California Employment Attorney Blog

EEOC Issues New Guidance on Criminal Background Checks

2012-05-16T22:46:34Z

EEOC Issues New Guidance on Criminal Background Checks

The Equal Employment Opportunity Commission (EEOC) has issued an updated enforcement guidance regarding employers' ability to consider candidate criminal records in hiring decisions. The EEOC's previous guidance was issued over two decades ago, when conducting criminal background checks was more difficult. The new guidance, according to the EEOC, is necessary for the electronic age.

According to the EEOC, a company that rejects all candidates with criminal records could be discriminating against certain minority groups, as some statistics suggest that certain minority groups are convicted of some crimes at a rate higher than their percentage of the overall population. The EEOC believes that such a blanket ban could result in unlawful discrimination under the "disparate impact" theory of discrimination recognized by courts under federal and state anti-discrimination law, including California law.

Under disparate impact theory, employers can be found liable for discrimination without a plaintiff having to show proof of intentional discrimination, and based on statistical evidence alone. Regardless of their opinions on whether this legal theory is just, employers must accept the reality of the potential for liability in this area.

The guidance also expresses concern over the potential for background check errors. According to the EEOC, some data suggests that background screening companies mismatch people and records, (especially people with common names), omit crucial information (for example, a person is arrested but then found innocent), reveal sealed or expunged information, provide misleading information, such as a single charge listed multiple times, and misclassify offenses, such as reporting a misdemeanor as a felony.

The EEOC recommends that employers allow applicants to explain results and discrepancies, and also recommends that employers objectively weigh the date of the offense, as well as its severity and relevance. If a candidate is denied employment based on a criminal record, the employer must show that the record directly conflicts with or introduces danger to the specific job for which the candidate was considered.
This guidance, if relied on by a court, will make it generally unlawful for an employer to implement a blanket ban on candidates with criminal records, with arguably minor exceptions in certain jobs and industries that prohibit hiring individuals with criminal records (e.g., nurses, teachers, day care providers, etc.) Under the new guidance, however, if an employer's policy is not job related and consistent with business necessity, the fact that it was adopted to comply with state law would not shield the employer from liability.

While the guidance does not have the same legal effect as a federal statute passed by Congress, it will be relied on by federal and state courts evaluating allegations of criminal background check discrimination.

The guidance makes the following recommendations about employer best practices:

Eliminate policies or practices that exclude people from employment based on any criminal record;

Train managers, hiring officials, and decision makers about anti-discrimination laws;

Develop a narrowly-tailored written policy and procedure for screening applicants and employees for criminal conduct;

Identify essential job requirements and the actual circumstances under which the jobs are performed;

Determine the specific offenses that may demonstrate unfitness for performing such jobs;

Identify the criminal offenses based on all available evidence;

Determine the duration of exclusions for criminal conduct based on all available evidence;

Include an individualized assessment;

Record the justification for the policy and procedures;

Note and keep a record of consultations and research considered in crafting the policy and procedures;

Train managers, hiring officials, and decision makers on how to implement the policy and procedures consistent with anti-discrimination law;

When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity; and

Keep information about applicants' and employees' criminal records confidential. Only use it for the purpose for which it was intended.

Additional recommendations from Michelman & Robinson, LLP include:

Before rejecting a candidate based on a criminal background check, make sure that the information is accurate. Also, make sure that the information creates a danger or direct conflict with the job duties at issue;

Consider giving the candidate an opportunity to explain the information, making sure not to violate applicable law (for example, California law) about permitted areas of inquiry into criminal background;

Be willing to consider good faith efforts by the applicant to rehabilitate;

Consider the risks to other employees and your clients, and the obligation to maintain a safe workplace;

Ensure that the background check provider understands and complies with all applicable law. Both federal and California law have specific limitations on what records can be inquired about and accessed - make sure your provider is familiar with these laws; and

Give your provider a copy of the EEOC guidance and ask what steps they have taken to ensure that their practices are in compliance with its recommendations.

Contact legal counsel for advice in specific situations.

