Gregory P. Brock has been practicing law in the San Francisco Bay Area for over 20 years. He started his own solo practice in 2008. Prior to that he was a partner in a small Berkeley insurance defense firm where he worked for 7 years. He has handled all phases of litigation from initial case evaluation through appeal for both the plaintiff and defense, with a focus on civil trials.
Greg Brock has a law degree from Berkeley’s Boalt Hall School of Law and a bachelor’s degree in English from U.C. Berkeley. He is a member of Phi Beta Kappa, and won the Prosser Award for Intellectual Property and Unfair Competition while in law school.
Mr. Brock is a member of the State Bar of California. He is also admitted to practice in the Ninth Circuit Court of Appeals, and the United States District Courts for the Northern and Central Districts of California.
Greg Brock currently represents plaintiffs in . He also handles many employment discrimination cases, including retaliation, harassment, wrongful discharge, and injury accident and wrongful death cases, including auto accidents, slip and falls, negligent injury, among othershousing discrimination claims. He brings great energy and enthusiasm to his role as an advocate and adviser for his clients, and is dedicated to providing high quality, efficient legal services to those he represents.
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WORKPLACE INJURIES AND OTHER ACCIDENTS
Greg Brock has handled hundreds of accident claims in his legal career. For seven years, he served as an attorney hired by large insurance companies to defend people sued in workplace injuries, auto accidents, slip and fall accidents, landlord-tenant claims, neighbor disputes, negligence, and premises liability claims. As an “insurance defense lawyer”, Mr. Brock gained valuable information about the way personal injury lawsuits work in California, especially in the San Francisco Bay Area. With a substantial background in insurance defense, Mr. Brock understands what a plaintiff has to do in order to receive fair treatment from insurance companies. He has represented hundreds of injured people in his career, and has helped his clients receive compensation for their injuries. Here are some of the things he says about injury accident cases.
In every injury accident case, there are three things that must exist in order for the injured person to receive compensation:
- Liability of the defendant
- Damage to the plaintiff
- The defendant’s ability to pay
Each of these factors is discussed in turn.
There must be strong evidence that the defendant was liable (at fault) for causing the accident that resulted in injury. In an auto crash, the easiest was to show fault is with a traffic report by a police officer that assigns fault to the defendant. The next best way to show fault is with the testimony of a believable eye witness to the accident. Without strong evidence of the liability, the defense will fight hard to show that the accident wasn’t caused by the defendant; often the defense will try to shift the blame onto the injured person. When liability is contested, it often results in a long period of litigation rather than a fast settlement. That’s why it is critically important to have strong evidence that the actions or omissions of the defendant caused the accident that resulted in injury to the claimant.
The injured person must show that he or she suffered damages. In California, there are separate considerations for “economic” and “non-economic” damages. Economic damages are specific losses that can be monetized, such as medical bills, property damage, and wage loss. Economic damages are often called “out of pocket” damages. In many cases, an injured person must repay their medical providers (or health insurer, Medi-Cal, or Medicare) for amounts recovered for medical treatments. This is a complex subject. The basic rule, however, is that when medical bills have been paid by someone other than the injured person, there is a very good likelihood that the payor has a right to be repaid out of the injured person’s recovery. Typically, an attorney can negotiate with the insurance company to reduce the amount of the repayment by some percentage, often in the range of 25 to 331/3 percent. The results vary depending on the specifics of the case.
Non-economic damages are losses that don’t involved specific sums of money, such as physical pain, mental suffering, loss of enjoyment of life, anxiety, humiliation, and emotional distress. Non-economic damages are often called “damages to the person”.
In an accident case, there is commonly a relationship between the economic damages and the non-economic damages. For instance, if the medical expenses reasonably necessary to provide treatment for an injury are large, then the amount of damages for pain and suffering is usually also large. On the other hand, if the out of pocket damages are small, then the damages to the person are also typically small.
How much can an injured person claim as damages for medical care reasonably necessary to treat injuries caused by the subject accident?
An injured person is generally allowed to recover as economic damages any reasonable charges for treatment the injured person has paid, or has incurred and still owes, to a medical provider. This includes money an insurer has paid to medical providers on behalf of the injured person.
This means the amount of the recoverable damages depends on the amount that the medical providers accepted as payment in full. If the injured person has health insurance, the amount paid is often discounted far below the “market price” stated in the provider’s bill. On the other hand, if the injured person does not have insurance, they can recover the full amount of the provider’s bills because the injured person has incurred this cost.
