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In a recent Forbes article, a Florida attorney Donna Ballman discusses the employers’ favorite sneaky ways of getting rid of older employees, which are described below. This very much applies to California and the checklist below can be a good start for any older employee who suspects that he is or might be a victim of age discrimination to determine whether in fact the employer is trying to get rid of him for unlawful reasons.

1. Job elimination.

One of the most common excuses used to get rid of older employees is “job elimination.” However, that may just be an excuse for what is really age discrimination. If the company is not really eliminating the job, just changing the title and putting someone younger is your former position, you may have an age discrimination claim.

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performance-improvement-planAs much as I didn’t want to believe in this for a while after I started practicing employment law, my experience suggests over and over and in the vast majority of cases, when an employer issues a PIP (performance improvement plan) to an employee, this means that the employee will be fired shortly after. The PIP might make it sound like the employer is interested in having you improve your performance and address the issues outlined in that disciplinary documents, and they are even offering you various resources to help you along the way, such as employment assistance program (EAP), etc.

However, the reality is that most likely your management has already made the decision to terminate you, and now they are just creating paperwork to create “history” of performance issues to make the termination look more legitimate and less likely to be challenged by that employee in court, or at an administrative hearing, if applicable, and to also make it look like they gave you a chance to improve before terminating you.

If you have a received one of those 30-day or 60-day or 90-day PIP’s, you should consult with an experienced employment attorney about the various options of dealing with the PIP. First, the attorney should analyze your potential termination and determine whether there likely to be a potential evidence of discrimination, retaliation and wrongful termination.  If it appears that the employer might be trying to get rid of you for unlawful reasons, you can work with your attorney on gathering evidence to support your future case, and take steps on enhancing any potential wrongful termination and discrimination case before you have been fired, so that once you are terminated – you have a stronger case against your employer.

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After Carie Charlesworth was terminated from her teaching job due to security concerns about her estranged husband, the California mother championed legislation to make sure no one would ever have the same experience of being fired. This past Friday, Charlesworth got her wish when Governor Brown signed a measure into law to protect victims of domestic violence from losing their jobs and workplace discrimination. The new legislation will go into effect on Jan. 1, 2014.

Charlesworth said she was put on leave from her position as a second-grade teacher at Holy Trinity School in El Cajon, California in January 2013, after her ex-husband, Martin Charlesworth, 41, showed up that month in the school parking lot, prompting a campus lockdown until the police arrived. The couple divorced two years ago and Charlesworth said she got a restraining order against her ex-husband because he had been physically abusive. She said she also made her principal aware of the situation.

In April 2013, she received a notice that said the “unfortunate and challenging situation” created by her ex-husband would result in her contract not being renewed for the upcoming school year.

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In the recent decision of Natkin v California Unemployment Insurance Appeals Board, the appellate court clarified the term “wages” within the meaning of unemployment benefits rules. In that case, the claimant was an attorney who was laid off and who started his own law practice. On his application for unemployment benefits he calculated the wages that he was to report on his EDD claim by subtracting his business expenses from his income, which included various office purchases, such as office furniture, office supplies, etc.

The Court of Appeal disagreed and concluded that under Unemployment Ins. Code 1279, the term “wages” is plain and unambiguous, and it means “any and all compensation” received within a given period. Nothing in the law allows or even talks about the option to subtract business expenses from the total income generated by the claimant.

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The 14th Amended of the Constitution provides that no state shall deprive any person of… property without the due process. Before the state deprives someone of a protected property interest, the right to some kind of prior hearing must be provided. Regents of State Colleges v Roth (1972). Property interest is not created by the Constitution. Rather, it is created and defined by the existing rules and understandings that stem from an independent source, such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

The Supreme Court explained that government employees can have a protected property interest in their continued employment, if they have a legitimate claim to tenure or if the terms of their employment make it clear that the employee can be fired only for cause. Perry v Sindermann, 408 US 593 (1972). Thus, such employees as assistant college professors, who are hired for a fixed one-year term and are not tenured, do not have a property interest in their job if their contract is not renewed after its expiration.

