Perry Smith
Founder, Sick and Fired Law
25 Years+ Handling Wrongful Terminations
Perry’s 25+ years of employment litigation have included:
Disability and medical-leave discrimination • Retaliation and whistleblower claims • Wage-and-hour and exemption disputes • Harassment and discrimination • Wrongful termination • Trials & appeals
One of The Reasons I Do What I do
Long before I became an employment lawyer, I learned how easy it is to assume that getting seriously sick means losing your job. At 23, ulcerative colitis had destroyed my colon and I needed major surgery to remove it. I lost my job and assumed there was nothing unusual about that. I was too sick to work, so I figured the job was gone.
Years later, after becoming an employment lawyer, I learned how complicated that assumption can be. I have now spent decades litigating cases involving the question I didn’t know enough to ask at 23: What does an employer legally have to do when an employee’s health interferes with work?
I've Seen What These Cases Look Like from Every Angle
I started out representing large companies in disability discrimination and other wrongful termination cases. I saw through the lens of the employers–how they viewed the cases and the laws on which they were based. For more than two decades I have represented employees against employers, having had significant success against even the largest corporations.
What 25 Years Handling Disability Related Termination Cases Has Taught Me
Disability discrimination rarely arrives with an email saying, “Let’s fire her because she’s disabled.” Employers usually have another explanation: attendance, performance, exhausted leave, failure to return paperwork, restructuring, job abandonment, or simply “business needs.”
I have spent much of my career testing those explanations against what actually happened.
In one of my early jury trials, I represented an employee claiming discrimination and retaliation. One piece of the story emerged from something seemingly small: the language the company’s CEO used when writing about my client changed after she challenged conduct she believed was unlawful. We reconstructed that change for the jury. The jury returned a verdict for my client.
More than twenty years later, I still look for the same things: What changed? When did it change? Who knew what? And does the employer’s explanation fit what its own documents and witnesses show?
Employers Too Often Treat Limitations Caused by Health Conditions as "Misconduct"
One of the recurring problems in disability cases is remarkably simple: an employer identifies something the employee is doing wrong and somehow fails to notice that a medical condition is causing it.
I once tried a disability case in which I had to persuade a jury to understand that my client’s unexpectedly falling asleep—and even snoring at work—were manifestations of a disabling medical condition. What looked superficially like employee misconduct had to be understood in the context of the employee’s disability.
I have seen variations of that problem ever since: attendance problems caused by illness, missed work caused by treatment, difficulty performing a task because of a physical limitation, or behavior affected by a mental-health condition.
Calling something “attendance,” “performance,” or “conduct” doesn’t answer the legal question–it ignores it and ignores the law and the rights of employees limited by health conditions.
The Myth of "You Have Exhausted Your Leave..."
I have litigated case after case in which an employer treated the expiration of FMLA, CFRA, pregnancy disability leave, or a policy based leave limitation as though somebody had flipped a switch and the employer was now free to terminate.
Employees often believe the employer because they assume the employer knows the law, so it must be right that they have run out of leave.
Wrong.
I had one case in which my client simply needed two weeks of additional leave at the end of a tough pregnancy with post partum issues. The employer was sure it had properly “calculated” her leave entitlement. But that’s the problem–it was doing a calculation that was entirely separate from the actual relevant questions it should have been asking under the law.
Did anyone actually consider extending it? Did anyone communicate with the employee? Was there an individualized undue-hardship analysis? Or did a leave administrator simply calculate number and find the associated date on the calendar and terminate employment?
Sadly, some employers believe that women who extend maternity leave due to postpartum depression or other limiting conditions will not be the “dedicated” employees they were when they return, and may even need further accommodations going forward. I have encountered employers who actually look for ways to “do the math” on a pregnancy leave entitlement so that the outcome is termination.
In the case above, whether the employer was looking for a reason to terminate or not, its “calculation” led straight to termination and straight to a lawsuit in which it learned that in some circumstances California law requires employers to extend leaves despite the exhaustion of specific types of leave or its own policy based limitations.
I have had many cases in which the only logical conclusion was that the employer was required to extend the employee’s leave, but instead simply advised the employee that their leave was exhausted and fired them. Employers do not give in easily, so those cases were still hard-fought, but my many years litigating the issues made me and my clients quite comfortable that the employers would eventually “get it.” And they did.
