California Employers Should Be Wary of Using Job Abandonment to Terminate Workers

Attorneys Discuss Rights to Terminate in California

Terminating an employee for excessive absenteeism is a relatively common practice in California. HR officers often feel that terminating an employee for, say, five days of unexcused absences is an objective decision, whereas firing the employee for “poor performance” is subjective and more difficult to document. A recent California appellate decision shows, however, that where the employee’s absences are potentially linked to medical leave, the employer must be very careful, lest it open itself to a claim that it has violated the California Family Rights Act (“CFRA”).

The Bareno Case

According to the employer in the case, San Diego Community College, Bareno had a history of unexcused absences. It reprimanded her on numerous occasions; in 2013, it imposed a three-day suspension for excessive absenteeism. On the Monday she was supposed to return to work, she called her supervisor and advised that she would be absent while she sought medical attention. Later that day, she followed up with an email indicating she would be out that workweek. She provided a medical authorization note. Later that week, she emailed her supervisor’s boss, indicating she wanted to appeal the three-day suspension and further indicating that she was out on medical leave.

On that same day, she sent her supervisor a new medical form using the email system at a UPS Store. The employer claimed it did not receive the “UPS” email and, after five days of what it said was unexcused absence, it sent Bareno a termination letter. During the time that letter was in transit, Bareno emailed another medical verification form, indicating she needed more leave. By this time, the employer told her she’d been fired and refused to reconsider its decision.

Bareno sued the community college, saying she had been terminated in retaliation for taking medical leave – a personnel action that violates the CFRA. The trial court granted the college summary judgment and Bareno appealed.

Appellate Decision

On January 13, 2017, the appellate court reversed the trial court, noting that if the evidence was viewed in the light most favorable to Bareno, she had stated a CFRA claim. The court said Bareno’s email indicating she was appealing the three-day suspension and that she “was on medical leave” was a sufficient notice to the employer that she needed medical leave. The college had an obligation to ask Bareno for additional information regarding her leave request if it thought such was necessary. It could not merely sit back and wait the five days, and then terminate her.

Employer Takeaways

The case provides a number of important takeaways for employers. Among them are the following:

•  Proceed with caution when an employee mentions being out of work for medical reasons.

•  The courts will generally give the employee the benefit of the doubt; so don’t just rely upon an employment contract provision that says the employee is deemed to have “voluntarily resigned” after a specified number of unexcused absences.

•  Recognize that spam and email filters can prevent delivery of important messages from an absent employee. Keep in contact with the employee during any period of absence.

•  If the employer feels that verification for an absence is wanting, it has a burden of moving forward with employee contact. If there is any reason to believe the employee is absent for a CFRA-protected medical reason, the employer should not assume the employee has resigned.

CKB VIENNA LLP: Experienced Legal Counsel in Employment Law

In light of the Bareno case, all California employers should review their HR policies to determine what changes, if any, need to be made. Many employers determine that having experienced, outside counsel is a key to best practices in personnel law. For years now, CKB VIENNA LLP has represented all sorts of businesses in employment law matters. Our team understands the complexity of the issues and stands ready to represent you aggressively. We have offices in Rancho Cucamonga, San Bernardino, and Los Angeles. Contact us by telephone – 909.980.1040 – or complete our online form.