Wrongful Termination News
Wrongful Termination on Workers’ Compensation Violates California Labor Law
At issue is an incident that happened almost a year ago. Valerie (not her real name) was injured on the job. She filed a workers’ compensation claim and took a few weeks off work. Her doctor said she could return to work on modified duty: she couldn’t lift anything more than 10 lbs. Then Valerie had a death in the family and requested time off to attend a memorial service for a family member. She got permission and decided to take three weeks total: two weeks vacation leave and one week family leave.
“On the day I was scheduled to return to work, I was terminated as soon as I walked in the door,” says Valerie. I couldn’t believe it - I had nothing negative in my personnel file. However, one of the board members had an issue with me from last March regarding the board fundraising and recruitment, which they insisted I did even though it was against the bylaws and articles of incorporation of the company. I believe they were just waiting for an opportunity to fire me and save money.”
Valerie was told some financial issues warranted her termination, but that took place two years ago and she was cleared of any wrongdoing. “They told me that because of my long service I had the opportunity to resign,” says Valerie. “I refused to resign because I haven’t done anything wrong.
“They told me that all my stuff was packed. I left my keys behind, made sure I had all my belongings and left. I was stunned. I literally bent over backwards for this agency and I have gone without pay. I was on salary and worked many hours without overtime compensation. I never even asked for overtime pay. They were short-staffed (that is how I sustained my injury - because maintenance wasn’t around to help me move furniture and boxes) so I did much more than my job description called for. I even cleaned toilets.
“I was devastated. I don’t even know where to begin regarding unemployment and filing a claim with the labor board. I am still fumbling my way around because this is something I never expected. I do know that if I were to resign I wouldn’t be entitled to unemployment.
“I believe they gave me the opportunity to resign so that they wouldn’t be held responsible for their actions, meaning wrongful termination. Knowing this board, they believe in what they think is right, and that is why they don’t fundraise. In the case of wrongful termination, they likely believe my workers’ compensation case has ended and therefore they have a right to fire me and not consider it retaliation.”
Although Valerie was able to return to work, she was still under her doctor’s care and was getting workers’ compensation for her injury. Her claim is still open. Her doctor’s “Return to Work Order” received by the board of directors before she took those three weeks off stipulates that Valerie would have to “stand at will” because she has a bulging disc, she cannot sit for long periods of time working on the computer, and she would have to take breaks throughout the day for the pain to subside.
At this point Valerie doesn’t know if she has a wrongful termination claim.
However, the California “at will” employment policy does not allow employee termination for filing a workers’ compensation claim; Retaliation; Disability; Time off for Family Leave and Medical Leave, among other reasons.
California Labor Code section 132a makes it a misdemeanor for an employer to discriminate in any way, including discharge or threat of discharge, against an employee who has filed or is thinking about filing a workers’ compensation claim, or an employee who has received a workers’ compensation award. The employee who has been discriminated against is entitled to a penalty (not to exceed $10,000), reinstatement, and reimbursement for lost wages and work benefits.
California Labor Law: Bi-polar Cook Wants Just Desserts
Anthony, 20 years old, suffers from bi-polar disorder, but it didn’t interfere with his work as cook/dishwasher at a Mountain Mike Pizza franchise. In fact, nobody even knew about his condition (he had worked there for six months) and Anthony wasn’t required to divulge that information to his employer, unless he was asked.
“On my day off I had a nervous breakdown and had to be hospitalized overnight,” Anthony says. “Because I couldn’t go back to work the next day, my employer told me to get a doctor’s note, which said ‘Crestwood Psychiatric Clinic’ on the letterhead. I just missed one day of work and I was under the assumption that I would resume my usual work schedule. I worked the night shift, starting at 6 p.m. until midnight, five days a week.”
Despite Anthony’s positive work record, his boss (the franchise owner) fired him. Anthony has looked into the California labor code and believes he has been both wrongfully terminated and also discriminated against due to his disability.
“As soon as my boss knew that I suffer from bipolar, my hours were cut to zero, but she kept me on as an employee for more than a month,” Anthony explains. California is an “at will employment” state, but that is no excuse to lead Anthony on for that amount of time: It is unfair and illegal to discriminate, but it is downright mean to leave him hanging for more than a month without any income.
“When it was time to get the week’s schedule, she would call and say they didn’t need me,” says Anthony. “This is a fast food restaurant; there is no way over 30 days that you don’t need one of your cooks, or need the dishes washed. A co-worker told me that she had hired three new people during my absence.
