<![CDATA[Law Office of Arkady Itkin <br /><br /> - Employment Law Blog]]>Thu, 02 Feb 2012 12:24:08 -0800Weebly<![CDATA[Involuntary Illness Leave Might Violate Your Disability Rights at Workaplce]]>Sat, 21 Jan 2012 00:08:06 -0800http://www.arkadylaw.com/1/post/2012/01/involuntary-illness-leave-might-violate-your-disability-rights-at-workaplce.htmlConsider a situation where an employee has a certain disability or medical condition that prevents him/her from performing a few of the many job duties, without affecting his ability to perform many other job duties. That employees is likely entitled to reasonable accommodations. Some employer, however, choose to "play it safe" placing that kind of employee on "involuntary illness leave". This however is likely to be illegal and is tantamount to suspension without leave (Bostean v. Los Angeles Unified School District), and can be considered a disability discrimination under ADA and FEHA. 

Although simply keeping an employee away from work is an easy route to wait till he/she recovers, and the employer might have the best intentions of protecting an employee, and encouraging the disabled worker to recover sooner than later by taking time off, consider as situation where that employee's disability or limitation will last indefinitely or will be permanent. If that employee is place on so-call involuntarily medical leave, he will be effectively terminated, since he will have to stay on leave as long as he is disabled, or - forever. This is pretty much equivalent to a wrongful termination based on disability discrimination.  ]]><![CDATA[Age Discrimination at Workplace is Likely to be on a Rise]]>Sat, 14 Jan 2012 01:15:41 -0800http://www.arkadylaw.com/1/post/2012/01/age-discrimination-at-workplace-is-likely-to-be-on-a-rise.htmlI have a strong feeling that age discrimination and age related wrongful termination claims will be on a rise within the next few years. This is in part because of the companies' need for increased productivity, longer work hours, and the pressure to reduce costs by eliminating the more senior and highly compensated workers as well as by saving on healthcare costs.  

The other factor that may encourage companies to terminate older workers is that age discrimination is not easy to prove, to say the least. It's easy for a company to fabricate a criticism or false allegation of misconduct or insubordination to issue a couple of write ups to an older worker and make it look like he/she was terminated because of some abstract violations. Or, the company may decide to undergo "restructuring" and "lay off" certain workers, many of whom happen to be older, and then go through another "restructuring" just a few months later and higher new and much younger workers.  

Luckily, the courts recognize the above tactics that companies use and they consider many kinds of indirect evidence if age discrimination, including inconsistent or untruthful reasons for termination, patter and practice of replacing older employees with younger workers, ageist remarks, etc.   

See further discussions of some of the other common reasons for age discrimination at workplace. 
]]><![CDATA[Workers Compensation Claims: After You Suffer a Work Related Injury... ]]>Wed, 21 Dec 2011 00:13:16 -0800http://www.arkadylaw.com/1/post/2011/12/workers-compensation-after-you-suffer-work-related-injury.htmlPicture
1. If you suffer a work related injury and your report it to your supervisor, your employer will most likely agree to accept responsibility. Within one day of filing a DWC-1 (workers comp injury form), your employer or its workers compensation insurance carrier is required to authorize and agree to pay for your medical treatment until your employer accepts or denies the workers compensation claim. The insurance company is only responsible for $10,000 in medical treatment costs until it accepts or rejects your claim. Cal. Labor Code sec. 5402(c). If your claim is eventually accepted, the employer will continue paying for your treatment. If not, you will have to pay for treatment yourself or do it on a lien basis through your attorney and seek reimbursement later. This may work to your advantage in that when you pay for your own treatment, you will not be limited to treated just with the doctor/s provided by the workers compensation carrier.  

2. If your injury prevents you from reporting to work and you are on medical leave, it is important that you always apply for state disability insurance (SDI) through EDD (the same office that handles unemployment insurance benefits). This way, you will receive income from this source in case your workers compensation claim is denied or delayed.  

3. Tell the doctor about your injuries. The workers compensation insurance company will often rely on the doctor's first report to determine the extent of your injury and the compensation you should receive. This is not the time to act tough. Tell the doctor about how your injury occurred and about the pain you are experiencing. 

4. Complete the two workers compensation forms promptly. Your employer is required by law to give you the Workers Compensation Claim Form (DWC-1) and the Application for Adjudication of Claim withing one working day of learning that you had an injury that resulted in medical limitations. These forms must be filled out and filed by you at your local Workers' Compensation Appeals Board. Report your injury to someone in a position of authority, such as your supervisor or your supervisor's manager or both. Bear in mind that with some exceptions, you must report your injury to your employer within 30 days of the incident giving rise to your injury or your workers compensation claim will likely be barred. 

