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Employment LawQ. What does "at will" employment mean? A. In California employees are considered to work "at will" and employers often state that their employees are "at will employees in their employment manuals. Simply stated, an employee may be terminated for good cause (reason) or for no cause (or reason), but cannot be terminated for "bad cause". Q. What is good cause for termination?
Q. Can I be terminated for no reason? A. Yes, that is the meaning of "at will"; that the employee works "at the will" of the employer.
Q. But what if I am terminated because I am disabled? A. Termination because of disability is an example of "bad" cause. There are many tests that an employer must meet in order to establish whether or not the employer could terminate a disabled employee. Q. What is the DFEH? A. The Department of Fair Employment and Housing [DFEH] is the state agency that investigates an employee's claims of discrimination against an employer. If a complaint is made to the DFEH an employee may either ask that agency to investigate or obtain a "right to sue" letter that allows the employee to go forward with a lawsuit. If a complaint is made to the DFEH there is an additional remedy of attorney's fees that may be assessed against the employer if the employee wins the lawsuit.
A. Employers are required to offer "reasonable accommodation" to disabled employees and may not discriminate against them because of their disability. Q. What if my employer says he can't afford the accommodation I need? A. There are tests of "reasonableness" that the employer must examine in order to determine whether or not it can accommodate the employee's disability. The employer must engage in an "interactive process" with the employee which means that they must explore together the ways that the employer can provide assistance or accommodation for the employee's disability. Q. What if my employer says he's firing me for some other reason than my disability? A. Any termination of a disabled employee requires scrutiny. An employee who is disabled and has been terminated should seek legal advice. Q. I have to listen to off-color jokes at work from my co-workers and I find it offensive. What do I do? A. If there is offensive activity of a sexual nature in the workplace, the offended employee should immediately file a complaint with his/her supervisor. Q. What if the supervisor is the problem? A. The employee must complain to the next highest supervisor, or to the "supervisor's' supervisor". Q. Can I complain to the company if I laugh at the jokes once in awhile? A. It depends ...if you are constantly being offended and it is difficult to concentrate on your work, the activity can constitute a "hostile workplace". Sexual harassment is activity that is unwanted or unwelcome. If the employer does not take steps to immediately correct the problem, you might have to take legal action. Q. I used to date an employee where I work and since I stopped seeing him socially he makes sexual remarks to me. Am I able to complain to my employer even if I used to have a relationship with this person? A. Sexual harassment is activity that is unwanted. Even though the other employee may argue that you invited the remarks your former relationship bears no relationship to the unwanted activity. You should not hesitate to complain to your supervisor and make a record of the activity so that it will stop. Q. My co-worker used to sexually harass me and then I was laid off work. Can I sue my employer for sexual harassment? A. The employer can't be held responsible if it has no knowledge of the harassment. Employees have an obligation to report sexual harassment to their employer. The employer is required to post notices of its sexual harassment policies and how to report it. Q. What other kinds of discrimination is "bad cause" for termination? A. Employers are prohibited from discriminating against employees who fall into "protected" classes of people. Employers may not discriminate against employees because of race, religion, gender, age, physical or mental disability. Health Insurance Law Q. I applied for health insurance on the internet, now the insurance plan says I lied on my application and won't pay for my expensive medical care. The plan returned my premiums and says I never had insurance. How can they do that? A. Applying for health insurance on the internet is a risky business. Any misstatement about your health is cause for "recission" which means the insurance plan cancels coverage from the very beginning and washes its hands of you. If you have medical bills they will not be paid. If this has happened to you, you need an expert to look at the application to see if you may have been mislead by an ambiguous or vague question on the application. Q. My medical bills were denied because my health plan said it was a pre-existing condition, but I didn't know I had the condition until I went to the doctor once I was on the plan. A. New laws in the past few years have created certain rights about pre-existing conditions. You could fall under one of the "portability" laws that let you change plans without having pre-existing conditions excluded. You could have met a waiting period on your previous plan. Or you could have a pre-existing condition that was not manifest under the terms of the policy. You need an expert, such as your licensed health insurance agent or an attorney experienced in health insurance law to analyze your situation. Q. I tried to sue my health plan in small claims court but it claimed I had to engage in arbitration. Is that true? A. Some health plans require binding arbitration to settle any disputes. You should consult a legal expert to see if the notice clause in the application meets the legal requirement. If it does not. you may be entitled to bring your lawsuit in the courts. Q. I applied for group insurance where I work and I am worried about who has access to my private health information. Can my boss look at the information? Can other employees see it? A. New HIPAA privacy laws protect your personal medical and financial information. There are serious penalties for violation of your privacy rights. If you have sensitive