For example, if the injured person is a Medi-Cal patient, and Medi-Cal pays for necessary medical treatment, then the injured person may only recover the amount actually paid by Medi-Cal (plus any additional amount the injured person pad). This was determined in the California case Hanif v. Housing Authority, 200 Cal. App. 3d 635 (1988).
Similarly, if the injured person has private health insurance, such as Blue Shield or Kaiser, then the injured person may only recover the amount actually paid by the health insurer (plus any co-pay or other additional amount paid by the injured person). This is the rule in California under Nishihama v. City and County of San Francisco, 93 Cal.App.4th 298 (2001).
If the injured person has insurance, but for some reason the insurance company does not pay the bills, then then the injured person may claim the full amount of the unpaid medical bills as damages.
When the injured person recovers the cost of medical treatment from the responsible party, does he or she have to reimburse Medi-Cal and other health insurers and/or satisfy unpaid medical bills?
Yes. This is a complicated topic. Most insurance policies give the insurer the right to recover the amount it paid from the injured person’s settlement or judgment. This is called subrogation, and effectively gives the insurance company a lien against the injured person’s recovery.
There are numerous laws in California that pertain to medical liens. For example, the State of California has a right of reimbursement for Medi-Cal payments under Welfare & Institutions Code § 14124.71 et seq. Other HMOs and other health insurers may assert liens against an injured person’s recovery under Civil Code § 3040. Hospitals have a right to reimbursement of unpaid bills for emergency services under California’s Hospital Lien Act (Civil Code §§ 3045.1-3045.6). County hospitals have recovery rights under Government Code § 23004.1. Worker’s compensation carriers may assert liens under Labor Code §§ 3852-3862. Medicare payments are subject to reimbursement under 42 USC 11395y.
Does the injured person have to repay the full amount of medical liens and unpaid bills?
As a starting point, both the injured person and his or her attorney have an obligation to notify medical providers of the claim and repay medical liens against the injured person’s recovery. But the amount that must be paid is not necessarily the full amount of the lien or unpaid bill. Many medical liens and unpaid bills are subject to laws that limit what the medical providers can take from the injured person’s recovery.
For example, when the injured person is represented by an attorney, Civil Code §3040(c) limits liens by HMOs and some other health insurers to 1/3 of the moneys due to the insured (i.e., injured person) under any final judgment, compromise, or settlement agreement.
The California’s Hospital Lien Act (Civil Code §§ 3045.1-3045.6) limits the lien that may be claimed by a medical provider for emergency services to no more than one half of the injured person’s recovery.
Welfare & Institutions Code § 14124.71 et seq. states that the maximum amount of a Medi-Cal lien shall be no more than ½ of the injured person’s recovery.
Is it possible to negotiate a reduction of medical liens and unpaid bills?
Often, yes. Insurance companies and Medi-Cal will often commonly reduce the amount of their lien upon request by the injured person’s attorney by ¼ to ⅓. However, when medical bills have been incurred but not paid, medical providers are less likely to agree to reduce the amount owed unless the recovery is less than the amount of the bills.
Source of Recovery
There must be money available to compensate the injured person. If the defendant has insurance coverage, such as auto liability insurance, that usually provides a reliable source of money to compensate the injured person, assuming that there is strong evidence of liability and damage.
There are many questions that arise when it comes to insurance coverage, such as the policy limits, and whether there is a reservation of rights by the insurance company.
Let’s take policy limits first. Each insurance policy has a limit on the amount that can be paid to an injured person. An important threshold question is whether, in an accidental injury case, the defendant has enough insurance to fully compensate the plaintiff. In California, the law requires minimum auto liability policy limits of $15,000 for bodily injures to a single person, and a total of $30,000 for all bodily injury claims made in a single accident. If the defendant driver has purchased additional insurance, there may be higher policy limits, such as $100,000 for each bodily injury claimant, up to $300,000 for all claimants, or $250,000 for each claimant, up to $500,000. Some defendants purchase additional insurance such as a Personal Liability Umbrella Policy that can provide compensation to the injured person when the underlying policy limits have been exhausted. It is a big advantage to know the defendant’s policy limits as early as possible, to know whether the policy limits can provide adequate compensation to the injured person. Policy limit information is something an injured person should ask for when exchanging insurance information with a defendant after a motor vehicle collision.