California Employers Receive Long Awaited Ruling on Meal and Rest Breaks

2012-04-13T17:44:10Z

On April 12, 2012, the California Supreme Court published its long-awaited decision in Brinker Restaurant Corporation v. Sup. Ct. The ruling is generally favorable for employers, as it expands their ability to defend themselves against claims of missed meal and rest breaks, both on an individual employee and class action basis. Employers should take note of the following key aspects of the decision:

Meal Breaks: "Provide," Not "Ensure"
An employer must relieve the employee of all duty for designated meal breaks, but need not ensure that the employee does no work. If work does continue during the break after the employee was relieved of all duty, the employer will not be liable for premium pay of one hour at the employee's hourly rate. At most, it will be liable for straight pay, and then only when it "knew or reasonably should have known that the worker was working through the authorized meal period." As the Court put it, "[t]he employer is not obligated to police meal breaks and ensure no work is performed."

Proof that an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay. Employees "cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate liability." On the other hand, an employer may not undermine a formal policy of providing meal breaks by "pressuring employees to perform their duties in ways that omit breaks."

The Employer's Obligation
If a meal break is not taken by the employee, the burden is on the employer to show that the employee had been advised of the legal right to take a meal break, and that the employee knowingly and voluntarily decided not to take the meal break. This places an obligation on employers to maintain records showing that breaks were in fact taken.

No "Rolling Meal Breaks"
A first meal period is required to be taken no later than the end of an employee's fifth hour of work, and a second meal period no later than the end of an employee's 10th hour of work. No additional timing requirements exist. The concept of "rolling breaks," in which a meal break must be taken for every five hours worked, is rejected by Brinker.

Rest Break Calculation Clarified
The California rest break law requirement is ten minutes rest time per four hours worked, or major fraction thereof, except for employees whose total daily work time is less than 3.5 hours. This means that rest breaks are determined by the number of hours worked divided by four. If the result is a fractional part of half or less than half, round down. If the result is a fractional part of more than half (a "major fraction") round up. Multiply the aforementioned fractional part by ten minutes to determine break durations.

Example:
Shift / Break Time
< 2 hours / None
2 hours up to 6 hours / 10 minutes
6 hours up to 10 hours / 20 minutes
*employees whose total daily work time is less than 3.5 hours are not entitled to a rest break

Timing of Breaks: No Specific Sequence Required
California's Wage Orders do not address the sequence of meal and rest breaks. The only constraint on timing is that rest breaks must fall in the middle of work periods "insofar as practicable." Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. Thus, meal breaks could come before rest breaks without creating a violation.

Off the Clock Work: Knew or Should Have Known Standard
Employers are only liable for "off the clock" work if the employer knew or should have know that the work was being performed. A policy prohibiting "off the clock" work can be used to support the employer's position that no such work was permitted. Employees being clocked out creates a presumption that they are doing no work.

Practical Impact
Employers can maximize the impact of Brinker by taking the following practical steps:

1. Implement and enforce policies on the right to take meal and rest breaks. Specify in detail the break requirements of California law and provide a reporting procedure for missed breaks. Have all new hires and current employees sign an acknowledgment of receipt of the policy, and provide them with a copy. Include the policy in the employee handbook, and post the policy and applicable California Wage Order in a conspicuous location, such as the employee break room. Address breaks with new hires in orientation.

2. Have a policy prohibiting off the clock work and strictly enforce it.

3. Train managers to enforce wage hour policies consistently. When employees legitimately miss meal and rest breaks, pay the statutory premium pay; when employees work off the clock, pay them for the hours worked. Take disciplinary action against non-compliant employees as well as their supervisors where appropriate.

4. The Court indicated in Brinker that employers are still required to comply with the law on meal and rest breaks, even with the "provide" standard. Continue to enforce meal and rest break policies. Make sure that employees clock out and back in for lunch.

5. Maintain accurate time and payroll records. The Court stressed that employers bear the burden of maintaining records. Failure to do so can subject employers to liability for a variety of potential violations.

6. Periodically audit time records to ensure compliance.

This Alert addresses general legal principles. It is not to be relied on as legal advice. Legal counsel should be consulted before using the information in this Alert in any particular situation.

