Category Archives: Harassment

How to Complain to Human Resources the Right Way

As with all things in life, making a complaint at work is a risk. If you complain to human resources the wrong way, you might get fired (it happens far more often than people think). That is why I took the time to make a video about the correct way to complain to HR.

This video will explain the five things you need to know before you complain about your issue at work. It also covers how HR will react to your complaint and what you should expect if they conduct an “investigation.”

If you found this to be helpful, please leave a comment below.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

What does being an “at-will employee” actually mean? Can I get fired for “any reason”?

This is a very common question. At-will employment does not mean that the company can fire you for any reason they want. That is incorrect. In this video, employment attorney Branigan Robertson explains the at-will doctrine and how it actually works.

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Filed under Abuse, Age, Defamation, Disability, Discrimination, Employment Contract, FEHA, Harassment, Health Care, Layoffs, Leave of Absence, Pregnancy, Privacy, Race, Religion, Retaliation, Settlements, Severance, Verdicts, Wage & Hour, Whistleblower, Wrongful Termination

How Should You Respond to a Write Up at Work?

Write ups at work are a sign that things are not going well. But how should you respond to a write up? In this video Mr. Robertson breaks down how to respond in the most legally appropriate way.

Generally, there are twelve ways you can respond to written discipline at work. Branigan breaks it down step by step how you should respond and why you should respond that way.

We recommend that you watch this video all the way to the end as that is where the 12 recommendations are made.

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Filed under Abuse, Harassment, Retaliation

New Video! How to Prove Harassment at Work

We are excited to release this video on how employees can prove harassment at work. It adds a new dimension to our workplace harassment webpage.

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Should I Go on Stress Leave From Work?

We all want purpose, meaning and joy in our careers. Sadly, for many California workers, this an elusive dream. Sometimes, survival and a better life for the worker’s family is the best that can be hoped for.

But human beings are complex. When their emotional needs are neglected as they struggle to make a living, stress, anxiety and depression can occur. In some cases, people are genetically predisposed to such mental health issues, which can be exacerbated by a toxic work environment.

When mental health problems flare up at work, the employee’s performance can suffer, and they suddenly find themselves under the microscope of indifferent managers, coworkers and clients. When this happens, things tend to get worse.

We regularly get calls from frustrated workers asking whether or not they should go on stress leave. It’s a complicated question that even an attorney can’t answer with a simple yes or no. Fears persist about whether an employee can be fired for taking time off and whether their original position will be waiting for them when they return. Some wonder if stress or depression is reason enough to ask for an extended leave.

This article was written to discuss some of the leave of absence laws surrounding mental health and disability leave as well as the questions an employee should consider before taking leave. If you feel your employer is treating you unlawfully, or has retaliated against you while you were out on protected leave, contact our office to schedule a consultation.

Legal Protections for Workers with Disabilities

Most workers know that California law protects employees with mental disabilities. CA Government Code §12940 states that it is:

“It is an unlawful employment practice… (a) for an employer, because of the… mental disability… of any person… to bar or to discharge the person from employment or from a training program leading to employment, or to bar or to discriminate against the person in compensation or in terms, condition or privileges of employment.”

FEHA § 12940(a)

Simply put, a person who is considered mentally disabled is protected from discrimination or termination (there are exceptions – more on that later). The question that many of our callers have is whether or not stress, anxiety or depression qualifies as a disability. Keep reading.

Does Stress Qualify as a Disability Under California Employment Law?

It’s important to note that state law defines the term mental disability in broad strokes. Mental disabilities can include intellectual disabilities in addition to emotional and mental illness. The common denominator in determining if a disability exists is whether or not the illness “limits a major life activity.” In other words, does it make the achievement of the major life activity difficult?

You should first note that stress created by the boss may not qualify as a disability. A CA court recently held that an employee’s inability to work for a particular supervisor, because of anxiety and stress related to the supervisor’s standard oversight of job performance, is not a disability. However, stress stemming from other conditions may constitute a disability if the underlying cause makes the achievement of a major life activity difficult.