“I finally sat down and talked to my boss. She said that I had threatened her, the company and an employee! I didn’t learn that I had threatened anyone until I had this conversation with her, which took place about three weeks after the hospital incident. She said this employee feared for her life, which was ridiculous. Fortunately, when I tried to talk to her, I had one of my co-workers, Christina, with me. ‘I have no idea what you are talking about because he would never threaten anyone,’ Christina told my boss. But she was still adamant that she had no hours for me.
“I explained to her that I really needed the hours, even though I was getting paid $8 per hour, which is exactly the minimum wage. I would take any shitty job she had, including standing outside waving the restaurant’s sign. She even denied me that. I could blow the whistle and report her to the health department if I wanted to be vindictive, but she will get her just desserts eventually and I don’t need to add to it.
“I contacted the California Labor Board because I am not the only one she is messing with. She has also discriminated against other employees; she has treated them wrongly. As for a California labor lawsuit, I don’t expect anything. I just want her to know, through the proper legal channels, that she can’t treat people this way. Given the economy and employers like her messing with you, it is extremely hard to find work.
“I recently found a better job and I am getting paid $9 per hour. And I told my new employer that I am bi-polar. He didn’t ask so I wasn’t obligated to tell him anything. But I explained the previous situation and he wants to give me a chance. ‘I have heart,’ he said.”
HR Getting Personal Spells California Labor Lawsuit?
It all started with a sick day that Karen took last month. Her boyfriend, Bob, was having a heart problem; he’d had a heart attack last year so she wasn’t taking any chances and drove him to the doctor. Now it so happens that Bob works at the same company as Karen did. And the only way that Karen could take the day off - she was honest and told her boss the reason - was if she was a domestic partner.
“I told my manager that Bob and I have lived together since last June but we aren’t married,” Karen says. “He signed my time-off request and I was paid for the day. But I was questioned about it two weeks later.”
Karen’s questioning sounds like it was conducted by the Spanish Inquisition rather than an outside HR consultant. “She told me that she was following the employee handbook policy regarding sick time off,” says Karen. “Then she pointed to her laptop and asked me if I wanted to read the definition of a registered California domestic partner. I replied that I have read it and understand it is more for gays and lesbians so they can get all medical and dental benefits, and other benefits. Then she asked if my boyfriend was still married (he is getting a divorce). I have worked in HR and payroll so I know what can and cannot be asked, and this question was an invasion of privacy.
“I replied that it was none of her business and I also said, ‘I am going to look into the California labor law to determine whether you can ask me that question.’ My manager was there too: they were trying to figure out whether I should have been paid for that day off. Needless to say I went back to my office very upset. They were treating me like I did something wrong, like I was being punished for living with a married man.”
Karen sent an email to her boss, the HR person and the owner of the company, saying that her workplace now felt like a hostile environment. She also said that she liked her job and it wasn’t fair that she was being treated this way.
Karen called the California labor board on her lunch break and asked if they could dock her one day’s pay after signing off. And she asked if personal questions were a violation of the California labor code. “I was advised that I would have a claim against the company if they took time away after signing off,” Karen explains. “Two weeks later, on February 22, I was called into a meeting with my manager, his manager and a different outside HR consultant.
“They fired me as an at-will employee and said it was because of my performance. I have never been written up, my reviews have been perfect, and I have emails from other managers commending me on my work. To top it off, the owner called Bob and told him that they didn’t want him to quit. They want to give him a raise and make him a lead technician.
“In my meeting with the new HR person who showed up to fire me, she asked me to send her my resume so that she could send it out to her network and help me find another job. ‘Why would you fire me and then help me find a job?’ I replied. I think they fired me because of personal reasons, because my boyfriend isn’t divorced yet.
“There is nothing in the Employee Handbook that says employees are not allowed to have relationships with their co-workers. The HR consultant said that I have to be a registered California domestic partner but that isn’t in the handbook, it just says domestic partner and nothing about being registered. It is a little technicality they are using to fire me.
“HR asked me to sign the reason for termination paper. Instead I wrote: ‘I refuse to sign this paper for job performance because it is wrong and this is retaliation.’
“When you get fired for poor job performance in California, that is a reason for non-payment of unemployment benefits. But I filed anyway because they have to prove that my job performance was bad and I know they cannot do that.
