Articles Posted in Wrongful Termination

retaliation-against-nursesOn April 28, 2015, the Los Angeles Superior Court jury returned a verdict for a plaintiff-nurse in the amount of $299,000 in a retaliation and wrongful termination case against her employers – a hospice and a home health agency. The plaintiff, Vanessa Manuel, worked part time as a registered nurse for both companies for three months. On May 2, 2013, she was offered a full time position and working shifts at both companies. On the same day she reported to the Director of Nursing that the social worker at the hospice was unlicensed in violation of state law. Just was fired from both companies just 5 days later. Shortly after the plaintiff was fired, she reported the violating to the Department of Public Health, who investigated the complaint and issued a deficiency to the hospice.

During trial, a few important documents that the employer presented turned out to be false and fabricated, which obviously discredited the defendants testimony and made the jury doubt just about anything the employer was presenting at trial. Plaintiff’s damages were enhanced by the fact that she had a seizure disorder that prevented her from taking many kinds of nursing jobs and therefore made her job search harder than for other nurses.

This case is an example how the timing of events, i.e. a protected activity of reporting unlawful conduct and subsequent termination and fraudulent document can enhance damages and jury award in a wrongful termination case.

angry employeeSuppose your boss engages in what’s clear to be a discriminatory conduct toward you because of your age, race, gender, or because the employer is really unhappy that you filed a workers comp claim or harassment complaint. You are not terminated yet, but you know that it’s only a matter of time before you are being fired for some bogus reason. In frustration, you decide to leave an angry voicemail or send an angry, rude e-mail to your boss, calling him names and telling him how much you hate him and your job. Then, as you expected – you are terminated. The reason for termination, among other things, is your rude communication.

At this point, if you bring a discrimination or wrongful termination case in court, your task will be no just showing evidence of discriminatory actions by your manager against you, but you will also have to show that the real reason for your termination is not your rude communication with the employer but all the other illegal reasons that you claim were involved. This is a much harder task, and it’s often impossible. Unless you can point at one or more other employees who weren’t disciplined by the same manager who terminated you, even though they were just as rude as you were, your chances of proving your case will be low.

You may think that your rude communication is justified because your employer has been so unfair to you and they have been treating you so badly for such a long period of time, and you might be right. However, this argument is completely irrelevant, and it is not going to help you in court. It is therefore critical that you never, ever leave any track of any kind of rude communication toward your employer,  no matter what happens, and even if the employer is being rude to you. This will give your employer and their attorney less weapons to fight your wrongful termination case, which will translate into higher chance of successful settlement or resolution of your case, once the time comes for that.

Auto parts retailer AutoZone Inc., was accused last Friday of violating federal law for allegedly implementing a nationwide attendance policy that failed to accommodate certain disability-related absences. This the fourth workplace disability discrimination lawsuit the Equal Employment Opportunity Commission has filed against the company in recent years.

In the latest case, the EEOC said that from 2009 until at least 2011, AutoZone assessed employees’ nationwide points for absences, without permitting any general exception for disability-related absences, with 12 points resulting in termination. As a result, the EEOC said in a statement, qualified employees with disabilities with “even modest” numbers of disability-related absences were fired in violation of the Americans with Disabilities Act. These included one Illinois employee with diabetes who had to leave work early occasionally because of insulin reactions, and who was fired because of his attendance points.

EEOC’s lawsuit also alleges that another employee was discharged in retaliation for complaining about the policy and filing a charge with the EEOC.

When you file a wrongful termination lawsuit, it is a common practice for the defense attorneys, who represent your former employer, to look you up on the various social media websites, including Facebook, Twitter, and Linked In, among others. The are several reasons why they do this. First, they want to learn more about who you are and who they are dealing with on the other side. More importantly, they are looking for any information that you post that might be used against you as some kind of impeachment evidence – the kind of evidence that would suggest that you are not honest or that your case is not as good as you say it is. Some of the common examples of such evidence are –

* A disabled employee who claims that he is unable to walk, who posts his skiing or tennis playing pictures on Facebook or Instagram.