Another insurance question that often comes up in accident cases is whether the defendant’s insurance company has made a “reservation of rights”. When you hear “reservation of rights”, it means the insurance company has agreed to provide the defendant with a legal defense in a lawsuit, but reserves its rights to assert that the insurance policy doesn’t provide coverage for the subject accident. In such a case, the insurance company is saying that it may not be required to pay any of the policy limits as compensation to the injured person. The “reservation of rights” issue can be a significant hurdle to settlement, even when a defendant has large policy limits.
If the defendant has no insurance – or the insurance company won’t pay because it contends the policy doesn’t provide coverage for the subject claim – the injured person must look to the assets of the individual or company at fault. In my experience, it is often much more difficult to obtain compensation from a defendant’s own assets than it is to obtain compensation from a defendant’s insurance company. This is true even when the defendant has “deep pockets.”
Workers’ Compensation and Workplace Injury Lawsuits
General Information about Workers’ Compensation in California
California’s workers’ compensation laws provide injured workers with a means of recovery from their employer when the employee sustains an injury on the job. See Labor Code §3200 and following. An “injury” under the workers’ compensation system includes any injury or disease arising out of employment. Labor Code §3208. Workers’ compensation is “no fault”, meaning that the employee does not have to prove that the employer was negligent in order to receive benefits. The benefits available include medical expenses, temporary disability, permanent disability, and death benefits. Labor Code §§ 4620-4622; 4653-4658; 4700-4703. Unlike in civil lawsuits, workers’ compensation does not allow a claimant to recover for pain and suffering.
Effect of a Workers’ Compensation Claim on a Workplace Injury Lawsuit
A person who suffers an injury at work may not only make a worker’s compensation claim against his or her employer, but may also file a civil lawsuit against any responsible party other than the employer. Labor Code § 3852. In other words, the injured worker may receive workers’ compensation benefits from the employer, and also file a civil lawsuit for money damages from other responsible parties. A person is allowed to recover certain types of damages in a civil lawsuit that are not available in a workers’ compensation case. For example, a civil lawsuit allows the injured person to receive money for wage loss above the workers’ compensation limits, and money for pain and suffering, and emotional distress. However, the injured worker is normally required to repay the amount of the workers’ compensation benefits out of the money received in the civil lawsuit (to prevent a double recovery). See Labor Code §3856.
Important Materials to Support Your Workplace Injury or Accident Claim:
- Any police reports/witness statements.
- Medical records from all medical providers.
- Medical bills from all medical providers.
- Proof of any wage loss.
- Property damage repair estimates/bills
- Photos of scene/damaged vehicles/your injuries
- Correspondence and e-mail with any involved insurance companies
- Proof of your own auto insurance – declarations page if you have it.
In California, a lawsuit for wrongful death has a specific meaning. A wrongful death lawsuit is an action for damages for the death of one person when that death is caused by the wrongful act or neglect of another person (or legal entity). This type of lawsuit was established by statute, and has strict rules governing the people entitled to make a claim, the categories of damages that may be recovered. The purpose of a wrongful death lawsuit is (1) to compensate certain persons (listed in the statute) that have a relationship with the decedent for their pecuniary loss suffered as a result of the death, and (2) to deter the conduct by a defendant who wrongfully takes a life.
Who May Make a Wrongful Death Claim?
The right to bring a wrongful death action is strictly limited to those persons described in California Code of Civil Procedure § 377.60. Under this statute, there are three categories of persons entitled to bring a wrongful death action.
Category 1: the decedent’s surviving spouse, domestic partner, children, and issue of deceased children.
If there is no surviving issue of the decedent, this category includes the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession (that is, certain people designated as heirs when a person dies without leaving a will). However, if actual heirs at law exist, then a wrongful death action may not be brought on behalf of persons who are merely potential heirs under the laws of intestate succession.
Category 2: a decedent’s putative spouse, children of the decedent’s putative spouse, stepchildren of the decedent, and parents of the decedent, if they were dependent on the decedent for the necessities of life at the time the decedent died. “Putative spouse” means the surviving spouse of a void or voidable marriage who is found by a court to believe in good faith that the marriage to the decedent was still valid.
Category 3: any minor who (1) resided in the decedent’s household for at least 180 days (about 6 months) prior to the decedent’s death, and (2) was dependent on the decedent for one-half or more of his or her support. [Code Civ. Proc. § 377.60(c) (restating former Code Civ. Proc. § 377(b)(3))].
