Medical Leaves of Absence 

When we, or a family member, get sick or hurt it can be an extremely stressful time.    These situations are often made worse when we are afraid that we might lose our job by taking off time to recover or care for a sick family member. 

In California, some types of medical leave are protected under the federal Family and Medical Leave Act (FMLA) and/or the analogous California Family Rights Act (CFRA).

The first thing to know is “am I eligible?”

The FMLA/CFRA does not protect all workers.  These leave provisions only apply to those employees who meet the following: (1) have worked at least one year for their employer; (2) have worked at least 1,250 hours in the past year; and (3) whose employer has at least 50 employees working within 75 miles of the employee’s worksite.

According to U.S. Department of Labor, approximately 53% of the US workforce, are eligible for FMLA protection (the other 47% have to rely on their employer’s leave policies). Employees who work for an employer who does not meet the three guidelines above may still qualify for medical leave.  Contact Gienapp Law, APC (619) 234-3054 for a free consultation concerning your medical leave rights. 

How much medical leave is allowed under FMLA/CFRA?

Under FMLA/CFRA, employees are entitled to take a maximum of 12 weeks of unpaid medical leave to care for a newborn, newly adopted child, seriously ill family member or for their own serious illness (under FMLA this includes incapacity due to pregnancy, childbirth or related medical conditions). You may be entitled to an extension of leave past the 12 week maximum if you have a mental or physical disability that requires a leave extension as an accommodation of that disability.

What if I’m pregnant?

If you are unable to work due to pregnancy, childbirth, or related medical conditions, you generally qualify for 4 months of leave under the California Pregnancy Disability Leave Law (PDLL) – (see my other Blog post on Pregnancy Leave)  A pregnant employee is eligible for PDLL as long as the employer has at least five employees. After the initial 4 months, eligible employees can then take an additional 12 weeks of CFRA leave “for reason of the birth of her child, if the child has been born by this date.”

Procedure for seeking medical leave

Virtually all employees who are required to offer their employees FMLA/CFRA leave have forms for an employee and/or the employee’s medical provider to fill out.   It is important to follow the procedures your employer has for taking medical leave, including submitting the required information from a doctor or medical provider.   In some circumstances, an employer may even ask an employee to go to a doctor or medical provider of their choosing for a second opinion. 

Illegal Activity

It is illegal for an employer to treat you differently or punish you for asking about or taking medical leave. Under most circumstances, you also have a right to be reinstated to the same or a comparable position upon return from your medical leave. 

If you believe your employer has interfered with or retaliated against you for using medical leave, or you have questions or concerns about getting full access to your medical leave, contact Gienapp Law,APC (619) 234-3054 for a free consultation.  

Defamation

Defamation 

If someone says something about us that is untrue or mean spirited, it will generally hurt our feelings.  What if someone says it at work?  A coworker or our boss?  What if I get fired because of what someone else said about me?  What if it is not true?  Can I sue them?   What are my damages?

Some clarifications.  Slander, Libel, and defamation are all related.  Libel and slander are types of defamation. Slander is spoken defamation. Libel is written defamation.  But what, exactly, is defamation.  

The legal meaning of defamation, the type you can sue on, is quite narrow.  It is so narrow in fact, that in most cases, what you think and feel is defamation is likely not defamation in the legal sense.  

Legal Definitions 

In order to sue for Defamation, the event must violate the written law, found in California Civil Code §§ 45 to 47.     California law defines Libel as: “false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” 

California law defines Slander as follows: “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.”

In order to win a defamation case you must prove the following: 

1. A person made a defamatory statement to at least one other person besides you: 

2. The statement was a false statement of fact (i.e., something that can be proved true or false), not opinion. Bad performance reviews are typically held to be statements of opinion, so if you get one, you won’t normally be able to sue for defamation. 

3. The person who heard the statement reasonably understood that statement referred to you; 

4. The hearer reasonably understood that the statement meant something defamatory; 

5. The person who made the statement failed to use reasonable care to determine whether the statement was true or not before making it. 

Examples

A common complaint I receive is that a supervisor or manager put things in a performance review that are false or misleading.  Sometimes the review states that if the employee does not change their performance he/she risks getting fired.  Most times in California, things that go into a performance review are considered opinions only, meaning that they cannot be proven true or false.  Statements that are opinion only cannot be defamation.  Furthermore, usually performance reviews are not "published" to other people they are kept between the manager and the employee.  On the other hand if a manager says something that is not true, even in a performance review, that tends to directly injure the employee in his profession trade or business, and the manager says it to other people, it may be defamation.   

Another common situation involves job reference checks.  If you are looking for a job and a former employer says something to a prospective employer that is not true and hurts your chance to get the new job, you may have an action for damages against your old employer.  If this has happened to you, please call Gienapp Law, APC at (619) 234-3054 to discuss your options.  

