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What kind of attorney, and who, do I need?

Los Angeles, CA |

In March 2012, I was a general manager and I sustained a work injury which workman's comp handled. I used therapy and the doctor thru the end of May 2012 while working my regular schedule and seeing my physical therapist and doctor during my lunch breaks. In June 2012, I presented an unrelated work release from my health provider for time off to my vice president. The previous three weeks I had also taken two days of sick leave not in conjuction with my days off. After reading the work release document, I was fired due to "noticed that my attitude had been bad lately" as he said. Though just a week previous I was congratulated for a job well done.

Ultimately, I was given CA state disability from June-Sept. Fed disability (unrelated to workman's comp issue) has been applied for.

Attorney Answers 2


  1. I think you are saying you believe you were fired for a bogus reason (called a "pretext"). The employer said it was due to your attitude but you believe you were fired because of your medical conditions. If this is correct, then you need an employment law attorney who is experienced in disability discrimination and family leave issues.

    There are various sources of POTENTIAL protection related to your medical status.

    If the condition is due to a disability as defined by law, the Americans with Disabilities Act of 1990, 42 U.S.C. sections 12101 et seq. (ADA) and the California Fair Employment and Housing Act, California Government Code sections 12900, et seq. (FEHA) may provide some protection. Please look at my guide on the ADA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada and also on the differences between the ADA and California’s more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true. The ADA applies to employers with at least 15 employees; the FEHA requires only 5 employees. These laws protect you from discrimination (adverse treatment) DUE TO disability and also require the employer to provide reasonable accommodation (change in the manner in which work is done) so you can do the main parts of the job (essential functions). A leave of absence can be a proper reasonable accommodation.

    There is limited protection if the illness or injury is caused by a serious medical condition as that is defined by law. You may be protected under the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) and the California Family Rights Act, Government Code section 12945.2 (CFRA) if all of the following is true: (a) your employer has at least 50 employees who work within 75 miles of one another; and (b) you have worked for this employer for at least one year all together, even if not consecutively; (c) you have worked for this employer at least 1,250 hours in the immediately preceding year; and (d) you have a serious medical condition as defined by the FMLA. The FMLA allows employees to take leaves of absence from work without repercussion, up to a maximum of 12 weeks per year. Leave can be in increments as short as fractions of an hour.

    Please look at my guide on the Family and Medical Leave Act, 29 U.S.C. section 2101 et seq. (FMLA) to see if that law applies in your situation: http://www.avvo.com/pages/show?category_id=6&permalink=family-and-medical-leave-fmla-summary-of-key-provisions. California’s CFRA is the same as the FMLA in all areas other than pregnancy disability and enforcement.

    Finally, if the condition is due to on-the-job injury, is caused by work or is made worse by work, California’s workers' compensation laws may provide some relief. To find a workers' compensation attorney, please look at the membership list of the California Applicant Attorneys Association (CAAA) http://caaa.org/cs/. CAAA is the strongest bar association in California for attorneys who represent injured workers.

    Your rights under each of these three laws are independent of one another. That is, you may be entitled to protection from each of these laws at the same time.

    Employment law is complicated and fact specific. You may wish to speak with an experienced plaintiffs employment attorney. To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org, and you can search for attorneys by location and practice area.

    I hope you can resolve your situation and wish you the best.

    *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***


  2. Ms. Spencer is absolutely correct regarding the possible claims you might have. Your claims are made more complicated by the fact that you have applied for and received SDI, and have applied for SSDI. To establish a claim for disability discrimination, you have to be able to show that you would be able to work with or without accommodation. It is possible the physician's statements submitted in support of your disability claim will become problematic. Please note I am not saying they kill your chances, but at the very least, they make your case far more challenging.

    Ms. Spencer is also correct that you need to find an employment attorney who is very comfortable with disability discrimination issues.

    Good luck to you.

    This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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