information that you do not want disclosed to your HR or personnel department, contact the insurance agent handling the group insurance and have him/her handle the forms personally. If you do not have an insurance agent at your company, contact the insurance plan directly and ask if you can submit the forms direct to the health plan. Q. My group health insurance plan didn't pay for a medical procedure and I think they are acting in bad faith. Can I sue them for punitive damages? A. Unfortunately no. Employer-sponsored benefits fall under a federal law called ERISA. You may only bring a lawsuit to recover your benefits and possible attorneys fees. Retaining an attorney can help you negotiate the payment of benefits rather than trying to file a lawsuit. Q. I'm having a problem getting a medical procedure approved. What do I do? A. Contact the HMO plan directly and ask for provider relations. Ordinarily the approvals are done by the medical group rather than the health plan. If that doesn't work, call the provider relations department and ask if they will intervene with the medical group. In the event that it is the health plan that is denying the approval, you need to enlist the help of the doctor who is recommending the procedure and ask him to provide you with documents that you can bring to the health plan. If you have an insurance agent, enlist his/her help. When all else fails contact an legal expert in health insurance. Q. I called the California Department of Insurance because I was having problems with my HMO and they said they couldn't help me. What do I do? A. In California, there are two agencies that handle consumer problems with health insurance. The Department of Insurance handles health plans offered by insurance companies, but the Department of Managed Care handles all HMO issues. You can reach them at www.hmohelp.ca.gov . Q. I think I may have a serious illness and my HMO doctor won't order tests. Can I make him pay for the tests? A. Yes and No. Most people are attuned to their own body and can realize when something is wrong. You should not have to plead with your doctor to rule out a serious illness. You can contact the health plan first to see if they will authorize the tests. Or you can change doctors and see if the new PCP will order the tests. But if you are truly concerned about a serious illness, pay for the tests yourself and worry about being reimbursed later. Ask yourself "How much is my life worth?". Once you've had justifiable expenses incurred outside the HMO you can seek legal assistance for reimbursement. Q. I am disabled and can't work. How do I get my disability plan to pay? A. Unfortunately, many disability plans set almost impossible standards for payment of disability income. If you have supplied ample documentation of your disability and your plan still won't approve payment, you will need to seek legal assistance. Many times the issue is one of adequate documentation and once it is submitted the benefits will be paid. Q. My disability plan has been paying me a monthly income, but now they say I am no longer disabled and stopped paying. A. Disability plans are entitled to re-evaluate your disability status periodically. You need to submit whichever documents you have to prove that you still can't work. Based on the new documents, the plan can re-evaluate your status and claim that you are now able to work. If you can't convince the claims underwriter otherwise and you are truly still disabled, you will need legal assistance. Q. I have already been declared disabled by Social Security, doesn't my disability insurance have to cover me too? A. Not necessarily. While the Social Security determination may have some influence on a disability claims underwriter, the insurance company will assert that just because someone meets social security standards for disability doesn't mean they meet the standards of the disability plan. Ordinarily social security has a higher standard for total disability, but the insurance company isn't obligated to accept its findings. You will need to submit ample documentation of your disability in order to obtain your benefits. Q. I have a severe mental disorder and am unable to work or complete all of the forms the insurance company demands. What do I do? A. You need to have someone advocate on your behalf. Choose a close family member or friend, or obtain the services of an attorney specializing in disability claims. Mental disorders are the type of claims that raise "red flags" to an underwriter because they can be faked. Other "red flag" disabilities are back conditions, fibromyalgia, immune disorders, arthritis conditions and similar conditions that aren't easily diagnosed or observable. Q. I am a professional and can no longer work in my profession, but the insurance company says I can work. If I can work in another lower-paying job, can they take away my benefits? A. It depends on the terms of the policy. Some disability plans cover "own occupation" which means that you are considered disabled and eligible for benefits if you can't work in your own occupation. Some provide for "own occupation" coverage for a limited period of time, then apply an "any occupation" standard. Some provide for coverage so long as you can't work in your own occupation. Look at the terms of your policy or have your insurance agent or attorney review the terms. "Any occupation" should be defined in the policy and include wording such as "any occupation for which you are reasonably qualified by virtue of your education, training and experience" so that an injured physician should not be required to work as a dishwasher. Q. How do I pay for an attorney to get my disability benefits when I don't have any income? A. Many disability attorneys will accept a contingency fee arrangement but it can be more economical to pay an hourly rate if you have the resources to do so. Financial Elder Abuse Q. Who is an "elder"? A. An elder is defined in Welfare & Institutions Code § 15610.27 as any person residing in this state, 65 years of age or older. A dependent adult is defined in Welfare & Institutions Code § 15610.23 as any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. Q. What's the difference between civil liability and elder