Under ADA/FEHA Requiring an Employee to be 100% Recovered Before Allowing Him to Return to Work is Generally Illegal
Below is an example of a potentially illegal and discriminatory AWOL notice that one of our clients has received. This document alone shows how the employer is trying to disregard the rights of an employee to (additional) medical leave as an accommodation. The employer - state agency - unfairly leverages the language of the applicable AWOL provisions to terminate an employee who is potentially entitled to a number of rights and protections under ADA and FEHA.
Fresno Jury Awards $750,000 to a former Framers Insurance Employee in an Age Discrimination and Wrongful Termination Case
A Fresno recently awarded nearly $750,000 in damages to a former Farmers Insurance employee in an wrongful termination case based on age discrimination.
Both sides agree that plaintiff Warehime was hired to work in the Visalia office in January 2002. At the time, the company was going through a transition from paper files to electronic files. During the trial, Farmers' attorney told the jury that Warehime never embraced the new technology and rejected training to become a better employee. When workload backed up on her, he said Warehime "blamed others for her problems."
The employer's attorney further said Farmers had good reason to terminate Warehime: she was low-balling customers on their claims, which led to costly litigation for the company.
Toole, Warehime's attorney, showed the jury evidence that Warehime had been a valued Farmers employee: she did the training requested by Farmers and the company honored her with awards and good to outstanding job-performance ratings each year from 2002 to 2005. "She was a committed team player and good with customer service," he told the jury. Toole said the climate began to change in the summer of 2003 when Warehime learned that one of her Fresno supervisors "wanted to hire his own people." Warehime was given higher caseloads than other employees, and when an employee left the company, she was given those files, too, Toole said. She asked her supervisor to balance the workload, "but nothing happened. No files were reassigned and she continued to drown in these files," Toole told the jury.
Things got worse for her, Toole said, because the Fresno office was filled with young, hip employees, Toole said. Warehime started hearing thing like: "I don't want to work when I'm your age" and "The old fuddy-duddy is coming in." In October 2005, Plaintiff complained to her supervisor that an evaluation of her work was inaccurate and unfair. The supervisor responded by telling her to improve her performance.
The stress became so intense, Warehime suffered a mental breakdown in February 2006, forcing her to take a leave of absence while her doctor treated her from depression and anxiety. Warehime's doctor cleared her to return to work on June 12, 2006. But when she showed up to work, a young man was sitting at her desk, and Plaintiff soon found out that she was fired.
This case involves a common combination of age discrimination and disability discrimination / failure to honor medical leave to which an employee is entitled under ADA/FEHA or FMLA.
California has a number of laws that address the issue of workplace violence.
Regardless of the action you plan to take, it's important to secure witnesses statements of any violent acts committed against you at workplace, as in most cases the perpetrator will be denying ever touching you or being as violent as you state he was.
And if you feel that you situation is intolerable, and you consider resigning, it's a good idea to discuss your separation with an experienced employment attorney in your area, to see if there are any options to either negotiate (higher) severance for you or to enhance any potential claims you might bring before you actually quit your job.
DFEH (California Department of Fair Employment and Housing) and EEOC (Equal Employment Opportunity Commission) - the federal counterpart of DFEH are agencies charged with accepting complaints of and investigating allegations of discrimination and retaliation at workplace. Generally, filing a charge with one of the above agencies within one year of the most recent discriminatory act, such as employment termination, is a pre-requisite to filing a lawsuit, and failure to file a charge will bar the majority of discrimination claims that could have been otherwise brought in court.
In the vast majority of cases, filing a DFEH/EEOC complaint against your employer is a pure formality, as these agencies close their file and issue a right to sue letter to the complainant in over 95% of the cases. DFEH and EEOC only choose a few, particularly egregious cases to pursue every year due to lack of resources and the number of discrimination complaints they receive. Otherwise, a typical DFEH investigation ends up with a letter stating something like this: "Our findings are inconclusive, and we are unable to determine whether your employer has violated the law. Therefore, we are closing our file, and here is your right-to-sue letter."
The good news is that if there is a strong evidence to support your claim, you don't have to wait for the DFEH to issue its findings, which can sometimes take many months or even more than a year. You can either contact the agency and asked that they close the investigation and issue you a right to sue letter, or you can have your attorney get a right to sue letter through DFEH online system in just a few minutes.
It is not uncommon for employers, especially in certain industries, to require new or existing employees to sign a binding arbitration agreement, requiring all potential claims between the employer and the employee to be submitted to arbitration rather than court. Refusing to sign that kind of agreement is not a good idea and not beneficial to an employee in most cases.