California Physician Assistant Wins $168 Million Sexual Harassment Verdict

2012-03-08T18:35:45Z

Last week, a Sacramento jury awarded Ani Chopourian $168 million dollars in the largest judgment for a single victim of workplace harassment in U.S. history. The record judgment - $125 million in punitive damages and $42.7 million for lost wages and mental anguish - is being appealed by the hospital.

Chopourian worked for two years as a physician assistant at Sacramento's Mercy General Hospital. She claimed she was subjected to at least eighteen harassing incidents. A bullying surgeon once stabbed her with a needle and broke the ribs of an anesthetized heart patient in a fit of rage. Another surgeon, she said, would greet her each morning with "I'm horny" and slap her bottom. Another called her "stupid chick" in the operating room and made disparaging remarks about her Armenian heritage, asking if she had joined Al Qaeda.

The hospital attempted to defend itself by claiming that Chopourian was guilty of professional misconduct, claiming that was why it fired her and tried to deny her unemployment benefits. But multiple witnesses testified to a culture of vulgarity and arrogance that humiliated female employees and put patients at risk.

The plaintiff was fired days after filing the last of her complaints about patient care and the doctors' demeaning behavior. The evidence indicated that the hospital allowed surgeons to get away with harassment because cardiac surgery was the most lucrative aspect of the hospital's operations.

The harassment, its impact on patient care, the hospital's failure to properly respond to the plaintiff's complaints, and the idea that doctors were held to a lower standard because they generated so much revenue obviously infuriated the jury.

This verdict serves as a powerful reminder of the critical need for employers to recognize and respond to harassment complaints. At minimum, employers should have strong anti-harassment and retaliation policies, train all employees on harassment at least annually, hold all employees to the same standard regarding allegations of harassment, and take all steps necessary to prevent retaliation, regardless of the merit of the underlying harassment complaint.

Lack of Clear Rules, Improper Attorney's Fees Provision Doom California Employment Arbitration Agreement

2012-03-06T17:53:20Z

Last week, a California Appellate Court found an employment arbitration agreement invalid because (1) the employer did not give the employee a copy of the arbitration provider's rules, did not tell the employee where to find the rules, and did not make clear which version of the rules would apply, and (2) the agreement gave both the employee and the employer the ability to recover attorney's fees for winning the arbitration. Mayers v. Wolt Management Corp., http://www.courtinfo.ca.gov/opinions/documents/G045036.PDF.

Several California courts have now rejected arbitration agreements that failed to clearly communicate the arbitrator's rules. To improve the chances that their agreements will hold up in court, employers should specifically reference both the arbitration service provider that will be used to arbitrate the dispute, and the specific rules of the provider that will be used. Employers can attach a copy of the rules to the agreement, but at minimum, the Human Resources department should have a copy of the rules available for review.

The other problem with the agreement in Mayers was its attorney's fees provision. The Court of Appeal did not like the agreement's attempt to make attorney's fees recoverable by either side. Under federal and state anti-discrimination law, employees can recover attorney's fees if they can show that the lawsuit was frivolous, unreasonable, without foundation or brought in bad faith. Once again, an employer's attempt to alter existing law in the arbitration agreement has rendered an agreement unenforceable. Employers should scrutinize their agreements to ensure that they are not attempting to subject employees to provisions that alter the rights employees would have in court.

2011 Another Record Year For EEOC

2012-02-18T00:31:10Z

The U.S. Equal Employment Opportunity Commission (EEOC) recently announced that it received a record 99,947 charges of employment discrimination and obtained $455.6 million in relief through its administrative program and litigation in Fiscal Year 2011. The EEOC obtained a record $455.6 million in relief for private sector, state and local employees and applicants in 2011, a more than $51 million increase from 2010. This continued the EEOC's upward trend of the past three years. The agency filed 300 lawsuits in 2011 that resulted in $91 million of relief, the third year-over-year increase in a row. Twenty-three of the lawsuits involved systemic allegations involving large numbers of people.