If any person makes false statement about your professional reputation or competence, that people hear and believe are true, that speaker may be liable to you for defamation.  If a co-worker makes such a statement, you are usually limited to a lawsuit against your co-worker.  However if a supervisor or manager makes such a statement, you may be able to sue not only the person who made the statement, but your employer too.  

There are many legal pitfalls in the law of defamation.  If you believe you have a claim, it is important to not wait.  Claims of defamation must be brought within one year, and in some cases must be presented within six months.  If you believe someone has made a defamatory statement against you, please call Gienapp Law, APC at (619) 234-3054 to discuss.  

Wrongful Termination

In California, generally speaking, most employees are "at-will" employees.  They can decide to quit their job at any time, for any reason, or for no reason. Likewise, the employer can also decide to let an employee go for any reason, or for no reason, without liability.  This employer – employee relationship is outlined in the California Labor Code as follows:

"An employment, having no specified term, may be terminated at the will of either party on notice to the other….” (California Labor Code § 2922)  Terminations along these lines are not illegal. 

I receive a lot of questions from employees asking about termination of at will employees.  What is Wrongful termination?  What is wrongful firing?  What is unfair termination?  What is a wrongful discharge?  Was I subject to an illegal firing?  In California there are exceptions to the lawful termination of an at will employee.  This article will outline what you need to know to protect yourself.  

Good Cause Required  - Some employees have employment contracts or agreements not to terminate except for "good cause."   This type of agreement can be written, oral, or implied.  An oral agreement could consist of a simple statement from your boss such as "You will not be fired as long as you continue to do a good job."  Similarly if an employer has policies that require progressive discipline it may suggest cause is required prior to termination. 

Some employees have written employment contracts.  These days most written employment contracts are reserved for “upper management,” however all union employees are covered by a written agreement, a collective bargaining agreement.  Many collective bargaining agreements have limitations on arbitrary terminations.  The employee or their attorney will need to review the terms of the collective bargaining agreement to determine his or her rights, and the administrative procedures that must be followed to make a claim. 

Protected Category - The California Fair Employment and Housing Act ("FEHA") provides that even an at-will employee cannot be terminated if the termination is based upon a protected characteristic.  Under the FEHA no termination or demotion can be based upon an employee’s age (over 40), gender, race, religion, national origin, sexual orientation, or sexual identity.

Importantly these protections apply to an employee who complains of discrimination based on a protected characteristic or participates in an investigation of discrimination based on a protected characteristic.  It is illegal for an employer to retaliate against an employee who engages in these types of protected activities.  Essentially no employee can be terminated in retaliation for asserting a right protected by the Fair Employment and Housing Act.  If you have a questions about your rights under the FEHA call Gienapp Law, APC for a free consultation (619) 234-3054. 

Termination in violation of public policy -   An employer cannot fire an employee for any reason against public policy.  The most common example is when an employee is fired for complaining about illegal or unsafe conduct in the workplace.  An employee may complaint to their employer or to an outside agency.  If the employee is fired as a direct result of these complaints, the termination may be illegal. 

Participation in a protected activity - There are a number of activities or actions that can be taken by an employee for which they cannot be terminated. This includes filing a workers compensation claim, jury duty, volunteer firefighting, taking time off for a child's school activities, taking time off to care for your own illness or that of a close family member, not disclosing wages, not patronizing the employer, participating in alcohol or drug rehabilitation, political activities, disclosing information to a government or law enforcement agency when the employee reasonably believes that a law has been violated, military service, and refusing to disclose medical information. This is not a complete list.  If you have been terminated and you believe in may be in retaliation for engaging in a protected activity call Gienapp Law,APC for a free consultation (619) 234–3054.


Complain Complain Complain -   The biggest mistake I see when talking to employees is that the employee was afraid to complain to their supervisor, manager, the owner, or Human Resources about the treatment or behavior over which the employee is concerned.   The best way for an employee to protect himself or herself is to complain to their employer about the treatment or behavior.  In many cases, the act of complaining is a protected activity for which no retaliation is legal, even if the treatment or behavior complained of is found to be perfectly legal. As long as the employee has a good faith belief that the treatment or behavior is illegal, the act of complaining is protected.    Informing your employer of your concerns is hands down the single most important way to protect yourself.   If you have questions about a complaint to your employer please call Gienapp Law, APC (619) 234-3054 for a free consultation.  

The first step in protecting your rights is to become informed.  Call Gienapp Law, APC (619) 234-3054 for a free consultation concerning your employment rights.  Be an informed employee.  

