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One of the common challenges in proving violation of disability rights in a wrongful termination case is showing that the employer knew that the employee had a qualifying condition or suffered an injury shortly before being terminated, and thus his or her termination was discriminatory or retaliatory.

In the absence of e-mails or faxes where the employee puts the employer on notice of his condition and the need for medical leave or accommodations to the medical condition, phone records may be a persuasive evidence in proving that the employee was likely retaliated after suffering an injury and successfully negotiating a settlement.

Suppose you suffer an on the job injury while operating an industrial equipment. You call your boss and/or human resources manager to let them know that you were injured, that you need to leave to seek medical attention, and you might need time off. They agree with you and informally allow you to leave work to take care of your injury. A few days later you are terminated for insubordination, poor performance, or some other abstract reason. When you argue in a legal action in court or in front of EEOC/DFEH that you were terminated because of your injury, your supervisor says that he never heard from you and did not know you suffered an injury before deciding to terminate you or that he didn’t even speak with you after you were injured. This is where your phone records reflecting at least that you made those calls after your injury can be extremely helpful. If you can, get them right away. If it has been a while since the subject day of when these important phone calls took place, subpoena those records from your phone provider or encourage your attorney to do the same.

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Many workers don’t realize that the performance reviews that they receive from their management and their content for the most part are not regulated by law. Employers have sound discretion in determining how to review their employees’ performance, how often to do it, in what format, and whether or not to do it all. The content of performance reviews is also not subject to legal review. In other words, the fact that an employee believes that his/her performance review is unfair has very little, if any significant. The only way it can be used in a wrongful termination claims as additional, circumstantial evidence of otherwise discriminatory or retaliatory firing.

Employers have an unqualified right to use their subjective opinion in evaluating their employees’ performance. The courts do not interfere in that process. Thus, if you have a dispute with your employer over the quality of your performance, you must remember that you are hardly helping yourself by simply getting defensive and disagreeing with your employer’s opinion.

Receiving an unfavorable performance review can be a stressful and frustrating experience, especially when the employee tries his hardest to do the best job he can and truly believes that he does well. However, in the absence of evidence of unlawful discrimination or retaliation, the right way to address bad performance reviews is constructively – by both asking for the more specific feedback and criticism in your performance issues and by trying to improve at least some aspects of your work.

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Although there are sometimes strategic advantages to waiting for the Department of Fair Employment and Housing (DFEH) or EEOC to complete its investigation of a charge of discrimination instead of filing a lawsuit right away, in many cases, waiting for that might not be the best strategic move, especially if you have already been (wrongfully) terminated and you have a “good” case. This is for two main reasons:

1. DFEH / EEOC rarely issues favorable findings to an aggrieved employee. It seems that in 90% or more of the cases investigated, DFEH concludes that there is insufficient evidence of discrimination and they issues a right to sue letter. This is in large because DFEH has limited resources, and cannot possibly thoroughly investigate every case. In most cases, the investigation of discrimination allegations is limited to interviewing the aggrieved employee and the employer. The employer always denies any wrongdoing, so DFEH has to pick whose word to take. The agency must pick their fights and attend to the most urgent and egregious cases that either affect a larger group of employees or set an example out of a particularly bad employer. They will not issue findings against an employer if the evidence seems to suggest that it’s a 50/50 call. An investigation may take from several months and up to a year or more. The right to-sue-letter issued by the agency is a necessary prerequisite to filing a lawsuit, but can be obtained by an attorney online in about 10 minutes without any actual involvement of DFEH.

2. Waiting for a year or longer to file a lawsuit can also create issues of proof, and make your case harder to win or settle. Memories of events tend to fade, documents get misplaced, lost or “intentionally” lost by employers. E-mails get deleted (often a single e-mail can be of critical important to proving a discrimination or retaliation case). Witnesses tend to move away or change their mind about helping you to testify and corroborate your version of the events. Even if you decide to wait for DFEH to complete its investigation, it is important that you secure sworn statements that are written in a proper form by your witnesses. Doing your “homework” early may prove to be very helpful later in the case, especially when the employer files a motion for summary judgment, which they almost always do, if the case is litigated in court long enough.