Once again, charges alleging retaliation were the most numerous, at 37,334 charges received, or 37.4 percent. Coming in a close second were race discrimination charges, at 35,395 charges or 35.4 percent. While the numbers of charges with race and sex discrimination allegations declined from 2010, charges with the two other most frequently-cited allegations increased: (1) disability discrimination--25,742 and (2) age discrimination--23,465. The agency's disabilities cases produced the highest increase in monetary relief, increasing 35.9 percent to $103.4 million. Back impairments were the most frequently cited disability, followed by other orthopedic impairments, depression, anxiety disorder and diabetes. The fiscal year 2011 enforcement and litigation statistics, which include trend data, are available on the EEOC's website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

As these statistics make clear, retaliation claims are a significant area of potential liability. Often, employers are able to spot potential harassment and discrimination claims, but fall short in taking action necessary to prevent retaliation claims. The massive increase in EEOC litigation underscores the critical need for employers to take action to protect themselves, including (1) development and distribution of anti-discrimination, anti-harassment and anti-retaliation policies and (2) training of all managers and employees on zero-tolerance policies regarding discrimination, harassment and retaliation. Employers should periodically audit discipline and discharge decisions to ensure compliance with company policy. They should add a layer of review for critical employment decisions. And they should ensure that they are ready to conduct prompt and thorough responses to employee complaints, training personnel in advance as necessary.

OSHA Form 300a Annual Summary Must be Posted by February 1, 2012

2012-01-23T20:36:17Z

Employers should take note that their OSHA 300a Annual Summary Report must be posted in the workplace by February 1, 2012 and remain posted until April 30, 2012. Pursuant to OSHA's requirements for recordkeeping, the 300a Annual Summary Report must contain the appropriate information from the employers's OSHA 300 Logs for workplace injuries and illnesses during 2011.

The 300a Annual Summary Report and an overview for completing it and the 300 Log is included in the attached OSHA'S Work-Related Injuries and Illnesses Booklet.

For more information regarding your obligations under OSHA's recordkeeping requirements, or for assistance in completeting your 300a Annual Summary Report, please contact the attorneys of Michelman & Robinson, LLP's Labor & Employement Department.

California Employment Law Update: What's New for 2012

2012-01-13T18:07:43Z

2011 was an active year in California employment law. The following is a summary of important new laws that California employers must now comply with.

The Wage Theft Prevention Act of 2011 (AB 469): This act requires employers to provide all newly-hired, non-exempt employees with a written notice of the following wage information at the time of hiring:

The rate or rates of pay and the basis for the pay;

Allowances, if any, claimed as part of the minimum wage, including meal or lodging;

The regular payday;

The name of the employer, including any "doing business as" names;

The physical address of the employer's main office or principal place of business, and a mailing address, if different;

The employer's telephone number;

The name, address, and telephone number of the employer's workers' compensation insurance carrier; and

Any other information the California Labor Commissioner deems necessary.

Employees must be notified of changes to this information within seven days of the change. The California Labor Commissioner has published a model notice and answers to Frequently Asked Questions about the law.

In addition, the law increases penalties for wage violations, provides for employer restitution of certain wages, and extends from one years to three years the statute of limitations on collection actions by the California Department of Labor Standards Enforcement.

New Fines for Willful Misclassification of Independent Contractors (SB 459): Imposes a civil penalty of between $5,000 and $15,000 for each violation on a person or employer that willfully misclassifies an employee as an independent contractor. The penalty increases to between $10,000 and $25,000 for each violation if there is a "pattern or practice" of willful misclassification. The law also subjects paid, non-attorney advisors to joint and several liability if they knowingly and incorrectly advise the employer to treat an individual as in independent contractor. Employers must post notice of any violations for one year on their website. In addition, employers may not charge a fee or make any deduction from an individual's compensation where the fee or deduction would have been illegal if the individual were not an independent contractor.

Restrictions on Use of Consumer Credit Reports (AB 22): Prohibits employers from obtaining a consumer credit report in connection with an employee or applicant background check except for the following positions:

A managerial position which qualifies for the executive exemption from overtime pay under the California Wage Orders;

A position that affords regular access to all of the following information of any one person: bank or credit card information, Social Security numbers and dates of birth (as long as the access to this information does not merely involve routine solicitation and processing of credit card applications in a retail establishment);

A position for which the employer is required by law to consider credit history information;

A position for which the information contained in the report is required by law to be disclosed or obtained;

A position requiring the employee to be named a signatory on the bank or credit card account of the employer, transfer money on the employer's behalf, or be authorized to enter into financial contracts on the employer's behalf;

A position that affords access to confidential, proprietary and/or trade secret information;

A position that affords regular access during the workday to the employer's, a customer's or a client's cash totaling at least $10,000; and

A position in the State Department of Justice or a sworn peace officer or law enforcement position.