A wrongful death action in California may only be asserted on behalf of certain relatives of the person who died. (or by the decedent’s personal representative on behalf of those relatives):
The decedent’s surviving spouse, children, and issue of deceased children, or, if there are no surviving issue of the decedent, the persons, including the surviving spouse, who would be entitled to the property of the decedent by intestate succession.
A putative spouse of the decedent, children of the putative spouse, stepchildren, or parents, if dependent on the decedent.
A minor who lived with the decedent for at least 6 months prior to the death, and was dependent on the decedent for at least one-half the minor’s support.
Each wrongful death plaintiff is regarded as having a personal and separate cause of action, and is required to prove his or her own entitlement to damages as a plaintiff.
What Damages May Be Recovered in a Wrongful Death Action?
Damages in a wrongful death may include such items as funeral and burial expenses, and pecuniary loss resulting from loss of society, comfort, attention, services, and support of decedent’s spouse.
What is the Statute of Limitations for a Wrongful Death Case?
There is a two year statute of limitations in wrongful death cases in California.
What Defenses Are Available in a Wrongful Death Case?
A defendant may assert a defense that could have been asserted against the decedent had he or she lived. For example, in an auto accident case, the defendant might assert the defense that the decedent was partly or entirely responsible for causing the accident that took his or her life. If successful, this type of defense will reduce an award for wrongful death by the proportionate share of the decedent’s negligence, result in a decision in favor of the defendant.
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California law provides substantial protection for workers against discrimination in the workplace. Workers who suffer discriminatory practices come within the protection of the Fair Employment and Housing Act, Government Code §12940. Gregory Brock has represented many workers in California lawsuits arising from workplace discrimination.
Employment discrimination is a term that refers to a broad category of harms to workers, including discrimination, retaliation, and harassment. In California, the Fair Employment and Housing Act (“FEHA”) is a body of law that provides many protections for workers. A person making a claim under the FEHA may seek compensation for lost wages and other out of pocket expenses, as well as emotional distress. The prevailing party in a FEHA lawsuit is entitled to an award of reasonable attorney’s fees and costs, including expert witness fees under Govt. Code §19625(b). The employer, however, is not entitled to a cost award against an unsuccessful worker absent a trial court finding that the worker’s lawsuit was “frivolous, unreasonable, or groundless.” Williams v. Chino Valley Independent Fire Dist., 61 Cal. 4th 97 (2015).
California requires claimants to file a claim with the Department of Fair Employment and Housing (“DFEH”) within one year of the alleged unlawful employment practice. Government Code §12960. Failure to make a such a claim with the DFEH and obtain a Right to Sue letter is fatal to a lawsuit alleging violation of the FEHA.
Civil service employees who claim employment-related discrimination generally do not need to exhaust a local governmental agency’s internal remedies prior to pursuing statutory claims, such as claims arising under the Department of Fair Employment and Housing Act. See Schifando v. City of Los Angeles, 31 Cal. 4th 1074, 1092 (2003). However, a public employee who receives an adverse decision at an administrative civil service hearing may be precluded from pursing claims under the Fair Employment and Housing Act. See Johnson v. City of Loma Linda, 24 Cal.4th 61, 76 (2000). However, an employee’s initiation of the employer’s internal grievance process does not obligate the employee to complete the process. As long as no “quasi-judicial” hearing has been held, the employee is free to withdraw from internal administrative proceedings and pursue his or her FEHA claim in court. See Ahmadi-Kashani v. Regents of University of California, 159 Cal. App. 4th 449, 460-461 (2008).
Discrimination in Violation of the Fair Employment and Housing Act – Govt. Code §12940(a)
The FEHA is sometimes described as California’s version of the federal Americans with Disabilities Act (“ADA”). The FEHA actually provides greater protections against disability discrimination than the ADA because the FEHA defines “disability” as a “mental or physical condition that limits a major life activity.” The ADA definition adds the word “substantially” to the definition: a “mental or physical condition that substantially limits a major life activity.” The ADA definition of disability is more limited than the FEHA definition.
Discrimination means treating someone differently from others. If the employer treats a person within a protected classification differently from other employees, it is known as disparate treatment discrimination. If the employer treats all persons in a specific protected category different from other employees, it is known as disparate impact discrimination.
The protected classifications under the FEHA are: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
Retaliation in Violation of the FEHA – Govt. Code §12940(h)
To establish a case of retaliation, the plaintiff must show three things: (1) that he or she engaged in a protected activity, (2) the employer subjected him or her to adverse employment action, and (3) there is a causal link between the protected activity and the employer’s action. Iwekaogwu v. City of Los Angeles, 75 Cal App 4th 803 (1999). Each of these is discussed in turn.