5. If possible, have some physical evidence of your injury. It's not unlikely for the insurance company to argue that you didn't suffer an injury or your injury wasn't as serious as you claim it to be. Thus, having physical evidence to support your side of the story is important. Photos of bruising, cuts / blood, broken helmet, a blade of a faulty equipment that caused your injury, ripped clothing, and alike can be a very useful evidence to prove your claim. 

6. Make a list of witnesses. If any of your co-workers or bystanders witnessed your injury, get in touch with them as soon as possible, interview them and secure a signed declaration from them. Even one witness who supports your version of the events leading to an injury would be very useful where the employer argues that no injury occurred.  

7. If you are being placed off work by your doctor, make sure that your employer is notified in writing that you will be off work due to the medical condition and your anticipated or approximate date of release to work with or without limitations. This will trigger the employer duty to reasonably accommodate your disability later and will help protect your job. 
]]><![CDATA[How to Complain about Discrimination / Harassment at Workplace]]>Sun, 11 Dec 2011 11:24:38 -0800http://www.arkadylaw.com/1/post/2011/12/how-to-complaint-about-discrimination-harassment-at-workplace.htmlIt is very important to complain about discrimination or harassment that you or your co-workers might be experiencing the right way, because this will ensure that (1) your employer is on notice of the unlawful conduct that might be taking place in the office; and (2) it provides you - the complainant - the legal protection against retaliation. Here are some of the tips on how to properly complain about discrimination and the common mistakes to avoid that other employees make when  complaining about discrimination or harassment: 

* Make sure that your complaint letter is short. There is absolutely no reason for your complaint to be longer than one page. The shorter your letter is, the quicker it will get the attention of the manager that you expect to help you. Some employees right out their entire work history with the company and how wonderful they have been during their career before getting to the point. A five-page memoir about your work issues is likely to be put on the bottom of the pile of documents of your supervisor or hr manager and not get the attention it needs promptly.  

* Make sure that your complaint letter uses proper terms. You must use the words "discrimination" and "harassment" in your complaint. Otherwise, the employer will later argue that they didn't know that you were subjected to these unlawful acts. Some employees use just about every other term in their complaint, including "disrespectful," "unfair," "lack of dignity," "humiliating" but this is often not enough to put the employer on legal notice of unlawful conduct at workplace. Disrespectful and unfair can mean many things. Thus, you should be more specific.  

* Make sure that your allegations are specific. Using the terms harassment and discrimination is essential but that alone is not enough. You must not limit your complaint to generic adjectives such as "abusive," "inappropriate", "hostile" as these terms could mean many things. Instead, quote specific words that you believe to be discriminatory and describe specific actions that you consider to be harassment or discrimination. In other words, stating in your complaint that your manager called you a "fucking nigger" is much more effective than stating that your boss was very rude to you and used a racial slur. Likewise, stating in your complaint that your boss told you that he would love to fuck you over his conference room desk is much better than saying that your boss has propositioned to you at work.  

* Consider not making your complaint anonymous. Although there are some advantages to making an anonymous complaint, especially if the victim of discrimination or harassment is someone other than you, when you are trying to protect yourself, consider to actually sign your name on the complaint. This way, the employer who tries to retaliate against you for complaining will have a much harder time arguing that they couldn't have retaliated against you because they didn't know that you were the one complaining.  

Keep the above tips in mind when complaining about discrimination harassment and feel free to use this sample letter complaint for discrimination / harassment at workplace.  ]]><![CDATA[A Lesson from the Court: the Importance of Requesting Accommodation to a Disability]]>Fri, 25 Nov 2011 21:20:41 -0800http://www.arkadylaw.com/1/post/2011/11/the-importance-of-requesting-accommodation-to-a-disability.htmlThe King v United Parcel Service (2007) case makes several important points about disability related employment case. One of those lessons is the importance of requesting accommodations to a disability, or at the very least alerting and informing the employer about the disability or the medical condition that you suffer from, the symptoms you are dealing with and how they affect your ability to perform your job duties. 

