Many employers are ill-prepared for their employees to take extended leave to deal with their own medical issues or to care for a sick loved one. While an employee taking leave under the California Family Rights Act (CFRA) can expose existing stresses on a business, all too often, the employer will make the employee's already stressful situation worse by lashing out.
Below are common fact patterns and ways in which employers discourage their employees from taking protected medical leave.
1. Escalation of Minor Performance Issues
Escalation of minor performance issues is a red flag. Has the employee been consistently performing a task a certain way? Is that standard practice suddenly under scrutiny? Is the employee being peppered with petty, nitpicking emails clearly creating a paper trail of purported performance problems? Do other employees who have not sought CFRA leave escape criticism despite engaging in the same or similar work?
2. Piling on Work and Unrealistic Expectations
A sudden increased workload and/or shortened deadlines should be viewed with suspicion. Is the employer piling on work without a rational business explanation? Are expectations so unrealistic that it appears the employee is being set up to fail? Is your client being held accountable for work projects and deadlines that were discussed and due while the client was on leave? Either immediately before the leave begins or upon return from CFRA leave, is the employee suddenly being buried with unrealistic assignments and deadlines?
3. The Unfair PIP
Escalation of minor performance issues and piling on of work with unrealistic deadlines can create support for imposing a contrived Performance Improvement Plan (PIP). Does the PIP memorialize red flag issues? Is it selective in its criticism? Does it ignore significant accomplishments? Does it ignore context that may explain performance challenges? Are the criticisms vague (e.g., communication and style)? Does it contain SMART goals (specific, measurable, achievable, realistic, and timely) or will improvement be gauged by subjective and ambiguous standards?
4. Suspicious and Selective Layoffs
The worst-case scenario is being laid off while on CFRA leave or shortly after returning from leave. An employee may legally be laid off while on protected leave if the reason for termination is unrelated to the leave taken. In these situations, the focus becomes whether the business justification for termination is legitimate. Advocates must ask several key questions in order to address a suspicious layoff. What is the financial health of the company? Was the employee's position restructured or was the employee replaced? How many people were laid off: (a) at the company; (b) in the same division, and (c) in the same department? Who made the decision regarding the employee's layoff? What will become of the employee's job duties? Are there suspicious commonalities among those who were laid off (e.g., new mothers, employees who took protected leave, employees who requested an accommodation)? Are there documents that predate the employee's protected leave to support when and how the layoff decision was made?
In addition to interfering with an employee's CFRA rights, all of the above scenarios can have a chilling effect and discourage other employees at the worksite from taking the leave to which they are entitled. Standing up for yourself will not only help you but will hopefully have a positive ripple effect for other workers at your company who may seek to assert their CFRA rights down the road.
Navigating family leave laws and determining whether your employer has violated your rights requires a deep understanding of this area of the law. The attorneys at SLF are highly skilled in CFRA retaliation and interference cases. Contact SLF for an initial consultation.
* This blog post is taken from an excerpt of an article co-authored by Supreeta Sampath and Greg Mayeda for the Advocate entitled The Advocate's Guide To Beating Employers At Their CFRA Games. (May 2021)
