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.
There is a number of benefits to pursuing both, the arbitration of your union grievance and a wrongful termination lawsuit (if there are grounds to bring such a claim). One of the main such benefits is the fact that losing one does not really affect the other, so in a way you get to have two shots of handling the same problem. This is because the two proceedings are fundamentally different.
First, a union arbitration takes place before an arbitrator and outside of court, while a wrongful termination lawsuit is pursued in court (State or Federal). More importantly, the standard of proof in both proceedings is very different. Generally, at a union grievance arbitration, the issue will be whether there was just cause for a discipline imposed against the aggrieved employee, and whether the discipline imposed was proportional to the alleged violation. In court, however, whether there was just cause for employee’s termination has no legal relevance, because a wrongful termination plaintiff needs to present evidence of discrimination or retaliation – to prove that he/she was either (1) treated differented due to being a member of protected class (i.e. age, religion, disability, familial status, gender, sexual orientation) or (2) suffered an adverse employment action due to engaging in a protected activity (i.e. complaining about unlawful discrimination or harassment, complaining about safety violations, engaging in political activities, reporting embezzlement of public funds, etc…)
Thus, if an employee loses at arbitration and fails to prove that there wasn’t just cause of discipline imposed, he can still be able to prove in court that the true reason for the discipline was discrimination or retaliation. Or, if an employee loses his case in court and fails to prove discrimination or retaliation, he still has an opportunity to prove that there was no just cause for discipline or tetermination.
It appears that employers become progressively more creative in trying to cover up unlawful discrimination and wrongful termination as a lay-off. Because the employer’s motive for terminating an empoyee is inherently hard to prove, this is a temptingly easy way for employer to replace older workers with younger ones, females with men, and workers of color with white employees.
Here is a common situation, especially in the tech industry: a high level employee, who happened to be an Asian female with a distinct accent, whose postion is being “eliminated” is being demoted to a lower position or to the position she had previously, before being promoted to her most recent positon. A few months later, due to the alleged restructuring in the company, the above-mentioned eliminated position becomes open again, and a white male who is less qualified in every way, is being hired to fill that position. A few months or so later, the demoted female is being advised of the company’s cuts in workforce, and is handed a severance offer and a lay-off notice. The employer then rushes the employee to sign the release within a strict time limit so that she remains eligible for her severance.
Whether this kind of lay-off is discriminatory depends on many facts, but it surely is worth considering all the evidence available to support a discrimination claim, including the timing of events, and all the documents and e-mails suggeseting that the lay-off does not make sense and does not look right financially for the company. This would be useful not only in taking a legal action against the employer, but it can be just as useful in negotiating a higher severance, which any employee who is offered one should at least try to do directly or through an attorney.