CA WRONGFUL TERMINATION LAWS

Under California law, wrongful termination has a specific legal definition. It does not mean that the termination was wrong, or unfair. It means that the termination violated specific public policies contained in statutes, regulations or constitutional provisions. For example, it is unlawful for an employer to fire an employee due to gender, pregnancy, age, race, disability, taking of a medical leave, requesting a reasonable accommodation for a disability, national origin, sexual orientation, age, marital status, or because the employee engaged in whistleblowing by complaining about or otherwise opposing certain specified unlawful, fraudulent or unethical conduct.

CALIFORNIA FAMILY MEDICAL LEAVE ACT (FMLA)

Under the federal FMLA, or the California Family Rights Act (CFRA), an employer that regularly employs more than fifty (50) people within a seventy five (75) mile radius is required to permit employees that have more than one year of service to take up to 12 WEEKS of unpaid leave if they, or their parents or children, have a “serious medical condition.”

An employee need not specify to the employer that he/she needs “FMLA” or “CFRA” leave. It is sufficient for the employee to notify the employer that he/she has a “serious health condition”, although the employee need not use those exact words. The employee need only let the employer know that he/she has a condition that will require inpatient treatment or several doctor’s visits or that may incapacitate the employee for more than three (3) days. If the employer wants more information, it must ask for it. The employer may request a doctor’s certificate, indicating the severity and probable duration of the condition, but it must do so in writing. If the employer wants a second opinion, it may demand one, provided that it pays for it. The employer may also require the employee to see a physician of its choosing.

A “serious medical condition” is defined as one that necessitates either inpatient treatment, or at least two doctors visits (or one visit plus a continuing regimen of treatment) and incapacitates the employee for more than three consecutive days. If the employee is unable to work for more than three (3) days, he/she is considered “incapacitated” under the FMLA. Permanent, recurring conditions such as Epilepsy, also qualify for FMLA protection. Thus, although the definition of a “serious health condition” is much broader and more inclusive than the definition of “disability”, it does not typically extend to common ailments such as a cold or the flu. However, such common ailments as the flu may be protected if they result in a period of incapacity of more than three days or otherwise meet the criterion for a covered “serious health condition.”
The FMLA and CFRA also protect employees who require intermittent, or sporadic absences for such chronic conditions as migraines, asthma, irritable bowel syndrome, etc…Significantly, if an employee’s doctor certifies them for intermittent leave due to a chronic condition, the employer usually cannot ask for re-certification more often than every thirty (30) days.

Employers may ask for a medical certification from a healthcare provider to verify your need for CFRA/FMLA leave; however, under CFRA (unlike under federal law) employers may not ask for the diagnosis, treatment, or other “medical facts” supporting your need for leave. If a healthcare provider’s certification states that the employee has a “serious healthy condition” as defined by CFRA, and also states the date of onset and probable duration of the condition, the employer cannot ask for any additional information. Employers who question the validity of a “sufficient” medical certification have two options: Grant the requested leave or pay for the employee to be examined by another, neutral healthcare provider. If the employer insists on a “second opinion”, and that opinion conflicts with the first, the employer must pay for a third opinion, which acts as the “tiebreaker.”

CFRA leave may also be taken for adopting, or bonding with a child. “Baby bonding leave” may be taken immediately following a pregnancy disability leave or at any time within 12 months of the baby’s birth. Theoretically, if an employee has a difficult pregnancy, she may be entitled to up to four months of Pregnancy Disability Leave (“PDL”), then an additional 12 weeks of “baby bonding” leave once she recovers from her pregnancy-related disability. In other words, a women disabled by pregnancy who then gives birth may take up to seven consecutive months of job-protected leave.

If the employee takes covered FMLA leave, the employer must return the employee to their prior position without any loss of seniority .

CALIFORNIA AGE DISCRIMINATION LAW

The California Fair Employment and Housing Act prohibits an employer from discriminating against any employee because that employee is over forty (40) years old. Because there is rarely “smoking gun” evidence of age discrimination, circumstantial evidence will usually suffice. An inference of discrimination is usually raised by showing that the employee,

• Belongs to a protected class (i.e., is over forty (40))
• Was subjected to an adverse employment action (like termination, demotion, suspension).
• Similarly situated employees outside the protected class were treated differently and more favorably.

In addition to raising an inference of discrimination in the manner set forth above, an employee may do so via statistical evidence, comparative evidence, or direct evidence. Direct evidence, such as discriminatory comments made by the decisionmaker, is often the most persuasive. However, in larger companies, it may be possible to use statistical analysis to demonstrate that the employer systematically discriminates against a particular race in hiring, promotions and terminations. Such evidence would raise an inference that the action taken against a particular employee of that race was also infected by racial animus or prejudice. Comparative evidence also raises an inference of discrimination by showing that different rules and standards were applied for persons of different races.

