Two Mistakes to Avoid When You Receive a Negative Performance Review, a Warning or a PIP

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Requiring Employees to Be Completely Recovered From Disability or Injury is Generally Illegal

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Medical Staffing Rights of Physicans in California

physician Medical Staffing Rights of Physicans in CaliforniaDecision concerning medical staff membership and privileges are made through a process of hospital peer review. One of the purposes of the peer review process, that must be in place at a hospital, is to protect competent doctors/physicians from being barred from medical practice for arbitrary or discriminatory reasons. Peer review must be conducted fairly, because when it isn’t, it results in the unwarranted loss of a qualified physician’s right to use a hospital’s facilities and deprives the physician of a property interest directly connected to his livelihood.

Generally, the law requires hospital to provide an affected physician subject to discipline a notice and and the opportunity for a hearing, when a peer review committee has recommended a “final proposed action”. The hearing must be held “before a trier of fact” that, as determined by the peer review body, is either “an arbitrator or arbitrators selected by a process, mutually acceptable to the licentiate and the peer review body” or “a panel of unbiased individuals… which shall included, where feasible, a doctor practicing the same specialty as the physician subject to the disciplinary action.”

During the hearing, both parties have the right to call, examine and cross examine witnesses, as well as present and rebut evidence. Upon the completion of the hearing, the parties have the right to a written decision of the trier of fact, including the findings of fact and a conclusion articulating the connection between the evidence produced at the hearing and the decision reached.

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An Employee with a Disability is Not Entitled to Indefinite Leave Under ADA

Much of the employment law litigation recently has been focused on the issue of the employer’s obligation to provide medical leave or extended medical leave to disabled employees. This is in part due to the inherent uncertainty in the employers’ obligations with regard to providing medical and disability leave.

On one hand, the law says that medical leave or extension to previously granted medical leave is one type of accommodation that an employer might be obligated to provide to a qualifying disabled employee. However, this obligation generally apply only in those cases where it is likely that the employee will be able to return to work  to her job at the end of leave. (Criado v IBM Corporation). On the other hand, the law says that the employer doesn’t have to provide an indefinitely leave (Jensen v Wells Fargo Bank).

The above rules naturally raise important questions – what does “likely to return” mean, and how “likely” does it have to be to trigger the employer’s obligation to provide medical leave or extended disability leave? How does the employer know whether the leave will be “indefinite”?

If you are an employee facing a situation where you expect to have your previously granted medical leave extended, and you want to retain your job or have an option of pursuing a claim against your employer, it is critical that you discuss your situation with a local employment attorney who can help you put your employer on proper notice of your disability and need for leave, so that there is no question as to whether your leave will be indefinite and whether you are likely to return to work.

It’s important to run your medical documents by your attorney to make sure that the leave forms that your doctor fills out are sufficient. Remember, your doctor is focusing on what you need medically and not on how to protect your job, so he is neither obligation nor necessarily knowledgeable in how to write a medical / disability leave form that will comply with the ADA/FEHA/FMLA notice requirements.

For more information about disability, please visit our San Francisco Disability Discrimination Lawyer site.

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New Minimum Wage Law Goes Into Effect in California

The governor will soon be signing the new California state minimum wage law bill that will raise the current statewide $8/hour minimum wage to $9/hour as of July 1, 2016, and to $10/hour as of January 1, 2016. Specific areas and municipalities in California may still have their own higher minimum wage, adjusted to the local costs of living, such as the City and County of San Francisco, where the local minimum wage has traditionally been at least 20% higher than the state minimum wage.

Like previously, this increase in minimum wage will have both positive and negative impact on the California workforce. On one hand, the low wage earners’ income will increase by over 10%. On the other hand, some employers will have to reduce their hiring due to this additional expense on wages  and/or increase the prices of the products/services they sell.

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Managers Are Personally Liable for Violation of Medical Leave Laws

California Government Code section 12945.2 provides that it should be an unlawful practice for any employer… to refuse to granted a request by any employee to take up to 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this law shall not be deemed to have been granted unless the employer provides the employee, upon granting the leave request, a guarantee of employment in the same or comparable position upon the termination of the leave.

An employer for the purposes of this law is defined as either (1) any person who directly employes 50 or more persons to perform services for a wage or salary or (2) the state, and any political or civil subdivision of the state and cities.

California Code of Regulations provides that “in addition to the retaliation prohibited by Gov. Code 12940(f), and section 7287.8 of the regulations, it shall be unlawful employment practice for any person to discharge, fine, suspend, expel, punish, refuse to hire, or otherwise discriminate against any individual, except as otherwise provided…. because that individual has exercised his rights to CFRA leave. Thus, managers who decide to violation CFRA medical leave laws can be personally liable for those violations.

This means that an employee who is being retaliated or terminated in violation of CFRA, can file a lawsuit not only against the employer but also against the individual decision makers – managers that made the decision to terminate his employment.

Including individual managers in a lawsuit has three main advantages: 1. If the employer is a public entity, including individual defendants would allow plaintiff to plead a claim for punitive damages, that are otherwise not available against governmental offices; 2. Including individual defendants in a lawsuit will provide certain access to their personnel file, history of discipline for similar violations and other information that may be useful in proving a wrongful termination / retaliation case; and finally 3.  In some cases, subpoenaing a defendant for deposition or to testify at trial is much easier than a non-party witness.

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