©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 63 45 Id. (“Then, once the employee has made that necessary threshold showing, the employer bears ‘the burden of proof to demonstrate by clear and convincing evidence’ that the alleged adverse employment action would have occurred for ‘legitimate, independent reasons’ even if the employee had not engaged in protected whistleblowing activities.”) (citing Lab. Code § 1102.6). 46 Id. at 708 (“Under that approach, the employee must establish a prima facie case of unlawful discrimination or retaliation. Next, the employer bears the burden of articulating a legitimate reason for taking the challenged adverse employment action. Finally, the burden shifts back to the employee to demonstrate that the employer’s proffered legitimate reason is a pretext for discrimination or retaliation.”) (citing McDonnell Douglas, 411 U.S. at 802, 804). 47 Lab. Code § 98.6(a). 48 Lab. Code § 98.6(b)(3). 49 Bus. & Prof. Code § 2056(c). This statute probably does not create a direct right of action but could support an action for breach of contract and, like any explicit statement of public policy, would support an employee’s tort action for dismissal or demotion in violation of public policy. See generally Tameny v. Atl. Richfield Co., 27 Cal. 3d 167 (1980) (employee could bring tort for wrongful termination where dismissed for refusing to engage in illegal price-fixing). 50 Health & Safety Code § 1278.5(b)(3) (providing for civil penalties of up to $25,000 and remedies for employees or medical staff suffering retaliation). 51 Health & Safety Code § 1278.5(d)(1). 52 Lab. Code §§ 244, 1019. Section 244(b) defines “family member” to include a spouse, parent, sibling, child, uncle, aunt, niece, nephew, cousin, grandparent or grandchild related by blood, adoption, marriage or domestic partnership. 53 Lab. Code § 1019(b). 54 Lab. Code § 1019(d). 55 Pettus v. Cole, 49 Cal. App. 4th 402, 452-61 (1996). 56 Civ. Code § 56.20(b). See generally Loder v. City of Glendale, 14 Cal. 4th 846, 861 (1997). 57 Kao v. Univ. of San Francisco, 229 Cal. App. 4th 437, 453 (2014) (upholding jury verdict against USF professor fired for refusing to undergo fitness-for-duty examination, after faculty members and school administrators reported his frightening behavior); cf. Ellis v. San Francisco State Univ., 2016 WL 4241907, at *4 (N.D. Cal. Aug. 11, 2016) (denying summary judgment for employer in light of material issues whether the employer had “requisite evidence that a business necessity warrant[ed] a properly tailored fitness for duty evaluation”). 58 29 U.S.C. § 2614 (“any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave—(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or (B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.”); id. § 2614(a)(4) (“employers may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work, except that nothing in this paragraph shall supersede a valid State or local law or a collective bargaining agreement that governs the return to work of such employees.”). 59 White v. Cnty. of Los Angeles, 225 Cal. App. 4th 690 (2014) (while employer cannot seek a second opinion regarding fitness for work prior to restoring the employee to employment from an FMLA leave, employer may, if not satisfied with the employee’s health care provider’s certification, seek its own evaluation of the employee’s fitness for duty, at the employer’s own expense; employee here was fired for refusing to submit to fitness-for-duty exam). 60 Lab. Code § 1024.6.
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