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Switching jobs and employers when you have signed a non-compete agreement with your former or present employer may present unique challenges that require careful consideration in light of the specific circumstances of your industry, the company you are working for and the company you are planning to switch to. Even though it has been well established that generally, non-compete agreements are invalid and unenforceable in California, you must take into account a number of other factors, one of the which is trade secrets and confidentiality agreements you might be bound by.

Among other things, it might be well worth making sure that the reason the new employer wants you is not in order for you to tell them all about the proprietary information or software of your previous employer, and not in order for you to actively try to recruit the your former employer’s customers to do business with your subsequent employer.

In some cases, especially when you have a close relationship with your employer, it might be worth having a candid conversation about your employment plans and trying to figure out together and collaboratively how to ensure that your former employer’s interests are protected, while your rights are not violated as well.

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Getting FMLA leave approved can be a frustrating process, especially at a large company or governmental agency where every decision, even a relatively small one, has to be run by and approved by a number of supervisors. It’s possible that when you request medical leave, you will have to do a few trips back and forth between your doctor and your employer, where employer will request for additional information or clarification of your condition, symptoms, limitations and reasons for your anticipated leave.

In most cases, cooperating with the employer or even putting your employer directly in touch with your doctor is a good idea. You want to show that you reasonable do everything in your power to ensure that the employer is on notice of your condition and the need for FMLA.

Some employees decide to play “hardball” with their management, withholding information due to confidentiality concerns, etc… Unless you have some kind of embarrassing condition or are concerned that your management will not maintain confidentiality of your personnel records, you should disclose the required information, because the employer has the right to know the basic information about the reasons for your need for medical leave before granting that leave.

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One of the challenges of proving retaliation at workplace in cases where an employee was fired shortly after submitting a harassment/discrimination/safety violation complaint against his/her supervisor or co-workers is showing that the employer knew about the complaint before making the decision to terminate an employee. After all, if the employer can demonstrate that he had no knowledge of the complaint until after terminating or deciding to terminate the complaining employee, then there is no retaliation case, since there can be no retaliation claim for a protected activity that took place after the firing.
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The Ninth Circuit Case Hernandez v Spacelabs Medical Inc., is very helpful to Plaintiffs on this point. In that case, the Plaintiff was terminated shortly after complaining about age discrimination. The official reason for his termination was a number of performance issues over the past 6 months, some of which were exaggerated and some of which were simply not true. Hernandez sued for retaliation. The employer, in filing a motion to dismiss the case prior to trial, argued that it had no knowledge of the complaint at the time of deciding to terminate Plaintiff or terminating Plaintiff. The Ninth Circuit, in reversing the motion to dismiss, made a very interesting and valuable observation to Plaintiffs in retaliation cases: “What-did-he-know-and-when-did-he-know-it questions are often difficult to answer, and for that reason are often inappropriate for resolution on motion to dismiss. It is frequently impossible for a plaintiff in Hernandez’s position to discovery evidence contradicting someone’s argument that he did not know something, and Hernandez has no such evidence….” – in other words, the court recognizes how easy it would be for the employers to deny any knowledge of protected activity prior to firing an employee. A supervisor or a human resources manager could easily say that he never saw or received the complaint or that he didn’t look at it until after the firing. The Hernandez case is an additional obstacle for employers in retaliation cases.

Of course, it’s much easier and more effective to ensure the employer’s knowledge of the complaint by making sure that your complaint is being transmitted and received. Such simple, technical things as fax transmission confirmation sheet or sent e-mail go along way when establishing the employer’s knowledge of the complaint in wrongful termination litigation.

