Family Medical Leave Act (“FMLA”)

One of our recent clients was terminated while out taking a FMLA leave of absence. Our client had already received approval for the leave of absence, pursuant the Family Medical Leave Act (“FMLA”) but was terminated anyway when he failed to show up for a mandatory meeting.

It is illegal for an employer to discriminate or retaliate against an employee for taking a FMLA leave. The link between the protected activity of an employee and the employer’s adverse action can be established by the proximity in time between the two events. ( Morgan v. Regents of Univ. of Calif (2000) 88 Ca1.4th 52, 69.)

Retaliatory intent as the cause for the termination may be inferred when the adverse employment decision is close in time to the protected complaint. ( Passatino v. Johnson & Johnson Consumer Products, Inc. (9th Cir. 2000) 212 F.3d 493, 507.)

In this instance, our client was terminated while he was on his FMLA/CFRA leave within two days of beginning the leave. Our client’s employer discriminated and retaliated against our client for taking his FMLA/CFRA leave by terminating him almost immediately after he started his approved and FMLA designated leave.

FEHA prevents retaliation against an employee for reporting or opposing discrimination based on a protected status such as race. (Cal. Government Code § 12940(h).) Prior to being terminated, our client reported to Human Resources about another employee making racially offensive statements about our client. When our client reported the comments to a supervisor, our client was told that it was a serious issue and they would escalate it to Human Resources.

California Labor Code § 1102.5 prohibits retaliation against employees for reporting about a company’s violation of the law. California Labor Code § 1102.6 requires employers to prove, by clear and convincing evidence, that employment was terminated for legitimate, independent reasons even if he the employee did not engage in any protected activity, such as reporting illegal conduct.

California Labor Code § 232.5 prohibits an employer from terminating or retaliating against an employee who reported workplace conditions. As a matter of public policy, employers are prohibited from retaliating against an employee for complaining about conduct that he reasonably believes is in violation of the law. (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1089.)

In this particular case, our client reported illegal discrimination and reported problems with his working conditions his employer. However, the employer did nothing to address these issues except terminate our client.

Cal. Labor Code § 132a prohibits employers from retaliating against an employee for filing for worker’s compensation benefits. Shortly before his termination, our client aggravated a medical condition while performing his duties for the company. He reported this to his Human Resources and was told to file a worker’s compensation claim. In this case, our client was actually terminated within one week of making this claim. This shows the Employer retaliated against our client for filing a worker’s compensation claim.

The reason the Employer provided to our client for his termination is a provably false pretext. The Employer stated that it terminated our client because he missed a mandatory meeting that was scheduled while he was out on an approved FMLA leave. The employer cannot meet its high burden of proof by clear and convincing evidence that our client was terminated for a legitimate reason outside of his protected activity.

If you believe your rights have been violated for being terminated or demoted while out on FMLA absence, call our office today to speak with one of our labor rights attorneys.