Forced out on leave when you can still work: Workers’ Compensation Injuries and Disability Discrimination in California

Employee injuries happen.  Under the mandatory reporting policy in California, a claim must be submitted to the workers compensation carrier and it will either be approved or denied. Just navigating the workers compensation arena is complicated; a workers’ compensation (“workers’ comp”) attorney is usually needed just to get things moving along to ensure you get the treatment you deserve.  We can refer you to a workers' comp attorney.

Often you’ll need another attorney; an employment law attorney.   Here is why:

Out on leave waiting for permanent stationary status-Employer won’t let you work light duty

What happens when you’re placed on leave even though you can work just not at full capacity? Your worker’s comp attorney is only responsible for the treatment of your work related injury. We help with this issue because it could be Disability Discrimination under the Fair Employment and Housing Act (“FEHA”.)

The FEHA interactive process: Employment Law Disability Discrimination Claim

Under FEHA disability accommodation laws, upon notice of your work limitations, usually found in your progress reports from your doctor (“PR-2’s”), your employer must engage in the “interactive process.” Failure to do this may result in liability.  The “Interactive Process” is a back and forth discussion between you, your employer, in concert with your doctor to see if you can do the most important parts of your job with or without accommodation.

Failure or Refusal to provide reasonable accommodation: Employment Law FEHA Disability Discrimination Claim

What if your employer gives you a hard time about coming back to work or says just get better and wants you to be 100% healed before you come back? You may be okay with that, but requiring you to be fully healed is against the law. Light duty is mandatory if it does not create undue hardship on your employer and your employer has more than five employees.

Why can’t I just use my workers compensation attorney?

Simply put, most workers compensation attorneys don’t underst this area of law, and when they try, it limits recovery. Some workers compensation attorneys attempt to navigate these sorts of claims by “forcing a square peg in a round hole.” It's usually a bad decision.  They call the refusal to reinstate or accommodate and sometimes termination, retaliation for filing the workers compensation claim. They  bring a claim under Labor Code sec. 132a ("132a"). That really is only a slap on the wrist, $10,000 maximum recovery, and usually does not fully compensate lost wages, benefits, and emotional damages. FEHA claims may entitle victims to punitive damages in some circumstances.

Example why 132a might not be the best way to go forward:

Let’s say you’re data entry clerk, making $15 an hour, and you broke your ankle carrying a box of papers up the stairs to the next floor because the elevator was not working again. Your duties usually require only desk work and you rarely leave your desk except to go to lunch, get a cup of coffee, or attend the occasional staff meeting.

You filed a workers compensation claim and you are awaiting your “permanent and stationary status.” You feel you could do your job but your employer wants you to be 100% healed before you come back. You know that disability payments don’t pay the same as your regular wages and you have rent/mortgage, bills, and kids to feed. Despite your protests, your supervisor forces you out on disability leave for 18 weeks and then the company fires you for “job abandonment.” 

A 132a claim is weak at best. Showing the termination was because you filed the workers comp claim will be the only solution that most workers comp attorneys will see. The value of a 132a claim pales in comparison to a FEHA wrongful termination claim with an employment lawyer. There is no cap in FEHA disputes and you are able to pursue emotional damages as well punitive damages in some circumstances. 

The math:

Not only would you have made $10,800 during the leave if you would have been placed on light duty, but now since you were terminated you will lose $600 every week until you find a job and all the jobs you are considering are paying less. You’d be entitled to additional damages for any emotional suffering that results not available under 132a. You get the point, it could be well over $30,000.00 by the time you get another job not including any emotional suffering.

Getting an employment lawyer to advise you early on during the workers’ comp case is the responsible thing to do. They can help you prepare for this sort of case, especially if you know your employer hates light duty or has fired others while out on workers’ comp leave.

Normally the doctor will automatically place you as “TTD” or temporarily totally disabled if your employer believes they are unable to accommodate. If you disagree you need to tell your doctor that you think you can do your job and you need an employment lawyer.

Can you be fired while out on Workers’ comp leave?

This is a very common question. It depends. There is no law that says it is illegal to terminate someone who is out on workers compensation leave. There are some laws that protect employees that qualify for them; CFRA/FMLA. Eligibility depends on amount of time worked before the leave (1,250 hours in last year), number of employees (50+), full-time employment held for at least one year. This only protects you up to 12 weeks.

Your employer does have an obligation to accommodate you however. Consider requesting time off through a specified date as accommodation of your disability and do it in writing. Jensen v. Wells Fargo.  This places you in a protected group. If they terminate you, and the leave is not so long it would create an undue burden, it could be considered a failure to accommodate and give rise to a claim.

If you are confused and are in this or a similar situation, contact us to discuss your options.