“Needless to say, Bob wants to quit. I told him not to because it is a good job for him and if he got a similar job it would mean a two-hour commute. And they are offering him more money because they know they did me wrong.
“Now I am waiting to hear back from the Labor Board. Meanwhile, I also contacted an employment attorney. I don’t wish anything bad for the company owners but I want them to know their manager cannot treat people this way. I want a written apology from her and a statement saying I wasn’t fired because of my job performance. And now I have to explain my situation to potential employers: It sickens me that a manager can treat you this way, that someone can have this much power over you.”
Here is more information about at-will employment and domestic partner information.
California Labor Law: Is FedEx Heartless?
California’s Labor Code states that an employment relationship with no specified duration is presumed to be employment “at-will.” In theory, this means that the employer or employee may terminate the employment relationship at any time, with or without cause. But it isn’t black and white. The at-will rule created by statute, the courts or public policy has exceptions. An employer can terminate a worker at will and, as long as it isn’t for the “wrong” reason, they won’t violate the California labor code.
In Sylvia’s case, she was fired for “stealing” from the company, although that accusation is quite a stretch. One employment attorney says that he has heard from employees whose employer accused them of stealing. Even though the employees had proven that someone else stole, the employer is still within rights to terminate that employee because it is not unlawful or “wrongful” termination.
“I was hired by FedEx in 2006 as lead project coordinator and my job was to make sure FedEx orders were delivered correctly - I had to catch all and any errors,” says Sylvia. “Everything was going well until about eight months on the job, when I had an argument with my assistant manager about child care. He threatened me by saying that if I left work to pick up my daughter from daycare I wouldn’t have a job when I returned.”
Sylvia scrambled and managed to get a friend to pick up her daughter, but she then found herself working in a hostile environment. She called her district manager and asked for a transfer: if she couldn’t be transferred, her only alternative was to resign.
“Thankfully I was transferred to another FedEx location but I had to work nights. My district manager, however, promised me that I would only have to work the night shift for one year. Two years later I was still working nights so I reminded my supervisor about the promise and that I couldn’t work nights anymore. Their solution: my hours were decreased from a regular 40-hour week to seven hours per week.”
Sylvia believes they were forcing her into resigning because of the daycare issue. She wrote a letter to HR explaining that she had to step down from her job as project coordinator. Apparently that seemed to work - she was transferred to another location and worked full time again. “Everything was working well and I got promoted two years later to assistant manager,” Sylvia adds. Six months later I was promoted to center manager and all was good for 18 months: I had nothing but great reviews and no write-ups.”
All was good at work, but Sylvia’s home life was another story. She filed for divorce after a 20-year marriage and became clinically depressed. Her doctor prescribed anti-depressants; Sylvia says the meds made her very forgetful and she found it difficult to function.
“I had an appointment with my doctor to get a different kind of medication and forgot to clock out,” Sylvia explains. “That day, my doctor said I had to get out of work on disability or I would have a nervous breakdown. So I went out for 24 days. Three days after I returned to work, I was fired! My supervisor told me that I entered the wrong information on my time card and another time I opened the center late; in other words, I made a few mistakes. The day I was fired I took an additional pill by accident and blacked out.”
Sylvia explained her problem to the district manager and he put her on administrative leave for two weeks. But a month later she was still waiting to return to work.
While she was waiting to come back, not knowing when she could return, and no communication whatsoever, Sylvia received an email saying, ‘We are committed to a full investigation for your sake and the company and when we are ready we will call you.’
“I went back to work and gave them a letter from my doctor saying I should take another few weeks off,” says Sylvia. “They called me three days later and fired me on December 14, 2012.”
Sylvia says she applied for unemployment benefits but FedEx is disputing that, with the excuse that she entered the wrong information on her time cards and in effect stole from the company.
“My doctor’s note says the side effects from my meds could be memory loss but they don’t care,” Sylvia says, crying. “I think they are heartless.
“I appealed my termination and just today they said I wasn’t getting my job back, regardless of my medication excuse. They also said that I was a center manager and should know better. I have one more appeal, which will go to the vice president of FedEx this week. The VP is supposed to look at my entire file and talk to the district manager who fired me. So if that doesn’t work, I will seek help from an employment attorney.”
LawyersandSettlements has contacted FedEx HR and is waiting for a reply.
