Retaliation in Santa Clara County government offices and hospitals is as common as it is in many others private and public employers. The are two common reasons for retaliation
that seems to be in play over and over:
1. The tension between Latin workers and workers of other races. When Latin workers are a majority in the office or at a particular department, workers of other ethnicity are more likely to complain about experiencing discrimination and favoritism toward Spanish speaking employees. When Latin workers are a minority, they are the ones who are more likely to complain about being discriminated. Either way, this leads to filing complaints and subsequent retaliation issues.
2. The second common reason for retaliation is the budget pressure that many offices in San Jose and Santa Clara County experience. A supervisor or head of the department that's already struggling with shortage of funds is more likely to be frustrated if its employee files a workers comp claim or goes on disability/medical leave. As a result, that manager is more likely to suspect that the employee is faking or exaggerating his injury or medical condition and retaliate against him, by as subtly as starting to scrutinize his work, micromanage him, to more significant steps such as issuing unfairly negative performance reviews and writing that employee up, or even worse - suspending or terminating that employee.
If you believe you experience retaliation at work, it can be critically important for you to take certain steps before you are suspended or terminated in order to either protect your job or enhance your future wrongful termination claim, if and when you wish to pursue it. An experienced employment attorney can help you gather all the evidence that will be necessary to prove your claim and help you in court, in arbitration of a union grievance, if you are a member of the union, in pursuing your workers comp claim or in any other administrative forum and hearing.
Unfortunately, many employers still don't know that Post Traumatic Stress Disorder (PTSD) is a fully recognized disability under ADA and FEHA (Fair Employment and Housing Act). An employee suffering from PTSD may be entitled to reasonable accommodations as any other employee with the better known disabilities. Many human resources managers till this day believe that the only employee who they have to consider disabled are the ones who have several physical injuries or limitations, such as missing a limb or being wheel chair bound. This kind of extreme incompetence leads to egregious disability laws violations in both small companies and larger corporate employers.
If you are suffering from PTSD and related psychological/mental symptoms, it is critical that you inform your employer of your medical condition, your specific diagnosis and your limitation, and request a meeting to discuss the accommodations that you might need in order to allow you to continue performing your job duties.
Keep in mind that under the law the employer does not have to read you mind and assume that you need a particular accommodation, and not worry so much about medical confidentiality. Therefore, it is to your great benefit to share all the necessary information about your condition and limitations, so that the employer has an opportunity to explore what accommodations may be available to you and how to make sure that you are able to continue being park of the employer's workforce. And if the employer asks for further clarification of your condition and your restrictions after receiving your original medical paperwork, you should be willing to provide it.
Many of the medical conditions and disabilities affect an employee's attendance and specifically - an employee's ability to report to work regularly at a scheduled time. Some of the more common such conditions that I see are sleep apnea and extreme cases of depression where an employee is unable to even get out of bed in the morning due to severe panick attacks and other mental or psychological symptoms. When an employee is terminated for absences associated with these kinds of attendance issues, a careful analysis of the facts of his/her employment termination is need to determine whether there is a legitimate wrongful termination claim that can be brought. This often turns on the critical question of whether allowing an employee to have unexpected absences or be late without prior notice to the employer could be a reasonable accommodation to that employee's disabiltiy.
Some of the questions an employee and the attorney should be asking are:
* Was an employer on notice of the employee's disability/medical condition?
* Did the employee request any kinds of accommodations, such as termporary medical leave or modified schedule that would help deal with the attendance issues? What was the employer's response? If the employer refused to provide modified schedule, do the employer's reasons for that refusal seem to be legiimate and supported by business necessity.
* Given the employee's title and job duties, how critical is it for him/her to be punctual and not have any attendance issues?
* How many employees were perfoming the same job at the same time, and how burdensome it would be for an employer to have those other employees take over the disabled worker's tasks while he is out?
* Was the employee able to give advance notice to the employer about not being able to make it to work?
The above questions are governed by common sense and seek to flush out whether it was feasable for the employer to accommodate employee's attendance issues, and whether it was reasonable to expect from the employer to provide those accommodations, given the nature and the size of the business as well as the specific duties of the employee.