If an applicant or employee falls within one of these exceptions, the employer must give advance notice of the specific exception that applies.

In addition, employers that order background reports other than credit reports, such as criminal background reports or motor vehicle reports, must provide the subjects of the report with the website address of the consumer reporting agency. If there is no website address, the employer must provide the telephone number of the agency.

Commission Contract Requirements (AB 1396): Effective January 1, 2013, employers that enter into an employment contract involving commission payments for services to be rendered within California must put the contract in writing and specify the method by which commissions are to be computed and paid. The employer must give a signed copy of the contract to every employee who is a signed party to the agreement and must obtain a signed receipt for the contract from each new employee.

Health Benefit Contribution Requirements for Pregnancy Disability Leave (SB 299): Employers must provide up to four months of Pregnancy Disability Leave under existing California law. Now, they must provide up to four months of group health insurance coverage to employees on pregnancy leave on the same terms and conditions as if the employee continued actively reporting to work.

Organ and Bone Marrow Donor Leave (SB 272): Employers must provide 30 business days of leave in a one year period for employees who are organ donors, and 5 business days in a one year period for employees who are bone marrow donors. The leave is measured from the date the employee's leave begins and consists of 12 consecutive months. The law clarifies that the leave is not a break in service regarding the right to any paid time off, and contains further provisions regarding use of the leave in relation to paid time off, sick time and vacation leave.

Genetic Information (SB 559): Amends the California Fair Employment and Housing Act (FEHA) to prohibit discrimination on the basis of genetic information. Genetic information is defined as information about (1) the individual's genetic tests, (2) the genetic tests of family members of the individual, (3) the manifestation of a disease or disorder in family members of the individual, and (4) any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by any individual or family member of the individual.

Gender Expression (AB 887): Amends the FEHA to clarify that prohibited discrimination on the basis of sex or gender includes discrimination on the basis of a person's gender identity and gender expression. The law defines gender expression as gender-related appearance and behavior, whether or not stereotypically associated with the person's assigned sex at birth.

For more information about any of these new laws, contact the attorneys of Michelman & Robinson's Labor & Employment Department.

U.S. Supreme Court Rejects 1.5 Million Employee Class Action Sex Discrimination Lawsuit Against Wal-Mart

2011-06-24T23:43:54Z

This week, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court unanimously rejected a class action sexual discrimination suit brought by approximately 1.5 million former and current female Wal-Mart employees.

The plaintiffs claimed that even though Wal-Mart had a policy against discrimination, it gave its managers too much discretion, which allowed them to favor men. To support the largest class action in the history of employment law, they relied on (1) statistical evidence allegedly showing that Wal-Mart promoted fewer women than its nationwide competitors, (2) the testimony of a sociology expert, and (3) the declarations of a handful of female employees.

Wal-Mart's policy did, in fact, allow discretion by local supervisors over employment matters. But the Court found that this was a perfectly reasonable method of doing business, and did not, by itself, suggest discrimination.

The Court found that the statistical evidence did not hold up - in 90 percent of the stores, no evidence of discrimination existed - and more importantly, held that mere statistics are not enough. A particular discriminatory practice must also be identified. The expert - who claimed that Wal-Mart's corporate culture made it "vulnerable" to gender bias - admitted he could not say whether 0.5% or 95% of Wal-Mart's decisions were affected by gender discrimination. And the small sample of declarations submitted were miniscule compared to the 1.5 million member class.

The Wal-Mart decision is one of the most significant employment law rulings of the past twenty years, and is good news for employers. It also provides some practical lessons for employers:

Create and distribute a strong anti-discrimination policy, and train all employees - especially mangers -- on the policy;
Review pay, promotion, performance review, and other policies to ensure that they can be applied fairly to all employees, regardless of race, sex, religion, and other protected characteristics;
Ensure that managers are given discretion to evaluate performance on a case-by-case basis;
Keep performance evaluations objective, relying on specific, job-related factors only;
Use job descriptions to assist managers in evaluating performance; and
Provide procedures for employees to report discrimination, such as open door policies and internal grievance procedures.