Wrongful Termination to Avoid Paying Workers Compensation?
The majority of workers in California are voluntary “at will” employees, meaning that employers have the right to fire or demote an employee for any legal reason without having to provide “just cause” for the action. However, the term “wrongful termination” means that an employer has fired or laid off an employee for illegal reasons. One illegal reason includes firing to avoid paying workers’ compensation. (Another illegal reason is firing in retaliation for seeking workers’ compensation.)
Thomas says he was fired after getting injured - he first had an accident at home and another related injury on the job. “Initially I broke a bone in my left foot and at the same time sprained my right foot at home,” he says. “I took three days off work. About a month later, a co-worker accidentally pushed a dolly toward me as I was unloading a truck. I dodged the dolly and re-injured my sprained right foot.”
As per store policy (Thomas is in sales for a major electronics chain), he wrote an incident report and included the names of his co-worker and the truck driver, both of whom witnessed the incident. Thomas didn’t see the need to get medical attention so he left work and went home. But the next day, he got a call from HR, instructing him to see their doctor.
“Just as I thought, the doctor diagnosed it as a re-sprain, and prescribed pain killers, anti-inflammatory meds and ice packs,” Thomas explains. “He wanted to put a splint on it but I already had an appointment with my primary doctor. He then left the examining room and conferred with HR, came back and said he would wait and see what my doctor was going to do.
“The Workers Compensation claims adjustor called me the next day. She had a report from their doctor that said nothing was wrong with me. How could that be? He wanted to put a splint on my foot and put me on pain meds. Do you think he would give me meds if I wasn’t injured? He didn’t tell her that. I decided that next time I see him I will record his discussion.
“In the meantime, I saw my primary doctor. He examined both my feet and was concerned about me standing - I was on crutches at the time. He took me off the anti-inflammatory meds so I was just on Tylenol 3s. I had a follow-up with the company doctor the following week, and that is when I recorded him. Of course he didn’t know that I was recording his conversation with me because I knew he was lying. I asked him to recount everything he previously told me. I told him that my doctor said I needed at least two weeks off work to heal. He agreed, and I have that on record. “It will be difficult for you to stand on the sprained foot and it will put pressure on your broken foot,” he said and left the examining room again to call HR.
“Then his nurse gave me discharge papers that said I can go back to work. In other words, he contradicted himself. Obviously, he works for the company and not for the employee’s benefit. I went back to work that same day. Strangely, HR called and told me to go home because I was on medical leave (or limited duty) according to my primary doctor.
“HR called me at home again, a few days later. They had my W2 forms and wanted to check my mailing address. To my shock and surprise, I received the forms, my last check and a termination letter, saying I was terminated due to being absent all the time.
“The letter says I was out of work due to this injury and therefore do not qualify for leave of absence. ‘Due to your repeated absence and inability to complete essential functions of the job, we are left with no choice but to terminate your position as sales associate,’ it said.
“My question is that I had been working almost 30 days without anyone complaining, with no reduced hours, no special concessions. I did all the necessary functions of the job up until the negligent incident with my co-worker. They are trying to avoid being liable for me getting hurt on the job. That is why they tried to get their doctor to say I was OK.
“I believe I was terminated so that they could avoid paying Workers Compensation. The incident is recorded on their security camera. They cover every area. They know I was justified if I went forward with a Workers Compensation claim.”
Thomas has been in contact with a California labor law attorney who says that he should file a claim right away. Employees should report work-related injuries and illnesses to their employers immediately, because there may be time limits for filing a workers compensation claim. And if they anticipate any problems with their employer, seek help from an attorney sooner than later.
CA Labor Law: Nurse Wrongfully Terminated for Whistleblowing
Cynthia was hired three years ago as a full time ER nurse at a rural medical center and was paid hourly. About a year later some personnel changes took place and her hours were cut, to the extent that some weeks she didn’t get any hours. Then in March of 2009 she got a call from her supervisor: all per diem employees were off the schedule until further notice.
“I told her that I was working full time and I was not a per diem employee,” says Cynthia. “To make a long story short, I was off work for about two months??"I came back as a per diem employee but worked full-time until I got my status back but it took two years. I lost all my PTO (paid time off) vacation pay and sick leave. They made it all disappear. I also lost my ER position.