* An employee who posts messages on his Facebook timeline stating that he is so happy that he is fired. This will of course make it much harder for that employee and his attorney to argue that the employee suffered emotional distress, as it would appear on the contrary – that the claimant is better off now, since he got what he wanted.

In a recent Forbes article, a Florida attorney Donna Ballman discusses the employers’ favorite sneaky ways of getting rid of older employees, which are described below. This very much applies to California and the checklist below can be a good start for any older employee who suspects that he is or might be a victim of age discrimination to determine whether in fact the employer is trying to get rid of him for unlawful reasons.

1. Job elimination.

One of the most common excuses used to get rid of older employees is “job elimination.” However, that may just be an excuse for what is really age discrimination. If the company is not really eliminating the job, just changing the title and putting someone younger is your former position, you may have an age discrimination claim.

One of the more common wrongful termination scenarios that Kaiser employees seem to face is retaliation for complaining about patient safety or other violations of safety and patient care. It’s easy for management to retaliate against registered nurses or nursing assistants, and it’s as easy as finding minor job related mistakes, such as charting errors that have no actual significance, in order to set the employee who complained about an unsafe practice for termination.

If you feel you are being targeted and retaliated against, you might not be able to save your job, unless you manage to transfer to work under a different management as soon as possible and before your are terminated. However, there are a few things you can do to make your future claim stronger, in case you choose to pursue a retaliation and/or wrongful termination case against your employer:

1. Keep track of all the important documents, e-mails, and your own chronology of any events that would suggest that your employer was unhappy about your complaints or other protected activities, and was trying to set you up for failure and for being fired.

There are several compelling reason for an unusually high number of discrimination, retaliation and wrongful termination complaints an claims filed against John George Hospital and other facilities of ACMC (Alameda County Medical Center). However, the most significant reason seems to be the grossly inadequate and undereducated human resources management staff and those managers who are in charge of both preventing discrimination and harassment from occurring and handling it properly and properly when it occurs.

Many of the human resources managers and high level directors and administrators at ACMC have no skills, experience or (formal) qualifications to deal with harassment and discrimination at workplace, and they often don’t both to consult with their attorney before making important decisions, such as suspending, demoting, or terminating and employee.

Having deposed several of ACMC’s managers, I found that some of them think that they are well qualified to handle the employees’ disability rights and discrimination and retaliation concerns just because these managers have been in their position for decades. They seem to not grasp the fact that length of service alone does not make you more qualified with certain workplace issues.

It is well established that a retaliation claim may be brought by an employee who has complained of or opposed conduct that the employee reasonably believes to be discriminatory, even when a court later determines the conduct was not actually prohibited by FEHA. Strong policy considerations support this rule. Employees often are legally unsophisticated and will not be in a position to make an informed judgment as to whether a particular practice or conduct by their employer or a manager actually violates the anti-discrimination laws. A rule that permits an employer to retaliate against an employee with impunity whenever the employee’s reasonable belief turns out to be incorrect would significantly deter employees from opposing conduct they believe to be discriminatory.

Moreover, a mistake of either fact or law may establish an employee’s good faith but mistaken belief that he or she is opposing conduct prohibited by FEHA.

To have a claim for retaliation, an employee does not necessarily have to be terminated. Creation of tolerance of hostile work environment for an employee in retaliation for the employee’s complaining about prohibited conduct is an adverse employment action within the meaning of California Gov. Code section 12940(h). Moreover, an employer’s alleged retaliatory responses may be considered collectively to determine whether the employee was subjected to an adverse employment action under the same section. However, mere ostracism in the workplace is insufficient to establish an adverse employment decision. Brooks v City of San Mateo (9th Cir. 2000) 229 F.3d 917, 929.

There are a few basic things every California state employee should know about the AWOL policies that agencies have the right to invoke how these agencies can use and abuse this policy to wrongfully terminate state workers:

* AWOL stands of “Absent Without Leave”. It was enacted to prevent abuses of time off by state employees and allow agencies to terminate its employees by invoking the AWOL statute.

* Generally, an employee who is absent without approved leave for 5 consecutive days, may be deemed AWOL and be separated from his state service.

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