Arkady Itkin - San Francisco Wrongful Termination and Personal Injury Lawyer

When AWOL Rules and ADA / FEHA Disability Rights Collide

01/31/2013

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One common scenario where AWOL (Absent Without Leave) rules and an employee's FEHA/ADA disability rights collide and conflict is state agencies and other employers that have set and rigid AWOL policies that they apply to everyone universally. The two common problems with such policies repeat themselves over and over in many wrongful termination claims, and these bad policies can work to an employee's advantage in proving their case in court:

* Rigid, uniform AWOL policies that are applied the same way to all employees. Even though it sounds fair to apply the same leave policy to all employees, it goes completely against the very essence of ADA and FEHA disability laws, which call for an individualized assessment of a qualifying disabled employee's disabilities, restrictions, and limitations. Indidivually evaluating a disabled employee's needs is a cornerstone of the "interactive process" in which the employer is required to engage in with a disabled employee.

* The language of the AWOL government code statute and other AWOL related statutes makes granting leave discretionary. The AWOL rules typically say that an employee who is out for a certain number of consecutive days without "approved" leave may be deemed AWOL resigned. The problem is that whether that leave is approved is completely up to the management. A manager may decide not to approve a disabled worker's medical leave for whatever reason, even though all the necessary medical documentation to support the requsted medical or disability leave has been provided.  

The above two issues open a lot of doors for some employees, and especially state and county employees, terminated due to being AWOL, to legally attack their termination in court through a wrongful termination and/or disability discrimination lawsuit.  
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California State Employees: Should You Appeal Your Dismissal through State Personnel Board Hearing?

10/20/2012

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Employees of California State agencies and some other public employees have certain appeal rights with regard to a disciplinary action or employment termination they might facing, which includes a hearing in front of the SPB board. This kind of hearing has four distinct advantages over bringing a lawsuit in court over the same issue/termination. First, the SPB hearing process is much quicker. You don't have to go through discovery, be deposed, wait for trial date and face a number of other phases in litigation that can easily make the process last well over a year. You are likely to have your full evidentially hearing in front of the SPB within just a few months or even sooner. Secondly, the SPB administrative law judge, beyond awarding backpay, can also order your reinstatement, if you were terminated. On the other hand, reinstatement is not a remedy that's generally avilable in court. You may be awarded damages for lost wages and emotional distress in court, but no judge or jury can force your employer to take you back to work. Further, the SPB hearings are free of charge, while litigation can be costly, although it depends on the nature of your case and the arrangement you have with your attorney. Finally, unlike in court, where the burden of proving the case is at all times on the aggrieved employees, at the SPB hearings the burden of proof is generally on the employer (except AWOL cases and a limited number of other exceptions).

The SPB hearings also have major disadvantages: if you have a strong discrimination case and you lose your SPB hearing for whatever reason, that decision will be binding on any subsequent discrimination lawsuit, unless you set aside the adverse SPB decision through Writ of Mandate - a process which will significantly delay going straight to court and filing a discrimination lawsuit.  

So, when should you appeal your termination through SPB first and when is it better to skip the SPB hearing and file a lawsuit in court? While there is no clear cut answer or a definitive rule to always know what's the best way to handle your situation, the following "classic" examples should provide you with a useful guideline:

* If your discipline or termination is not based on unlawful discrimination based on a protected classes, and it involves whether you were terminated for just case, or whether your termination was imposed fairly, then you should definitely appeal your dismissal through SPB, because you probably don't have a basis to sue in court anyway. You will have all the more reasons to to trough the SPB process is you are interested in keeping your job and being reinstated. The more witnesses you have that will support your side of the story, the more chances you have to prevail at the SPB hearing. 

* If, on the other hand, you believe you have a strong discrimination case based on disability, race, etc... and especially if your termination involves a more complicated ADA issue, such as failure to provide reasonable accommodations, retaliation for asserting disability rights, etc.., you are better off skipping the SPB process and not risking forfeiting your rights to sue for wrongful termination based on discrimination in court becasue of the adverse SPB ruling. 

For more information on public employee rights in California, please visit our Sacramento Labor and Employment Law Blog.

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ADA Disability Law in California: Should You Keep Your Medical Condition Confidential?

02/10/2011

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There is a lot of concern out there among employers and other entities to preserve confidentiality of medical information of their employees, patients, etc.., and for a good reason. However, when it comes to ensuring that your employer complies with your disability rights, it might be in your best interest to disclose more rather than less about your medical condition. This is because generally the employer does not have any ADA obligations if he doesn't know and has no reason to know that you have a qualifying disability / handicap.   

A number of California cases hold that simply notifying the employer that you are sick and cannot make it to work for a day or two does not place the employer on notice of disability and thus does not trigger ADA protection at workplace. In Avila v. Continental Airlines (2008), Plaintiff submitted a number of Kaiser forms related to being absent from work for several days. The forms stated that the employee is excused from going to work for one or two days. The same forms did not provide any information about the nature of the employee's condition or the diagnosis. Thus, no disability discrimination claim could have been brought against the employer, since the employer was simply not aware of any disability, even though the employee suffered from pancreatitis, which is a serious condition that by all means qualifies as a protected disability under ADA. 

The lesson that can be learned from the above case for the employees is that the employee should ensure that the employer is aware of the specific condition that the employee is suffering from or the basic symptoms that clearly indicate that it's not just trivial illness such as a flu. When obtaining medical note from the hospital, it's a good idea to ensure that the documentation transmitted contains sufficient information about the employee's condition, and is not limited to just for how long the employee is allowed to be absent from work. 
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