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Archives for September 2021

HAE Represents Former County of San Diego Chief Medical Officer In Disability Discrimination Lawsuit

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HAE attorneys Alreen Haeggquist, Aaron Olsen, and Jenna Rangel have filed a disability discrimination lawsuit against the County of San Diego on behalf of Dr. Nicholas Yphantides, who led the County’s early response to the COVID-19 pandemic.

 

Dr. Yphantides, or “Dr. Nick,” served as San Diego County’s Chief Medical Officer for 11 years and was one of the County’s first public faces leading San Diego’s response to the COVID-19 crisis. But that work came at a great personal cost. By October of 2020, Dr. Nick – like so many of his colleagues in the healthcare community – was suffering from crippling depression, anxiety, and insomnia.

 

In a lawsuit filed September 8 in federal court in San Diego, Dr. Nick says he requested and took a four-week medical leave to care for his mental health in October 2020.  But when he returned to work in November 2020, the lawsuit alleges, members of the County’s leadership presumed Dr. Nick was damaged goods. The County then began to unfairly scrutinize Dr. Nick’s performance, looking for proof to substantiate its illegal presumption. In January 2021, despite effectively leading the County through the holiday induced COVID spikes, the County forced Dr. Nick to take another leave of absence for his “mental health” or face immediate termination. Left without meaningful choice, Dr. Nick took an additional seven weeks of leave. But, before Dr. Nick could resume his job duties, the County then demanded he take a fitness for duty test – a request that Dr. Nick’s legal team says violated the County’s own policies and the law.  Before that exam could be completed, the County fired him without providing any reason for doing so.

 

“To put it simply, Dr. Nick is a healthcare hero,” Aaron Olsen, one of the attorneys representing Dr. Nick, says. “After years spent deftly guiding the County through its response to not one but multiple public health crises – and after devoting months of his life to serving on the front lines of the COVID19 pandemic – he should be applauded for putting his mental health first. He was transparent and genuine with the County of San Diego when he shared what he was going through – and in response, they fired him. This cannot stand.”

 

The case is pending in United States District Court in San Diego. MEMBERS OF THE MEDIA: please email media@haelaw.com to schedule an interview on this case.

Millennials Might Have Age Discrimination Claims

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The various generations of the United States have different unique rights as they reach certain benchmarks. Some benchmarks aim to protect older Americans from discrimination, while others might be in place to prevent teenagers from serving as president.

Age discrimination is a complex concept. In some cases, you may need to reach a certain age before you’re qualified for a particular role. An employer cannot legally consider a person’s age in other contexts. One group of Americans about to experience the realities of protection against age discrimination is that of Millennials, the oldest of which will turn 40 in 2021, opening the door to ADEA protections.

How Does the ADEA Protect Americans From Age Discrimination?

The ADEA, the Age Discrimination in Employment Act of 1967, protects the rights of Americans who reached the age of 40 or older. As reported by the U.S. Equal Employment Opportunity Commission, the ADEA prohibits employment discrimination against persons aged 40 years or older.

The act outlines Congress’s declaration that “in the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs.” The ADEA enables individuals of all ages equal access to employment, regardless of age.

The Millennial Population Is Aging and Approaching or Under ADEA Protection

To understand who we are talking about, we’ll take a brief moment to explain what the Millennial generation is. According to the Pew Research Center in a recent article titled “Defining generations: Where Millennials end and Generation Z begins,” the Millennial generation was born between 1981 and 1996, ages 25 and 40 in 2021. The Pew Research Center considers any individual born from 1997 onward to be part of the population of Americans categorized as Generation Z. Millennials are aging, and under the age 40 outset of ADEA protection, may have arrived there.

ADEA and Age Discrimination Lawsuits and Damages

If your employer discriminated against you because of your age, you may qualify for an ADEA-based cause of action against the employer who discriminated. Speak with an attorney to determine the best course of action to pursue recovery from your damages. In some instances of age discrimination, the law may entitle you to punitive damages beyond only your compensatory damages. However, if you file under the ADEA, the law may preclude you from recovering anything beyond compensatory damages.