California Court Throws Federal Military Leave Case Out

2011-05-20T19:02:57Z

Last month, a Federal Judge ruled in favor of the employer on a military leave discrimination case. The plaintiff, Jeong Ko, sued the City of La Habra, California under the Uniformed Services Employment and Reemployment Rights Act (USERRA). He claimed that the City discriminated against him, in violation of his military leave protected status, by refusing to grant him "step" wage increases that he would have obtained had he not taken leave. He also claimed that the City gave him fewer pension benefits as a result of his leave. The City argued that the employee was not entitled to automatic pay increases, and that the increases were discretionary and based on job evaluations. The City pointed out that it had denied Ko step evaluations twice before he took military leave. Regarding the pension, the City argued that Ko failed to submit required documentation of his leave to the pension administrator.

The U.S. District Court granted the City's motion for summary judgment, effectively ending the case (although Ko may appeal). The court ruled that USERRA does not entitle an employee to automatic merit-based promotions or pay increases. In addition, the court distinguished seniority-based and merit-based job advancement.

The case provides lessons for employers. First, employers need to be aware of USERRA, which was enacted to ensure that employees are not discriminated against based on military service. If you have an employee that needs a leave of absence for military duty, make sure that your supervisors are familiar with USERRA's requirements. Second, employers need to make clear, in written policies, whether pay increases are automatic, merit based, or determined by other factors. Employers should also clarify how leaves affect pay and benefits. Third, employers must document any communications with employees about leave rights and responsibilities, and keep that documentation in employee personnel files. Documentation is critical if a dispute later arises over whether the employer acted lawfully regarding the employee's leave.

Rare Disability Leave Win for California Employers

2011-04-29T22:23:54Z

In Department of Fair Employment and Housing v. Lucent Technologies, Inc., the federal Ninth Circuit Court of Appeals upheld an employee termination after a one-year disability accommodation leave.

The plaintiff employee's job as an installer required frequent heavy lifting of up to fifty pounds. The employee injured his back and could no longer lift heavy weights. Lucent's policy provided that if an employee could not return to work within one year, the employee would be terminated, absent a doctor's opinion that the employee would be healed in six months. The employee took leave under the policy.

While the employee was on leave, his doctors constantly revised his status, but the employee was never fully cleared to return. Lucent kept in contact with the employee, consistently evaluated the new restrictions, and continued to accommodate the employee, providing him with the one year of leave. When the employee finally returned upon expiration of the leave, his doctor had cleared him to occasionally lift weights of twenty to fifty pounds. Lucent terminated him. Two months after the employee was terminated, his doctor finally cleared him to lift fifty pounds. The employee sued Lucent for disability discrimination and related claims. The District Court ruled in favor of Lucent, and the employee appealed to the Ninth Circuit.

The Ninth Circuit found that Lucent maintained contact with the employee, and the employee never brought up proposed accommodations other than continued leave. Thus, Lucent did not unlawfully "fail to interact" with the employee to determine reasonable accommodation. In addition, Lucent repeatedly considered, during the leave, whether the employee could perform given his restrictions, or be placed in another position. Lucent was not required to do more, such as modifying the installer position or extending leave indefinitely.

During the employee's leave, Lucent created a form showing that installers had to occasionally lift 100 pounds. But because the employee could not meet the lower fifty pound requirement, the 100 pound requirement was never an issue, so the Ninth Circuit considered the form irrelevant. In addition, because the employee was only cleared to occasionally lift fifty pounds, while his job required frequent lifting of such weight, Lucent had a lawful reason for termination. Finally, although Lucent had a "100% healed" policy, this policy alone did not render the termination unlawful, because Lucent made an individualized assessment of the employee's disability.