Because discrimination cases usually turn on specific facts, and there is usually a 1-year time limit for filing, it is important to consult with an attorney as soon as possible after a potentially discriminatory action has been taken.

CALIFORNIA NATIONAL ORIGIN DISCRIMINATION LAW

The California Fair Employment and Housing Act prohibits an employer from discriminating against any employee because of that employee’s National Origin. Because there is rarely “smoking gun” evidence of racial discrimination, circumstantial evidence will usually suffice. An inference of discrimination is usually raised by showing that the employee,

• Belongs to a protected class (i.e., comes from a country different from that of the Company’s management or the majority of workers)
• Was subjected to an adverse employment action (like termination, demotion, suspension).
• Similarly situated employees outside the protected class were treated differently and more favorably.

In addition to raising an inference of discrimination in the manner set forth above, an employee may do so via statistical evidence, comparative evidence, or direct evidence. Direct evidence, such as discriminatory comments made by the decisionmaker, is often the most persuasive.

However, in larger companies, it may be possible to use statistical analysis to demonstrate that the employer systematically discriminates against a particular race in hiring, promotions and terminations. Such evidence would raise an inference that the action taken against a particular employee of that race was also infected by racial animus or prejudice. Comparative evidence also raises an inference of discrimination by showing that different rules and standards were applied for persons of different races.

Because discrimination cases usually turn on specific facts, and there is usually a 1-year time limit for filing, it is important to consult with an attorney as soon as possible after a potentially discriminatory action has been taken.

CALIFORNIA RACE DISCRIMINATION LAW

The California Fair Employment and Housing Act prohibits an employer from discriminating against any employee because of that employee’s race. Because there is rarely “smoking gun” evidence of racial discrimination, circumstantial evidence will usually suffice. An inference of discrimination is usually raised by showing that the employee,

Belongs to a protected class.
Was subjected to an adverse employment action (like termination, demotion, suspension).
Similarly situated employees outside the protected class were treated differently and more favorably.

In addition to raising an inference of discrimination in the manner set forth above, an employee may do so via statistical evidence, comparative evidence, or direct evidence. Direct evidence, such as discriminatory comments made by the decisionmaker, is often the most persuasive. However, in larger companies, it may be possible to use statistical analysis to demonstrate that the employer systematically discriminates against a particular race in hiring, promotions and terminations. Such evidence would raise an inference that the action taken against a particular employee of that race was also infected by racial animus or prejudice. Comparative evidence also raises an inference of discrimination by showing that different rules and standards were applied for persons of different races.

Because discrimination cases usually turn on specific facts, and there is usually a one year time limit for filing, it is important to consult with an attorney as soon as possible after a potentially discriminatory action has been taken.

CALIFORNIA PREGNANCY DISCRIMINATION LAW

The California Fair Employment and Housing Act explicitly prohibits employers from harassing, demoting, terminating, or otherwise discriminating against any employee for becoming pregnant, or for requesting or taking pregnancy leave. The Act applies to all employers that regularly employed five (5) or more full-time employees in the preceding year.

If you are subjected to unlawful harassment or discrimination on the basis of pregnancy, you may be entitled to recover damages for emotional distress, lost wages, punitive damages and attorney’s fees.

In addition, the California Pregnancy Disability Leave Law ("PDLL") requires California employers to provide up to four (4) months of leave for employees actually disabled by pregnancy or pregnancy-related conditions. This leave can be taken all at once or intermittently. It is important to note that California's PDLL requires California employers to provide up to four (4) months of leave for employees actually disabled by pregnancy or pregnancy-related conditions even if the employer's policies do not grant employees suffering from other short-term disabilities a similar amount of leave. In other words, unlike the federal Pregnancy Discrimination Law ("PDL"), California's PDLL requires that California employers give pregnant workers special, rather than simply equal treatment.

In California, once the employee has given birth she may be entitled to an additional 12-weeks of leave "for the reason of the birth of a child" under the California Family Rights Act ("CFRA"), which is California's version of the FMLA. Entitlement to CFRA leave for birth of a child depends on, 1) whether the employer employs more than 50 employees within a seventy five mile radius; and 2) Whether the employee worked more than 1250 hours in the 12 months preceding the first day of the requested CFRA leave or any pregnancy disability leave; and 3) Whether the employee has more than one year of service with the employer.