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Union Grievance, Workers Comp and Wrongful Termination Case Interplay

union grievance wrongful termination california
A common situation we evaluate is that of an employee - a union member, who was unfairly treated or falsely accused of some type of misconduct or insufficient performance and was disciplined or terminated as a result. If you are in that type of situation, you might be confused about your rights to union grievance and arbitration v filing a potential workers comp claim v filing a wrongful termination case in court. Below is some practical guidance on navigating these three areas of law: 

The first question you should ask yourself is whether there is evidence that the true reason for your termination is discriminatory or retaliatory - i.e. is there evidence that the true reason for your termination is your injury/disability, asking or exercising FMLA or pregnancy leave rights, race, gender, sexual orientation, religion, age, or filing harassment complaints, complaints about safety violations, or engaging in other protected activity?   

If there is no such evidence and if it's fairly clear to you that the reason you were treated badly by the employer is personal or otherwise non-discriminatory (such as personality frictions within the office), then the only way to fight your termination is through a union grievance or arbitration and argue that there was no just cause of the discipline imposed. Your union might or might not want to get involved and help you and they have significant discretion on deciding whether to file grievance and fight for an employee or not.  Non-discriminatory termination is not illegal, but it might be in violation of your union bargaining agreement. Therefore, it cannot be challenged in court, but only through union action.  

If there is evidence that the reason for your termination is discriminatory or retaliatory, then you may consider filing both  - a union grievance and a wrongful termination / discrimination case in court. A court lawsuit can only address legal violations (i.e. discrimination & retaliation claims) but not violations of a union collective barganing agreement agreement. In this case, you will be arguing (a)  through union grievance that your employer violated the bargaining agreement by disciplining you without just cause; and (b) you will claim unlawful discrimination and retaliation in violation of California or federal lawsuit in a lawsuit in court. 

Any emotional distress injury, such as stress, anxiety, depression, and related symptoms you suffered as a result of being treated badly and fired unfairly can only be addressed through a workers compensation claim. This type claim is handled separately - not in court, but at workers comp appeals board. The value of this type of claim is determined iva the % of injury or disability which you are assigned by a doctor (QME / AME). 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case