"Then a woman in HR contacted me: she found a folder with my personnel documents and wanted me to identify them??"she was confused because the information was contradictory and she needed to get her record straight with verification from me. When I saw the documents it looked like someone had changed my status and I have no idea why. I can only assume the hospital board was upset that I got hired at this rate of pay rather than per diem status and they proceeded to cover their tracks.
"It looks like my original contract was altered to make it look like I was hired per diem. You can see that dates have been changed and information superimposed onto the contract that says “hired as per diem with no benefits” with several signatures. It is easy to compare my original contract (I have a copy) with this one??"it is quite absurd; I guess they thought I wouldn’t do anything about it.
"I was pulled from ER and put on the acute care ward, but we weren’t busy enough. They were doing a lot of illegal procedures, such as not having a respiratory therapist on the ward, and I complained to the CEO. I also reported problems with staffing to the state department of health licensing, but not before I gave the CEO time to correct any illegal staffing issues. I told him that we could get shut down if we were ever inspected and patients’ lives were at stake. He said they didn’t have the budget to make changes.
"One month later nothing had changed and they continued to hassle me, not giving me enough hours??"some weeks I didn’t get any hours. And they moved me constantly from day shift to night shift. I just wanted to be either on days or nights??"they were trying to shake me loose.
"On Valentines Day I reported them and the state agency came in four days later, unannounced. At this point hospital administration didn’t know that I made the call and to this day they still don’t know for sure, even though I did advise them to make changes. They had one hour to get staffing in place or get shut down so I got a call at home to report to work ASAP and not to ask any questions.
"The investigation noted multiple deficiencies and it went on until the end of April, 2011. A few people said kudos that I called but they continued to make my life hell. Ultimately they wrote me up for ridiculous things such as discussing confidential drug screening with a co-worker. It was three strikes and I was out.
"Finally the administrator read me the riot act: I was only to come in when I was called. Per diem people were working full time and full time people were working part-time. About a week later I had a meeting with the supervisor and CEO and they tried to talk me into resigning because ‘it wasn’t working out’. But I told them to fire me.
"Bottom line: stand up for what you believe is right and work for a reputable place. As a nurse, I have a reputation to uphold and I believe in my profession. I got another job but at a lesser salary; what I really want is my job back in ER. That hospital used to be a good place to work before corrupt people took over and placed profits over patients.
"I called the labor board the day I was fired and they sent me a package to fill out. I haven’t got any further with them because they are backlogged. Then an attorney from LawyersandSettlements called and I filled out the preliminary paperwork last week.
"My husband and I moved to this rural town to eventually retire but losing my position and taking my benefits away has turned our lives upside down and I don’t think I can retire anytime soon. I believe that I should be compensated for about half my income and my attorney believes so too.”
Cutting Costs Cuts into California Labor Law Violations
When it was time to go back to work, HR told Bob that his position was filled and there were no openings. "I asked the HR woman what that meant - did it mean I was fired?" says Bob. "She said, 'I didn't say that.' Well, what else could that mean? Apparently, I would find out at a meeting.
"The manager of HR, the HR woman who called me and my director were at the meeting. They more or less repeated what I had been told on the phone. They also said that I was a valuable employee but there were no job openings. I was shocked, to say the least."
In other words, Bob was in limbo. He was still an employee but had no job, no hours, no benefits. HR suggested he check the hospital's job website frequently to see if there is any other work he would be interested in. Maybe nursing, an administrative position, cook or housekeeping? Every job posted, at minimum, required one year experience. So after 36 years of being a respiratory therapist, Bob didn't even qualify for a housekeeping job.
"Two weeks ago, they said maybe in three or four months when business picks up there could be an opening in my department and my boss will call me," says Bob, "but I am not holding my breath waiting.
"I found out from my co-workers that two per diem employees were given two part-time positions to fill my job. According to people in the department, they didn't need to fill my position because business was so slow they were sending people home. I am the second-highest paid person in the department; now two people are doing the work of one person for the same amount of money. And so many younger employees will work for less money.
"So I believe I was wrongfully terminated to save costs, and they don't have to pay these two people benefits. I don't know the legal ramifications of this but some people have said that, because I was not fired, they don't have to pay anything into unemployment and I cannot apply for unemployment benefits because technically I am still an employee.
"I have almost drained my checking account and my savings so I don't know what I am going to do. From the divorce I have a big mortgage and if I lose that…well if I do lose it, I owe more than my house is worth. That means I cannot refinance my house and my ex-wife is still on the deed. And I imagine my age is a problem. I would be willing to take less salary but I have to cover that mortgage. I am in a bad situation."
