Oct. 1, 2006 Court Rules Employers Have No Obligation Under CFRA to Offer Reasonable Accommodations


On Friday, a California Court of Appeal determined in Neisendorf v. Levi Strauss & Co. that an employer does not violate the California Family Rights Act (CFRA) when it terminates an employee if he/she requires accommodations to return to work; nor does the employer violate CFRA when it terminates the employee for failure to acknowledge her performance deficiencies.


During Neisendorf’s two years at Levi Strauss, her direct supervisor (Fred Paulenich) and her subordinates expressed disapproval with Neisendorf’s performance. In July 2002, Paulenich delivered a mid-year review to Neisendorf that noted her “effectiveness—and by extension personal credibility—is greatly hampered by the inability to plan and execute on time, on budget against a broadly understood and aligned agenda.” Paulenich noted “nagging/reoccurring issues” with her “personal leadership approach,” which was described as “self-serving, upward-serving; not supportive; mistrust; lack of sincerity/genuineness; controlling….” Paulenich expressed to Neisendorf that “[t]his is a critical leadership juncture” for her.

Paulenich and Neisendorf met three times in July and August 2002 to address the issues raised in the mid-year review. Each time, Neisendorf refused to acknowledge the criticisms. Shortly thereafter, Neisendorf went on disability leave based on a physician’s note that curtly stated “[m]edically, Ms. Neisendorf is unable to work.”

Levi Strauss did not believe that Neisendorf was disabled. Nonetheless, over the next several weeks, Levi Strauss tried to identify accommodations so that Neisendorf could return to work. It made clear to Neisendorf that she could return to her former position only if she accepted and addressed the performance deficiencies set forth in the mid-year performance review. Eventually, Neisendorf and Levi Strauss agreed upon accommodations, but Neisendorf still refused to acknowledge the performance deficiencies. On that basis, Levi Strauss terminated her employment and Neisendorf sued.

The Appeal Court first made it clear that Neisendorf was not legally disabled and therefore not entitled to any protection under the Fair Employment and Housing Act (FEHA). Next, the Appeal Court determined that Neisendorf received all the substantive protections that was she entitled to under CFRA. After 12 weeks of CFRA leave, an employee is entitled to return to the same position that the employee held prior to going on leave. But, unlike FEHA, CFRA does not impose any obligation on an employer to provide a reasonable accommodation to an employee upon returning from CFRA leave. Here, Neisendorf was terminated because she refused to acknowledge her performance deficiencies. Thus, the termination was directly related to her performance, and not for taking CFRA leave.

What This Means

This opinion demonstrates an important distinction between FEHA and CFRA. If an employee takes leave under CFRA, an employer is not obligated to offer or oblige any reasonable accommodations to return the employee to work. (This lesson should be taken with a grain of salt, however, because employees on CFRA leave will often be disabled, thus triggering an accommodation obligation under the FEHA.)

This E-Update was authored by Doug Clifford and Joe Connaughton. For more information, please contact Mr. Connaughton, Mr. Clifford, or any Paul, Plevin attorney at 619-237-5200.


NOVEMBER 1, 2006

This half-day seminar will focus on how recent developments will impact your company’s day-to-day employment practices and what you need to do in 2007 to stay current with the changing employment laws.

We will examine the impact of new laws and court decisions and how these affect the workplace. We will review the changes you should make to practices and documents and will provide concrete suggestions for improving your personnel policies and practices in the coming year.

This year’s seminar will also include the following “hot topics” for 2007:

• Recent Trends – Who Is Getting Sued And Why
• What You Can Do To Protect Yourself

• Avoiding “Poison People”
• Covenants Not to Compete
• Trade Secret and Confidential Information Agreements
• Non-Solicitation Agreements

• Mandatory Medical Testing & Screening
• Drug Testing
• Medical Certification of Employee Leave and Return to Work
• ADA Accommodation and the Interactive Process
• Monitoring Employees in the Workplace: Dealing with “Sneaks and Cheats”

As always, we will also give you the floor to ask questions of our employment law experts. Register now.