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2010 blogs
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Written by Jason Erlich
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One of the key provisions of FMLA/CFRA leave is the right to reinstatement to the same or comparable position after the leave.
A “comparable position” is defined as a position which is “virtually identical to the employee's original position in terms of pay, benefits, and working conditions, including privileges, perquisites and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. It must be performed at the same or geographically proximate worksite from where the employee was previously employed. It ordinarily means the same shift or the same or an equivalent work schedule.”
The employer is not required to reinstate an employee if the employee’s position has been eliminated for legitimate business reasons unrelated to the leave. For example, a company downsizing or reorganization may be considered legitimate business reasons. Also if the employer has legitimate reasons to terminate the employee, then reinstatement is not required. The employer has the burden of proof to show that the employee would not have been reinstated for a legitimate business reason.
Also, there is no undue burden or undue hardship defense to FMLA/CFRA leave (in contrast to reasonable accommodation requests). An employer cannot deny FMLA/CFRA leave to an eligible employee simply because they think that the employee’s absence will cause an economic hardship or will be difficult to fill the employee’s job duties.
Key employees. Certain employees, known as “key” employees, may be denied reinstatement. To be categorized as “key,” the employee must be in the top ten percent of their pay scale for all employees within 75 miles of their worksite. The employer must also establish that reinstatement would cause significant economic injury to the operations of the employer. However, prior to taking leave, the employer must notify the employee of this “key” designation and the possibility that the employee will be denied reinstatement. Nonetheless, the employer still must provide 12 weeks of leave with full health coverage even if a key employee is denied reinstatement. And if the “key” employee is out on leave, the employer must give the employee a reasonable opportunity to return to work. |
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Blog -
2010 blogs
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Written by Jason Erlich
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For California employees, both the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provide up to 12 weeks per year of job-protected, unpaid leave because of:
(1) the employee’s serious health condition, or
(2) to care for an immediate family member (spouse, child, parent, or, in California, domestic partner) who has a serious health condition, or
(3) for the birth or adoption of a child or for the foster care placement of a child; or
(4) certain situations for active duty military members and their immediate family members
One of the key phrases in FMLA or CFRA leave is that the leave time must be taken to treat a “serious health condition.” Serious health conditions include:
• An overnight stay in a hospital
• Being incapacitated for 3 or more consecutive days, and (i) receiving two or more treatments by a health care provider within 30 days, or (ii) continuing treatment under the supervision of a health care provider
• Taking time to treat a chronic health condition such as asthma, diabetes or epilepsy which requires periodic treatments for an extended period of time
• Conditions which require multiple treatments such as cancer treatments (e.g. chemotherapy or radiation), severe arthritis, kidney dialysis, or restorative surgery
• Pregnancy. Under the FMLA, pregnancy is a serious health condition if the employee is unable to work. However, in California, the right pregnancy leave, even if the woman is able to work, is protected under the Pregnancy Disability Leave Law
It is important to note that many routine illnesses are not “serious health conditions.” For example, ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, and routine dental problems or diseases do not meet the definition of a serious health condition and do not qualify for protected medical leave. |
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Blog -
2010 blogs
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Written by Jason Erlich
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There are four common defenses to defamation claims: privilege, consent, truth and opinion. This entry will discuss the most widely employed defense to workplace defamation claims – absolute and qualified privileges.