Bob says he has looked for a position elsewhere but jobs are scarce right now. To make matters worse, some of the hospitals require a higher license, which is more involved than the license Bob got 36 years ago. There are two levels of respiratory therapist: certified and registered. Bob is the former. Some hospitals allow the registered therapist to do more procedures than a certified therapist can do. Although Bob has done all procedures in his 36 years of experience, some departments insist on having an entire registered staff.
"I am very despondent about this, I just don't know what I can do," says Bob. "At minimum, I want to file a wrongful termination suit and get my job back. My ideal situation would be getting my job back and job security. But I know there is retaliation.
"I still have my pension and if I have social security, I will be OK financially. But I have given half my life to this place and for them to put me in limbo is so unfair. I think they were hoping I would get mad and quit or do something and get fired."
Bob says he won't play that game; he wants the hospital administrators to know the California labor law violations cannot be tolerated.
California Labor Law: Discrimination Caused Wrongful Termination?
Laquisha started working in sales at Verizon in 2007. She says that everything was fine until last November. "I got along with everyone at work except for one of my co-workers," says Laquisha. "I'm an African-American lesbian who dresses 'kind of butch,' and I guess this bothered him. He made some comments about how gays shouldn't be allowed to work in this environment. This wasn't the first time he had made discriminatory remarks??"someone I worked with told me as much??"so this time I decided to report him to the new director.
"I emailed the director??"he had told us to call him directly with any complaints rather than go to HR??"and he replied immediately. 'I am so sorry this has happened and I will get back to you a.s.a.p.' But instead of hearing from him, my immediate supervisor began monitoring my sales calls excessively. Our calls are always monitored at random, usually three or four every few days. The first day I worked after my complaint, she monitored five of my calls.
"Then my supervisor, who is white and straight, accused me of talking to my sister (who also works at Verizon but in a different department) while I was on the clock. But my sister asked this supervisor if she could talk to Sherita, who works nearby, and she was given permission to do so."
According to Laquisha, it would seem like her supervisor was intent on making trouble for her. Even though Laquisha has been "number one" in sales month after month, she got a verbal warning from this supervisor in early November. She kept her head down and concentrated on work, but by the end of the month, the stress was too much to handle.
"I was getting sick from so much stress," explains Laquisha. "I had anxiety and panic attacks, and my blood pressure reached an all-time high so I got a doctor's note and took stress leave."
Laquisha was scheduled to return to work December 23, but her supervisor phoned on December 19 and told her that she was fired. "She said that a customer called and complained about me, about how the sale went," says Laquisha, "and that is all she said. I was in utter shock, I couldn't believe it. She said that details would be in the mail. The only thing I received was a letter stating that if I have any property belonging to Verizon, to return it immediately. Then I received my final check.
"I bought my first house in June and I live alone. Now I'm wondering how I'm going to make the next mortgage payment. I firmly believe that I was terminated because I am black. And I am the fourth black person to be terminated since this new director was hired??"three of my co-workers were fired in December and the company wasn't downsizing. My sister thinks her days are numbered too.
"I worked here for four years and had a stellar work record. I have never been in any trouble regarding my performance. As well, my understanding is that you get a verbal warning and a written warning, then a final warning before termination. I just got a verbal warning, and that wasn't even justified.
"It's crazy to think this discrimination goes on in 2011; that a company such as Verizon could violate the California labor code in this manner. Since I was fired, I have received a number of phone calls from different employees and even supervisors at Verizon saying how wrong they are in firing me.
"I contacted an employment attorney through LawyersandSettlements and they are currently getting my employment records. I am looking for work but I don't want my job back. I think it would be fair to get compensated at my regular rate of pay??"including the average rate of my commission??"from the time I was terminated until I find a new job. That isn't asking much. But even more than that, Verizon should not be allowed to discriminate against anyone!"
Discrimination and wrongful termination are clearly violations of the California labor law. As well, Verizon may have violated the Americans with Disabilities Act by firing Laquisha while she was on disability leave. Her employment attorney is investigating…
"Can I Be Fired If I'm Disabled?" Attorney Answers California Labor Law Issue
Casey, who was recently terminated from his job as an Engineering Technician, wants to know if his employer has violated the California labor law by wrongfully terminating him, specifically due to a Workers' Compensation claim. Furthermore, termination due to disability is discriminatory. LawyersandSettlements asks Randall Crane to discuss Casey's complaint.