The image in this article was provided courtesy of Ambro / FreeDigitalPhotos.net

"Harassment" or FEHA Harassment-When is harassment at work actionable?

You’ve probably heard people complain about their jobs. People are quick to say they work in a “hostile work environment.” Most people think their supervisors are harassing them. When does the law protect you?

Not every person that has a difficult job suffers from harassment prohibited under the law.  It’s not against the law for a supervisor to “be a jerk,” “have it out for you,” or even over scrutinize you.  But it is often against the law for a supervisor to do those things if it’s because you are a member of a protected group.

Protected groups

Determining the reason why your supervisor or co-worker is “being a jerk” is really the first step to see if a claim exists. A protected group for purposes of the Fair Employment and Housing Act (“FEHA”) is any characteristic or trait identified in the statute. Gov’t Code §12940(j)(1).

FEHA, Gov’t Code §12940(j)(1), makes harassment in employment illegal when it is based on:

• sex;
• age;
• gender;
• sexual orientation;
• physical or mental disability;
• race, color, national origin, or ancestry; 
• medical condition (cancer);
• genetic information; 
• marital status; or 
• gender identity or gender expression. 

If you believe that you are being mistreated because you are in one of the above groups, it’s a good time to talk to an attorney. An attorney can help you stop it and discuss your options.  We give free initial consultations and can help you determine whether it is discrimination or harassment. All FEHA harassment is discrimination but not all FEHA discrimination is harassment.

For FEHA discrimination to be actionable there must be at least five or more employees at your place of employment, but FEHA harassment doesn't require a minimum number of employees Gov’t Code §12940(j)(4)(A). You're protected against harassment even if it is just you and the owner working for the company. You don't even have to be an employee you can merely be "providing services pursuant to a contract." Gov’t Code §12940(j)(1).

 Harassment and the “hostile work environment.”

Harassment is prohibited in employment under FEHA as stated in Gov’t Code §§12940(a) and (j)(1). There are numerous cases that attempt to define what is considered harassment. Here, we are merely providing a general overview of what might be considered FEHA harassment.  What people call harassment in everyday conversation is very different from harassment under FEHA.  

A hostile work environment can result from many acts over a sustained period. It can also be from a “severe” single incident such as sexual assault or rape. It must be “severe or pervasive” Sheffield v. Los Angeles County Dept. of Social Services (2003) 109 CA4th 153, 160-161.  The “totality of the circumstances” are considered in determining whether the hostile work environment exists.

Sexual Harassment has another form besides the hostile work environment claim, called “quid pro quo sexual harassment,” which means “this for that” or a “favor for a favor.” Usually it has an economic aspect, where a supervisor asks for sexual favors in exchange for some employment benefit. For example, like seeking sexual favors in exchange for job placement, promotion, a good performance review, or in order to keep a job.

Many acts over a sustained period of time

Many acts over a period of time which creates a hostile work environment is the most common form of harassment.  It applies to all protected groups in determining whether harassment exists. The severity of  the conduct coupled with how often the conduct occurs is a sliding scale that determines whether a claim exists.

If you have experienced intimidation, ridicule, insult, or other abusive behavior because you belong to one of the protected groups identified above you may have suffered harassment. It must be severe or have occurred with such regularity that it changes your work conditions.  Would a reasonable person agree that it is an abusive environment?  Usually a culmination of severity and regularity results in a finding of an hostile work environment; the phrase you’ve heard so much about.

Single incident

To determine if a single incident is harassment it must be severe; physical assault for example. The majority of case law establishing single incident hostile work environments can be found in sexual harassment cases. Single incident hostile work environment claims are rarely asserted except for in sexual harassment style claims.

What to do.

If you want to stop the harassment, complain.  If you’re not sure but you reasonably believe what is happening to you is harassment or discrimination it is very important to let your employer know so they can correct it.  Unfortunately, sometimes they fail to do the right thing, so protect yourself by complaining in writing.

Complain in Writing

Never make the complaint verbally.  Some human resources managers or supervisors will deny you ever made a complaint.  This becomes a problem if litigation is necessary.  Always complain in writing.  The best method to complain is by email or fax. If you fax your complaint, get a copy of the confirmation report provided by the fax machine. 

Sometimes companies have anonymous hotlines. Employees call in and report things anonymously. Only problem is that if the employer retaliates against you (terminate you or force you to quit) you will have a difficult time proving you made the complaint and that it was you. It may allow your employer to wiggle out of liability since they could possibly deny they knew it was you. A complaint in writing signed by you is much stronger evidence to prove retaliation later.

Don't record conversations. It's a crime in California to record someone without consent. It can't be used in evidence and will create problems in the future if litigation is necessary. It is better to take detailed notes of a conversation, or write down what was said right after. This is much easier to use in litigation.