Sexual Harassment

Does sexual harassment still exist in the workplace?  Don’t we all know by now how to conduct ourselves at work?   The unfortunate answer to these questions is no.  Sexual harassment does still occur in the workplace; however California employment laws offer protection.

There are basically two types of illegal workplace sexual harassment: (1) quid pro quo and (2) what is called the “hostile work environment.”

Quid pro quo sexual harassment

“This for that” is the direct translation of quid pro quo. Quid pro quo sexual harassment occurs when the harasser offers something beneficial in the employment relationship in return for accepting romantic and/or sexual advances. For example, if a supervisor or manager offers a promotion or a raise in exchange for sex. Or threatens to write up or demote an employee unless the employee goes out on a date with the manager.   There are many other types of Quid pro quo sexual harassment that are more subtle.  If you have been made to feel uncomfortable at work or have been propositioned by your supervisor, a manager, or co-worker it is important to seek legal advice so that your rights are preserved.  Call Gienapp Law, APC at 619-234-3054 for a free consultation.  

Hostile Work Environment

Hostile work environment claims frequently do not involve claims of sexual or romantic advances; rather an employer creates, or allows to be created, an atmosphere in which the harassment is sufficiently sever or pervasive to create an actual abusive working environment, the so called “hostile work environment.”  

Subordinates, co-workers, supervisors, and even managers can all participate in creating a hostile work environment.  Harassment can come in the form of slurs, intimidation, offensive jokes, talk of a frank sexual nature, taunting, exposure to pornography while at work, groping, grabbing, ridicule, unwanted touching, and other similar behaviors.  Even a single severe act of sexual harassment can create a hostile work environment.  However in most cases a hostile work environment is created by many subtle (or not so subtle) acts, by one person or many, over a period of time.

Who is liable?

If the harasser is a supervisor or manager then the employer is directly liable to the harassed employee.  However if the harasser is a coworker or subordinate then the employer will only be held liable if the harassed employee complained to a manager or supervisor (HR or other) about the harassing behavior and the employer failed to take the steps required to stop the harassment. 

Retaliation

Unfortunately many victims of sexual harassment do not immediately report the harassment to their employers for fear of retaliation.  Reporting sexual harassment of any kind or type to an employer is 100% protected activity under California law.  If an employer retaliates in any way against an employee who has reported sexual harassment there are specific laws that protect the employee.  

If you have experienced sexual harassment in the workplace call Gienapp Law, APC at (619) 234-3054 for a free consultation. It is important to know your rights and take the steps necessary to protect your right.  Employees have rights too.  

Non Compete Agreements

Many times an employer will have an employee sign a non-compete agreement (sometimes called a “covenant not to compete” or a “do not compete”) when the employee is hired.   These agreements are contracts between an employer and an employee whereby the employee agrees not to directly compete with the ex-employer when the employee leaves the company, even if the employee is fired. 

In other words, the employer tries to prevent the employee from going to work for a direct competitor, or from contacting customers of the former employer to solicit business. The sole purpose of these contracts is to protect the employer.  The employer tries to stop the former employee from using his or her knowledge, skills and abilities to compete against their former employer, and make a living.

In most cases non-compete agreement are not enforceable in California.  The California Business and Professions Code provides that "every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." To read the full text of the relevant Code sections (Cal. Business and Professional Code  16600 et seq.) go here.

In most cases California Courts have relied on this code section to invalidate any agreement that seek to prevent an employee from accepting work from any of her former employer's clients or competitors.  This is good news for California Employees. 

There are some areas of concern for employees.  Generally a former employee cannot use information taken from their past employer which is proprietary or is a trade secret.  The issue that comes up most frequently is whether or not a company’s client lists or pricing schemes are “trade secrets.”  Additionally business owners who sell their stock to another for valuable consideration cannot directly compete against the person who purchased the business.  This is an area of law that can be confusing.  If you have a question about using information you have from your former employer please call Gienapp Law, APC at (619) 234-3054 to discuss. 

Although non-compete agreements are generally not legal, many companies require their employees to sign them in order to deter an employee from competing or using his or her knowledge, skills, and abilities after leaving. If you have been asked to sign a non-compete it is most likely not enforceable, or at least much more limited than it appears.

If you have any questions regarding a non compete agreement that you have been asked to sign, call Gienapp Law, APC to discuss.  Tel. (619) 234-3054.  

Social Media

Is freedom of speech guaranteed in the workplace? Can I be fired based on something I say on facebook or another networking site?

The short answer is probably yes, you can be fired.  Employers have very broad powers to discipline or fire employees for what they say online, whether on social networking sites, blogs, or other online forums.  As discussed below there are some limited protections for online activities, but for the most part, this is not an issue of “free speech” as protected by the First Amendment to the US Constitution.   This area of law is rapidly evolving.  This blog is only a general outline of the state of the law.  If you have a specific question please call Gienapp Law, APC at (619)-234-3054 for a free consultation.