Casey: A week after wrist surgery this past May I returned to modified work for a few weeks. My employer decided that I wouldn't do that type of work anymore and sent me home. I've collected Worker's Compensation Temporary disability benefits since June. Can he make me stay home from work?
Randall Crane (RC): The employer doesn't have a right to send an employee home if there is modified work available. But Casey must perform this work if his doctor gives the OK. If Casey refuses to do this work, he can possibly be terminated, subject only to the Family Medical Leave act.
If you collect Workers Comp (WC) and your doctor releases you back to work, you must accept your doctor's decision if you can work within those restrictions or subject yourself to termination and loss of WC benefits.
On the other hand, the employer is obligated to make work available if feasible. Obviously there are a lot of gray areas. If Casey attempts to do the work and he has acute pain, goes back to doctor and says he can't perform, his doctor can modify the terms of the "back to work" order and, in that case, he goes back to full temporary disability benefits.
Casey: At my last doctor's appointment, he released me back to work with restrictions limiting how much weight I could lift with my right hand, and other limitations. When I reported to work with these latest restrictions, I was sent home and told to return on the following Monday.
RC: It sounds like the employer has a problem with these further restrictions and they decided??"truthfully or not??"why not include this employee in reduction of the workforce [below].
Casey: Monday morning my badge access was deactivated and I was given separation papers. HR told me that there was no work for me and that they would have laid me off in July (along with about 20 other people) but they were waiting for me to get healthy.
RC: I'm rather skeptical of that statement but it certainly does raise the possibility of disability and WC discrimination. If you injure yourself trying to be a loyal worker and your employer lays you off but doesn't tell you for 60 days, that's not a great show of employer loyalty…I don't know what truth lies behind this??"is the employer not being candid?
The ultimate problem is that this employee has not gone to a WC attorney to get a detailed resolution of this question. This is a situation where small differences of fact will lead to wide differences of result.
Casey: HR advised me to apply for unemployment insurance (UI) benefits as soon as I got home.
RC: Telling Casey to apply for UI while on disability is ludicrous??"it is not available. It is possible that you can be partially eligible for UI but I don't think that is what is going on here.
Casey: I asked the WC doctor if I could get a new job; he said as long as the new job follows my work restrictions. I have been an Engineering Technician since I graduated high school in 1997 and don't have training to do anything else. Unfortunately, Engineering Technicians (in general) must have full use of both hands.
RC: My impression is that Casey does assembly on a high level or works with sophisticated tools so both hands are required. Even so, he is better than most to come out of this with a good job, and he has a good work history. Again, I can't understand why he didn't go to an attorney right away.
Casey: I believe that I was terminated because I still can't use my right hand fully, but I can't get assistance from the ADA because it hasn't yet been determined if I have a permanent disability??"I'm in limbo.
RC: I'm not suggesting that Casey is depressed, but one of the problems in counseling injured persons is to be aware of the effects of depression that often accompany an injury. Many employees who are injured do not see clear avenues in front of them and many do not realize that psychological and psychiatric assistance is available if they explain depression to their doctor.
When a person has a good array of choices it is imperative that they maintain a stable frame of mind. A general practitioner and WC doctor should be made aware of depression; they may refer a person to counseling and possibly prescribe medication??"both for short- and long-term depression. And an attorney working with injured employees needs to be very perceptive of this.
Casey: I don't know if I qualify to file a complaint with the EEOC.
RC: You do qualify for EEOC but don't apply before speaking with an attorney because it might be advantageous for you to go with the DFEH??"the Department of Fair Employment and Housing (the California equivalent of the EEOC). Great care needs to be used before filing a written complaint because the facts set forth tend to frame up your case. Many people believe these government agencies, which are set up to help those discriminated against, actually work against them. And sometimes they are right.
Casey: HR gave me paperwork for a severance package but I don't want to sign until I know what assistance I qualify for. However, I need to sign it to get my severance pay and three months of medical insurance that it offers.
RC: It sounds like Casey is afraid of losing his health insurance. Does the severance package include three months medical insurance before his COBRA kicks in?
The severance package doesn't sound like a good deal because Casey already has disability benefits and unless there are other health problems, it's hard to see what going on COBRA will gain. It is better to recover from disability and then apply for ordinary health care.