Send the complaint to the person designated in your company policy. If there is no policy or you are not aware of one, or that designated person is the same wrongdoer, send the email to human resources or the first level of management above the harasser.

This can be a scary process and navigating this process with an attorney will make it go smoother. Having an attorney is best since once an investigation starts your attorney can help you navigate the waters if your employer chooses to do the wrong thing. Sometimes employers retaliate because of the complaint. They start attacking your performance and attempt to get you to quit.

The complaint should identify the protected group. (eg. I believe I have been discriminated against or harassed because of my [race, gender, disability, etc.]). It should state the reasons why you believe you have been discriminated against or harassed. It should focus on why your membership in the protected group is the reason behind the mistreatment.  It should state who is responsible and when it occurred.  It should be short, simple and straight to the point.

AVOID block paragraphs with single spaces with no separate thoughts that make you appear psycho. Simple and short is best. If you fear you might say too much or not enough involve an attorney they can help you. During our free consultation we can discuss making a complaint with you.

Conclusion

So now you have a general idea of what a “hostile work environment” is and is not.  If the conduct is directed to you because of your membership to a protected class, and the nature of the abuse is severe or pervasive to the extent that it interferes with your work environment, you may be in a hostile work environment.  Hostile work environments are against the law and you have rights.

The image in this article was provided courtesy of Ambro / FreeDigitalPhotos.net

Women's work rights-Working while pregnant in California

When should I tell my employer I'm pregnant?

People are beginning to make comments about it and it is getting harder to hide; that cute pregnant belly that random strangers think it is okay to pat,  is starting to show and everyone you know tells you that, "you're glowing."  Among friends and family you welcome the attention. You are happily preparing for the new arrival; buying baby clothes, looking up names, making modifications to your home; and stocking up on  formula, "onesies," diapers, and baby wipes.

You methodically prepare at home but you are unsure of what to do about it when it comes to work. You do your best at work and are reliable. "Why should it matter? I'm a good worker." you tell yourself.  Deep down you get the feeling it does matter and you get a little nervous.

For a few months you have gone to work and have told a few co-workers/ work friends the good news after they asked in whispers "are you pregnant?" "Yes, but don't tell anyone," you make them promise.  This request is an attempt to avoid a premature disclosure to your supervisor.  But then you remember, just like back in third grade, friends have a hard time keeping secrets.  You wrestle with it, but know you need to let your boss know. You're afraid of how they will respond.  Uncertainty casts its dark shadow over your employment and you decide to hold the happy news back a few more days. "It will be alright," you tell yourself, "I'll tell them soon." 

Then it comes, a call for you to report to human resources. You sit down and guess what, they're "letting you go..." 

So many times I've heard that story only to learn that while the employer "knew," the poor woman sitting in my office never gave written notice. It becomes an evidence nightmare in litigation. There are other ways to prove they "knew," but written notice is best. In employment discrimination cases the burden is on you to prove they violated the law. Taking this proactive step will save you heartache in the future.

Sometimes employers lie and deny they ever knew.  Later it is discovered they had found out from a third party, usually a co-worker or doctor.  Then in litigation they hold to the fact that they decided to end the employment for "other reasons." Pregnancy may be a burden on employers, but families are important to our society and laws have been enacted to protect pregnant workers.

What to do and why.

Tell your employer you're pregnant by giving them a note from your doctor (best emailed or faxed- so you can prove they got it.)  It's the responsible thing to do and it places you in a protected class.  That way if they terminate you later (or reduce your hours until you have no other option but to quit-always see an employment attorney before you do this because there are ramifications if you quit) you can prove they had notice of your pregnancy and it helps your claim. There are other issues that still must be proven but written notice will make it easier to pursue your rights later.

If you have told them but you didn't do it in writing, give them a note from your doctor. It is the best way to ensure you can prove notice of your pregnancy. Providing notice is a threshold issue in pregnancy discrimination cases. You can't prove pregnancy discrimination if you can't prove they knew you were pregnant.   

When should you  tell them you're pregnant?- Sooner rather than later and certainly before you are showing. Do it in writing so it can be proven later if something bad happens.Waiting only complicates things.

There are other reasons to tell them sooner, if your employer has five (5) or more employees you may be eligible for Pregnancy Disability Leave ("PDL.") PDL provides protected time off for women disabled by pregnancy. It defines "disabled by pregnancy" to include time off for prenatal care and severe morning sickness [2 Cal.C.Regs. sec. 7291.2(g).] That means you can take time off for your prenatal doctor visits and when you have real bad morning sickness.

If you are then terminated for absenteeism because of the time off taken in connection with your pregnancy, it could be a strong unlawful termination case which may entitle you to damages.

For more information on pregnant worker's rights click here.

The image in this article was provided courtesy of duron123 / FreeDigitalPhotos.net