Protected conduct under the FEHA may take many forms. Government Code §12940(h) makes it an unlawful employment practice for any employer to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under the FEHA or because the person has filed a complaint, testified, or assisted in any proceeding under a FEHA claim. See Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 (2005).
FEHA’s implementing regulations state that opposition to practices prohibited by the FEHA includes (1) seeking the advice of the Department of Fair Employment and Housing (DFEH), (2) assisting or advising any person in seeking the advice of the DFEH, (3) opposing employment practices which an individual reasonably believes to exist and believes to be a violation of the FEHA, (4) participating in an activity which is perceived by the employer as opposition to discrimination, whether or not so intended by the individual expressing the opposition, or (5) contacting, communicating with or participating in the proceeding of a local human rights or civil rights agency regarding employment discrimination.
The determination as to what constitutes a protected activity is inherently fact driven. The protected activity must demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful.
Adverse Employment Action
An adverse employment action under the FEHA requires proof that the employer substantially and materially adversely affected the terms and conditions of the plaintiff’s employment. An adverse employment action is not limited to ultimate employment acts, such as a specific hiring, firing, demotion, or failure to promote decision, although a change that is merely contrary to the employee’s interests or not to the employee’s liking is insufficient. Akers v. County of San Diego, 95 Cal App 4th 1441, 116 (2002) (former deputy district attorney suffered an adverse employment action upon a showing that a pregnancy/gender discrimination complaint resulted in retaliation that reduced promotional opportunities).
Can a constructive discharge serve as an adverse employment action? Yes, constructive discharge may be asserted under the FEHA. See Colores v. Bd. of Trs., 105 Cal. App. 4th 1293 (2003) (conduct of Plaintiff’s supervisor, her impossible workload, and the overall atmosphere at her workplace raised triable issues of fact as to whether Plaintiff was constructively discharged). The standard by which a constructive discharge is determined is whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit. In order to establish a constructive discharge, a plaintiff must show that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign. For purposes of constituting constructive discharge, the adverse working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed intolerable.
A key defense for the employer is to show that the employer had a legitimate, non-discriminatory reason for terminating the employee or for the other adverse employment action.
There must be a causal relationship between the protected activity and employer’s actions. In some cases, a close temporal proximity between an employee’s resistance or opposition to unlawful conduct and an adverse employment action will support an inference that the action was retaliatory.
Harassment in Violation of the FEHA – Govt. Code §12940(j).
Harassment under the FEHA consists of conduct outside the scope of a supervisor’s necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives. Reno v. Baird, 18 Cal. 4th 640, 645-646 (1998). Harassment is not conduct of a type commonly necessary for management of the employer’s business or performance of the supervisory employee’s job, such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, and deciding who will be laid off. These activities may, however, support a cause of action for discrimination under the FEHA.
Harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee. Serri v. Santa Clara University, 226 Cal. App. 4th 830, 869 (2014).
A harassment claim may be made against both an employer and the individual supervisor who engages in the harassing activity. Govt. Code § 12940 (h)(1).
Failure to Provide a Reasonable Accommodation – Govt. Code § 12940 (m)
The FEHA imposes on employers the duty reasonably to accommodate their employees’ physical disabilities. Scotch v. Art Institute of California, 173 Cal. App. 4th 986, 1003 (2009). Govt. Code § 12940 (m) provides that it is an unlawful employment practice for an employer to “fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”
The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 256 (2000). Under the FEHA, “reasonable accommodation” means “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Cuiellette v. City of Los Angeles, 194 Cal. App. 4th 757, 766 (2011).
For purposes of an alleged failure reasonably to accommodate a disability, the plaintiff must show he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position. Jensen v. Wells Fargo Bank, supra, 85 Cal.App.4th at p. 256. An employer is not obligated, however, to make a temporary position available indefinitely once the employee’s temporary disability becomes permanent. (Raine v. City of Burbank,135 Cal. App. 4th 1215, 1224.
An employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees. Prilliman v. United Air Lines, Inc., 53 Cal. App. 4th 935, 950-951 (1997).
Discrimination Based on Gender Expression or Gender Identity is Illegal
The FEHA provides protection from discrimination, retaliation, and harassment based on gender identity or expression. The term “sex” is defined in the FEHA to include gender, gender identity and gender expression, providing protection for people in the transgender and transsexual community. Govt. Code Section 12926. So, for example, an employer must allow an employee to appear or dress consistently with that employee’s gender identity or expression. Government Code Section 12949.