abuse liability? A. Any physical or financial abuse of an elder or dependant adult falls under the Welfare & Institutions Code statute which allows for enhanced damages. For example, when a person has died as a result of a civilly liable act, the estate or family cannot collect monetary damages for pain and suffering. In an elder abuse case, the statute allows the estate or family to collect damages for pain and suffering. Punitive damages may also be awarded in a civil case for elder abuse. Certain cases are also criminally prosecuted. Q. My elderly aunt recently changed her will and named her young caregiver as a beneficiary. I am afraid that the caregiver intimidated my aunt to make the change to her will. A. Caregivers and relatives who are in close contact with an elderly person are presumed to have exerted influence when they replace other persons as beneficiaries to a will or trust. The caregiver or influential person must then show some proof that they did not exert undue influence over the elder in order to benefit financially. Q. My father has an attractive, young female caregiver and he buys her gifts whenever he is able to go shopping. Is this elder abuse? A. Probably not, unless he is mentally incompetent and the caregiver is with him when he makes the purchases. It also depends upon the gifts; whether they are inexpensive or more substantial gifts, which would be suspicious. Q. What if the gifts are expensive items in the home, like antiques or jewelry? A. Receiving valuable personal property is indicative of undue influence and if the elder is mentally incompetent there is likely a crime being committed. Q. The assisted living facility where my grandfather lives, seems to have made some excessive charges against his account. What can I do? A. If you are the closest relation or have power of attorney for your grandfather's finances, you may ask for an audit of charges to see if any inappropriate charges are being made. You can also call your county Long Term Care Ombudsman facility for assistance and have an ombudsman visit your grandfather and check out the home. If there is a financial abuse taking place you may have to file a civil suit to recover the funds. Q. My mother is a 82 year old widow and her insurance agent sold her an annuity that stops paying when she dies. She invested her entire savings. Is that elder abuse? A. Yes. Certain types of annuities are inappropriate for older persons because their life expectancy is shorter so that the principal amount is never paid out and their beneficiaries are robbed of their inheritance. Q. My 90 year old father asked his bank about a higher return on his savings and the bank talked him into placing all of his money in a different account that he later learned was a mutual fund. Several thousand dollars was deducted from the account for commissions and it has been going down in value. Can I sue for elder abuse? A. Certain mutual funds have higher long-term yields than a passbook savings account, but a long term investment is clearly inappropriate for a 90 year old. Moreover, mutual funds are regulated by the Securities and Exchange Commission which sets a standard for appropriateness of any investment. This bank could be guilty of not only of elder abuse, but also SEC violations. Q. My elderly mother was pressured into buying a motorized wheelchair for thousands of dollars that she doesn't need and can't afford. The wheelchair company won't refund her money and take the wheelchair back. Can I force them to cancel the sale? A. Certain consumer sales have a period of time in which the sale can be cancelled, particularly if the sale was made in her home. If she has tried to cancel within that period, the company must comply. If the time to cancel has expired, you may be able to force the company to cancel based on the elder abuse statutes. Q. My 68 year old disabled mother was solicited to join a dating service. She agreed to pay thousands of dollars to meet compatible men, but after two very inappropriate "introductions" she realized she had been taken. Can she sue for elder abuse and have the contract cancelled? A. Maybe. It depends on the circumstances of the solicitation and the performance or non-performance of the services. She should obtain legal advice. Estate Planning Q. Who makes the health care decisions if there is no Advance Health Care Directive? A. Without an advance health care directive, the treating physician must make the decisions, but will take into consideration the wishes of the family. But the family may not know what the person would wish in the circumstances. If there is a disagreement among family members, the decision may end up in the courts, as in the Terri Sciavo case. Q. Why is an advanced health care directive needed if my family knows what I want? A. Family members may not agree on a decision or the family member may not feel emotionally able to "let go" if that is your wish. Having a clear, decisive directive will relieve your family from having to make a decision and is an important gift of peace of mind. Q. When does the advanced health care or financial power of attorney take effect? A. You can have them take effect only when your doctor determines that you are incompetent to make your own decisions. Q. What's the difference between a will and a trust? A. Simply put, a will is a public document and a trust is private. Both dispose of your estate, but the will disperses property publicly in the probate courts and is usually associated with legal fees for the probate. A trust disperses property privately by a designated a trustee. Q. Other than being private and saving legal fees, why else would I want to use a trust? A. A familiar reason for having a trust is to ensure that your estate goes to your current heirs. If you are married and have children you may want to make sure that your share of the community property goes to your children and doesn't end up going to the children of your spouse's next marriage or next spouse.
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A.
Good cause usually relates to the employee's gross misconduct,
such as serious insubordination, drug use on the job, serious
safety violations, conduct affecting the rights of others. 