The purpose of compensatory damages is to compensate victims for the expenses incurred due to the discrimination, including lost wages, the cost associated with a job search, and other related expenses. Punitive damages are those which courts can award you to punish the employer for the act of discrimination. If your case were to go to a jury, the availability of punitive damages could substantially change the outcome of your settlement or case.

An Experience of Age Discrimination Does Not Guarantee a Settlement

The unique circumstances of your age discrimination case will determine whether you are capable of recovering and to what degree. Having gone through an experience of age discrimination does not automatically mean you will recover a settlement, or even that you will win in court. The ADEA protects employees in the US from age discrimination. However, if you think an employer has discriminated against you, it is not as simple as demanding a settlement. You, or better yet, an experienced attorney, must carefully assess the facts and related law and then your claims rooted in them to support your ability to demonstrate a case.

Some employers that engage in age discrimination are unwilling to settle and will require that you bring your case to court. The size of the employer, their history with employment lawsuits, and their available resources will markedly influence the outcome of your case. It is important to assemble your evidence correctly and to package your case in the most advantageous way possible. An attorney can help you not only determine if you have an age discrimination lawsuit but also maximize the recovery you might achieve.

The Size of the Employer Will Often Determine the Size of Your in-Court Settlement

If you are a Millennial and have an ADEA-based claim of discrimination, the amount you can recover if you bring your case to a federal court is limited. The federal court can award up to $50,000 if the employer has between 15 and 100 employees, up to $100,000 if they have 101 to 200 employees, $200,000 if the employer has between 201 and 500 employees, and finally, a maximum of $300,000 for companies with over 500 employees. These amounts, however, account for only the in-court maximums you can recover.

If you are a Millennial and have experienced age discrimination, the strength of your case may lead to a settlement that exceeds the maximums offered in federal court. Litigation can be costly, and an attorney can best advise you as to what your options are.

At what age does ADEA kick in?

The ADEA protections kick in when you have reached the age of 40, at which point the law protects you against age discrimination in covered workplaces.

What are Millennials, and when were they born?

The Pew Research Center assigns the term millennial to the generation of Americans born between 1981 and 1996.

Are Millennials covered under the ADEA?

Those Millennials born in 1981 will reach the age of 40 in 2021 and thereby qualify for ADEA-based protections in the workplace.

Is an ADEA-based lawsuit my best option to recover from an age discrimination suit?

Not necessarily. For example, if your claim involves punitive damages, a suit based on the ADEA may prevent you from recovering them.

Can an attorney help me with my age discrimination lawsuit?

Aaron Olsen
Attorney, Aaron Olsen

An attorney can help you understand whether you have a claim, and if so, the damages available to you and how to maximize them. A lawyer can also fight for those damages, making sure to meet all filing deadlines, following all proper procedures, negotiating with the employer or insurance company, and arguing your case in court if necessary.

If you think you have an employment discrimination claim, call an employment rights lawyer today for a claim evaluation.

Know Your FMLA/CFRA Rights

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The Family and Medical Leave Act, also known as FMLA, was established to protect workers who might encounter situations that require them to leave work to attend to personal or family needs that surpass their ability to continue their employment. FMLA leave is not permanent but rather allows employees to take time off in particular situations. In this article, we’ll cover the instances in which you may take FMLA leave and your rights when doing so.

What can you use FMLA for?

  • Family
  • Health
  • Birth

If You Work for a Covered Employer, Your Group Healthcare Benefits Must Continue

According to the United States Department of Labor, the FMLA entitles employees who work for covered employers to take job-protected, unpaid leave that the FMLA specifies that are related to the medical needs of your family or yourself, and other events such as a new child joining the family. When you are away from work under FMLA-covered leave, your covered employer is required to allow you to continue your group health insurance coverage under the same terms and conditions if you had not used FMLA leave to attend to a personal or family situation covered under the FMLA.

