How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask socrateaser Your Own Question
socrateaser, Lawyer
Category: California Employment Law
Satisfied Customers: 37702
Experience:  Retired (mostly)
Type Your California Employment Law Question Here...
socrateaser is online now
A new question is answered every 9 seconds

We are a business operating in California and have a salaried employee who has cancer. The

This answer was rated:

We are a business operating in California and have a salaried employee who has cancer. The employee misses a lot work due to her treatment, and has presently used up all of her allowable sick days for this year and is now just sporadically at work while we continue to pay her salary. While we care for her and her condition we cannot afford to pay a person who is not working. My question is: How do we ask her to work more, or let her go while minimizing our legal exposure? (can you please cite all relevant laws, codes, etc; so we can verify).

Before I answer, I need to know the number of employees in your organization (full or part time -- it doesn't matter).

Thanks in advance.
Customer: replied 5 years ago.
Thank you for your prompt response,

My organization is a real estate brokerage and has approximately 7-9
"employees" and hundreds of "independent contractors" (or real estate agents) which for the purposes of law may likely be considered employees. Again, your advice on this matter is greatly appreciated and needed; additionally, we would appreciate knowing at least which laws, statutes, codes,etc govern this matter as well.

thanks again,

There is no way for me to detail every possible legal theory under which this employee might sue. In general California Labor Code § 2922 permits an employer or employee to terminate an employment contract "at will" (i.e., at any time, for any reason or for no reason at all). California law recognizes the following exceptions to the "at will" employment doctrine:

  • Breach of Contract (see, e.g., Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 675-676). This can occur where an employer creates an implied contract based upon a written employment policy or handbook entry, and which grants or appears to grant an employee some specific right concerning protection from termination. Most boilerplate employee handbooks have a blanket "at will" termination policy. Regardless, courts will sometimes refuse to enforce the policy where other terms and conditions of the handbook. or other written policies of the employer demonstrate a contrary intent. Because of the uncertainty of these situations, and the need to analyze the actual facts and circumstances, this area can be a minefield. However, unless the handbook or policy complained of is a veritable "smoking gun," an employment law attorney will generally decline to represent an employee, because attorney's fees are not recoverable against the employer, and if the employee loses the lawsuit, the employment attorney is left "holding the bag." This factor generally limits breach of contract actions to only very highly compensated corporate officers, whose cases justify the risk of large legal fees in trying to resolve a dispute.

  • Violation of Public Policy (see Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172). This claim arises where the employee is terminated for acts such as attending jury duty, testifying as a witness under subpoena, reporting an employer's criminal activities to law enforcement, filing a workers compensation claim, etc.). Where a well-established public policy exists, the law will protect the employee from termination. However, not all public policies qualify. For example, an employee who exercises free speech rights outside of work and in doing so, acts in a manner that causes actual injury to an employer, such as transmitting confidential information to a competitor, the employee has no protection from termination.

  • Discrimination under both federal and state law (42 U.S.C. § 2000e et. seq.; 29 USCA §§ 623(a)(1), 631(a)); Ca Govt § 12940(a)). This is the "big ticket" for most employment law actions, and it is the one most likely to be asserted by your employee, so I will address the relevant possibilities.

First, if you have 5 or more employees (apart from the independent contractors/agents), then you are subject to the discrimination laws. An employee with a known disability, which affects a major life function and is either permanent or reasonably likely to last a "long time" (e.g., 90+ days), can claim disability discrimination -- unless the employer provides reasonable accommodations for the employee's disabilities so that the employee can perform the essential functions of the job. The employer has a defense to providing reasonable accommodations if it can show that it will suffer an undue hardship by having to maintain the employee's status as an employee.

On your facts, you have an employee who is apparently trying to work, but is having difficulties doing so, and it is affecting your business. Each side has a legitimate claim for protection under the law, and that makes for a litigation risk, because no one is certain who would prevail in court. The gravity of the employee's illness favors the employee, especially where a jury is giving the verdict, and the employer's small size favors the employer, at least with the court, if not with the jury, because it may not be reasonable to expect an employee of 7-9 employees to protect the job of an ill employee who cannot perform adequately, without providing substantial rather than merely reasonable accommodations.

See this link for information concerning disability discrimination.

If I were representing you, I would probably say that you have the right to terminate the employee without continuing to accomodate her. However, I would also suggest that you have documented the entire history of the circumstances and exactly how it has adversely affected your business. Otherwise, your termination could be viewed as merely arbitrary, and that would indicate that there was little or no attempt to reasonably accommodate the employee's disability.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.

socrateaser, Lawyer
Satisfied Customers: 37702
Experience: Retired (mostly)
socrateaser and other California Employment Law Specialists are ready to help you

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Previous | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK

Meet The Experts:

  • LawTalk



    Satisfied Customers:

    I have 30 years of experience in the practice of law, including employment law and discrimination law.
< Last | Next >
  • LawTalk's Avatar



    Satisfied Customers:

    I have 30 years of experience in the practice of law, including employment law and discrimination law.
  • Tina's Avatar



    Satisfied Customers:

    JD, 17 years experience & recognized by ABA for excellence in employment law.
  • Brandon, Esq.'s Avatar

    Brandon, Esq.


    Satisfied Customers:

    Has received a certificate of recognition from the California State Senate for his outstanding legal service.
  • melissamesq's Avatar



    Satisfied Customers:

    Represent clients to maximum recovery in employment cases.
  • /img/opt/shirt.png Attorney2020's Avatar



    Satisfied Customers:

    I have significant experience in employment law.
  • /img/opt/shirt.png Legal Counsel's Avatar

    Legal Counsel


    Satisfied Customers:

    California Licensed Attorney- 29 years- Wages, Hours, Overtime, Discrimination, Wrongful Termination.

Related California Employment Law Questions