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Many large companies have “no fault” attendance policies, where an employee gets a point or half a point for every absence or for being late regardless of the reason for that. Often these kinds of attendance policies are part of the negotiated bargaining agreement between the union and the employer. Under that policy, once the employee accumulates a certain number of points, he is automatically terminated. Such attendance policies do not override the state and federal laws that provide for disability and medical leave, and time off due to qualifying disability or a medical condition should never be counted toward the above-mentioned points. However, it is critical that you notify your management and HR as soon as possible that the reason for any given absence is your medical condition or a disability. If you don’t put your employer on notice, then employer will have no obligation to protect you from the consequences of their policy.

Some employee, who are very concerned about their medical privacy, do not disclose any significant details about their medical condition and choose to be vague and say “I wasn’t feeling well.” This kind of general statement does not put the employer on notice that you have a “serious” medical condition within FMLA/CFRA or that you might have a disability within FEHA or ADA. When your job and disability rights are in jeopardy, this is not the time to safeguard your medical confidentiality, but instead you should find out what information your employer needs in order to be properly informed that you need time off due to the medical reason and possibly other accommodations.

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Requesting a reasonable accommodation to your disability is an important step to protecting your rights at workplace. Whether your disability or medical condition has developed over time (such as carpal tunnel syndrome) or resulted from an industrial accident, it’s important to keep several important things in mind to avoid the common mistake that other employees make when requesting an accommodation:

* The law does not expect the employer to read your mind and assume that you need an accommodation to your condition just because they might have learned that you are sick or have certain pain symptoms. Therefore, you should explicitly ask your employer for a “reasonable accommodation.” This is not the time to worry about your medical privacy and confidentiality. You should discuss your pain and the possible solutions that you and your management can work out together to ensure that you are able to continue working at your position or at some other position which is vacant and for which you are qualified.

carpal-tunnel.jpg* Make sure that you request an accommodation in writing. Send a fax or an e-mail to both your human resources department and your management to make sure that later the employer cannot say that you didn’t request to be accommodated.

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Having been prosecuting discrimination and retaliation claims for a while now, I am naturally curious to get into the minds of those managers who retaliate or discriminate against employees who are disabled or who suffered an on-the-job injury (and filed a workers compensation claim).

Recently, during a conversation with an in-house counsel(!) of a relatively large company (over 500 employees), I got some insight into what drivers retaliation. The employer refused to provide reasonable accommodations to my client, who had a serious back injury and two subsequent back surgeries. Some of the comments of the company’s lawyer astounded me, and included: “He has a history of filing workers compensation claims,” and “he is been pushing it for a while now with asking for things.” It is as if the attorney was admitting that they developed hostility or animosity toward my client because of his injury and resulting medical condition.

I firmly believe that the above mindset on the part of the managers at any workplace – the mindset of “I am tired of those injuries and requests for accommodations” is a breeding ground for discrimination and wrongful termination claims. Hopefully, when employers pay out large settlements, verdicts or administrative fines, imposed by EEOC of DFEH, they make the necessary changes to redress discriminatory mindset among managers through training or otherwise, even though that is of course also not always the case.

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I get at least a few calls a week where an employee complains to me about being treated unfairly at workplace. these complaints range from being given more challenging and time consuming tasks than co-workers to being yelled at by the manager to being micromanaged and written up for every little thing.

My answer is the same every time: it is not against the law to do any of the above or to be otherwise unfair to an employee unless the reason for a different treatment is discriminatory or retaliatory. In other words, if there is evidence that the reason for favoritism is because an employee is a member of protected class (due to a disability, age, sexual orientation, familial status, etc.) or due to engaging in a protected class (filing a workers compensation claim, complaining about health and safety issues at workplace, filing a sexual harassment complaint, union activities, etc.) then the aggrieved employee might have a legal claim which can be brought in court.

Otherwise, if it is a matter of inter-office conflict which is not based on any discriminatory criteria, that employee will likely not benefit from having an attorney, and he/she should seriously consider looking for another job, if there is no one in the office who is willing and able to help. This is because the California courts have mentioned many times in the past that their job is not to enforce civility rules at workplace but to only remedy legal violations, such as discrimination, harassment, and retaliation.

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