Articles Posted in Wrongful Termination

The California Supreme Court held that high blood pressure (hypertension) may be a protected disability at workplace within the meaning of Fair Employment and Housing Act (FEHA) in American National Insurance Co. v. Fair Employment and Housing Commission 32 Cal.3d 603 (1982). In that case, an insurance company terminated a sale and debit agent because of his elevated blood pressure. The Supreme Court held that high blood pressure may be a “physical handicap” under the FEHA, since the statutory definition of the protected disability under Cal. Gov. Code section 12926(h) permits consideration of all handicaps that are physical, and not only those are are presently disabling.

In explaining section 12926(h), the court resorted to the literal definition of the term “handicap” as defined in Webster’s dictionary: “physical handicap includes …, or any other health impairment which requires special education or related services. The Court further emphasized that the law protecting workers from being discriminated based on their disability clearly was designed to prevent employers from acting arbitrarily against physical condition that, whether actually or potentially handicapping, may present no current job disability or job-related health risk.

Thus, the mere fact that a worker isn’t constantly experiencing the symptoms of high-blood pressure, doesn’t mean that he is not disabled within the meaning of FEHA, as he or she does face an actual risk of experiencing those disabling symptoms.

The second district made an important distinction between disability discrimination and failure to provide reasonable accommodations in Jensen v. Wells Fargo Bank 85 Cal.App.4th 245 (2000). In that decision, the court noted that the elements of a failure to accommodate claim are similar to the elements of disability discrimination under under California Gov. Code section 12940(a), but there are several important differences. For the purposes of the failure to accommodate claim, the employee does not need to show that he is able to perform the essential functions of his present job (like it is necessary to show in order to prove discrimination), but only that he or she is able to perform the duties of the job which he or she is seeking to be reassigned to.

Even more importantly, in claims for failure to accommodate, it does not matter whether the employee was terminated, suspended or otherwise disciplined in retaliation for his disability (like it is required in discrimination claims). The employer’s mere failure to reasonable accommodate a disabled individual is a violation of the statute in and of itself. Cal.Gov. Code section 12940(k).

In other words, prevailing on a disability discrimination claim is harder than proving failure to accommodate, because it requires showing that the employee suffered an adverse employment action, and that there is a causal link between the disability/medical condition and the adverse employment action, while no adverse employment action needs to be shown in order to prevail on a separate claim for failure to provide reasonable accommodations to a disabled worker.

California statutes prohibiting retaliation bar termination of (or other adverse employment action against) employees asserting their legally protected rights, exercising political affiliations, opposing unlawful discrimination at workplace, or seeking statutory redress (such as investigation of discrimination, harassment, etc.)

To show retaliation under California Fair Employment and Housing Act (FEHA), an employee must show that (1) he or she engaged in protected activity under FEHA; (2) he or she suffered an adverse employment action (such as demotion, transfer, suspension, termination or other action by the employer that materially affects the terms, conditions, or privileges of employment, and/or would tend to discourage a reasonable employee from complaining about the unlawful conduct at workplace); and (3) there is a causal connection between the protected activity and the adverse employment action.

FEHA specifically prohibits an employer from retaliating against employee for opposing any unlawful discriminatory practice prohibited by FEHA, and filing a complaint, testifying, or assisting in any proceeding under FEHA.

The California Fair Employment and Housing Act (FEHA) provides a non-exhaustive list of possible accommodations that an employer may consider to accommodate a qualified disability or medical condition of an employee. These typical reasonable accommodations include, but are not limited to:

• Making facilities accessible to and usable by disabled individuals;

• Job restructuring (modifying daily duties of an employee);

California workplace operates under the basic presumption that in the absence of agreement otherwise, a worker is an at-will employee. This means that an employee can be terminated for any reason, arbitrary reason, or no reason, but not for illegal reason such as discrimination, harassment, and retaliation. This presumption is codified in California Labor Code section 2922, which provides that an employment, having no specified term, may be terminated at the will of either party on notice to the other.

This presumption of at-will employment may be superseded by an express or implied contract limiting the employer’s right to discharge employee. The landmark California Supreme Court case on the issue of existence of implied employment contract is Foley v. Interactive Data Corporation (1988). In that case, the Court stated the general principle that courts seek to enforce the actual understanding of the parties to a contract, and in so doing may inquire into the parties’ conduct to determine if it demonstrates an implied contract. The Court further noted that in the employment context, several factors may be considered to determine whether implied employment contract existed, including (1) personal policies or practices of the employer; (2) the employee’s longevity of service; (3) actions or communications by the employer reflecting assurances of continued employment; and (4) the practices of the industry in which the employee is engaged.

The Foley court, considering the above factors, came to the conclusion that there was an implied contract to not terminate employment where the employee, who worked for his employer for over 6 years, received excellent performance evaluations and promotions, was told that if he was going to do a good job, his future was secure, and where the employer admitted that it did not normally fire employee without cause.