Your Employer Must Allow You to Return to Your Job

When working for a covered employer, the primary benefit of FMLA is your capacity to maintain your health insurance coverage while away during a potentially life-threatening situation. Your work insurance will protect your health and that of your loved ones, which could mean the difference between life and death or financial stability and bankruptcy. An additional key benefit is that your employer must hold your job for you.

The duration of covered FMLA leave is 12 weeks, nearly three months. As noted by the Employment Development Department of California, the FMLA enables you to attend to your or a family member’s serious health conditions or bond with a new child in your family. How to add a new member covered under the FMLA varies.

Your New Child in Your Family Can Be Born, Adopted, or Fostered

It is important to note that FMLA covers you when your family has had a new child. FMLA does not confine the term “new child” to only instances in which there has been a newborn in your family. According to the Department of Labor, the FMLA covers bonding with a new child—not only a newborn but also an adopted child. Families that foster a child may take FMLA leave, but only during the first year of a placement of a foster child in your family’s home.

The CFRA Provides You With Additional Protections if Your Employer Is in California

The CFRA is the California Family Rights Act, which according to the Employment Development Department of the State of California, works in conjunction with the FMLA to protect the rights of workers when they or their families encounter a situation of change or health challenge. You may take the leave to care for yourself or a family member, to bond with a new child, or to participate in a qualifying event due to a family member’s military deployment overseas.

You Must Meet Specific Criteria to Qualify for FMLA/CFRA

For an employee to qualify for FMLA, they must meet particular criteria. The employee must have worked for at least 12 months for a covered employer. During that time, they must have worked 1,250 hours in the 12 months before the start of FMLA leave. Under the FMLA, the employee also must work at a worksite with more than 50 employees under the employer’s employment within 50 miles of that particular worksite.

FMLA covers private employers who have over 50 employees on the payroll during any 20 or more calendar weeks in the current or preceding calendar year. All public employers are covered by FMLA, regardless of the number of employees they have. Paid employees, unpaid, part-time, or on commission, are still generally covered by the FMLA if they meet the other necessary criteria for qualification.

The requirements to meet FMLA can be challenging to understand in some circumstances. An experienced attorney can help you understand your rights and options if your employer does not respect your rights.

Family Medical Leave Act FAQs

What does FMLA stand for?

FMLA stands for the Family and Medical Leave Act, established by the government to protect workers’ rights in times of change or health challenges in their families.

For what purposes can I use FMLA?

The key purposes of FMLA are health, family, and children, meaning you may take it if there is a serious health problem with yourself or a family member, or you’ve added a child through your home through birth, adoption, or fostering.

How long does FMLA-covered leave last?

FMLA-covered leave lasts for up to 12 weeks, after which time you may return to your job.

What are the key benefits of FMLA leave concerning my job?

The key benefits of FMLA leave are that you may take up to 12 weeks of unpaid leave to care for yourself, your family, or a new child, and during that time, you may keep your group health insurance from your employer under the same terms, and your employer must return your job to you upon completion of the FMLA leave.

What are my options if my employer refuses to maintain my insurance or return my job?

Aaron M. Olsen
Attorney, Aaron Olsen

If you have taken FMLA leave from a covered employer, and your rights are not being honored, a lawyer is a great advocate to protect your rights and determine your options for recovering damages.

How Do You Know if Your Termination Was Unlawful?

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Losing your job can have far-reaching implications for your life that can be difficult to overcome with ease or as quickly as you might like. When an employer terminates you from a job, and that termination was unlawful, your employer denied you your ability to continue earning and support your family based upon an unlawful cause, and you may be entitled to compensation. Loss of employment impairs present obligations while also limiting future earnings and can also cause mental anguish given the related stress.

Following is a consideration of wrongful termination so that you know whether you might have a case. If your situation sounds familiar, reach out to a lawyer to explore the strength of your case and the size of your prospective settlement.

