How 2 Laws Can Protect Those Who Take Medical Leaves

Q I recently returned to work after a three-month leave because of an off-duty accident. The clerical job I left had not been filled, but I was reassigned to the production area, which involves labor.

When I requested to be returned to my previous position, I was told they were in the process of hiring someone even though this person had not yet started work.

Am I entitled to my old job? Am I protected under Family and Medical Leave Act or Americans With Disabilities Act laws?

--L.D., Orange

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A It depends. You would be covered by FMLA if there are at least 50 employees at your work site, and if you were employed at least a year before going on leave.

Under this act, you would be entitled to a leave of up to 12 weeks for a “serious health condition” and you would have a right to return to your old job at the conclusion of your leave. Your employer could require you to provide medical documentation justifying the leave.

Coverage under ADA is less certain.

For ADA to apply, you would have to meet the definition of “disabled,” which generally requires that you have a physical or mental impairment that substantially limits one or more major life activities.

If you qualify under this act, your employer would have to provide you with a reasonable accommodation, which might include an unpaid medical leave of absence.

Unlike FMLA, however, your right to return to your old job would not be absolute. Your employer could argue that it was an “undue hardship” to keep your job open for three months. Moreover, you may not be able to qualify for ADA coverage if your injuries were only temporary, because ADA does not apply to short-term disabling conditions such as broken bones that heal normally.

You should also review your employee handbook. Often employers provide for medical and other types of leave as a matter of policy that are not necessarily required by law.

--James J. McDonald Jr.

Attorney, Fisher & Phillips

Labor law instructor, UC Irvine

Firing After Customer Incident May Be Justified

Q Recently, I had a disagreement with a customer at the small restaurant where I worked.

After leaving the restaurant, he filed a police report claiming I had assaulted him, despite the fact that a dozen witnesses said otherwise. He eventually withdrew the complaint, but I was terminated.

Do I have grounds for legal action against my employer? The individual who filed the complaint?

--C.B., Los Angeles

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A Your termination may be justified. Your employer will probably claim that you are an “at-will” employee subject to termination with or without cause.

If your employer is legally mandated to provide a valid reason for terminating you, the restaurant could claim that being rude or simply having a disagreement with a customer is sufficient cause.

Evaluate the company’s termination policy. If there is an employee handbook, does it provide for any oral or written warning before termination? If the restaurant violates its own policy, you might have a legal claim.

Regarding legal action against the customer, a complaint filed with the police department is usually protected from such claims. But if the customer made false accusations about you to third parties, you might have a claim against him for slander or for intentional interference with your contractual relations with your employer.

As a practical matter, however, if your wages were low at the restaurant and you were able to get another job at the same rate soon after your termination, your damages may not justify the time and money to pursue this case even if you can prove someone is liable.

--Don D. Sessions

Employee rights attorney

Mission Viejo

Employee Has a Right to a Copy of Evaluation

Q I work for a large insurance company that evaluates employees every three months. After my supervisor goes over her evaluation with me, I am required to sign it and can add my own comments if I wish.

My concern is that I am not allowed a copy of these evaluations. When I asked, I was told it was company policy not to give the employee a copy.

This concerns me because I feel I should be given a copy of something this important that I am required to sign. I also would like to have copies of these evaluations because the company will not provide references, verifying only the dates that an employee worked there.

Is this behavior legal? Do I have a right to copies?

--K.R., Los Angeles

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A Yes. California Labor Code Section 432 explicitly provides that an employee or applicant is, upon request, entitled to a copy of any document signed by the employee that is related to obtaining or holding employment. A violation of this provision is a misdemeanor.

In addition, California Labor Code Section 1198.5 requires every employer, upon the request of an employee, to permit the employee to inspect personnel files that have been used to determine that employee’s qualifications for employment, promotion, additional compensation, termination or other disciplinary action. A violation of this provision is also a misdemeanor and subjects the employer to fines of not less than $100 or imprisonment of not less than 30 days or both.

If your employer refuses to provide you with copies of your evaluations, you may make a claim with the labor commissioner. The number should be in your local phone book under the heading State of California, Division of Labor Standards Enforcement.

--Diane J. Crumpacker

Management law attorney

Fried, Bird & Crumpacker

Can’t Leave Premises for Lunch

Q I am an hourly worker, and my daily schedule is eight hours plus an unpaid 30-minute meal break. The employer provides a free meal at the company’s facility. Do I have the right to refuse the employer’s free meal and leave the facility? And if I take more than 30 minutes of meal time, does the employer have the right to deduct pay?

--J.H., Los Angeles

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A Your employer’s practices are perfectly legal. Except for employees covered by a union contract permitting them to leave company property during meal periods, employers can insist that employees remain on the premises throughout an unpaid meal period.

In addition, employers are not required to provide meals free, only a suitable place for employees to eat.

Furthermore, your employer can fire you for leaving company premises during an unpaid meal break, even if you should refuse the free food. If you return late from your break, you are entitled to receive pay only from the time that you return to the time you clock out at the end of the day.

--Joseph L. Paller Jr.

Union, employee attorney

Gilbert & Sackman

If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.