California Court: Employer Failed to Follow CFRA Requirements

The California Family Rights Act in most respects mirrors the federal FMLA. These laws have been around for some time now. But their provisions, and the interplay between them and workers' compensation and disability discrimination laws, continue to vex employers. The California Court of Appeal's decision in Faust v. California Portland Cement is a cautionary tale for employers trying to untangle this complex web of laws and regulations.

Faust worked for California Portland Cement as a "lube specialist" at a quarry. He experienced some severe stress and work and filed a worker's compensation claim. He sent in an initial note note in support of a request for leave based on depression. His psych benefits ended. He then sought an extension supported by a note from his chiropractor.

The employer questioned the adequacy of the certificate and attempted to call Faust. His wife told the HR manager that Faust was too stressed to speak with the HR manager, and she could speak with Mrs. Faust, Faust's workers' compensation lawyer, or his chiropractor. The company did not accept these options and terminated Faust's employment after seven weeks of leave. Significantly, the company also did not designate the leave as CFRA/FMLA, or notify Faust of his rights under those laws.

Faust sued for disability discrimination and harassment under the Fair Employment and Housing Act, as well as denial of CFRA leave, interference with the right to take CFRA leave, retaliation, and unfair business practices in violation of California Bus. and Prof. Code section 17200. The trial court granted summary judgment in favor of the company, holding that Faust had engaged in "insubordination" by taking unauthorized leave. The trial court's main point was that Faust did not cooperate with the company's efforts to clarify the bases for his leave.

The Court of Appeal reversed on the CFRA claims. Here are the important issues decided:

1. Interference with CFRA merely requires proof that the employee was entitled to leave and the employer denied the leave. There is no "pretext" or "shifting burdens" analysis normally applicable to discrimination claims.

2. The company's failure to demonstrate it had (1) posted the required notices regarding FMLA/ CFRA leave, and (2) notified Faust of his right to CFRA leave precluded summary judgment against Faust. The CFRA regulations expressly state the employer's failure to give notice precludes the employer from denying leave because the employee failed to give adequate notice.

3. The court would not hold that, as a matter of law, the company was privileged to insist on speaking with Faust directly, rather than his wife, doctor or workers' compensation attorney. This is significant, as employees frequently refer management to "representatives," and employers frequently (and correctly) insist on communication with their own employee. The court said that whether Faust adequately communicated is for the trier of fact (likely a jury made up of 12 employees who may not want to talk with HR.)

4. The chiropractor's note, while perhaps not adequate to constitute a medical certification, was more than sufficient to put the employer on notice that it should look further into whether the leave qualified under CFRA. The court then said that the company's efforts were insufficient because it did not seek out Faust's designated representatives, and that the company failed to give Faust notice of leave anyway.

5. The retaliation claim survived because the company's legitimate business reason was undermined by the fact that the company would not communicate with any of Faust's representatives, "particularly" his workers' compensation attorney. The court said that this failure was sufficient to permit a trial on whether the discharge was in retaliation for Faust's taking a protected leave.

6. The wrongful termination in violation of public policy claim survived because the CFRA claim survived. But the court noted in a footnote that Faust's reporting co-worker misconduct would not support that wrongful termination claim. That footnote will come in handy for employers in other contexts.

7. The court finally allowed the FEHA disability discrimination claim to proceed. With little analysis, the court relied on Faust's discrediting the company's legitimate business reason for discharging him, as discussed above.

It is always much easier to analyze these issues in hindsight. The company did try to assess Faust's entitlement to leave, and Faust did not fully cooperate. But, as this decision makes clear, the law places most of the burden on the employer to ferret out whether employees are entitled to protected leave. So, the decision might have come out better for the employer if it had (1) taken into account Faust's initial claim of a mental disability when refusing to deal with the "representatives" and (2) provided notice of CFRA leave at the outset of Faust's leave.

DGV