There Is No “Honest Belief/Honest Suspicion” Defense in CFRA Cases!

The California Family Rights Act (CFRA) found at California Government Code §§ 12945.1 and 12945.2, as courts have stated, is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security.

The CFRA makes it an unlawful employment practice for employers with 50 or more employees to refuse to grant a request by an employee to take up to 12 weeks in any 12-month period for family care or medical leave. This includes instances in which an employee’s own serious health condition renders the employee unable to perform the essential functions of his or her job.

In Richey v. Autonation, Inc. et al., plaintiff suffered a back injury at home and his physician determined that plaintiff was unable to work and so plaintiff filed a claim for CFRA leave. The employer granted the leave, but while plaintiff was out on leave, he did contionue to work – not for his employer – but for himself at his own restaurant!

Plaintiff’s employer sent over some spies and they reported back that indeed, plaintiff was working while on CFRA leave.

The employer got mad and fire plaintiff because plaintiff violated employer’s policy barring employees from working while on leave.

Plaintiff sued, but the dreaded mandatory arbitration clause kicked-in and the parties headed off to an arbitration, most certainly with an arbitrator bought and paid for by the employer. (That’s typically how it works, regardless of what the employers say.)

Even though California is in the Ninth Federal Circuit, the arbitrator looked for guidance in the Seventh Federal Circuit, and determined that, “[a]n employer who honestly believes that it is discharging an employee for misusing FMLA (also CFRA) [leave] is not liable even though the employer is mistaken.”

Wow! A get out of jail free card tailor-made for employers who want to disregard silly little laws like the CFRA or FMLA!

Plaintiff appealed and lost at the trial court and plaintiff appealed again.

This time, the court noted that the “honest belief defense” (the get-out-of-jail free card) has been rejected by most federal jurisdictions. The court further noted that California courts have rejected the “honest belief defense” since it is inconsistent with the antidiscrimination provisions of the CFRA and it would tend to encourage employers to have their managers remain ignorant of both the law and the facts relating to CFRA leave.

The bottom line is this: in order to prevail in a claim of CFRA discrimination, the employer must demonstrate evidentiary facts sufficient to carry the burden of proof imposed by the CFRA. This is nothing new – just restating the law.

Richey v. AutoNation, Inc. et al., 2012 WL 5492902, 210 Cal.App.4th 1516 (2012).

This entry was posted in CFRA. Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *