FMLA Violations and Harassment Lead to Court for Employers

Individuals and families often have legitimate medical issues that lead to a request for time off of work. The federal Family and Medical Leave Act (FMLA) and the state’s California Family Rights Act (CFRA) lay out the responsibilities of employers (applicable to those with 50 or more employees) when it comes to family, medical, and/or parental leave. While the leave may be unpaid, it is job-protected time off. In the majority of situations, employees must be allowed to return to their previous position or an equivalent position as it relates to pay, benefits, working conditions, status, and fringe benefits. Crucially, employees are entitled to request and take leave without fear of retribution from employers.

FMLA – Employee Rights

Eligible employees are entitled to as much as 12 weeks of leave annually. This leave may be taken to deal with an array of issues, including:

  • Personal illness;
  • Caring for a family member who is ill;
  • Bonding with a newborn baby, a child who has been adopted, or a foster child;
  • A family member’s military service when associated with a qualifying exigency (FMLA provides 26 weeks to care for service members who have been injured).

Pregnancy Disability – FMLA

California’s CFRA laws apply to employers with five or more employees, and provide eligible employees as much as four months of pregnancy disability leave (PEL). This is in addition to FMLA bonding time.

When FMLA and CFRA Laws are Ignored

Failure to adhere to state and federal laws regarding leave is one of the most common reasons employees seek redress through civil lawsuits. In particular, retribution from irked employers gets them into trouble. Consider the case of Maria Salgado:

When Maria Salgado was called “psychotic” and “psycho” by a coworker, it understandably added to her stress at work. This was not helpful, especially since she suffered from anxiety and depression before the harassment began. Notably, the name-calling occurred shortly after Salgado informed her supervisor of her mental health status. Could the supervisor have breached ethical and legal boundaries by sharing this confidential information with Salgado’s co-worker?  If so, it would be the latest in a long list of harassment experienced by Salgado at the hands of her supervisor, including:

  • Objections for taking time off to deal with medical issues related to an injury, diabetes, and mental health problems;
  • Disciplinary action related to Salgado’s providing less than 24-hour notice prior to taking sick days or medical leave;
  • Confrontations and berating for expressing concerns in an open meeting hosted by the union to deal with medical leave issues;
  • Retaliating by insisting that Salgado be fired after three tardies totaling 13 minutes;
  • Failing to address co-worker harassment that occurred in the presence of the supervisor.

[Read more…]

How Long do I Have to Sue My Employer?

ContractHow Long do I Have to Sue My Employer? If your potential suit is in regards to a Fair Employment and Housing Act Violation, earlier this year, a California Court of Appeals released a decision regarding an employee’s claim under the Fair Employment and Housing Act (FEHA).  The decision is the first to address the issue of how long an employee has to file a claim, that length of time also known as the statute of limitations. (Non-FEHA claims: intentional infliction of emotional distress and negligent hiring)

Fair Employment and Housing Act

FEHA prevents discrimination in employment on the basis of a variety of reasons, including:

  • Age (over 40);
  • Race;
  • Marital status;
  • Gender; and
  • Sexual orientation.

FEHA also protects employees from retaliation for reporting discrimination in the workplace.  Employees may file private lawsuits under the FEHA, but they first must go to the California Department of Fair Employment and Housing to exhaust their administrative remedies.  An employee has one year from the date of the discriminatory act to file a claim with the Department to seek what is referred to as a right to sue letter.

Employers Cannot Shorten the Time to Sue under the FEHA

The employee in the case, Ellis v. U.S. Security Associates et al., worked as a security guard for a company in Northern California and alleged that she was subjected to sexual harassment by a supervisor.  As the court’s decision details, Ms. Ellis reported unwanted sexual advances and unrealized promises to raise her rate of pay.  Ms. Ellis filed a claim with the Department of Fair Employment and Housing and received a right to sue letter.  She then filed a lawsuit against her former employer.

The lower court dismissed Ms. Ellis’ claims because she had signed an employment agreement when she started working for the security company in which she agreed that she only had 6 months to bring any discrimination claims.  While parties to agreements sometimes do agree to shorten the statute of limitations, the practice is one that has been met with varying success throughout the country.  In this particular instance, the Court of Appeals determined that the provision in the contract shortening the statute of limitations was against public policy and it reversed the lower court’s decision.

The Court of Appeals’ decision on public policy was based on the premise that the FEHA is designed to protect employees against discrimination and retaliation in the workplace and provides remedies for employees who have experienced either.  The FEHA also requires employees to exhaust all administrative remedies.  An employee who follows the rules of the FEHA and exhausts all administrative remedies will likely not be able to sue within a shortened amount of time as allowed by an employment contract.  Therefore, if enforced, the 6-month time period that Ms. Ellis agreed to in her employment contract would have the result of not allowing Ms. Ellis to pursue her claims under the FEHA.  The court determined that this was against public policy and the purpose of the FEHA.

Contact Us for Legal Help

Do you feel you have been harassed or discriminated against at your place of employment? The labor and employment attorneys at Beck Law P.C. have experience litigating employment lawsuits, including sexual harassment and retaliation cases and can advise you on these types of matters.  Please contact us if online or by phone at 707-576-7175 to schedule a consultation with one of our attorneys.

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