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 Far do Whistleblower Protections Go?

whistleblower protectionsWhistleblower Protections? When Michael Johnson learned that the company he worked for had amended its 2016 tax return to reduce its tax burden, he filed a whistleblower complaint against his employer. Blue Shield, he claimed, had listed over $3 billion less in premiums than the original filing report. Blue Shield responded with a lawsuit against Johnson for breach of contract, alleging he had shared confidential information about the company. Just how much credence is there to Blue Shield’s argument? Do whistleblower laws give employees the ability to disclose company secrets? For answers to these, and other business questions, contact a local business law attorney.

California Whistleblower Protections

In California, employees are encouraged to report suspected violations of state and/or federal law to appropriate agencies, which are then authorized to investigate claims of wrongdoing. In fact, as per California Labor Code Section 1102.5, individuals who report suspicions of wrongdoing by their companies are considered a protected class. Retaliation against such individuals is prohibited.

What, Exactly, Constitutes Whistleblowing?

Whistleblowing is the reporting of illegal or safety violations that may be occurring in the workplace. Employees may refuse to engage in activities deemed to be illegal or unsafe, and may ultimately report problems to applicable agencies for investigation.

Whistleblower Protections

Businesses may not legally create policies that prevent employees from reporting unsafe or illegal situations in the workplace. Additionally, the law provides that employers may not:

  • Retaliate against individuals who choose not to engage in workplace activities they believe to be against state or federal laws or OSHA regulations;
  • Retaliate against employees who report infractions.

Retaliation may take many forms, all of which are violations of California Labor Code.  Common examples include:

  • Demoting or firing the employee;
  • Denying training opportunities, promotions, or access to higher-level meetings;
  • Forcing the employee to quit by making work life untenable.

Section 1102.5 of the California Labor Code requires employers to make restitution for any of these actions and to reinstate the employee to a job from which they have been fired when these actions occur.

Whistleblower Protections from a Lawsuit?

One wonders whether or not whistleblower laws shield Johnson, who is being sued by Blue Shield. The truth is, the courts have reached different conclusions in cases across the United States in recent years. Generally speaking, they will want to take a look at a number of factors, ranging from how the materials were obtained and to whom they were given, to the employee’s need to preserve the items in order to “blow the whistle.” While a comprehensive policy regarding secret materials will help any company with its most confidential documents, it is unclear how such a policy will stand against whistleblower protections. [Read more…]

Retaliation for Reporting Workplace Violations

RetaliationRetaliation in the workplace. California workers are entitled to certain  protected rights. When they are violated, workers may report those violations to the Division of Labor Standards Enforcement (DLSE) to seek reparations. Unfortunately, sometimes employers do not appreciate this reporting, and seek retribution against reporting employees. When that happens, aggressive legal representation can make the difference to the success of your case.

Keep in Mind

Anyone can file a complaint, regardless of immigration status, language, or identification. All workers are protected under California law, and the Labor Commissioner’s office has no interest in your immigration status; nor will they report on immigration issues to other agencies.

Protected Activities

There are specific activities that are protected under California law. Those include:

  • Refusing to work when conditions are not safe, or making complaints about those conditions to bosses, labor unions, or government agencies;
  • Filing a wage claim against employers who do not pay earned wages;
  • Assisting in an investigation or testifying on behalf of co-workers’ claims;
  • Refusing to sign agreements promising not to file claims or divulge information regarding safety conditions in the workplace;
  • Using sick leave to deal with family or domestic partner illnesses;
  • Requesting time and private space to pump breast milk;
  • Taking time off to deal with domestic violence or sexual assault issues relating to yourself of your children.

Possible Examples of Employer Retaliation

Employers may express their displeasure with you for reporting your concerns in a number of unlawful retaliatory manners:

  • Termination;
  • Suspension;
  • Transfer or demotion;
  • Pay or hour deductions;
  • Threats or disciplinary action.

California’s Whistleblower Laws and Retaliation

A whistleblower is defined as a person who reports a reasonable belief that an employer is in violation of state or federal laws or regulations, or who believes that unsafe work practices or working conditions put employees at risk.  California Labor Code Section 1102.5 protects whistleblowers from retaliations and requires employers to reinstate any wage or benefit reductions that may have occurred due to retaliation.

Evidence that Engaging in Protected Activity Resulted in Retaliation

Demonstrating a causal connection between your activity and the employer’s unlawful retribution will be important in exonerating you. That connection may be shown in a number of ways:

  • By looking at the time frame in which protected activity and disciplinary action occurred;
  • By examining written and verbal communications made by your employer;
  • By comparing the treatment of employees who engaged in protected activity with the treatment of employees who did not engage in such activity.

[Read more…]


The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.