First, that agreement only matters if you actually have a dispute with your employer. If you don't have any legal disputes with your employer, signing that agreement makes absolutely no difference to you. Secondly, your employer may lawfully terminate you or refuse to hire you for refusing to sign an arbitration agreement. Lastly, you will have an opportunity to challenge the validity of the signed arbitration agreement later, if and when it actually matters.
Thus, in most cases, it's not worth jeopardizing your job by refusing to sign an agreement that's probably not going to make much difference to you anyway.
Some workers turn a potentially good discrimination or wrongful termination into a no case by prematurely resigning or quitting their job. This usually happens when an employee is treated unfairly and he feels extremely unhappy at work. When quitting, that worker might believe that he is being constructively discharged. In most cases, however, the bad treatment of that employee does not rise to the level of constructive discharge, which is objectively intolerable working conditions that would force a reasonable employee resign.
Here is a typical example of a situation where resignation would be premature and would make the potential wrongful termination and disability discrimination case more difficult to prove. Suppose you are off work on disability leave till April 30. On April 10, your employer tells you that you have to return to work by April 20 or you will be fired, and they don't care that your doctor's note instructs you to stay off till the end of the month. This is a situation where you are much better off letting the employer termination you then resigning before April 20, like some employee would choose to do. Here, resigning might completely eliminate a wrongful termination claim, since you actually haven't been terminated. Resigning may also create problems in obtaining unemployment benefits.
If you are thinking of resigning and taking legal action against your employer for discrimination, retaliation or wrongful termination, consult a knowledgeable employment attorney in your area before you actually resign. Your attorney may be able to help enhance your case or even prevent those mistakes that will turn a good case into a not-so-great case or no case at all.
9th Circuit Reminds that Crude and Offensive Remarks Alone Do Not Create a Claim for Hostile Work Environment
In Westendorf v West Coast Contractors (2013) the Plaintiff, a project manager assistant, claimed hostile work environment based on sexual harassment, based on several sexual comments she heard from her manager, some of which were directed to her and others were directed to another woman. The Court affirmed that dismissal of the case. The Court noted yet again that isolated inappropriate comments, without other evidence of sexual discrimination or unlawful harassment, do not create a viable hostile work environment claim. Plaintiff was, however, allowed to proceed forward with her retaliation claim. This is because even though there was no sufficient evidence to prove the harassment claim, the court found that there was sufficient evidence to allow the Plaintiff to show
This decision makes a lot of sense. It would be impractical and borderline nonsensical to allow every inappropriate comment or sexual innuendo/joke turn into a lawsuit for obvious reasons. The Court requires evidence of unlawful hostility against an employee based on a protected class that goes beyond a few isolated comments, especially of those comments are taken out of context.
This week, we settled on small wage claim for unpaid overtime on behalf of our client, a former IT administrator. Even though his total claim was for over $80,000.00, he elected to not wait for the hearing and accept an earlier smaller settlement with the employer. This claim was supported by evidence in a form of payroll records, and support tickets on which our client worked.
At first, the employer did not want to pay anything arguing that our client was not entitled to overtime because he was exempt under administrative or professional exemption. However, we managed to show that the majority of our client's duties were not those of a manager. He was providing typical support to the company's network systems. He was not building or designing, but only maintaining and configuring the network - a critical difference in claims of unpaid wages and overtime.
It is harder to prevail in a case where the claimant's word goes against the word of the employer and a large number of the employer's witnesses, who come to support the employer in part out of fear of retaliation if they refuse to support the company's side or especially if they decide to support the claimant. However, in this case, our client has his own former manager ready to testify about his non-exempt duties and his work hours, which was very helpful in settlement discussions.
Today, I had the pleasure of representing a former, long-time employee of a company, who was claiming a substantial amount in unpaid vacation. He had solid evidence to support his case. The attorney who was representing the employer appeared like he really did not know what he was doing, most likely because he did not know much about employment law.
However, because the rules of the labor commissioner hearings are so much more relaxed, the opposing attorney was allowed to ask completely inappropriate and inflammatory questions, which would have never been allowed to be asked in court. On several occasions, he and the employer's witnesses called my clients a thief and a liar. The attorney's line of questioning included such questions as: "Isn't it true that your claim is completely frivolous?", "Isn't it true that you fabricated your claim and you have been sitting and lying the entire time?", and "Isn't it true that you are just trying to take advantage of a company that has already been struggling?" Unfortunately, those question go to my client who broke out in tears as soon as the case was over. He felt offended and humiliated by the allegations, even though I assured that he should have been laughing at those ridiculous questions. I suppose it is easier said than done.
I suppose the lesson for the claimants is to be ready to be badgered and not let it get to you. Keep you eye on the ball and focus on the legal and business aspect of the claim, and don't let false accusations, offensive questions, and badgering upset you or make you mad.