employment law, Legal

Fired While On Disability Leave? Legal Reasons #50

If you were fired while you on leave, you may have a claim for wrongful termination.

The laws covering whether you can be fired while you’re off work recovering from a physical or mental illness or injury are complicated. First, it depends whether you are taking leave under the FMLA or similar state leave law, taking other unpaid leave, or collecting workers’ compensation temporary disability benefits. Whether or not you are collecting short-term or long-term disability (LTD) insurance benefits doesn’t matter – LTD policies offer no protection for your job.

Third, there are some situations in which you can legally be fired even though you’re on disability leave, as long as your employer follows the rules under the Americans with Disabilities Act (ADA).

Job Protection Under the Family and Medical Leave Act (FMLA)

If you are covered by the Family and Medical Leave Act (FMLA), you can take up to 12 weeks of unpaid leave to deal with a physical or mental medical problem (or to take care of a family member’s medical issues). Unfortunately, the FMLA does not apply to most employees who work for small businesses—it applies only to employees who work at companies with at least 50 workers (who must work within 75 miles of each other). Also, employees can take FMLA leave only if they worked at least a year for an employer and worked at least 1,250 hours for that employer last year.

Assuming you are eligible for FMLA leave and you correctly requested it, you cannot be fired while on FMLA leave. And when you return from FMLA leave, your employer must give you back your position, or one that is nearly the same—assuming you can still do the job.

Job Protection under the Americans with Disabilities Act (ADA)

Even after you have exhausted your 12 weeks of FMLA leave per year, the Americans with Disabilities Act (ADA) can make it difficult for your employer to fire you when you are out on disability leave. Fortunately, the ADA covers more small businesses than the FMLA—those with just 15 or more workers.

Before firing you while you’re on disability leave—or not reinstating you to your position after your disability leave ends—your employer has to try to “accommodate” you; that is, make the job suitable for you, given your impairments. Examples of ways an employer could accommodate your disability include granting you more unpaid leave after you’ve exhausted your FMLA leave, allowing you to work a flexible schedule, or making your workspace more ergonomic.

Your employer must work interactively with you to try to come up with accommodations that would allow you to do your job. (To protect yourself, it’s best to request accomodations from your employer in writing.) During discussions with your employer, you may need to compromise on the accommodations you asked for, however, since your employer only has to make accommodations that are reasonable and that won’t cause the company “undue hardship.” What constitutes undue hardship is based on the cost of the accommodations to your employer and the size of the company.

 

Brownness, employment law, Legal

48 hour Sick Leave Law In Effect in City Of Los Angeles: Legal Reasons #56

The City of Los Angeles has a mandatory paid sick leave (PSL) law which is part of its minimum wage ordinance and which has been in effect since July 1, 2016, for employers with 26 or more employees.  The Los Angeles PSL ordinance will begin to apply to employers with 25 or fewer employees on July 1, 2017.

From an employer perspective, one of the toughest challenges of these local PSL ordinances is that the rules can change at any time. That is precisely what happened with Los Angeles’s ordinance when the city recently revised the rules and regulations relating to this ordinance. The city also revised its answers to frequently asked questions (FAQ).

Some of these changes or clarifications are important, providing information on topics such as:

  • How to determine business size;
  • How to pay employees for sick time;
  • When an existing paid leave or paid time off policy can satisfy the requirements of the ordinance;
  • How to use the frontloading method during the first year that the law applies to an employer and in subsequent years; and
  • Whether a maximum cap on accrued hours is allowed.

The Los Angeles PSL ordinance contains different provisions than the state PSL law. Employers with businesses in a city with a local PSL ordinance need to comply with both the state and the local law. For each provision, protection or benefit, employers will need to provide whichever is more generous to the employee.

More information can be found on the Office of Wage Standard’s website.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

The City of Los Angeles requires employers to post a minimum wage and paid sick leave poster. CalChamber’s Los Angeles Labor Law Posters contains the official notices employers must post in Los Angeles City and Los Angeles County.

employment law, Legal

$12 a Hour is the Minimum Wage in Los Angeles Now: New Legal Reasons #55

While the State’s minimum wage is not increasing for California until January of 2018, a number of other cities and counties have local ordinances that mandate increases on July 1, 2017. If you work in any of these areas, at least two hours of work in a particular week within the geographic boundaries of the City of Los Angeles, you may be entitled to the higher hourly rate. Your business must employ more than 25 employees, and be in city limits of Los Angeles. To check if your business is in the City of Los Angeles Neighborhood info website.

Moreover. you are entitled to 48 hours of sick paid leave regardless of the size of your work.

You can find more information regarding the MWO in the City of Los Angeles website​.​ You can also contact the Office of Wage Standards (the OWS) at 1-844 -924-3752 or by email at wagesla@lacity.org.

employment law, family law, Immigration, Legal

Fear of Being Sued: Legal Reasons #48

It is always scary to get a formal email or piece of mail that announces some kind of legal incident. The scariest: a summons.  Then there is always the attorney letter with “LAW OFFICES” usually on the stationary that tells you have violated something or the other. I admit, even as an attorney, I get nervous when I receive something like this that I am not expecting. That fact is no one truly enjoys being caught up in a legal battle that will cost time or money or worse, both.

Yet many still choose to either ignore the matter or not get guidance for an attorney.  I always tell people the initial call is free.  Make the call so you know what you are in for. There are times where the matter is not significant yet will become worse if the person does nothing. I practice law to help others. I get that many worry about costs, or feeling overwhelmed. It is at those times money should not be the factor stopping you if it’s a matter that could harm you in a significant way. Like they say “penny wise, pound foolish” is not the way to go for a lawsuit.

Give someone a call. It may be the best thing you do for a legal issue.

 

employment law, Legal

What Do You Mean the Check is in the Mail?! #Legal Reasons 47

Many employers get fed up with difficult employees. It’s easy and quite tempting to fire people “on the spot” and while the moment may provide immense satisfaction, it is fraught with long-term complications which may lead to huge penalties. Case in point, I recently settled a matter where due to the failure of the employer to not pay accrued vacation and reimbursement, they ended up paying thousands in penalties for wages that were close to less than three hundred dollars.

So don’t allow your emotions to take over when upset at an employee. Always take a moment, and before saying “You are Fired,” try the words “You are suspended.”  Investigate. Get the full story. Document. These actions rather than just firing an employee on the spot could save you thousands and possibly legal action.

 

employment law, family law, Immigration, Legal

It’s Just A Phone Call, Just Charge Me For That: Legal Reasons#45

I often get calls from prospective clients who just want “quick advice” or “send an email” or “make just one call” as their attorney.  They often balk when I mention my retainer and hourly rate. Rarely do people realize that as soon as I become their legal representative, a whole host of ethical, legal and practical duties come into play.

It is the very rare case where only one email, letter or phone call is required.  Besides, most attorneys need to know all the facts, research the law (if uncertain) and really understand what the client desires and the possible outcomes before shooting off an email or a call.

In this new age of fast responses, and ease of technology, it is even more so difficult to agree that it will be just one email, phone call or appearance. And as my favorite cousin likes to say, ‘ when you pay peanuts, you get monkeys.”