A COVID-Primarily based Retaliation? – SF Weekly

My child’s daycare center had to be closed for a month due to exposure to COVID-19. I took time off to take care of my four year old. When I got back to work, my employees treated me differently. You know what happened at my child’s day care center. When I enter a room I see them whispering to each other and sometimes they leave the room entirely as if to avoid me. A member of staff asked me specifically if I had the “kung flu”. I am an Asian American and was offended by this comment. Another employee said it wasn’t fair for me to be able to take a “month of vacation”. I verbally complained to my manager about the racist remark and the different treatment by my staff and she assured me that she would take care of it.

A few weeks later, my manager informed me that I was being transferred to the cemetery shift. My manager knows I can’t work this shift because I have a young child. I told her this was not fair and that I thought I was turned away because a COVID-19 clearance for my child’s daycare was closed and / or complaints about the racist comments from my staff. She denied it, saying it was a business need and my options would shift to the graveyard shift or go away. I think it makes me stand out. I’ve been with this company for two years and always had a good relationship with my manager before I complained. I do not know what to do. What are my rights

– Elena, Dolores Heights

Dear Elena,

I am so sorry that this is happening to you in the middle of an already difficult year. The Fair Employment and Housing Act (FEHA) prohibits discrimination and harassment based on race, national origin, and disability (including categories) in the workplace. The FEHA applies to public and private employers, labor organizations and employment agencies with five or more employees. Employees also have the right to be protected from retaliation if they file a complaint or oppose any practice prohibited by the FEHA. Retaliation includes any adverse employment action taken in response to an employee’s complaint, including dismissal, demotion, wage cut, transfer of jobs, and negative performance evaluation. In other words, if you report discrimination or harassment based on race, national origin or disability in the workplace, your employer cannot punish you or treat you differently. Employers who violate the FEHA’s anti-discrimination, harassment and retaliation regulations may be held liable for damages, including reimbursements, lost benefits, emotional distress, punitive damages, legal fees and costs, etc.

Your complaint to your supervisor about the “kung flu” comment that your employee made and treated differently from employees on leave is considered a protected activity under the FEHA, as this is likely to be based on your race or national origin or perceived or associatively based disability. (COVID-19 can be a disability depending on its severity.) Your supervisor forcing you to move to the cemetery shift is considered an adverse employment measure under the FEHA. The law requires proof of a connection between the two things. The fact that this happened just two weeks after you complained is evidence that this was related to the protected activity.

Another source of protection can be the Family First Coronavirus Response Act (FFCRA). The FFCRA, which expanded the Family Medical Leave Act (FMLA), covers vacation and loss of income when an employee has to care for children due to school closings or childcare and other COVID-19-related vacations. Employers with 500 or fewer employees must provide sheltered leave to employees who need to look after the employee’s child (under the age of 18) when the child’s primary or secondary school or childcare location is closed or the childcare provider is closed due to the COVID- 19-Not available if necessary. This applies to employees who have been with the employer for at least 30 calendar days. This means that employers are prohibited from dismissing, disciplining, or otherwise revenging employees who are on vacation under the FFCRA. Employers who violate the FFCRA’s expanded FMLA provision may be held liable for damages including repayment, lost benefits, emotional distress, attorney fees and expenses, etc.

Assuming your employment has 500 or fewer employees, your leave of absence to care for your minor child while the daycare is closed will be protected by the FFCRA, and retaliation against you with a cemetery shift will be against the FFCRA. We encourage you to consult an employment lawyer to protect your rights as much as possible and to make sure you don’t miss any registration deadlines.

Christopher B. Dolan is the owner of the Dolan PC law firm. Mari Bandoma Collado is a Senior Associate Attorney based in our Oakland office. Email questions and topics for future articles to: [email protected].

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