Numerous California laws protect employees against retaliation by their employers. Most of the anti-retaliation statutes protect employees from adverse employment actions ( i.e. demotion, transfer to a less desirable workplace, suspension, administrative leave or termination) for exercising their rights under Fair Employment and Housing Act (FEHA), Occupational Safety and Health Act (OSHA), protected political activities, and wage claims.

One of the most common kinds of unlawful retaliation to which California employees are often subjected is FEHA retaliation. FEHA prohibits an employer from retaliating against employee for:

* Opposing any unlawful discriminatory practice prohibited by FEHA; or * Filing a compliant, testifying, or assisting in any proceeding under FEHA.

Different companies and employers have a very different approach to handling disciplinary actions against their employees. While some company simple don’t have any formal policy regarding write ups, warnings and other disciplinary actions against employees, other employer have a clear policy of progressive discipline that generally shall be followed by the employer prior to taking a more significant adverse employment action against an employee, such as transfer, demotion, suspension, or employment termination.

Many workers become very upset, stressed out and nervous about the stability of their employment when they get written up or get a negative performance review, especially if they believe (and have good reasons to believe) that the write-up was unfounded or retaliatory (in response to an exercise of a legal right by an employee such as taking approved medical leave, serving on a jury duty, filing a workers compensation claim, complaining about harassment at workplace, etc…) Many employee are afraid of disputing their write-up, believing that any further escalation of the situation will lead to termination. Thus, the prefer to remain quite and passive. However, in the vast majority of cases, this is not a good strategy to follow for two main reasons: first, if you are reprimanded and written up for no reasons, chances are that your supervisor already has a plan to get rid of you and simply creating the necessary paperwork to make it comply with the company’s policies regarding discipline and termination which are usually outlined in the handbook. Secondly, but not contesting the write-up, you practically admit the allegations/accusations made in the disciplinary documentation, which will make it much harder to argue later that your termination was not justified and was motivated by unlawful factors.

Thus, it is very important that upon receipt of a repriment, a warning letter, or a negative review, you submit a rebuttal as you are entitled, in which you will address and dispute every allegation made specifically. You should also seriously considering requesting your employer to conduct an investigation into the merits of your negative review. This means that responding with “this is not true” is not sufficient, and you should explain why the facts in the write-up are not correct and suggest your versionof the events/conduct that is subject of the negative performance review. This will build your own paper-trail which often proves to be useful or even crucial in handling a wrongful termination claim.

An issue often arises in connection with the off-duty conduct of employees of whether an employee can be disciplined or even discharged by his employer based on such off-duty conduct. This answer to this question will often depend on the facts surrounding the employee’s conduct. Where the conduct is offensive and egregious, however, the courts will often rule in the employer’s favor.

In a recent New York case, for example, a male nurse employed in a hospital visited the hospital while on vacation. The employee, who was intoxicated, got into a violent scuffle with security guards at the hospital and was terminated. The employee brought action for wrongful termination arguing that his off-duty conduct should not have been considered by the jury. The court disagree, however, holding that his off-duty conduct was relevant to the issue of whether he posed a threat to the safety of others.

Employers should avoid taking adverse action against the lawful off-duty conduct of employees unless:

As one California court recently pointed out in Kelly v. Inc. (2005), downsizing alone is not necessarily a sufficient explanation, under the Fair Employment and Housing Act, for the consequent dismissal of a worker. An employer’s freedom to reduce its workforce and to eliminate positions in the process, does not mean that it may use the occasion to conveniently get rid of protected workers.

Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release. At least two facts were considered by court as casting serious doubt of discriminatory motive on the employer’s decision to terminated a pregnant employee, when the employer tried to argue that the reason for that termination was a reduction in force in the case: (1) the employee’s track of excellent performance; (2) hiring a new employee, who was not pregnant, instead of the terminated pregnant woman.

If you have been, or are about to, be laid off due to the alleged downsizing of your employer, but you suspect that the true reason for your termination might be discriminatory and has little to do with the downsizing itself, contact Arkady Itkin – San Francisco employment lawyer to discuss your situation at work.

Many employees give in the temptation of accepting a lump sum severance upon termination, even when the lawfulness of that termination is questionable. If you find yourself with an offer of severance, I highly recommend that you take your time to consider the severance offer before you accept it.

One of the common reasons that an employer may offer severance to the employee who is about to be terminated is because the circumstances of the termination are questionable and might give rise to legal action by employee. An employer usually requires an employee to sign General Release of All Claims in exchange for severance compensation. By signing that release, the terminated employee waives any and all rights to pursue legal action against the employer. Often, by accepting the severance package, the employee, gives up on his ability to pursue legal claims that might be ground for a much greater compensation / damages. But even if the employer conduct is not tainted with unlawful practice and termination, your severance offer might be highly negotiable.

Regardless of of the terms or your employment and severance payment, you have the right to consult an attorney when executing the severance agreement (most severance agreements remind the employee that he has the right to be represented by an attorney in accepting the severance contract).

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