Q: I took a one-month FMLA medical leave for surgery, but my employer laid me off two weeks into the leave. I have always heard that an employer cannot terminate an employee who is on a medical leave. Is this true?

--Unemployed (CA)

A: It is a common misconception among employees that employers cannot terminate them if they are on a medical leave. While in practice most employer are reluctant to terminate an employee who is out on a medical leave, the law does not explicitly prohibit terminating such an employee.

The Family Medical Leave Act ("FMLA") and its California counterpart, the California Family Rights Act ("CFRA"), protect employees from being terminated because they take a medical leave. It does not totally prohibit termination of an employee while they are on a medical leave. The difference is subtle, but it is there.

For example, assume a salesperson is out on FMLA leave and his company lays off their entire 100-person sales force. The employer is not required to keep the salesperson on medical leave on their payroll and terminating the salesperson would not be an outright violation of the FMLA.

However, if the salesperson is the only one out of the 100 salespeople to be laid off and there is no other clear reason for the termination, it begins to look more like the employee is being laid off because they are on an FMLA leave.

So, in response to your question, what really matters is why you were terminated while out on a medical leave, not just that you happened to be out on a medical leave when you were terminated.

Q: I moved to California from Wisconsin six months ago to take a job with a company here. I quit a good job back home, my wife sacrificed a job she loved, and our kids had to leave all of their friends behind, and we moved our family to California. I was stunned last week when I was suddenly laid off by my new company.

I have heard from some other employees that I was really only hired to do one important project in my area of expertise (which we had just finished two weeks ago) and that they believe it was the company's intention to fire me all along after it was completed. Can I sue them?

--Stranded in California

A: I am truly sorry about what has happened to you and your family, but luckily you moved to a state with specific laws against this sort of thing.

Labor Code § 970

California Labor Code § 970 prohibits employers from "fraudulently inducing" employees to relocate to accept new employment. In this situation, "fraudulent inducement" essentially means lying to someone to get them to move and accept employment with your company.

If you can prove that you were lead to believe you were not being hired for one specific assignment, that your employer knew you believed that and that your employer's intention was to terminate you after that assignment was completed, then you will be able to sue your former employer.

Proof Can Be Easy in These Cases

In your situation, however, most judges and juries would easily believe you did not uproot your family and move to California just to take a six month temporary position. They also would be unlikely to believe the employer thought you agreed to that as the deal. The only thing left to prove is what the company thought would happen after the project was finished. This can be proven through e-mails, testimony and various other ways.

Damages are Tripled

Under Labor Code § 970, you can recover virtually any damages you can attribute to moving to take the new job and then being laid off. Your lost wages during unemployment, the cost of moving to California, the cost of moving back to Wisconsin if you move back, any costs you or your wife incur to get a new job, attorney's fees, and countless other damages are recoverable under this statute.

The best part of Labor Code § 970, though, is that you are entitled to recover "treble" damages. What this means is that whatever damages you are awarded get tripled as a penalty against the company. So, if you can recover $100,000 of damages for what the company did, you would be awarded $300,000 total.

The California legislature realized what an extreme hardship situations like these place on employees and their families. Often they find themselves having moved for a job that suddenly vanishes and they are left stranded.

Q: One of my co-workers has asked me to testify for in her discrimination case against our employer. I want to help, but I am afraid that my employer will retaliate against me if I help her.

--Want to Help But Scared (CA)

A: Both state and federal discrimination laws prohibit retaliation by employers against employees for participating in an investigation or prosecution of an employment discrimination or harassment case.

Investigation Outcome Irrelevant

Even if it turns out that the employee who complains about discrimination was not discriminated against, or even if that employee turns out to be lying, you are still protected from retaliation.

The law protects the act of speaking up for someone else, which is evaluated independently of the underlying discrimination claim.

Retaliation Can Be Subtle

This year's landmark Supreme Court case of Burlington Northern v. White, 126 S.Ct. 2405 (2006), clarified and strengthened protections for employees against retaliation in discrimination cases.

The Court decided that any actions by an employer that would "dissuade" a "reasonable employee" from making or supporting a discrimination complaint is illegal retaliation and proper grounds for that employee to sue.

What this boils down to is that if you are retaliated against and in hindsight you would not have participated in the investigation if you had known what your employer would later do to you for it, then those actions are likely illegal.

Co-Worker Assistance is Crucial

One of the major motivations for the Court in the Burlington case was the strong public policy in this country to encourage those employees who witness discrimination against others to speak up and testify if needed.

It is important for these witnesses to feel comfortable testifying against their employers on other employees' behalf if there was wrongdoing.