In King, a 30-year employee of UPS was terminated for allegedly falsifying a time card just two months after returning from medical leave in connection with a serious medical condition. The rare and somewhat unique element of the case is that the Court of Appeal was pretty clear in expressing sympathy toward the Plaintiff, even though the Court held against the him, dismissing all claims. In that case, the Court analyzed all of Plaintiff's claims and noted that the claim for failure to accommodate was a close one but still had to be dismissed because the terminated employee did not communicate his symptoms to his employer upon return, did not request any kinds of accommodations, and therefore the employer simply was not on any kind of notice of King's need for accommodations. This mistake is so easy to avoid through a simple request for reasonable accommodation letter that every employee who needs and accommodation should fill out and forward to his superiors and the human resources department. 

Please read below the full text of the court's decision in the King v UPS case. 

]]><![CDATA[Discrimination, Retaliation, and Harassment against Caltrans]]>Sun, 27 Feb 2011 17:10:26 -0800http://www.arkadylaw.com/1/post/2011/02/discrimination-retaliation-harassment-claims-against-caltrans.htmlRecently, one employee of Caltrans contacted me in what seemed to be an urgent need for help and legal representation, as she was subjected to egregious harassment by her supervisor, and could not get any help from the higher management or human resources department. Her supervisor openly and repeatedly disregarded her disability limitations in t he most humiliating manner.    

The same Caltrans employee kindly shared with me a rather disturbing article about the discrimination and harassment that's taking place in the Caltrans Oakland office. Unfortunately, this kind of treatment of employees in large public offices is not as uncommon as one might think. One reasons for this seems to be the impunity which some of the managers enjoy for such violations. The perpetrators of discrimination and their superiors are rarely terminated and usually get a slap on the wrist in the form of a confident reprimand letter or a warning, while costing the city, county or state department many thousands of dollars in legal fees and in settlement.  ]]><![CDATA[Frequently Asked Questions about California Employment Law and Wrongful Termination Lawsuits]]>Sun, 13 Feb 2011 14:44:07 -0800http://www.arkadylaw.com/1/post/2011/02/wrongful-termination-lawsuits-questions.html1. What does "Employment at Will" mean?    
Employment-at-will means that an employee can leave his/her job or be terminated from the same job for any reason, no reason or arbitrary reason except that the employee cannot be terminated for an illegal reason, such as discrimination or retaliation. There is a basic presumption in California that in the absence of a contract or some kind of agreement to be employed for a specified period of time or not be terminated unless there is (just) cause (such as in the case of workers who are union members, permanent civil service employees, and certain groups of licensed professionals), all other employees are considered to be employed "at will."  

2. How much is my wrongful termination case worth?  
There is never a precise answer to this question for several reasons. First, no attorney can or should guarantee an outcome of any claim due to the inherently unpredictable nature of most employment related cases. Some of the factors that affect the outcome of the case and the potential size of the settlement / verdict are: your rate of compensation while working for the employer sued; how many years you worked for the employer-defendant; your age - older people tend to be more sympathetic in front of the jury, although this is not always the case; your personality - the court/jury tends to be more generous to those claimants who are likable and charismatic; the specific facts of your case and the egregiousness of the employer's conduct against you; availability of witnesses to prove your allegations, such as your former co-workers,; the extent of your emotional distress as documented in medical records and can be evidence from your life's circumstances, the amount of time you have been unemployed as a result of wrongful termination, the size of the employer and their philosophy on fighting employee claims vs settling them sooner rather than later; and your lawyer's approach to your case - when the other side sees that your lawyers knows what he is doing, and he is not an novice in the employment law arena, they will take your case more seriously and are likely to be more forthcoming during settlement negotiations.  

3. What does "workplace harassment" or "hostile work environment" really mean? 
I believe that the above concepts are some of the most misunderstood legal terms by the common public. Most people believe that just because their manager or a supervisor is not nice to them, or is being rude, unfair, abrupt or overly critical in evaluating their performance, he is being "hostile." This is not the case however. Under the law, hostile work environment or harassment claim arises when the employment conditions of the victim are so objectively intolerablethat they would actually alter the working conditions to cause a reasonable person in the victim's place to quit. This means that typical, common job related conflicts or stress are clearly not enough to assert a hostile environment claim, and generally, such claims arise when someone is mistreated for discriminatory reason. For example, if a manger repeatedly calls his female subordinate a bitch, this alone will likely not give rise to a hostile work environment claim, as this is merely an insult that has no inherent discriminatory animus (although one could argue somewhat subjectively that the term "bitch" suggest hostility toward women). On the other hand, if the same manager makes degrading ageist comments to an older workers, such as "old fart," "it's time to retire," "we need fresh blood," etc... this would likely give rise to a harassment and discrimination claim, similarly to a situation where a disabled worker is being degraded verbally with negative references to his disability. 