Despite the sophisticated work done by many of the software companies in the San Jose and Silicon Valley area, they have the same retaliation issues that arise in other industries. One typical kind of unlawful retaliation is when an employee raises concerns about being improperly classified as a contractor or not being paid overtime, or not being provided proper meal and rest breaks. Many managers in these sophisticated companies feel that they can do no wrong and they certainly don't appreciate when their employees are being "insubordinate" by complaining about wage laws violations. That's when the write-ups, the negative performance evaluations, the performance improvement plans and the micromanaging begins. It's easy to find faults in a software engineer or developer's work or to make it look like he/she is not meeting deadlines/expectations in order to cover up the retaliatory motive for termination.
Unfortunately, I am yet to see a performance improvement plan (PIP) that does not end up in termination. Even though some of these plans sounds like they believe that the employee will improve and will continue to be part of his/her team at a company, usually it's just a formality before "final warning" and notice of termination.
Proving a retaliation claim in court is not easy, but such elements as timing of events, history of performance and statements/testimony of co-workers and/or previous managers prove to be very helpful, if not critical, in winning those kinds of claims or settling them successfully in and out of c
It is important to keep in mind when you are attending an appeals hearing of unemployment benefits denial that the decision regarding whether to award you the benefits rests in one person's hand - the administrative law judge who hears your case. As objective as they judges try to be, they are still human beings, and it is well worth getting on their right side. Therefore, it is in your best interest to maintain the most civil, polite and pleasant demeanor so that you make the right impression on the judge. This is particularly important when you are facing a "he said / she said" situation - where you are accused of being terminated for "misconduct", such as insubordination, or being rude toward your supervisor, and you deny engaging in the acts or behavior that you are accused of and for which you were fired.
The more likable you are to the judge and the less inclined you are to show anger or resentment toward the employer, the more likely the judge is to believe your version of the events and to site with you. This is especially true when you have been terminated for alleged insubordination or for being rude to your management. The nicer you are at a hearing, the harder it will be for the judge to believe that you are capable of being as rude and as insubordinate as the employer claims you were. But even if you were, under the precedent cases - a one time loss of temper during an argument with an employer is generally not grounds for denying unemployment benefits.
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One common mistake that employees who feel bullied and harassed make is reacting with anger to the harasser/bully. They either lose temper, raise their voice and give the harasser a piece of their mind, or they threaten the bully openly or implicitly with violence, or both. The above way to handle bullying and harassment at workplace is usually a serious mistake, as it gives your employer a perfectly legitimate and lawful reason to discipline the victim of harassment or even terminate his/her employment. In fact, in some cases, the employer has an obligation to remove you from the workplace immediately, at least upon completing an investigation, if you are involved in any kind of serious verbal or physical confrontation, as the employer has an obligation to maintain a workplace free of violence and take all steps necessary to both prevent and remedy violence at workplace.
You must resist any natural urge to confront your bullying boss or co-worker in a way that would suggest that you have temper/anger issues. The right way to handle any kind of harassment and bullying is to maintain respectful and appropriate demeanor at all times, while taking administrative steps of complaining in writing to your superiors and the human resources management about the harassment and the bullying you are experiencing. In your complaints, it's better to be specific about the words and actions of the harasser, as simply saying "harassment" doesn't really communicate much to your superiors, as it could be many different things.
There is little doubt in my mind that as our population becomes older, the incidents of discrimination and harassment based on age and related claims (such as disability discrimination) will be on a rise. San Jose and the rest of Silicon Valley area will not be an exception. I believe that at least two major reasons for age discrimination are: (1) the perception among the young and the bright in the technology world that the peers of their generation know better and are more up to date when it comes to progress and the most current trends in the industry; (2) older workers are likely to work slower, be more prone to taking time off for illnesses and other health related reasons, thereby not being able to participate and contribute as aggressively to the growth of the company; and because, as bad as it might sounds.
