San Francisco Employment Law Firm Blog

June 16, 2013

The Importance of Medical Note in a Disability Discrimination Case

Recently, one of our cases was dismissed after nearly two years of litigation in Sacramento Superior Court, because one key piece of evidence was missing. In that case, a State employee was deemed AWOL after not returning to work by the date, noted by her doctor. She requested an additional leave from her supervisor after having been on medical leave for nearly a year already at that time.

The supervisor refused to provide the same despite knowing about the claimant’s long history of injury, pain and treatment. That manager was firm that he was going to follow the instructions of then existing medical note, ordering the the employee return to work with specific restrictions. The employee did not return to work, but instead went to see her doctor who apparently extended her medical leave.

However, the claimant was not able to produce that medical note at the time the motion to dismiss the case was heard and also wasn’t able to prove that she provided the note to any of her manager prior to being deemed AWOL and terminated.

May 12, 2013

False Accusation, Retaliation and Wrongful Termination at Kaiser

by Arkady Itkin

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.

April 19, 2013

FMLA, Workers Comp Leave and PTO (Paid Time Off) Interplay

by Arkady Itkin

One of the common disability law issues that may arise at workplace is when an employee suffers an industrial injury, obtains FMLA leave for that injury and also goes on workers compensation leave, as instructed by his workers comp doctor. That employee may have also accrued paid time off.

Two common questions arise in this kind of situation:

1. Can the employer count FMLA and workers compensation leave concurrently?

April 1, 2013

Wrongful Termination and Discrimination Lawsuits against Alameda County Medical Center

by Arkady Itkin

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.

March 19, 2013

Total Temporary Disability and the Right to Reasonable Accommodations under ADA/FEHA

by Arkady Itkin

Some employers assume that just because their employee is on temporary but total disability, i.e. he is completely incapable of performing his job duties for a limited period of time, this means that the employee is not qualified to accommodations under ADA or FEHA (Fair Employment and Housing Act) and therefore can be terminated. This is often incorrect and can be basis for a wrongful termination claim.

It is well established that an employee who is temporarily disabled and who needs leave of absence to recover from his disability or medical condition may nevertheless be a qualified individual under ADA or FEHA and may be entitled to reasonable accommodations.

A reasonable accommodation can include providing the employee accrued paid leave or additional unpaid leave for treatment…if it is likely that at the end of the leave, the employee would be able to perform his or her duties. Hanson v Lucky Stores, Inc. (1999).

March 7, 2013

When Your FMLA Leave Is Denied After First Being Approved

by Arkady Itkin

An employer who without intent to deceive makes a definite but erroneous representation to this employee that he is eligible for FMLA leave and has reason to believe that the employee will rely upon it, may be estopped to later claim that an employee wasn’t eligible for FMLA and therefore should not have been granted that leave. It does not matter for the purposes of this issue whether the employer intentionally mislead the employee initially about being eligible for FMLA or whether it was an innocent mistake on that employer’s part.

A number of cases recognize this doctrine of “equitable estoppel”. The Kosakow v New Rochelle Radiology Assocs. (2001) court held that the employer was estopped to claim that the employee was not eligible for FMLA when the employer’s unintentional misleading behavior caused the employee to justifiably rely on the FMLA leave. In Woodford v Community Action of Greene County, Inc. (2001) the court cited with the employee, where the employer initially approved notice of eligibility for FMLA leave, but later sought to challenge it.

This doctrine of equittable estoppel is an important tool for employees who initially have their

February 22, 2013

Illegal Workplace Retaliation Claims based on FEHA (Fair Employment and Housing Act)

by Arkady Itkin

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.

February 9, 2013

Age Discrimination at Wells Fargo and Other Banks

by Arkady Itkin

We receive more and more calls from potential clients in the banking industry, and especially from Well Fargo Bank, who believe that they are being mistreated, discriminated and disciplined because of their age. While some of those claims don’t have much merit, in some cases there is significant evidence that the reason that an employee is mistreated is his or her age. This is particularly prevalent in sales and IT departments, but for two different reasons:

Age Discrimination in Sales

Age Discrimination in sales and marketing is mostly driven by the fact that companies won’t to put the prettiest, the youngest and the most energetic people to the front line to interact with their customers, primarily for “aesthetic reasons”. This is not a defense to an age discrimination lawsuit, but for some banks it’s worth taking the risk of facing liability for discrimination for the sake making its sales teams younger and more physically attractive.

January 31, 2013

State Employees’ Rights and AWOL

by Arkady Itkin

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.

January 25, 2013

Mortgage Loan Officers are Not Exempt from Overtime Pay

by Arkady Itkin

The Department of Labor has recently issued an opinion holding that mortgage loan officers performing typical job duties, regardless of the title affixed to them (i.e. loan originator, loan consultant, etc…) and who spend the majority of their time working in the employer’s place of business of the employee’s own office, would not qualifiy as bona fide exempt employees.

One of the three requirements for being exempt from overtime under administrative exemption is that an employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers. The Department of Labor pointed out that mortgate loan officers’ duties are contacting potential customers based on the information generated by the employer or databses to discuss or sell loan products. These are not administrative duties because the qualify as “making sales” and not running the business.

Although this determination is not limited to just mortgate loan officers, it may be applicable to other professionals selling products out of their employer’s office.