A person with anxiety or depression might have difficulty concentrating on basic tasks, trouble sleeping through the night, or trouble getting up in the morning. This may cause extreme stress in someone’s life. Any of these symptoms, alone or together, have the potential to limit major life activities, including those necessary to maintain a job.

If you’re dealing with unexplained emotional symptoms that are making it difficult to complete tasks at work and do your job effectively, you should see a doctor immediately for an assessment of your symptoms and to determine a course of treatment. It’s important to remember that many employers will require the employee to provide a doctors’ note if he or she intends to take leave.

You should also note that under FEHA’s definition of mental disability, stress caused by sexual disorders, kleptomania, pyromania, compulsive gambling, or psychoactive substance use disorders stemming from the unlawful use of drugs or controlled substances, are specifically excluded. That means they are not protected. 

Stress Leave from Work | Branigan Robertson Employment Lawyer

What Options are Available to Stressed Out Employees?

California Family Rights Act

California Government Code §12945.2(a), also known as the California Family Rights Act, requires employers to allow employees with a serious health condition to take up to 12 work weeks off in any 12-month period as long as the employee has worked 1,250 hours for the employer within the previous 12 months. The law states that when family or medical leave is granted, the company must make a “guarantee of employment in the same or a comparable position upon the termination of the leave.”

We have a detailed page on CFRA here.

 A serious health condition can apply to a mental condition requiring continuing treatment or ongoing supervision by a health care provider.

While the CFRA is a good option for many employees dealing with significant stress, anxiety and depression, employers are not required to pay employees while they are out of work (though employees may be eligible to collect unused vacation hours, or sick pay). Additionally, many employees need more than 12 weeks to fully recover or adjust to life with their mental health issue. Sometimes temporary disability insurance is an option that workers dealing with mental health issues must explore.

Temporary Disability

California’s State Disability Insurance Fund allows eligible employees to collect up to 52 weeks’ worth of paid benefits which are provided based on the employee’s salary. There are many requirements an employee must meet in order to be eligible to collect from the program. These include:

  • Having a physician document your medical condition and certifying your disability.
  • A loss of wages due to your health issue.
  • You must have been paid $300 in wages subject to State Disability contributions during the 12-month base period.

Limits to Disability Protection

While California law does provide powerful protections to those with disabilities, there are limits to these protections. Government Code§12940(a)(1) allows an employer to terminate an employee suffering from a mental disability if the employee is unable to perform the essential duties of the job even with reasonable accommodations.

An employer can also fire a mentally disabled worker if he or she cannot perform the duties in a manner that would not endanger the employee’s health and safety or the health and safety of others even with reasonable accommodations.

As with many areas of the law, this section can be open to some interpretation. For this reason, if you were fired while dealing with a mental health issue or on disability leave, you should contact an employment lawyer to discuss your case.

Before You File for a Leave of Absence

If you’re on the fence about filing for leave, it might help to ask yourself the reason for doing it. Are you simply experiencing the normal stress of dealing with a difficult boss? Or are you struggling to hold your emotional life together hour by hour?

It goes without saying that if you’re dealing with emotional issues that are interfering with your basic life activities, you should do whatever you can to get better. This often starts with following the directions provided by a doctor or mental health specialist.

Contact an Employment Lawyer

As you no doubt already know, the areas of law dealing with mental health and employment can be complex and nuanced. Sometimes it requires help from a qualified attorney to help a worker stand up for their rights. Moreover, if you are dealing with a mental health issue, you should contact a mental health professional and take the steps necessary to get well.

If you feel that your employer has treated you unfairly while you struggle to deal with stress, anxiety or depression, or has unlawfully discriminated against you, contact the office of Branigan Robertson to schedule a consultation.

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Filed under Harassment, Leave of Absence

New Harassment Video – How Much Are Cases Worth?

I’ve made a detailed video on how hostile work environment and harassment cases are valued. What makes a “big” case big? This video explains how it happens, why it happens, and how much your case might be worth.

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