The above are nothing more than generalizations that attempt to sweep the entire age group or multiple age groups into the same category of stagnant, slow and unwilling to learn workers. In reality, many experienced software specialist are both willing to learn as much or more than their younger peers, and they benefit from their past experience in computer science and other fields. Many older workers are far more responsible and attentive to their work because often have more at steaks - they have families and children who they have to provide for. They also know that if they were to lose a job at an older age, finding a new one would be much harder than to someone who was in his 20's or 30's. Thus, their tend to value their work more than a young hot shot who might be bouncing from one company to another, constantly looking for a better deal.
Age discrimination lawsuits will continue to be filed by employees who feel betrayed and kicked to the curb by their employers, especially in those cases where the older workers are particularly hurt by discrimination because they had a lengthy career at the same company (10 years or more) and they feel they gave so much of their time and their mind to the company.
I am amazed by the number of calls I get from nurses and nursing assistants at Kaiser from all around the bay area with remarkably similar complaints and concerns of either being retaliated for complaining about their supervisor's unsafe, unlawful or unethical actions, or struggling to ensure that their work related injury or disability is dealt with properly by the employer, and that the reasonable accommodations are provided to the extent possible, as mandated by the California and Federal disability laws
Kaiser defends all claims aggressively and it's hardly surprising, as the company of that size would not want to set a precedent of "rolling over" and giving in easily. Having said that, I have enjoyed and enjoy pursuing cases on behalf of those former employees of Kaiser whose compelling story of employment and termination make it worthwhile to not only seek financial compensation for victims of unlawful treatment at workplace but to set a possibly higher precedent that those who violate human dignity lightly will have to pay for it. Such compelling stories commonly include a medical professional with 20, 30 or even more years of employment with Kaiser with nearly stellar performance history and promotions, who has been set up through a paper trail to be terminated for "insubordination", "poor attendance", or some other vague or even worse - fabricated reasons for firing.
One of the common mistakes that aggrieved employees make prior to being terminated when they feel that they are being retaliated against, is that they lose their temper when they feel that their rights are being violated, which hurts them and often makes their potential legal claims much weaker. Imagine you request a medical time off under FMLA, your manager mistakenly believes that you are not entitled to it because somehow he/she determined that your medical condition is not serious enough to qualify or even worse - the employer thinks you are faking it. You then give your that manager a peace of your mind, telling them that they are not good and they are incompetent. Perhaps you raise your voice and you also use some inappropriate language. At the same time, you go to his/her superior and complain about denial of your rights. You might even send a nasty e-mail or two on top, to other managers to tell them how unhappy you are about your bosses ignorance. These actions give your employer an independent, and perfectly legal reason to terminate you - being rude, verbally violent and insubordination.
Instead, you should always act like a "politician" if you will. You should never lose your cool or be rude or inappropriate with your boss. Most of the times, employee's right are violated not on person but because the employer simply doesn't know better or because the company has to deal with certain financial or productivity pressures that push them in the wrong directly legally. This is not to justify their actions but to make you realize that there is absolutely no point and no benefit in raising your voice or becoming aggressive toward your employer.
Further, when you remain civil at all times, and the employer does violate the law by discriminating or retaliating against you, your potential legal case will be much stronger, as the employer will not have the "insubordination" excuse when demoting, suspending or terminating your employment.
Even in this day and age, employers continue to discrimination in hiring and in terms of employment based on an employee's race. This can be as mild as being more strict in imposing a discipline with employees of one race than with employees of other races, or Caucasian employees to demotions and termination. Some employers think that as long as they don't use racially offensive language, they will be able to cover up their discriminatory intent under the "at will employment" blanket and/or fabricating highly subjective reasons for terminating an employee, such as poor performance, insubordination, etc.
Luckily, there is a whole body of law that the courts have developed over the years that provides guidance on using the inconsistencies / contradictions in the reasons given of employee's termination to prove or at least create and inference of racial or other kinds of discrimination against an employer. This is because the courts have found many years ago that when an employer provides reasons for employee's termination that are not true, the most likely reason for it is that the real reason for firing is illegal and/or discriminatory.
Successful prosecution of a claim such as described above often requires intense discovery and careful analysis of the documents in both - the aggrieved employee's personnel file and in the employer's policies and internal communications.