Retaliation Under CFRA

The CFRA and FMLA are State and Federal (respectively) Acts that are meant to provide workers with ample leave for certain situations. These Acts are applied to private employers that have over 50 employees working for them within a 75 mile radius. In addition, California employers who have over 20 employees are subjected to the New Parent Leave Act (NPLA).

The Acts allow workers to take protected time off from work to bond with a newborn or newly acquired child, to care for a sick or injured family member, to tend to the employee’s own sickness, and more. Eligible employees are those who have been employed for at least 12 months and have worked 1,250 hours within those 12 months. An additional law pertains to Pregnancy Disability Leave, which allows mothers a maximum of four months to stay home to recover from her pregnancy. The leave for all the acts is unpaid. Further, the leave is protected and employees who return from it are guaranteed to return to their same positions or comparable ones. California law pertaining to the CFRA can be found in Title 2, Division 3, Part 2.8, Chapter 6, Article 1, 12945.2 of California’s Government Code:

(a) Except as provided in subdivision (b), it shall be an unlawful employment practice for any employer, as defined in paragraph (2) of subdivision (c), to refuse to grant a request by any employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to a total of 12 workweeks in any 12-month period for family care and medical leave. Family care and medical leave requested pursuant to this subdivision 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 a comparable position upon the termination of the leave. The commission shall adopt a regulation specifying the elements of a reasonable request.

With respect to retaliation, it says:

(L) It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of any of the following: (1) An individual’s exercise of the right to family care and medical leave provided by subdivision (a). (2) An individual’s giving information or testimony as to the individual’s own family care and medical leave, or another person’s family care and medical leave, in any inquiry or proceeding related to rights guaranteed under this section.

Retaliation is generally any action that is done by your employer to get back at you for how you behaved, choices you made, leave you took, requests you made, and more.

Common forms of retaliation include:

• Demoted from your position
• Unnecessary or unwarranted disciplinary action, such as write-ups and warnings
• Reduction in salary
• Cut hours or shifts
• Refusal to reinstate to an old position or any position at all
• Job reassignment or alteration to job duties
• Targeted harassment and discrimination
• Wrongful termination or firing

Therefore, if you got pregnant during a busy time at your job and said that you planned to take maternity leave on a certain date, your employer cannot deliberately mistreat you. He cannot deliberately create job duties that would purposely drive you to resign or quit, and he cannot hire someone else to take over your position so that you would be butted out of the company upon returning. Retaliation can take on many forms, and if you experience mistreatment at any point before, during, or after your leave, you should take legal action.

In order to tell if you were retaliated against, you should look to see if your employer’s actions line up with the time frame during which you were absent or when you told him about your planned leave. If you noticed an increase in mistreatment or if certain requests were made of you during that period, you might have evidence that he deliberately retaliated against you and your choices. Further, other workers may have heard or saw things that point to retaliation.

You should pay careful attention to how your boss acts and what he says while you are on leave or when you return. You should make sure to document anything that sounds as though it may be incriminating or if it makes you uncomfortable or suspicious. Keeping a journal can benefit you in this case. As long as you have meticulously detailed the retaliation and the circumstances surrounding the mistreatment, you will have ample evidence. Bear in mind, too, that coworker testimony will also come in handy for you. As long as you have other perspectives and support, you will be able to prove that you were retaliated against with more certainty. It will also be beneficial if you go to the Human Resources department at your company to file a complaint. You can keep a copy of any receipt or email they send to you and make sure to keep notes about the meeting. If a discussion comes up, you can take notes or record it. At the very least, you should consult with an employment attorney who can help you determine if the retaliation, discrimination, harassment, or mistreatment you suffered after you took leave was illegal. A lawyer can tell you whether or not you have ample grounds for a case and what path or actions you should take.

The CFRA applies to private employers. Therefore, your boss cannot legally retaliate against you if you take leave that is acceptable and falls under the CFRA or FMLA. If he does, he can be held accountable for the ensuing losses and damages.

As a victim of employment discrimination and retaliation, you can receive numerous types of compensation from your company. You may be able to secure wages from both the past and the future if you were fired in retaliation, for example. This lost income can be calculated by your base salary and by using previous paychecks and bonuses to determine the additional sums. Additionally, although it is not necessarily monetary compensation, you could have your old job reinstated if you were wrongfully fired. There is also the opportunity for you to receive pain and suffering damages. These are generally handed out to cover emotional trauma, PTSD, and other mental anguish. They are not as simple to win as lost wages, though, which merely require pay stubs. Moreover, your employer may have acted with such disregard for you or in such a deliberate manner that you could receive punitive damages. These are additional amounts of money specifically meant to punish the employer, but they are seldom handed out and can only be won by a skilled employer lawyer with experience in retaliation claims.

The statute of limitations is the time limit during which you can actively file a lawsuit. If you do not file a claim within that period of time, you will be unable to do so in the future and will be barred from receiving compensation. Therefore, it is your best interest to file a lawsuit as quickly as possible, especially in employment cases where the statute of limitations is naturally much lower than in injury claims. If you wish to file a claim through the Equal Employment Opportunity Commission (EEOC), a Federal entity, you have 180 days from the retaliation to do so. However, if there is a state agency that can investigate the claim and you can go through that organization, the statute is extended to300 days. In California, this is the Department of Fair Employment and Housing (DFEH). However, if you are trying to sue a government agency, the time limit is further reduced to 45 days. Your lawyer can gather the information and evidence you have about the retaliation and submit it to the necessary organization. There will then be an investigation; if you receive a right to sue letter, you can swiftly take legal action, and you have 90 days from the receipt of the letter to do so. Unfortunately, many workers forget about the statute of limitations or ignore it, and wind up missing the opportunity to sue. This is the chief cause of missed lawsuits and unpaid claims – not adhering to the statute of limitations.