California extends special protections against pregnancy discrimination. Government Code Section 12945 makes it an unlawful employment practice for an employer to refuse to allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take leave for a reasonable period of time up to four months. The protections against discrimination, retaliation, and harassment in Government Code Sections 12926 and 12940 also apply to pregnant workers.
Family and Medical Leave Act and California Family Rights Act
The Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. (FMLA), is a federal law passed in the Clinton era that provides employees with the right to 12 weeks of unpaid leave per 12-month period for a serious illness or injury or to care for a sick family member. Here are the eligibility requirements for leave under the FMLA:
1. the employer must employ 50 or more persons within 75 miles of the employee’s workplace.
2. the employee must have worked for at least 12 months for the employer.
3. the employee must have worked at least 1,250 hours during the past 12 months.
4. the employee may request leave for:
(a) the birth of a son or daughter of the employee and in order to care for such son or daughter.
(b) the placement of a son or daughter with the employee for adoption or foster care.
(c) to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(d) a serious health condition that makes the employee unable to perform the functions of the position of such employee.
(e) any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty in the Armed Forces.
5. the employee must provide the employer with reasonable notice of the request for leave.
6. the employee must provide certification, including medical documentation, in support of the request when the employer requests it.
It is a unlawful for an employer to deny an employee leave under the FMLA or to retaliate against an employee for taking leave under the FMLA. An employee who is wrongfully denied leave or who is demoted or terminated for taking leave may file a lawsuit against the employer for violation of the FMLA.
California’s Family Rights Act, Govt. Code §12945.1-12945.2 (CFRA), provides California employees with protections similar to the FMLA. Violations of the CFRA constitute violations of the California Department of Fair Employment and Housing Act, and employees must get a right to sue letter from the DFEH before filing a lawsuit. The employee must obtain a right to sue letter from the DFEH within one year of the denial or retaliatory act that is the subject of the lawsuit.
A worker who satisfies the requirements of CFRA (which are similar to FMLA requirements) is entitled to 12 weeks of leave. It is unlawful for the employer to interfere with the employee’s leave rights or to retaliate against the worker for taking leave. However, once the 12 weeks of leave has elapsed, it is not a violation of CFRA or FMLA if the employer terminates a worker who is unable to return to work. It may, however, be a violation of the Fair Employment and Housing Act (Govt. Code § 12940(m)) if the employer fails to hold a disabled worker’s job open during a reasonable period of recuperation. 2 Cal. Code Regs. § 11068(c); Jensen v. Wells Fargo Bank, 85 Cal. App. 4th 245, 263 (2000).
Violations of the CFRA generally fall into two types of claims: (1) “interference” claims in which an employee alleges that an employer denied or interfered with his or her substantive rights to protected medical leave, and (2) “retaliation” claims in which an employee alleges that she or he suffered an adverse employment action for exercising her or his right to CFRA leave. Rogers v. County of Los Angeles, 198 Cal. App. 4th 480, 487-88 (2011).
Retaliation in Violation of California Labor Code Section 1102.5
California’s Labor Code protects workers who engage in certain protected activities from retaliation by an employer. Labor Code Section 1102.5 prohibits employers from retaliating against employees who reported violations of federal or state law to a law enforcement agency or who gave information or testified before a public body conducting an investigation or hearing. Section 1102.5 also prohibits employers from retaliating against workers who refuse to participate in an activity that would result in violation of or noncompliance with a local, state, or federal rule or regulation.
California Fair Pay Act
Labor Code § 1197.5 requires equal pay for women and men for “substantially similar work” with specified exceptions. The Fair Pay Act also outlaws discharge, discrimination, and retaliation against employees for actions taken “to invoke or assist in any manner the enforcement of” the Fair Pay Act. Labor Code § 1197.5(j)(1). An employer may not prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under the Fair Pay Act. A civil action for wrongful termination, discrimination, or retaliation under the Fair Pay Act must be filed within one one year after the cause of action occurs. Labor Code § 1197.5(j)(3).
California Law Protects Undocumented Workers
California Labor Code Section 1171.5 specifies that all protections, rights, and remedies available under state law are available to all workers, regardless of immigration status. Immigration status is irrelevant to the issue of liability in cases to enforce state laws. No inquiry into a person’s immigration status is permitted except when such inquiry is shown by clear and convincing evidence to be necessary in order to comply with federal immigration law.
