Keep detailed records to protect against unlawful termination

Save written communications, emails, voicemails and text messages evidencing why you were terminated. (Courtesy photo)

This week’s question comes from Kate in San Francisco, who writes:

Q: “Chris, I worked as a licensed vocational nurse at an assisted living facility for patients with Alzheimer’s Disease and other forms of advanced dementia and cognitive impairments. I was a dedicated, experienced professional. Last year, a new company bought the facility. The new management team was focused on cutting costs. Food menus were changed to reduce the quality and quantity of meals. Paid time off and sick leave for staff were reduced across the board. When anyone was ill, no one was called in to cover their shift. We were regularly short staffed.

“During an inspection by the California Community Care Licensing Division, I shared with the inspector my belief that the facility had serious compliance issues. The inspector encouraged me to file a complaint, which I did. Two weeks later, I was fired. My manager said my contract required that I promptly bring to management any compliance concerns I was aware of and that I had failed to do this.

“Chris, management knew what was happening at the facility because they were the cause of the problems. Every nurse at the facility also knew what was happening, and none of them were fired. What can I do?”

A: Kate, I’m sorry for you and your patients that you were terminated. There are several provisions of California law that limit the power of an employer to terminate employees.

First, Health and Safety §1569.37 prohibits discrimination against a patient or retaliation against an employee of a residential care facility for the elderly “on the basis, or for the reason that, the person or employee or any other person has initiated or participated in the filing of a complaint, grievance or a request for inspection with the department pursuant to this chapter, or has initiated or participated in the filing of a complaint, grievance or request for investigation with the appropriate local ombudsman, or with the state ombudsman.”

Your complaint to the Community Care Licensing Division falls within the type of conduct barred from retaliation under §1569.37.

Second, California’s whistleblower statute, Labor Code §1102.5, provides that “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information … to a person with authority over the employee or another employee who has the authority to investigate, discover or correct the violation or noncompliance.”

As stated by the First District of the California Court of Appeal, based in San Francisco, §1102 “reflects the broad public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation.” McVeigh v. Recology San Francisco, 213 Cal.App.4th 443 (2013).

To establish a violation of §1102.5, you must present evidence showing you engaged in an activity protected under the law. Health and Safety §1569.37 makes clear that your complaint to state regulators qualifies as a protected activity. You must also show that the adverse employment action, your termination, by the company was due to your filing of the complaint.

You should save any written communications, email messages and even voicemails and text messages evidencing why you were terminated, including management’s knowledge of and displeasure with your submitting a complaint.

Does your failure to report your concerns over the facility being out of compliance first to management justify your termination? This obviously appears to be a sham. A court would likely view the reason as illegitimate given that you were singled out for adverse action.

Even if it were viewed as a legitimate reason for your termination, you are not required to show that the company terminated you solely based on your filing of the complaint. In a mixed-motive case, where there is evidence of both a retaliatory and a legitimate reason for the adverse action, the employer must prove by clear and convincing evidence that it would have made the same decision anyway for a legitimate reason.

If the employer fails to meet this high standard of proof, it will be held liable for violating the Labor Code and the employee is entitled to damages.

Kate, given the need to develop a detailed factual record of why you were terminated and how you were treated differently than other employers, I recommend you promptly contact a trial lawyer experienced in handling individual employee rights cases. Most attorneys will evaluate your case free of charge.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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