Q: There are rumors circulating at work that our boss is spying on employees with video surveillance. Is that legal?

--Private Eyes are Watching Me (CA)

A: The answer to your question is: it depends. Whether or not video surveillance at work is illegal depends largely upon the facts in a given situation. The main question is whether or not you have a "reasonable expectation of privacy" in the area that is being taped.

Examples

If the surveillance is occurring in a large open area where many people are working or passing through, such as a warehouse, a parking lot, or a retail checkout counter, it is less likely that an employee would have a right to privacy from surveillance there.

On the other end of the spectrum, it is very unlikely that an employer could argue there is no reasonable expectation of privacy in the employee bathroom or changing room.

The "Grey Areas"

The real "grey area" in these types of situations is locations like inside of an employee's private office, cubicles and other, more private areas.

A recent California court decision (Hernandez v. Hillside, Inc.) has helped clarify the situation, but the issue still depends largely on the specific facts of a case.

In cases dealing with such locations, an employer's policies become very relevant. If an employer has a clear, well-communicated policy that you may be videotaped at any time in any area of the building, this would be strong evidence in the employer's favor that you do not have a reasonable expectation of privacy anywhere in the building.

These types of policies are currently pretty rare, but other factors also come into play. For example, whether there is a door to your office, whether there is a lock on the door and the number and position of windows in the office are important factors.

A Simple Test

All of these factors basically are parts of the same basic question: does an employee have a reasonable expectation of privacy in a particular area at work.

One simple way to look at it is ask yourself whether or not you would reasonably expect to be able to change your clothes to go to the gym in a certain location and not expect to be interrupted or seen, such as in your private office with the door closed and the window blinds drawn.

If you would be surprised or offended to be watched or seen changing there, it is likely that you have a reasonable expectation of privacy there and video surveillance under those circumstances would be illegal.

Q: I work from a home office in California, but my employer is based in Illinois. I have many business expenses I pay out of my own pocket but my employer refuses to reimburse me for them. Is this legal in California?

--Paying the Company's Bills (CA)

A: In California, Labor Code § 2802 requires all employers to reimburse employees for any business expenses they incur "in direct consequence of the discharge of [his or her] duties". This applies to all employees in California regardless of where their employer is headquartered.

Home Office Expenses

These rules are especially relevant for employees such as yourself who work from a home office. For example, you may be entitled to reimbursement for your home office:

• Computer equipment;
• Fax equipment;
• Office furniture;
• Phone line and service;
• Cell phone and service;
• Internet service;
• "Rent" for the use of your home as an office;
• Utilities attributable to the home office;
• Supplies; and
• Any other expenses you pay to operate your home office.

All employees should keep in mind that these rules apply even if they do not work exclusively from a home office. If you regularly work at home on the weekends in your home office, it is quite possible that you are also entitled to reimbursement for these expenses from your employer, although to a lesser extent.

Mileage Reimbursement

All employees are entitled to reimbursement for mileage driven in their personal vehicle on behalf of their employer. Usually this is done on a "per mile" basis, often at the IRS rate, which is currently 48.5 cents per mile.

If you do not drive your own vehicle for work, but instead have a company car or fleet vehicle, you are entitled to reimbursement for any gas you buy for the vehicle, maintenance costs such as oil changes and repairs.

Attorney's Fees

When you bring a claim for unreimbursed expenses in California, you are also entitled to recover any attorney's fees you pay in pursuing your case. This is very helpful to employees because the harder an employer fights the case, the more they will have to pay the employee in the end.

Q: My boss is a real jerk. She harasses me for no good reason, calls me names and belittles me in front of other employees. Today I finally told her not to treat me like that anymore, because it interferes with my work and it is unprofessional. She fired me on the spot for complaining. Please tell me this is not legal in California!

-- A Woman Wronged (CA)

A: You are in luck. In California it is illegal under Labor Code § 232.5 to retaliate against an employee for complaining about "working conditions".

Unfortunately, the term "working conditions" has not been clearly defined by California Courts under this statute. For example, if an employee complains about the poor selection in the break room's vending machine and is terminated for the complaint, the language of the statute suggests that this would be illegal.

I actually believe that this example would be illegal. However, the employee would have to prove that their employer actually terminated them for complaining about the vending machine. The less believable it is that an employer would terminate an employee for a complaint, the less likely a judge or jury would be to decide the complaint actually triggered the termination.

However, your situation is almost certainly covered by the statute. If your complaint about how your boss treated you is really what motivated her to terminate you, then you would likely be able to pursue a wrongful termination case against your former employer.

