One of the issues that an employees of Stanford University may face is requesting and receiving reasonable accommodations
to their injury or their disability. Stanford management and human resources department at times seem to miss the fact that an employee's workers compensation claim and request for an accommodation, such as medical leave, modified duties, assisting devices, etc... are different types of issues and should be handled separately.
For instance, just because an employee's workers comp doctor states that the injured employee is unable to work, doesn't mean that it relieves the employer of the obligation to accommodate that employee as per his/her disability rights and do what is reasonable possible to allow that employee to return to work to the same or similar, vacant position, for which that emloyee is qualified. If you are in a similar situation, and you want to retain your employment with Stanford, it is very important that you communicate with both the management and your HR department that you are able and willing to return to work at a certain date, and that you would like to talk to someone about possible accommodations to your medical condition.
Some managers are known for being annoyed by the employees who file workers compensation claims, especially if they file more than one claim in a short period of time. They think that just because one employee seems to be faking his or her injury or exaggerating the symptoms, it means that all other employees do the same. Thus, these managers start viewing all claims with an unfounded skepticism, which is one common source of disability discrimination - treating employees differently because of their disability and/or medical condition and refusing to accommodate them.
California law includes a number of provisions that protect employees of hospitals, nursing homes and other healthcare facilities from retaliation and discrimination against them for complaining about patient care and patient safety:
California Health and Safety Code section 1278.5 prohibits any healthcare facility from discriminating or retaliating against any employee for complianing about or initiating an investigation relating to the care, services or conditions of that facility.
California Business and Professions Code section 510 prohibits any organization from terminating or otherwise penalizing a healthcare practitioner for protesting a decision, policy or practice that impairs the practitioner's ability to provide appropriate healthcare to his or her patients.
California Labor Code section 232.5 prohibits employers from retaliating or otherwise disciplining, retaliating, or terminating an employee for disclosing infomraiton about an employee's working conditions.
California Labor Code section 6310 prohibits employers from discriminating against or terminating an employee
for complaining to his employer, representative of government agency about health and safety violations.
The above laws are particularly applicable to those employees who are retaliated for witnessing and reporting safety and health violations as well as patient abuse by doctors or nurses.
For more information about retaliation, please visit our California Retaliation Law Blog
The ADA prohibits discrimination "because of" a disability. (42 U.S.C. § 12112(a).) An adverse employment decision, such as employment termination, cannot be made "because of" a disability, when the disability is not known to the employer. Thus, in order to prove an ADA claim for wrongful discharge and disability discrimination, a plaintiff must prove the employer had knowledge of the employee's disability when the adverse employment decision was made. (Taylor v. Principal Financial Group, Inc.)
While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. "Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the ADA." (Morisky v. Broward County) [ for instance, plaintiff's illiteracy and history of special education classes insufficient to put employer on notice of developmental disability]; see also Miller v. National Cas. Co. [absenteeism, claims of stress, and a relative's statement employee was " 'mentally falling apart' " insufficient to put employer on notice of manic-depression]; Carlson v. InaCom Corp. (D.Neb. 1995) 885 F.Supp. 1314, 1322 [absenteeism and claims of occasional headache insufficient to impute knowledge of disabling migraine condition].
This is why it is so important to communicate to the employer your symptoms and your diagnosis if you are suffering from disability and need an accommodation. Do not limit your discussion with the employer about your condition to vague and generic statemetns such as that you are not feeling well, that you have headaches, or you have medical issues. Although privacy is an important concern when it comes to health issues, if you want to be accommodated and retain your job while suffering from disability and health limitations, you should be as upfront with your employer as possible, to allow them to accommodate your condition.
One of the common defenses that employer use after terminating a disabled employee and being sued for wrongful termination is that they didn't know that the employee had a disability. This is yet another reason why you should be clear about your condition and about your need for accommodations, and that's why you should communicate the above in writing to your management, human resources staff and anyo
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" and you deny engaging in the acts or behavior that you are accused of.
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.
One of the most common and relatively less significant disabilities that workers develop at workplace is carpal tunnel syndrome. This usually results from excessive and/or repetitive typing or other desk jobs. The law recognizes the carpal tunnel syndrome as a disability entitling an employee to a reasonable accommodation, if available, under ADA or FEHA (Fair Employment and Housing Act). The accommodations can range from medical leave of limited duration, modified or part time schedule to having more breaks during the working hours, having ergonomic evaluation of workplace station done by an expert, who will ensure that you sit property and that your desk, keyboard and chair are placed in a position to maximize comfort and minimize impact on the joints of your arms, and also purchasing ergonomic equipment, such as chair and keyboard.
Some employers assume that the above solutions are not "reasonable" accommodation and they are too expensive. This is hard true. Most business can afford all of the above solutions. Ergonomic chair and keyboard don't cost a whole lot more than other types of chairs and keyboard. Conducting ergonomic evaluation of workplace is highly recommended in general, and many employers do it for every employee to ensure that they are comfortable and to prevent injuries and potential workers compensation claims. This is for everyone's benefit. Employee enjoy their work station comfort, and employers are saving money by avoiding industrial injury claims by their employees.
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.