Does the Employer Need “Grounds” To Fire You?

As I explained in an earlier post, if you’re what’s known as an “at-will” employee, then either you or your employer can terminate the relationship for any reason whatsoever.  In other words employer generally doesn’t have to justify the dismissal of an at-will employee. 

Does the First Amendment Protect Free Speech on Blogs or Facebook?

A common misconception is that employee blogging or an employee posting something about their employment on their personal facebook page is a matter of free speech under the First Amendment.  However, the First Amendment only prevents the government from restricting free expression; it does not apply to private employers.  If you work for the government you might have a First Amendment right to blog about what goes on at the office, however if you post something negative about your boss or employer and they take offense, in all likelihood than can retaliate and terminate your employment. 

Employee Protections

There may be some protections for the employee. Again the law is rapidly developing in this area. California does have a law protecting employees from “demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.”  This provision of the Cal Labor Code may give some protection for an employee who was blogging or posting about purely political opinions. 

Both Federal and California laws contains protections for “whistleblowers,” that is, employees who expose harmful or illegal activities of their employers.   Some whistleblower laws may require that you first report the problem; to the government, regulatory, or law enforcement agency.   But once that is done, you may be able to post about your discovery without fear of retaliation.

Federal labor laws generally protect employees’ rights to communicate with each other about conditions in the workplace--and to communicate about efforts to unionize the workplace.   Very recently the National Labor Relations Board heard complaints about employee terminations involving employee posts to facebook complaint about employment conditions. In some cases the termination were ruled illegal in violation of an employee's right to engage in "concerted activity" for mutual aid.  Employment attorneys around the country are watching these cases develop.  For more information on these cases click here.

As in many areas of life, a little common sense goes a long way.  I recommend avoiding posting anything relating to your employment that might be found to be offensive, hurtful, or just plain bad taste.  It is far better to talk to your manager or your HR department about problems at the office rather than broadcasting them on the Internet.  If you feel you cannot speak to your manager or HR you are always free to contact a lawyer for a confidential consultation.  If you would like a consultation please contact Gienapp Law, APC at (619)-234-3054.  

Pre-Employment Screening

What can a prospective employer ask me to do prior to being offered a job?  Can a prospective employer ask me to submit to drug screening? If so can a prospective employer look for legally prescribed drugs as well as illegal drugs?  Can a prospective employer ask me to submit a financial report? Can a prospective employer run a credit report before offering me a job?

Applying for, and hoping to get offered, new employment can be a very stressful time.  Many California employees don't know what rights they have when a prospective employer asks for sensitive and private information.  The following is a brief synopsis of what a prospective employer can and cannot do.

Credit Reports

Beginning January 2012, for the most part employers in California cannot run credit reports on prospective employees. There are some exceptions. An employer can seek a credit report for an employee who may be placed in (1) a position in the state Department of Justice, (2) a managerial position, (3) that of a sworn peace officer or other law enforcement position, (4) a position for which the information contained in the report is required by law to be disclosed or obtained, (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, (6) a position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf, (7) a position that involves access to confidential or proprietary information, as specified, or (8) a position that involves regular access to $10,000 or more of cash.  Other than these eight situations an employer cannot run a credit report on a job applicant.

Even if a prospective employer can have you submit to a credit report, the law requires written notice to the prospective employee from the employer indicating the employer intends to seek a credit report and exactly why, under the law, the employer believes it is required.    For more information about the 2012 changes go here.

Drug Testing

Whether or not an employer can send a prospective employee for a drug test before offering employment is not as clear cut as the issue of credit reports.  Technically no employer can make any employee submit to physical or mental testing unless there is a job related reason.  As a practical matter, all employers get around this by claiming that drug testing is required to maintain a workplace free from illegal drug use.  Courts routinely uphold these drug tests as OK and employers can fire or refuse to hire employees who refuse to test or test positive for illegal drugs.  Problems can occur, however when an employee has a legitimate medical condition for which the employee takes prescription drugs that the employer believes are drugs of abuse.  If this happens to you it is best to get in touch with an attorney to find out what your rights are.

Illegal questioning in Employment Interviews


In California it is illegal for an employer to discriminate against any employee or prospective employee based on their age (over 40), race, religion, gender, medical condition, disability, sexual orientation, national origin, or family size.  Generally employers should not be asking a prospective employer questions about these areas during an employment interview.  An exception is that an employer can ask a prospective employee if they will require an accommodation of any type in order to perform the job duties.  If you believe an employer has discriminated against you please call Gienapp Law at 619-234-3054 or visit our web site.