4. How long will it take for my discrimination / wrongful termination case to resolve?  
I have had cases resolve after writing one letter to an employer, which explained why the termination was unlawful, and in which case the employer agreed that their conduct was illegal and they were eager to settle case and avoid litigation. In the vast majority of cases, however, the employers deny liability, as there are so many ways to put a different spin on the facts of what seems to be an illegal termination, and it can take anywhere between 3 months to 1.5 half to work up the case and bring the case to a resolution through or before trial. 

5. I filed a union grievance against my employer. Should / can I still pursue a lawsuit in court?  
It is important to understand that filing a grievance is different from filing a lawsuit in court in several important regards. First, grievances arise out of employer's violation of the Collective Bargaining Agreement between the union and the employer and not out of legal violation. For example, an employee who was terminated because of filing for workers compensation benefits of using disability leave may file a grievance for being termination for just cause, and at the same time file a lawsuit in court for disability discrimination and retaliation for asserting workers compensation rights. Filing a grievance does not have any bearing on the employee's rights in court. Winning or losing a grievance also does not have a whole lot of bearing on the aggrieved employee's civil case. Often, filing both the grievance and the lawsuit in court has a number of strategic advantages: (a) the employer will experience more financial pressure of having to defend both the union and the grievance and is likely to agree to a global settlement more than to just a settlement of either the grievance or a civil lawsuit; (b) if you are ready and willing to return to you workplace, union action is the only way that your employer might be able to be ordered to reinstate you; (c) unions are notoriously slow in pursuing grievances due to being understaffed, having too many claims and due to different political issues. Having a parallel court action at the same time provides you with additional and often faster and more aggressive way of recovering compensation for violation of your rights. 

6. Will the settlement of my wrongful termination case be taxable?   
Yes, generally - settlements of employment related claims are considered taxable income and they are taxed at a regular rate as your wages would be taxed and are subject to the same common deductions as any other income.


]]><![CDATA[ADA Disability Law in California: Should You Keep Your Medical Condition Confidential?]]>Thu, 10 Feb 2011 11:19:00 -0800http://www.arkadylaw.com/1/post/2011/02/ada-disability-law-in-california-should-you-keep-your-medical-condition-confidential.htmlThere 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.  ]]><![CDATA[When is Firing an Employee because of Obesity Illegal in California? ]]>Sun, 23 Jan 2011 00:43:25 -0800http://www.arkadylaw.com/1/post/2011/01/when-is-firing-an-employee-because-of-obesity-illegal-in-california.htmlThe California cases specifically addressing disability discrimination claims on the basis  of weight are few but instructive. Most courts seem to agree that obesity does not constitute a qualifying disability at workplace without proof of physiological cause for that condition. Cassista v. Community Foods, Inc. (1993). That is, simply becoming overweight because of one's self-imposed and voluntary eating habits or lack of exercise is not a qualifying disability, while being overweight due to genetic, hormonal or other disorder may be a protected disability, unless maintaining a certain weight is a required occupational qualification, like it is in the case of paramedics, firefighters, police officers, and flight attendants. 

Of course, to be protected under the disability laws, the employer must have actual knowledge that the subject employee's obesity is cause by a particular physiological condition. This means that if an obese employee is seeking an accommodation to his/her condition, it is in that employee's best interest to explain to his management or human resources managers that the reasons for his obesity are outside of his control and are therefore likely to be a medical condition, entitled to legal protection. If the employer is not aware of that, they will have no obligation to comply with disability laws with regard to that overweight employee.
]]><![CDATA[Unemployment Benefits Law - The Importance of Filling Out the Paperwork Correctly]]>Wed, 22 Dec 2010 11:23:54 -0800http://www.arkadylaw.com/1/post/2010/12/unemployement-benefits-law-the-importance-of-filling-out-the-paperwork-correctly.htmlIf you find yourself in a process of applying for unemployment benefits, it is very important that you read each and every question on the questionnaire and make sure that you answer the questions truthfully or correctly. If you don't understand a question you should contact the department for assistant or get in touch with an attorney specializing in unemployment benefits law.

The reason that filling out the paperwork correctly is so important is that the department may interpret an innocent mistake in your filling out the paperwork as falsehood, and an intentional attempt to defraud the department. This, in turn, may result in denial of benefits due to misrepresentation or even an obligation to repay the benefits which have already been paid.
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