Discrimination Is a Common Reason for Wrongful Termination

If an employer terminates you based discrimination in any form, whether based upon your race, gender, disability, or religion, they have wrongfully terminated you. In such a situation, it can be difficult to clearly determine that it is due to one of these factors that you were, in fact, terminated.

Employers or supervisors may provide alternative reasons for your termination; reasons meant to mask over the true reason given that it might be discriminatory. Firing employees based upon a discriminatory reason opens employers to lawsuits, and some savvy managers understand this and do their best to mitigate the risk by providing other reasons.

Should you have been fired for reasons outside of your work performance, or if the reasons do not make sense, you may have experienced discrimination, and thus a wrongful termination. An attorney can help you understand how the law applies to your unique facts and circumstances.

FMLA Protects Medical Leave, and Your Employer Cannot Terminate You During Protected Leave

Under the Family and Medical Leave Act, as explained by the Department of Labor, employees who work for covered organizations are entitled to take a 12-week leave from work when a qualifying condition has occurred. The qualifying conditions are, broadly speaking, family, health, and bonding with a new child. The family and health aspect means you must attend to a personal health emergency or one for a family member.

The new child qualification means your family has had a newborn, adopted a child, or is within the first year of placement with a foster child. During the 12 weeks, your employer must continue to provide your group health insurance, and after the 12 weeks, your employer must give you your job back.

If you have lost your job for applying for your rightful FMLA leave, or you have been denied your health benefits during or your job after, you may have a case. Reaching out to an attorney to discuss the facts of your case will help you understand what claims you might have and the settlement you might deserve.

Retaliation Is a Common Form of Unlawful Termination

According to the U.S. Equal Employment Opportunity Commission, the EEOC, retaliation is the most frequently alleged basis of discrimination that employees report within the federal sector and the most common finding of discrimination in federal sector cases.

The law prohibits employers from punishing job applicants or employees by asserting their rights to be free of workplace discrimination, including harassment. Asserting an EEO right is described as a “protected activity” under the EEO, and employers cannot retaliate against employees for asserting their rights.

Whether you have filed a complaint yourself or participated in an investigation concerning someone else’s complaint, an employer cannot rightfully fire you based on this alone. The law empowers employees to participate honestly in workplace investigations.

Firing an employee because they were honest concerning the harassment of a supervisor would likely lead to ongoing harassment, given the lack of punishment. An employer is also liable if they facilitate or fail to act against the harassing behavior of their employees.

An Employer Cannot Fire You for Protecting Yourself or Others from Discrimination or Harassment

The law prohibits employers from retaliating against employees or applicants for asserting their rights through engaging in protected activities. Participating as a filer or witness in an EEO charge, complaint, investigation, or lawsuit cannot be a viable reason for termination.

Answering questions within an employer investigation of harassment, communicating to a supervisor or manager about employment discrimination or harassment, resisting sexual advances, or protecting others from them are all unlawful reasons for termination.

If your employed fired you for exercising your rights against discrimination in the workplace or tried to protect others, your termination might not have been lawful. To recognize whether or not you have a case and the size of any compensation you might deserve, speaking with an attorney can help.

How do I know if my termination was wrongful or illegal?

Generally, an employer cannot terminate you for asserting your protected rights in the workplace, such as filing complaints about harassment or trying to prevent a coworker from discriminatory behavior.

Can I be terminated if I have to leave work for a family health emergency?

If you have exercised your FMLA leave rights with a covered employee and your employer terminated you for applying, your termination was wrongful.

How do I know if my termination was due to retaliation?

While the unique facts of your situation will determine your case, frequently, if an employer fires an employee after they exercised a protected right like filing a complaint or honestly answering questions in an investigation, the termination was wrongful.

How much can I recover for a case of wrongful termination?

If you have experienced wrongful termination, you may be entitled to compensatory damages like lost earnings and potentially punitive damages.

Who do I file my wrongful termination lawsuit with?

If you are looking to recover damages or compensation for your wrongful termination case, the jurisdiction for the case will vary depending upon the facts and circumstances of your case, and an attorney can help advise you on your options.

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