Articles Posted in Wrongful Termination

fired while on disability leave“Can I be fired while on disability leave?” – this is one of the most common questions that I hear from employees, who have suffered an injury and have to be off work due to that injury or some other illness. The answer to this question is twofold:

(1) The reality is that you can be fired at any time regardless of your disability, disability leave or any other circumstances. No one can force the employer to continue employing you if they don’t want to, except in limited circumstances (i.e. employment relationship covered by a labor union agreement, employment with a public agency and a few other limited circumstances). Otherwise, if you are an at-will employee at a private company, you can leave at any time and you can be terminated at any time.

(2) The more correct question is whether firing you while on disability leave or medical leave would be illegal and could be a basis for a disability discrimination and wrongful termination case. The answer to this question depends on the specific circumstances of your employment and your termination. However, the most important factor is whether the employer had a legitimate reason for terminating you, or there is sufficient evidence that the reason given is just an excuse or a pretext for terminating you because of your disability and disability leave.

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.

retaliation-wrongful-termination-employer-liesOne of the important elements of proving a retaliation claim in an wrongful termination case is showing that the employer’s given reasons for termination are either inconsistent or plainly not true, which makes it look like the employer is trying to cover up the true reason for retaliating against you and/or your termination with lies.

In one case we recently handled an employer shot himself in the foot by telling me during the deposition testimony about how bad my client was as a worker, he would go on and on about every little thing that my client did wrong while working for the company over the period of 8 years. That, however, was hardly helpful to the employer, because my client never received a single warning or counseling letter. Not only was my client one of the higher ranked employees, but he even received a very flattering reference letter when he was “laid off.” The fact that my client was replaced about a month after being “laid off” was yet another sign that this was not a lay-off but a firing. The employer tried to hide the fact that my client was replaced by changing the title of the new employee. The duties of the positions remained the same, however, which counts much more than the label that the company gave to any given job.

It’s the attorney’s job to uncover the lies and inconsistencies to make the wrongful termination case stronger. As a client, you can do a lot to help your attorney make your case stronger by directing him/her into the direction where these lies and inconsistencies in the employer’s policies and the reasons for your termination can be found. Typically, wrongful termination cases require proving discriminatory/retaliatory mindset on the part of the employer. Direct evidence of discrimination/retaliation is hardly ever available, and from the courts’ point of view, the employer’s misrepresentations about the employee’s performance, policies and procedures, and reasons for termination are critical in helping an employee to survive a motion to dismiss in court (or motion for summary judgment) and/or achieve a better result through settlement negotiations or in trial.

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.

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