This is a rare victory for a California employer in a disability leave case. Some lessons to be learned:

Consider all options for accommodation. Employers, however, do not need to exempt an employee from performing essential functions of the position, or reallocate those functions to other employees.
Indefinite leaves of absence are not required under disability law. But California workers' compensation law has a different standard, so consult an attorney prior to terminating any disabled employee.
If an employee does not participate in discussions about accommodations, the employer can take the position that it has met its burden to engage in the interactive process.
Frequent communication with employees during a leave of absence is critical.
If an employee provides updated information about disability status, evaluate the information and let the employee know whether, and to what extent, such information impacts accommodation.
Document the entire accommodation process, including all communications, in case a legal challenge is brought.

Court Rules that Employer may Terminate Disabled Employee for Threatening Conduct Even if Caused by Mental Disability

2011-04-18T17:18:29Z

In the case of Wills v. The Superior Court of Orange County, published on April 13, 2011, the Fourth Appellate District, Division Three found that an employee's termination was non-discriminatory when it was predicated on the employee's threatening behavior, even though that conduct was indisputably caused by her mental disability.

In the Wills case, the plaintiff told a coworker that she added him and another coworker to her "'Kill Bill' list" after she was left out in the heat due to the coworkers' delay. The coworkers understood the 'Kill Bill' list comment to refer to a movie in which the main character made a list of people she intended to kill. A few days later, Wills' doctor placed her on leave due to her bi-polar disorder. While on leave, Wills forwarded a cell phone ringtone to a coworker with whom she had an uneasy relationship. The ringtone said "I'm going to blow this b--- up if you don't check your messages right now! . . . F--- you!" and the coworker took it as a threat. In addition, Wills sent a series of emails to coworkers at their company email addresses. One coworker reported the e-mails to the employer, complaining that Wills' angry and irrational tone, and Wills' references to violence, alarmed her.

Several weeks later, when Wills' doctor released her to work, she was placed on administrative leave while an investigation was conducted, and was eventually terminated. The Court held that Wills' misconduct provided a legitimate, nondiscriminatory reason for her termination, because an employer may reasonably distinguish between disability caused misconduct and the disability itself when the misconduct includes threats or violence against coworkers.

Employers need to be cautious, however, because the Ninth Circuit has reached a contrary result, most recently in Gambini v. Total Renal Care, Inc. (9th Cir. 2007) 486 F.3d 1087, 1093. In that case, a bi-polar woman threw her performance improvement plan back at her supervisor and explained her feelings about it with numerous profanities. The Ninth Circuit reversed, holding that the jury should have been instructed that conduct caused by a disability is part of the disability and not a separate basis for termination. (Id. at pp. 1093-1095.)

For employers looking to protect their workplace from a potentially violent employee, there are no easy options. The employee, if terminated, can simply file in federal court to avail him or herself of the more favorable Ninth Circuit authority. Meanwhile failing to remove the employee can put the employer at risk if violence does result. The Wills Court, however, has offered the Ninth Circuit a way to reconcile Gambini and Wills if it so desires, by focusing on whether an actual threat was made or violence occurred. Employers would be well served, when terminating employees under these circumstances, to focus on documenting the employee's behavior as threatening or violent, and not merely as frightening or unpleasant to coworkers.

Supreme Court Rules that Oral Complaints are Protected under the FLSA's Anti-Retaliation Provision

2011-03-23T17:07:12Z

On March 22, 2011, the United States Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp. The Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.

In a related lawsuit, Saint-Gobain had been held liable by a federal court for locating time clocks in a place that prevented workers from receiving credit for time spent donning and doffing their gear. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.

The FLSA provides minimum wage, maximum hour, and overtime pay rules. It also forbids employers from discharging "any employee because such employee has filed any complaint alleging a violation of the statute. The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including: (1) a narrow interpretation would undermine the FLSA's basic objective - prohibiting detrimental labor conditions; (2) the FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints; (3) a broad reading of "filed" would be consistent with the interpretation of the National Labor Relations Act's anti-retaliation provision; and (4) the Secretary of Labor and EEOC have both concluded that "filed" includes both oral and written complaints.

FLSA lawsuits in California are not as common as those brought under California's wage laws, and California's Labor Code has its own anti-retaliation provision. Nevertheless, the FLSA applies to California employers. Thus, California employees can now rely on Kasten to protect themselves from retaliation for oral complaints about FLSA-protected rights. Employers can draw additional lessons from Kasten, including:

-Treat all complaints seriously, regardless of the manner in which they are made. Verbal complaints, emails, text messages - all must receive a response.

