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workers compensation wrongful terminationMany disability discrimination and wrongful termination cases involve a workers compensation claim. One mistake that a wrongful termination claimant should avoid is exaggerating his/her disability when dealing with his workers comp doctors. Stating to the doctor that you are completely unable to work with or without accommodations as a result of your work related injury might increase your workers comp benefits, but it can also “kill” your wrongful termination case, if that case is based on failure to accommodate or failure by your employer to provide reasonable accommodations to you in violation of FEHA and ADA. This is because you can’t claim on one hand that the employer didn’t accommodate you and discriminated against you because of your disability or medical condition, and on the other hand be so incapacitated that no accommodation would be feasible that would allow you to return to work. Remember – an employer doesn’t have to accommodate you if there is no reasonable accommodation available to your condition, given your essential job duties.

You should of course always be truthful about your physical limitations and your ability or inability to perform some or all of your job duties. Your attorney should be able to guide you through the interplay between your workers comp claim and your wrongful termination / disability discrimination case and find the best strategy for both of your cases that would allow you to maximize the benefit from both of your cases without letting your workers comp claim interfere with your ADA / FEHA court claims.

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A major health care provider Dialysis Clinic Inc. was sued for disability discrimination this week by EEOC. The lawsuit has been filed in the Eastern District Court in Sacramento.

The plaintiff Francisca Lee had worked at the company’s facility on East Southgate Drive in South Sacramento for 14 years when she was diagnosed with cancer. She took medical leave to have a mastectomy and chemotherapy, according to the allegations in the EEOC complaint. Four months later, according to the complaint, the company notified Lee by mail that she was being terminated for exceeding the time limit dictated by its medical leave policy

At the time of Lee being fired, she had been cleared by her physician to return to work without restrictions in less than two months, the complaint says. Lee, 71, was told she would have to reapply for an open position. However, when she did apply a little more than two months later, she was rejected. Not long after, according to a claim in the complaint, the company hired a newly-licensed nurse. Of course, the employer has denied all allegations like they always do.

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This week, the California Supreme Court reversed a prior troubling decision where one appellate court held that an employee’s refusal to sign an acknowledgment form that he received a warning or PIP notice is misconduct within the meaning of unemployment insurance code, disqualifying that employee from unemployment benefits. In other words, until now – if an employee was fired for refusing to sign a warning or a PIP or any other kind of disciplinary notice, and he was terminated for just that alone, he would not have qualified for unemployment benefits.

In the most recent decision Paratransit Inc. v Unemployment Ins. Appeals Board, filed on July 3, 2014, the supreme court held that a good faith refusal to sign a disciplinary notice is not a misconduct within the meaning of Unemployment Insurance Code section 1256. Among other arguments supporting that decision, the highest Court of the state pointed that this decision is in line with the law in the other states. As long as the an employee’s decision to refuse to sign a disciplinary paperwork is “reasonable” and it doesn’t cause some kind of harm to employer’s operation, being terminated for that alone will not disqualify him from receiving unemployment benefits.

You can find the full decision of this case here.

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Under FEHA (California Fair Employment and Housing Act) anti-discrimination laws, only employers who employ five or more employees can be liable for unlawful discrimination. This means that the FEHA protection against workplace discrimination generally does not extend to employees who work for smaller employers. However, in limited circumstances there is a way around this issue. Unfortunately, it only applies to racial/ethnic and religious discrimination as well as discrimination based on sex or gender, and not to other types of discrimination (such as disability discrimination).

An employee who was subjected to or fired due to ethnic/racial/religious discrimination or sex discrimination can a file a claim for wrongful termination based on the California Constitution Article 1 Section 8, which provides: A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race,

creed, color, or national or ethnic origin.

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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.

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A dispute often arises between an employee and his manager over a particular aspect of the issued performance review. As an employee, it’s important that you keep in mind the your employer has a wide discretion in expressing his opinions about your performance. The fact that you feel that your performance review is unfair or too harsh generally does not give rise to any legal issues or claims, unless there is actual evidence that the reason for that bad is discriminatory or retaliatory (i.e. based on your being a member of a protected class, or due to you engaging in a protected activity, as defined by law).

Should you sign that bad performance review that was issued to you? There is no reason not to. In most cases, by signing your review, whether it’s positive or negative, you only acknowledge that you have received it and read it. It doesn’t mean that you agree with its contents. Of course, before you sign you should read the fine print below or above the space for your signature that says what the meaning of your signature will be exactly. Signing your performance review has no legal significance.

On the other hand, if you refuse to sign your performance review because you disagree with it, you can be accused of insubordination and disciplined as a result, which would be perfectly legal. Moreover, one court recently held that an employee who was fired for refusing to sign acknowledging receipt of a document was disqualified from unemployment benefits.

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In California, whether a computer/software professional is properly exempt from overtime compensation or whether he should be entitled to overtime is governed in large part by California Labor Code 515.5:

According to California Labor Code section 515.5, employees in the computer software field are not entitled to an overtime rate of compensation only if all four requirements are met:

(1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.

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A witness statement can be critical in proving any discrimination case. This is especially in true with regard to age discrimination cases which are known for being some of the more difficult cases to prove, because evidence of animus toward an employee because of his age and not for some other reason is so rarely available. However, the good news for older workers who consider bringing a claim against their former employer for (age) discrimination, is that even one single piece of evidence, such as one incriminating statement by a supervisor about older workers can make a case.

The recently published case Cheal v El Camino Hospital out of Santa Clara (2014)is a classic example of a situation where the whole case rested one witness statement. In the case the plaintiff a 61 year-old female who worked at a hospital for over 30 years as a Dietetic Technician was fired for the number of alleged violations and performance deficiencies. Ms. Cheal and her attorney were able to show that most of her alleged violations and performance issues were either not her violations at all, or not nearly as serious as the employer claimed and should not have lead to Plaintiff’s termination. However, as it has been long established, that alone does not prove discrimination, as the employer has sound discretion in evaluating employees’ performance and being too harsh or wrong in evaluating employees is not the same as discriminating.

However, Ms. Cheal present additional evidence that proved to be critical in overturning the dismissal of her case and allowing her to go to trial. She introduced a witness statement of a friend who stated in her sworn affidavit that when she had dinner with Plaintiff’s manager, the manager stated “people at work start noticing that I favor the younger and the pregnant employees” The court found this kind of admission by the manager in an outside-of-workplace environment to be an extremely compelling evidence of age discrimination.

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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.

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Workers at businesses as small as 20 employees may soon snag certain perks after Tuesday night’s final vote on an amendment to San Francisco’s family-friendly workplace law.

The city-county’s Family Friendly Workplace Ordinance – sponsored by eight of 11 supervisors last July – passed on the second reading and was signed into law by Mayor Lee in October 2013. This law allows San Francisco-based employees to request flexible hours, predictable working arrangements or work from home to better handle their care-giving responsibilities.

According to the text of the ordinance, cultural and demographic shifts since the 1970s have brought a spike in both two-parent, full-time working households and single parents juggling demanding jobs and family obligations. In 2010, 80 percent of the city’s parents with children under the age of 5 were working, while the number of single parent households has more than doubled in 50 years. Meanwhile, San Francisco lawmakers say that employers stigmatize caregivers by creating “workplace and pay inequalities,” while the current business climate “idealizes the employee who works full-time and long hours, is available for extra hours on short notice, and has few if any commitments outside of work.”

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