The law limits the time for filing legal actions. Don't lose your rights by waiting too long to obtain advice.
   
     
Attorney at Law
  The law limits the time for filing legal actions. Don't lose your rights by waiting too long to obtain advice.
 
 
 

Constance N. Zarkowski
Attorney At Law

4333 Park Terrace Dr. Suite 120 Westlake Village, CA 91361
Phone (Direct): 805-379-0136
Facsimile: 805-379-1292
attorney@virtualadvocate.net

 

 


Frequently Asked Questions

Employment Law

Wrongful Termination

Q. 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?
A. Good cause usually relates to the employee's gross misconduct, such as serious insubordination, drug use on the job, serious safety violations, and conduct interfering with the rights of others.

Q. What is “bad” cause?
A. “Bad” cause is termination because of discrimination (such as because of your race or religion), because of exercise of rights, (such as your complaining about labor code violations, or sexual harassment) or any of a number of other protected activities. If someone is terminated for “bad” cause, they can file a complaint with the EEOC and/or California Department of Fair Employment and Housing and either allow those agencies to investigate, or obtain legal representation and sue in state court. However, you have a very limited time to do this and should seek legal representation right away.

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.

Disability Discrimination

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.

Q. What is the employer supposed to do for me if I am disabled?
A. Employers are required to offer "reasonable accommodation" to disabled employees and may not discriminate against them because of their disability. Employers are required to engage in the interactive process, which means to have a discussion with the employee to try to find a way to accommodate his/her job restrictions or to provide equipment that will enable the employee to continue working. Examples would be to provide more frequent rest breaks if the job requires standing or to install voice activated software for an employee who has carpel tunnel syndrome. The goal is to have disabled employees remain in the work force wherever possible.

Q. What if my employer says he can't afford the accommodation I need?
A. There are tests of "reasonableness" that the employer must undergo in order to determine whether or not it can accommodate the employee's disability. When engaging in the “interactive process" with the employee they must explore together with the employee 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. What if I haven’t been fired but my employer has demoted me or lowered my wages?
A. The employer is forbidden from taking any adverse employment action against an employee because of their disability. When a disabled employee is experiencing adverse actions, they should immediately report it to their Human Resources department and/or seek legal advice if it continues.

Sexual Harassment

Q. What is sexual harassment?
A. Sexual harassment takes many forms. Essentially, it is any actions, words or other conduct that creates an environment that is offensive to an employee. The employee can be male or female. The actions, words or conduct could be anything from a pat on the shoulder, to coarse language, to displaying sexually offensive photographs. Each circumstance is different and involves either co-workers, supervisors, or customers of the employer. The conduct must be “severe and pervasive” such that it creates a hostile work environment, making it more difficult for the employee to perform their job duties. A passing sexual joke, or a single comment that offended is usually not enough. If you feel you have been the victim of sexual harassment you should report it to your supervisor and/or your human resources department immediately. If you do not experience a fast resolution that you are comfortable with, contact an attorney to explore your legal options.

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 and/or human resources department.

Q. What if the supervisor is the problem?
A. The employee must complain to the next highest supervisor, or to the "supervisor's' supervisor" or to the human resources department, if any.

Q. Can I complain to the company if I laugh at the jokes once in a while?
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.

Other Discrimination

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

Health Insurance

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 the benefits that were denied and possible attorney’s fees. Retaining an attorney can help you negotiate the payment of benefits rather than trying to file a lawsuit.

HMO Issues

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 a 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.

Disability Claim Denial

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. Usually this occurs after the first two years of disability. That’s because most policies provide benefits when you cannot perform the duties of your own occupation for the first two years. After the two years, the policies ordinarily provide benefits only if you cannot perform the duties of any occupation. You need to submit whichever documents you have to prove that you still can't work in any job. Based on the new documents, the plan can re-evaluate your status as to whether you are 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 fabricated. 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.

   
   
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