Under such a claim you might be able to recover all of your lost wages, attorney's fees and certain penalties.

Q: I have worked for a company over 20 years and now I am retiring. I never took a vacation the last ten years I worked there. Each year I lost all of the vacation time I did not use. My son told me that is illegal in California. Is that true?

--Need a Vacation (CA)

A: Your son is correct. In California, so-called "use-it-or-lose-it" vacation policies are illegal. Once an employee accrues (earns) their vacation time, they cannot lose it and it must be paid out at the end of employment.

Recent Case Helps Employees

A recent California court decision has fixed a quirk in California law that used to only let employees recover four years of accrued but unpaid vacation time. The court in that decision held that when an employee leaves employment with an employer, he can recover all vacation time he accrued but never received payment for during his employment.

In your case, this is a substantial development, because you can now recover vacation time accrued but not used over the last twenty years.

Additional Penalties

In addition to your vacation wages, you may be able to recover additional money, such as attorney's fees, interest on your unpaid wages and "waiting time" penalties.

In California, employees whose employer does not pay out all of their vacation pay at the time their employment ends can recover "waiting time" penalties. Under this law, employees can recover one day of wages for each day their wages go unpaid for a maximum of thirty days' additional wages.

Also keep in mind that these are calendar days not workdays. So, over the course of 30 days the penalties would actually equal approximately six weeks of wages.

Q: Last week I found out I was pregnant and my husband and I were overjoyed. The next day, I went into work and told my boss. He said that he does not allow pregnant women to work there because they disrupt scheduling when they take time off to have the baby. He terminated me and said I could re-apply for my position after I have the baby. Help!

--Pregnant and Unemployed (CA)

A: As you probably know, it is illegal under both federal and California law for an employer to terminate an employee because she becomes pregnant.

Pregnancy Discrimination Claims

Pregnancy discrimination is actually a form of gender discrimination. The rationale is that only women can become pregnant, so discriminating against a woman for being pregnant is essentially discriminating against her for being a woman.

Medical Leave Claims

Your situation also constitutes discrimination under the California Family Rights Act and other medical leave laws. If you are terminated because your employer anticipates you will be taking time off that is protected by the law, it is basically the same as if you were terminated for taking that leave after the fact.

Pregnancy Discrimination Claims More Successful

A recent survey showed that pregnancy discrimination cases seem to have a higher success rate than other employment discrimination claims. I believe this is the result of a few related factors.

First, an employee can point to a specific date when their employer found out they were pregnant and if the employer terminates or otherwise discriminates against the employee a short time later, it is clear that pregnancy was the reason.

Second, it just "makes sense" that an employer would tend to discriminate against pregnant employees. In California an employee can take up to four months of protected leave for the birth of a child. The employer essentially gets a few months notice that an employee will definitely be taking such a leave in the near future. It is only human for a manager to decide that things might go more smoothly if the pregnant employee was replaced.

This, of course, does not make it right.

Damages in These Cases are Sobering for Employers

When the inconvenience of employing a pregnant woman is compared to the potential damages a company might be forced to pay her later if she successfully sues them, it should be all to clear to them that not terminating her is much cheaper than terminating her.

This is especially true for employers in California, where they can be forced to pay an employee her lost wages, attorney's fees, and virtually unlimited emotional distress and punitive damages.

Q: My employer terminated me today (December 31, 2006). I was supposed to receive a $10,000 performance bonus for 2006, but one of the terms of my bonus agreement says that I have to be employed on January 1, 2007 to get my bonus. The company is not doing very well and I think I was actually terminated so that they did not have to pay me the bonus. Can they get away with this?

--Unhappy New Year (CA)

A: I am sorry that this happened to you. Unfortunately, this is more common than most people think, but usually it is not so blatant. Often when managers start looking at their budgets at the end of the year and want to "trim the fat", they do this sort of thing to quickly save some cash at the expense of their employees.

You promised your employer you (1) would perform at a certain level during 2006 and (2) be employed on January 1, 2007. They in turn promised to give you a year-end bonus if you kept your promises to them.

In your situation, the only reason that you did not satisfy all of the conditions your employer placed on your bonus is because they essentially canceled the deal before you could finish.

This situation is similar to a common law school hypothetical. Say one person promises another person to give them $10,000 if they walk across a bridge. At the very last second before the person crossing the bridge reaches the other side, the other person yells out that he is canceling the offer.

California courts often look at situations like yours and determine what is "fair". It is likely that a court would decide that you complied with your bonus contract and it was only your employer's act of canceling your contract that kept you from finishing performance.

If so, you would be awarded your bonus as well as attorney's fees, costs, interest and possible penalties.