The Priorities of My Practice
I approach each case with two priorities when they are aligned with my clients’ interests, which they almost always are:
- To obtain an award compensating my clients for the damages they suffered as a result of the violation of their rights, which also serves the purpose of holding employers accountable.
- To expose and challenge unlawful practices that employers continue to engage in on a regular basis even though the laws prohibiting the practices have existed for decades.
I built Sick & Fired Law around a deliberately narrow mission: representing California employees fired for health-related reasons, including disability, pregnancy, medical leave, and the need for other reasonable accommodations.
My firm’s focus is intentional. These cases deal directly with what happens when employer profits run head on into protections for employee’s with limiting health conditions. Nearly every case is a true tale of profits vs. people. This firm exists because employers frequently fail their obligations to their people, in favor of their profits, underestimating both the law and the consequences of violating it.
The "Credibility" Benefit to My Clients
I prepare cases to be tried—and to be appealed if necessary. I have obtained reversals of trial court judges in the court of appeal on many occasions. In fact, in a single case, as a young lawyer representing multiple former employees of the defendant, I obtained the reversal of the respected trial court judge three different times, demonstrating that the judge “abused” his decision-making authority in each instance.
The result of that experience is credibility that is passed on to all of my clients. There is no question that I will take cases as far as they need to go, having competently handled every stage of litigation up to filing in the California Supreme Court–without the need to hire any other “specialist” lawyer to show me the way.
I do not rely on volume, shortcuts, or pressure tactics. My cases are thoroughly developed, procedurally disciplined, and litigated with an eye toward leverage at every stage. Certainly, the best outcome is a speedy one without a long draw out fight. But it is my willingness and track record regarding the long drawn out fights that make an early, serious, and fair negotiation and compromise not just possible, but sometimes transparently in the best interests of all sides.
Recognized by Courts and Even Opposing Lawyers
Perry’s work has been recognized not just by marketing organizations, but by judges and opposing lawyers who have faced him in real litigation.
“I admired your skill, your writing. It was a pleasure to read what you write.”
— Judge Ronald L. Bauer, Orange County Superior Court
The motion demonstrated an understanding of both substantive and procedural issues, diligence in prosecution, and willingness to devote the resources necessary to pursue the case.
— California Court of Appeal
“Since you kicked my ass in an employment case, I thought of you.”
— Defense Counsel, Los Angeles County
Perry has achieved a “Superb” rating with Avvo and was named a Super Lawyers “Rising Star” for five consecutive years earlier in his career.
Education and Training - Go Dawgs!
- J.D., University of Georgia School of Law, 2000
- Top 10% of first-year class
- Academic scholarship recipient
- General Editor and Articles Editor, Georgia Law Review–the school’s leading law journal
- Former mediator, Los Angeles County Superior Court ADR Program
- Former Associate, Payne & Fears LLP, representing large employers in disability discrimination and other cases brought by employees/former employees.
My experience as a volunteer mediator in the LASC sharpened my ability to evaluate cases as objectively as possible and to turn even the most intensely fought matters toward resolution when a client’s interest calls for it.
Beyond the Courtroom
Perry is also a songwriter, a discipline that has shaped his approach to storytelling, persuasion, and precision with language. Perry’s songwriting was recognized when American Idol’s producers chose his song out of tens of thousands of entries in its one and only songwriting competition. Superlawyers wrote about his songwriting here.
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Sick & fired LAW
Enforcing the Rights of Employees Wrongfully Terminated for Health-related Reasons with a No-Recovery-No-Fee Approach
We have been called “true believers” countless times by lawyers for corporate employers because they can see that we truly believe in the need to enforce the law and in our client’s cases. They can see how much it bothers us when employees needing accommodation for health conditions are treated as defective and not worthy of their jobs.
Here’s what so many California employers fail to acknowledge: California allows them to earn their corporate profits in California and on the backs of California employees. But by cashing in on California and its people, employers agree to comply with California’s laws protecting employees. Put simply, cashing in requires compliance. Employers who fire employees in violation of California’s protective laws are cashing in without compliance. We think the corrupt cash should go to compensate wrongfully fired employees.
Employers sued for cashing in without compliance often accuse the employees who sue them of “just trying to cash in.” The gaslighting is real.