Casey is better than most: he has benefits and is working in a profession where disability can be gotten around with retraining??"under WC he is eligible for retraining which should deal with the hand problem. Casey also says he is getting therapy and his Temporary Disability payments will continue until the doctor releases him back to work with no restrictions or determines that he has a permanent disability.
Ultimately, any severance package or government applications should be reviewed by an attorney.
"Wrongful Termination Claims May Lead to Viable Wage and Hour Claims," Says California Labor Law Attorney
If you have been terminated from your job or if your relationship with your employer is rocky, you may feel wronged and consult with an attorney. Emma actively litigates such cases but also investigates other issues such as wage and hour violations and independent contractor misclassification.
"It is important to consult with an attorney because the law isn't always black and white, and for every rule, there is an exception, says Emma. "Terminations are emotional and almost always seem unfair. However, we can often achieve better results for our clients by also asserting wage and hour violations along with wrongful termination claims."
Many people aren't aware of the kinds of claims they may have and there are a lot of "labor law myths." For example, you may be under the impression that your employer cannot terminate you without cause or without a written explanation. This is not true. In California and most other states, workers do not have a right to continued employment. Employees may be terminated at any time and for any reason or no reason??"so long as the reason is not an illegal one (e.g., based on race, gender, religion, etc.).
"When someone calls in with a potential wrongful termination claim, we investigate the termination and also look into other issues, such as independent contractor misclassification," says Emma. "On the surface, the worker may not appear to be an employee??"she receives an IRS Form 1099, she has entered into an 'independent contractor agreement,' and she pays for her own business expenses. However, she may not fully appreciate the implications of the employer 'classifying' her as an independent contractor instead of an employee." If she is misclassified, she may be owed a lot of money for wage and hour violations such as unpaid overtime, missed meal and rest breaks, and reimbursement of business expenses.
"In California and many other states, it is presumed that workers are employees and not independent contractors," says Emma. "The burden is on the employer to demonstrate that the worker is properly classified as an independent contractor." Ultimately, independent contractor misclassification comes down to one thing??"the degree to which the employer "controls" the employee. The greater the control, the more likely the worker is an employee. "Once a worker demonstrates that she has been improperly classified as an independent contractor, a whole host of labor laws and employee protections are implicated," says Emma.
Perhaps you were hired (and fired) as an independent contractor and haven't been paid overtime. If your employer maintained tight control over you, an experienced employment attorney might determine that you are not really independent. Perhaps you have been missing breaks or working through lunch…
Some employers classify a significant portion of their workforce as independent contractors to reduce overhead and provide greater flexibility. "When independent contractors work alongside employees and do the same work that employee workers do, that raises a red flag," says Emma. "There are many other factors to consider, such as whether the employer provides training and whether the position is temporary or ongoing." It is therefore wise to consult with a lawyer if you think you may be misclassified.
Independent contractor misclassification persists in all industries and courts have found the following workers to be employees: taxi cab drivers, truck drivers, agriculture workers, exotic dancers, cable installers and service industry workers, among many other types of workers. Ultimately, the determination is individualized and rests on the facts of the case.
"Workers who come into our office are frequently unsatisfied with their wages," adds Emma. "In many cases, they have a document stating they are an independent contractor." By classifying its workers as an independent contractor, the employer avoids minimum wage and overtime requirements, the meal and rest break requirements, prompt payment of wages, and various penalties for violating these laws. "One of the chief complaints from individuals classified as independent contractors is that they are not paid promptly for work performed."
How can independent contractors determine whether they have enough damages to justify going forward with a lawsuit? Do they need to find co-workers with similar issues to form a class action? (Incidentally, Emma says the independent contractor misclassification is the type of case that could make a class action.)
"Don't worry about evaluating your damages or trying to assemble a group of co-workers or witnesses," Emma explains. "The first step is to meet with an experienced employment attorney to discuss your individual situation." In some cases, individual damages are not that great; in other cases they can be substantial. "Your lawyer will help you value your case and determine if it should be filed as a class action." Most lawyers provide a free initial consultation.
Leonard Emma is an employment attorney with The Law Office of Randall Crane in Oakland, California. .
About . TOS . Privacy . Disclaimer . Contact . Advertise . Member Login
This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License ©2026 Online Legal Media. All rights reserved.
Visit other Online Legal Media Websites:
