Attorney needed??

[swcutie38]

What is the name of your state (only U.S. law)? California. My fiance was injured on his job in May of this year. His compensation was accepted and he has received treatment. I listened to his complaints many nights after work. He worked in the kitchen in a convalescent home and the light from the ceiling in the kitchen fell on him. He complained of the manager harassing him about small things. He was the only black cook in the kitchen by the way. She requested he take a drug test during his first visit to the doctor, which he thought was not warranted seeing that he was the one injured by something falling on him while working. Were his rights violated? She wrote him up for refusing to take the drug test, although he eventually ended up taking the drug test and passed.
That manager ended up leaving and was replaced by another.
Now my question is does he have a case because he was eventually fired for calling in 3 consecutive Mondays and on one of those Mondays he had a doctors note. He is still receiving medical treatment for his injury, but how long will that last seeing that he is no longer an employee of the company? I have tried to contact a few attorneys, but we haven't heard from anyone yet. Should he still pursue or is it a lost cause?

 

[pattytx]

What form did the "harrassment" take? What many people think is illegal harrassment is not.

What makes him think he was "harrassed" solely because of his race?

It is not unusual to require EVERY injured employee to take a drug test. The employer has the right to require the test in this situation and refusing to do so WAS, in fact, insubordination. Doing the test "later" is kind of a moot point the further it gets away from the time/date of the injury.

Does he have a case for what?

A doctor's note, even when related to an on-the-job injury, carries no legal weight unless FMLA is involved, so let's start here: How many employees does this company have at his job site or within a 75-mile radius?

 

[swcutie38]

What form did the "harrassment" take? What many people think is illegal harrassment is not.

What makes him think he was "harrassed" solely because of his race?

It is not unusual to require EVERY injured employee to take a drug test. The employer has the right to require the test in this situation and refusing to do so WAS, in fact, insubordination. Doing the test "later" is kind of a moot point the further it gets away from the time/date of the injury.

Does he have a case for what?

A doctor's note, even when related to an on-the-job injury, carries no legal weight unless FMLA is involved, so let's start here: How many employees does this company have at his job site or within a 75-mile radius?

Well he thought he was being harassed because she would get on him about parking his car in a certain place (in front of the kitchen) when there clearly others doing the same. She would tell him not to put his hours on his time sheet, she would do it and wanted him to sign it before hand. She told him no overtime, but he was written up for not taking a lunch and putting the lunch in his time after. On the days he didn't take a lunch there was no one in the kitchen to cover his break. He was told that someone was to be in the kitchen at all times, so how was he able to do that? He noticed that others were able to do those things and no one said anything to them about it. He watched as everyone in the kitchen were coming in late and marking time as if they were there and weren't. I'm not trying to say what any of them were doing was right, but why do they notice him and not the others?

Now as far as the doctor's note it says in his policy manual "Failure to provide at least a 2 hour notice for illness or injury is grounds for immediate termination." He called 2 hours prior and then presented the doctors note the next day at work.
Now should he have tried for FMLA or was it available to him even though he hadn't worked the required 1,250 hours prior to his injury? Does him being injured not matter in this case? He was seeing a doctor, but the doctor never put him on modified duty. His Physical Therapist wondered why. So if he took off a day because of his injury was he still subject to firing?
I believe there were approximately 75 people working there.

As far as the drug test, was it not violating his rights seeing that he clearly had nothing to do with injuring himself? I would think it is unreasonable search, that's just my thought. I have been injured on my job a few times and I was never subject to a drug test, that's probably why I thought so too. He had asked other co worker of his about the drug testing and they said they were never asked to take a drug test when they were injured. So again, how long will the compensation last if he is no longer employed with the company?

 

[Proserpina]

At my husband's place of employment, every single reported injury results in a mandatory drug test.

Every.
Single.
Time.

Whether you stub your toe on the copier or lose a limb down in splicing; if you report it, you take the test.

It's an excellent example of CYA.

 

[pattytx]

That's not illegal harrassment unless it was based on the fact that he is African-American. Which is very hard to prove.

 

[swcutie38]

That's not illegal harrassment unless it was based on the fact that he is African-American. Which is very hard to prove.

It's not ILLEGAL harassment, but it is harassment??

I was also wondering about my other questions. What about his compensation case? As long as they have accepted his case he is good right? If so for how long? And what about that FMLA question, was he eligible for it or not?

 

[pattytx]

It doesn't matter, you could call it harrassment, you could call it Gary, you could call it a toaster.

I would never go through a Work Comp situation without an attorney.

It being a Work Comp injury does not invoke FMLA unless the requirements are met, and they were not.