Articles Posted in Wrongful Termination

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.

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.

Few wrongful termination, harassment, and discrimination cases are “clear cut.” No matter how strong the evidence of unlawful conduct by the employer is in the hands of the aggrieved employee, the employer always has its own side to the story, which usually says “We did nothing wrong, and the plaintiff is lying.” No employment case is perfect, and every case has its strengths and weaknesses.

One of the most important elements of any civil case, especially wrongful termination cases is maintaining your credibility as a claimant. Being credible usually means relying on facts rather than on unsupported beliefs and speculation, not lying and not exaggerating. The less commonly mentioned by equally important element of credibility, which plays a crucial role during your testimony is accepting responsibility for something that you have done wrong while working for the employer-defendant. Here is a classic example: suppose you were an outstanding employee with numerous awards for your performance and promotions, but like everyone else – you were not perfect, and a few suggestions were made to you as to how you could improve your performance throughout your tenure with the company. The employer’s attorney chooses to focus on that specific issue during your testimony at the deposition or at trial, going over and over something relatively insignificant and belaboring the issue in part in order to destabilize your emotionally. It is very important that instead of getting angry and defensive, or justifying the common deficiencies in your performance, you accept at least some responsibility and admit that certainly things could have been done better by you. This will allow you to impress both the attorney, the judge and the jury, and send a strong message that not only you are a level-headed rational individual, but you are also responsible, recognize your mistakes when you make them and you deserve even more sympathy than you otherwise would.

Terminating an employee can be a difficult and even devastating experience to the terminated worker, but it’s also not an easy decision for the manager / employer charged with the duty of retaining and discharging employees. It’s not uncommon for an employee termination to seem unfounded or irrational. For example, an employer might decide to discharge a more senior employee or a good performer while retaining another worker who has performance issues or even many unexcused absences because the latter has a closer relationship with the employer, or compensates for his deficiencies in other ways.

If the aggrieved employee is an at-will employee, this kind of seemingly unfair preferential treatment is only illegal if the reason for it is the fact that the adversely affected employee either (1) belongs to the protected category, such as gender, sexual orientation, disability, religion, ethnicity, familial status; or (2) because the employee exercised protected rights, such as complaining about workplace harassment or unsafe working environment (internally or to the outside government agencies), reporting criminal conduct, filing a workers compensation claim, participating in a union/political activity, serving on a jury, etc.

Since the at-will employment doctrine states that an employee can be terminated for any reason, no reason, or arbitrary reason, except illegal reason, terminating one employee and keeping the other because the employer likes the second employee better for his own, personal reason, assuming that no sexual favoritism is involved, generally does not violate California of Federal employment laws.

In the absence of an agreement otherwise a worker in California is generally presumed to be an “at-will” employee. This means that an employee can be terminated for any reason, no reason or arbitrary reason as long as it’s not an illegal reason (such as discrimination, harassment, retaliation, etc.) Once an employee establishes that he/she might have been terminated for unlawful reason, an employer will be required to defend its termination by demonstrating “just cause.” Employers covered by collective bargaining agreements are also typically required to demonstrate “just cause” for any disciplinary action involving a covered employee. Thus, it is important to understand the “just case” term of art. In determining whether the employer had just cause for terminating an employee, the following questions should be asked:

* Did employer’s action violate any statute or policy?

* Did the company investigate to determine whether the employee actually violated the rule for which he was disciplined or terminated?

Under California Law, “sick leave” means “accrued increments of compensated leave” provided by an employer for an employee’s use because of:

* the employee’s physical or mental condition that makes the employee unable to perform his duties;

* the employee’s need to obtain a professional diagnosis or treatment for a medical condition; or