Wrongful Termination in Violation of Public Policy
To establish a claim for wrongful discharge in violation of public policy, a plaintiff must prove (1) a termination or other adverse employment action, (2) the termination or other action was a violation of a fundamental public policy, as expressed in a constitutional, statutory, or regulatory provision, and (3) a nexus between the adverse action and the employee’s protected status or activity. Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167 (1980). The plaintiff must identify the specific public policy the termination violated.
Tax on Employment Discrimination Settlements?
A claimant does not pay income tax on recoveries for physical injuries. So in the usual personal injury case, such as an auto accident or fall, the recovery is tax-free. In most employment discrimination lawsuits, however, there is a claim of emotional injury, i.e., emotional distress, as well as a claim of lost wages. Recovery of lost wages and emotional distress – in the absence of a physical injury – generally results in taxable income to the claimant. However, emotional distress settlements are generally not taxable if the damages are caused by physical injury or physical sickness, and the extent of the damages do not exceed payments made for medical care attributable to emotional distress. The language of the complaint and the settlement agreement typically determine whether the recovery is treated as taxable or non-taxable for the person receiving the money. See Internal Revenue Code § 104(a); United States v. Gilmore, 372 U.S. 39, 49 (1963); IRS Publication 4345 – Settlements – Taxability.
California laws prohibit discrimination and harassment in housing. Unfortunately, unlawful discrimination is all too common in landlord-tenant interactions. Mr. Brock has handled many discrimination claims under the Fair Employment and Housing Act, Government Code §12955, and other California statutes which provide remedies for victims of housing discrimination.
Housing Discrimination in Violation of the FEHA – Gov. Code §§ 12920, 12921(b), 12955.
The Fair Employment and Housing Act (FEHA) protects tenants from discrimination and harassment by the owner of a housing accommodation. Owners may not discriminate or harass a tenant or occupant of a property because of the race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information of that person, or any other basis prohibited by California’s Unruh Act, Civil Code §§ 51, 52.
The FEHA rules apply to any “housing accommodation”, which includes any building, structure, or portion thereof that is occupied as, or intended for occupancy as, a residence by one or more families.
Tenants and occupants may make a claim under the FEHA against an “owner” of the property, including a lessee, sublessee, assignee, managing agent, real estate broker or salesperson. See Gov. C. § 12927(e).
Unlawful discriminatory housing practices as defined by the FEHA include the following:
- refusal to sell, rent or lease;
- any other denial or withholding of housing accommodations;
- provision of inferior housing terms, conditions, privileges, facilities or services;
- harassment in connection with housing accommodations; and
- cancellation or termination of a sale or rental agreement.
Gov. C. § 12927(c)(1).
A successful tenant may recover damages including rent paid, other out of pocket expenses, and general damages for emotional distress. The prevailing party in a FEHA housing discrimination or harassment lawsuit is entitled to an award of reasonable attorney’s fees under Govt. C. § 12980(h).
Landlord Retaliation Against a Tenant – Civil Code § 1942.5
Tenants have rights under California law to protest against wrongful conduct by the landlord. For example, tenants have the right to make a report about substandard living conditions or unlawful conduct by the landlord to a local governmental agency, a state agency, or a federal agency. When a landlord retaliates against a tenant because the tenant has exercised his or her rights as a tenant under California law, Civil Code § 1942.5 allows the tenant to seek compensation. Under Section 1942.5, the tenant may recover penalties of $2,000 for each retaliatory act by the landlord. These penalties are additional to the tenants other damages, such as over-paid rent or emotional distress. A tenant who wins in this type of lawsuit is also entitled to an award of reasonable attorney’s fees under Civil Code Section 1942.5.
Lead-poisoning from poorly maintained paint in older housing is an epidemic among young children. Gregory Brock has successfully represented more than a dozen lead-poisoned children in personal injury lawsuits to obtain compensation from residential property owners and other responsible parties.
According to the CDC, there are approximately half a million children ages 1-5 in the United States with blood lead levels above 5 micrograms per deciliter (µg/dL), , the level at which the CDC recommends public health action be initiated. In California alone in 2010, more than 21,000 children in this age group were found to have blood-lead above 10 µg/dL. A microgram is one-millionth of a gram. A deciliter is one-tenth of a liter, or about 1/2 a cup
Lead is a high toxic heavy metal that accumulates in the organs and tissues, teeth and bones of the human body. It serves no useful function in the body. Instead, lead acts as a neurotoxin that prevents the absorption of iron in the blood. Lead poisoning has been a known health hazard since ancient times.
