would mean that those accused of being contagious would never have the opportunity to have their condition evaluated in light of medical evidence. Rather, they would be vulnerable to discrimination on the basis of mythology – precisely the type of injury Congress sought to prevent.

The Court further agreed American Medical Association that to determine whether the Plaintiff was otherwise qualified for her position, an individualized inquiry should have been made, which was to include “findings of fact, based on reasonable medical judgments given the state of medical knowledge about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious”, (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.”

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