Absolute Privilege. An absolute privilege relieves the defendant or employer of any liability or responsibility for defamatory statements, even if the statements were published with malice. For example, • statements made by an employer in the course of “official proceedings” such as unemployment hearings, wage claims, or discrimination investigations, where the statements are related to such proceedings • statements made in an arbitration under a collective bargaining agreement that are not published to persons lacking a legitimate interest in the proceedings • statements made during a legally required background inspection of a potential employee • statements made during any governmental or quasi-judicial proceedings (which include statements made to the police as part of an investigation into criminal activity)
Qualified Privilege. A qualified privilege, on the other hand, would relieve the defendant or employer of liability or responsibility if the statement was made without malice. “Malice” requires showing that the defendant harbored ill will toward the plaintiff or that the defendant lacked reasonable grounds for belief of the statement or publication. For example, qualified privilege has been found to apply in certain circumstances: • Statements made in employee evaluations, performance reviews, or appraisals. Unless the evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics or behavior, a bad performance review will not be the basis of a libel suit. The qualified privilege has been held to apply even when the employer’s evaluation was objectively wrong and could not be “supported by reference to concrete provable facts” • Statements made by an employer in employment references. Section 47(c) of the California Civil Code allows an employer to disclose certain information about a person's employment to interested parties including a potential new employer. For example, references and any other information a previous employer communicates, upon a potential employer's request, that relate to the employee's “job performance or qualifications” and whether the former employer would rehire the employee • Co-Workers. In general, employees may not sue co-workers for defamation based on their conduct relating to “personnel actions” such as terminations, performance evaluations or work assignments • Discussions about employee grievances and resolving the grievance • Discipline or discharge letters More information on consent, truth and opinion defenses can be found here. |
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Blog -
2010 blogs
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Written by Jason Erlich
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In the realm of workplace defamation claims, the aggrieved employee (or plaintiff) needs to show that the slanderous (spoken) or libelous (written) comments harmed the reputation of the employee. There are five basic elements to a defamation claim - defamatory content, publication, the statements refer to the plaintiff, with intent, and harm.
However, some statements, because they are so naturally and obviously harmful, are considered per se defamatory. In defamation per se claims the plaintiff does not have to prove actual injury to reputation because the harm to the plaintiff is presumed. The plaintiff still has the burden to establish the other four elements even if he does not need to prove harm or damages. In California, there are four recognized categories of defamation per se statements:
• the plaintiff committed a crime
• the plaintiff has an infectious, contagious, or loathsome disease
• the plaintiff is impotent or “want of chastity”
• statements which imply that the plaintiff is unqualified to his engage in his profession, trade or business
Many employment defamation cases fall into the last category – statements about the employee’s professional reputation, job performance, or competence. For example, defamation per se may arise if an employer made statements to individuals, whether inside and outside of the employment setting, that the employee was “incompetent,” “lacking ability” or any statement which implies that the plaintiff cannot perform his employment occupation. Nonetheless, defamation per se only eliminates the plaintiff’s obligation to prove damages, the other defenses and qualifications to defamation claims still apply. |
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Blog -
2010 blogs
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Written by Jason Erlich
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Since many terminated and current employees ask about it, I thought I might dive into the treacherous waters of defamation in the workplace. Defamatory conduct in the workplace may occur, for example, when a discharged employee is removed from an employer's premises by security personnel, creating the false impression that the employee had committed a crime. Other times, a terminated employee may find out that a former employer is making, what the employee feels, are false statements about how the employment relationship ended or how the employee performed.
Let’s start with some basics - defamation is the unprivileged publication of a false statement tending to harm the reputation of another person. The elements necessary to prove defamation are: - First, the content of the communication must be false, must contain an assertion of fact, not an opinion; and must reasonably be understood as negative.
- Second, the communication must be “published” which essentially means that the statement was: (a) written (libel) or spoken (slander), (b) by the employer or its agent(s), (c) to at least one other person (not the plaintiff), and (d) the recipient understood the statement.
Publication occurs when a statement is communicated to any person other than the party defamed. Publication may occur when one supervisor makes a false statement about the employee to another supervisor (e.g., a statement made by an employee's former supervisor to his current supervisor that plaintiff had “misused company funds” was found to satisfy the publication requirement.) - Third, the employee must show that the statement or conduct referred to him or herself. There is no requirement that the statement refer to the person by name. A statement “refers" to an employee even if the recipient of the communication mistakenly, but reasonably, understands that the statement was intended to refer to the defamed party.
- Fourth, intent or “malice” may be required to overcome many of the qualified privileges granted to employers.
- Finally, the employee must prove that injury occurred because of the communication. Since defamation involves injury to reputation, the employee must show that actual damage has occurred to the esteem that the employee enjoys in his or her community. The one exception is defamation per se where no special damages need be proved.
Asserting and winning a defamation claim from conduct related to the workplace can be quite difficult given numerous privileges and qualifications. |
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