Younger children are often exposed to lead because they naturally put their hands and objects in their mouths. They absorb lead faster than adults, and eliminate lead more slowly than adults.
Lead exposure in children can cause:
- Brain damage
- Learning disabilities
- Speech, language and behavior problems
- Nervous system and kidney damage
- Impaired muscle and bone growth
- Hearing loss
Lead has many industrial uses and is a key ingredient in numerous products, such as electric storage batteries. Historically, lead was added to house paint for decades prior to its ban in the United States in 1978. Lead-based paint is still found on the interior and exterior walls and woodwork in thousands of older homes and apartments.
California Civil Code §1941.1 and Health & Safety Code §17920.10 require that rental dwellings must be free from lead-based paint hazards.
In a survey sponsored by the U.S. Department of Housing and Urban Development, the National Survey of Lead and Allergens in Housing found in 2000 that:
- 38 million housing units (40%) contained lead-based paint;
- 24 million (25%) contained significant lead-based paint hazards.
- 1.2 million dwellings with a significant lead-based paint hazard housed low income families with a child under the age of 6.
- 14% of housing units had significantly deteriorated lead-based paint;
- 16% had dust-lead hazards, and
- 7% had soil-lead hazards.
The CDC states that African-American children in the United States are three times more likely than Caucasian children to have elevated blood-lead levels.
MEDICAL PRIVACY IN LITIGATION
A plaintiff ‘s medical information is protected under both the Constitutional right of privacy (Cal. Const. Art. I §1) and the physician-patient privilege (Evid. Code, § 992). A patient’s medical conditions constitute “a quintessential zone of human privacy.” Pettus v. Cole, 49 Cal. App. 4th 402, 441 (1996).
When a person makes a claim for personal injuries, the right of privacy regarding “an issue concerning the condition of the patient” is waived “if such issue has been tendered by the [person]” by filing a lawsuit for related injuries. Evid. Code, § 996 – the patient-litigant exception. Not all medical privacy is waived in a lawsuit, however. A “[p]laintiff is not compelled, as a condition to entering the courtroom, to discard entirely her mantle of privacy.” Vinson v. Superior Court, 43 Cal.3d 833, 841-842 (1987). Only the issues directly at issue are waived. In other words, “the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.” In re Lifschutz, 2 Cal.3d 415, 435 (1970).
When a plaintiff’s medical conditions are not directly at issue in a lawsuit, California’s right of privacy protects unrelated information from disclosure. Britt v. Superior Court, 20 Cal.3d 844, 862-864 (1978). Plaintiffs are not required to sacrifice all privacy to seek compensation for specific injuries. Information related to any physical or mental condition which they have put in issue by bringing this lawsuit is fair game, but plaintiffs retain the confidentiality of all unrelated medical or psychotherapeutic treatment they underwent in the past. Britt v. Superior Court, supra, 20 Cal.3d at 864.
Mental states are also protected by the Constitutional right of privacy. The California Supreme Court has stated: “If there is a quintessential zone of human privacy it is the mind. Our ability to exclude others from our mental processes is intrinsic to the human personality.” Long Beach City Employees Ass’n v. City of Long Beach, 41 Cal.3d 937, 944 (1986). Similarly, a patient’s communications with psychotherapists are protected under the psychotherapist-patient privilege codified in Cal. Evid. Code §1014.
A plaintiff in a personal injury case may usually seek general damages (also called noneconomic damages) without placing their psychiatric condition at issue. The right to privacy in a plaintiff’s psychotherapeutic records outweighs the need for discovery. Davis v. Superior Court, 7 Cal. App. 4th 1008, 1016 (1992). A plaintiff can object to a mental exam in a lawsuit by asserting under Code Civ. Proc., § 2032.320 that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed”.
Even where an emotional distress claim is made, the constitutional right of privacy protects any issue that is not directly relevant to the litigation. Vinson, supra, 43 Cal.3d 833, 841-842. In Vinson, the California Supreme Court held that a plaintiff who makes an emotional distress claim in a sexual harassment case, is not required to submit to extensive questioning about her sexual history.
Gregory P. Brock, Attorney at Law
BROCK LAW OFFICE
2039 Shattuck Avenue, Suite 303
Berkeley, CA 94704