Thus, the first main step in determining whether an employee has property interest in his/her job under the 14th Amendment is asking whether the position can be terminated only for cause and/or whether it is tenured.

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The Pregnancy Disability Leave regulations provide that all employers must provide a leave of up to four months, as needed, for the periods of time an employee is actually disabled because of pregnancy even if an employe has a policy or practice that provides less than four months of leave for other similarly situated temporarily disabled employees. If an employer has a more generous internal leave policy for similarly situated employees with other temporary disabilities than is required for pregnancy purposes under the regulations, the employer must then provide the more generous leave to employees temporarily disabled by pregnancy. (Cal. Code. Regs., tit. 2, section 7291.9(b)).

Thus, under PDLL, an employee disabled by pregnancy is entitled to up to four months of disability leave, regardless of any hardship to her employer. Under the FEHA, a disabled employee is entitled to a reasonable accommodation – which may include leave of no statutory fixed duration – provided that such accommodation does not impose an undue hardship on the employer.

It is been held that an employee may be entitled to both – the pregnancy leave and then, if needed, additional disability leave for a qualifying disability, and that disability is not in place of pregnancy by leave but a benefit in addition to pregnancy leave to a qualifying employee. (Fuentes Sanchez v Swissport, Inc.)

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Recently, one of our cases was dismissed after nearly two years of litigation in Sacramento Superior Court, because one key piece of evidence was missing. In that case, a State employee was deemed AWOL after not returning to work by the date, noted by her doctor. She requested an additional leave from her supervisor after having been on medical leave for nearly a year already at that time.

The supervisor refused to provide the same despite knowing about the claimant’s long history of injury, pain and treatment. That manager was firm that he was going to follow the instructions of then existing medical note, ordering the the employee return to work with specific restrictions. The employee did not return to work, but instead went to see her doctor who apparently extended her medical leave.

However, the claimant was not able to produce that medical note at the time the motion to dismiss the case was heard and also wasn’t able to prove that she provided the note to any of her manager prior to being deemed AWOL and terminated.

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One of the more common wrongful termination scenarios that Kaiser employees seem to face is retaliation for complaining about patient safety or other violations of safety and patient care. It’s easy for management to retaliate against registered nurses or nursing assistants, and it’s as easy as finding minor job related mistakes, such as charting errors that have no actual significance, in order to set the employee who complained about an unsafe practice for termination.

If you feel you are being targeted and retaliated against, you might not be able to save your job, unless you manage to transfer to work under a different management as soon as possible and before your are terminated. However, there are a few things you can do to make your future claim stronger, in case you choose to pursue a retaliation and/or wrongful termination case against your employer:

1. Keep track of all the important documents, e-mails, and your own chronology of any events that would suggest that your employer was unhappy about your complaints or other protected activities, and was trying to set you up for failure and for being fired.

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One of the common disability law issues that may arise at workplace is when an employee suffers an industrial injury, obtains FMLA leave for that injury and also goes on workers compensation leave, as instructed by his workers comp doctor. That employee may have also accrued paid time off.

Two common questions arise in this kind of situation:

1. Can the employer count FMLA and workers compensation leave concurrently?

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There are several compelling reason for an unusually high number of discrimination, retaliation and wrongful termination complaints an claims filed against John George Hospital and other facilities of ACMC (Alameda County Medical Center). However, the most significant reason seems to be the grossly inadequate and undereducated human resources management staff and those managers who are in charge of both preventing discrimination and harassment from occurring and handling it properly and properly when it occurs.

Many of the human resources managers and high level directors and administrators at ACMC have no skills, experience or (formal) qualifications to deal with harassment and discrimination at workplace, and they often don’t both to consult with their attorney before making important decisions, such as suspending, demoting, or terminating and employee.

Having deposed several of ACMC’s managers, I found that some of them think that they are well qualified to handle the employees’ disability rights and discrimination and retaliation concerns just because these managers have been in their position for decades. They seem to not grasp the fact that length of service alone does not make you more qualified with certain workplace issues.

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