-An employee grumbling in the background on a daily basis might be engaging in protected activity, but his manager may consider the complaints misconduct. Train managers on how to recognize, and respond to, complaints.

-If an employee complains orally, have the employee put the complaint in writing. This prevents employees from subsequently claiming that their complaint was not fully investigated.

-Institute an "open door" policy, as well as an internal grievance system. This funnels employee complaints through established channels and reduces the chances of failing to respond.

California Employers Exposed to Liability for Obscure Work Regulation Lawsuits

2010-12-30T01:08:34Z

In another blow to California employers, a California appellate court recently broadened the liability risk employers face for class action lawsuits.

The California Industrial Welfare Commission's Wage Orders regulate standard working conditions such as overtime, breaks, and minimum wage. Employee lawsuits have historically focused on these run-of the-mill provisions. But, in a November 2010 ruling, the California Court of Appeal for the Second District dealt a body blow to employers by ruling that an obscure regulation, "suitable seating," constituted a valid claim under California law.

In Bright v. 99 Cents Only Stores, the plaintiff brought a class action suit on behalf of hundreds of current and former employees under the California Private Attorneys General Act of 2004 ("PAGA"). She alleged that the employer failed to provide cashiers with suitable seats, in violation of IWC Wage Order 7, § 14. After a Los Angeles Superior Court judge held that the plaintiff could not sue under PAGA for the seating violation, the plaintiff appealed. The Court of Appeal determined that suitable seating is a "standard condition of labor" under Wage Order 7, and that consequently, the employee could use PAGA to enforce compliance. Under PAGA, an employee can collect penalties on behalf of current and former employees.

Last week, the California Court of Appeal reviewed another lawsuit filed by the Bright plaintiff attorneys. In Home Depot v. Superior Court, the plaintiff again alleged, on behalf of a class, that a retail employer had failed to provide its employees with suitable seating. As in Bright, the Court ruled that retail store employees denied suitable seating may seek penalties against their employers pursuant to California's Private Attorneys General Act.

Until Bright, no appellate court had allowed a PAGA claim based on "suitable seating." While the penalties are of minor concern when one employee complains, if an employee sues on a class-wide basis, as the plaintiff did in Bright, massive liability could result. The case also illustrates the lengths to which plaintiff-side attorneys will search California law -- leaving no obscure regulation unexamined -- in order to find grounds to bring a class action lawsuit. Employers, therefore, must heed the warning of Bright, and comply with all aspects of the wage hour laws, even obscure regulations such as "suitable seating." For example, other wage order provisions address temperature, change rooms, and elevators. At minimum, employers must comprehensively review their policies and procedures, rectify any outstanding issues, and train their managers to report potential wage hour violations.

Groundbreaking Lawsuit: Company Accused of Illegally Firing Employee over Facebook Post

2010-11-11T19:25:44Z

As social media usage continues to grow unfettered, so do legal issues related to the use of social media by employees. In a complaint filed on October 27, 2010, the National Labor Relations Board (NLRB) accused an ambulance service, American Medical Response of Connecticut, of illegally firing an employee. In a Facebook post, the employee claimed that her supervisor had prevented her from having a union representative present while she responded to a customer's complaint. Her co-workers made supportive comments about her post. The post, however, contained vulgarities and the remark, "Looks like I'm getting some time off. Love how the company allows a 17 to be a supervisor." A 17 is the code the company uses for a psychiatric patient.

Under the National Labor Relations Act, employers cannot enforce policies that chill employees' rights to discuss wages, working conditions, and unionization. In this case, the NLRB is arguing that criticism of a supervisor, as part of a discussion with co-workers, is protected activity under the Act, even when that communication takes place in a social media setting, such as Facebook.

Regardless of how this case turns out, it stakes out a new area of potential liablity for employers. Because the National Labor Relations Act is a federal law, the case is relevant to employers nationwide. Thus, employers should take this opportunity to reexamine their social media policies. Broad policies, such as those that preclude employees from discussing compensation, working conditions, or supervisors, may be subject to legal challenge. In addition, before taking action against employees for activity on social media sites, employers should consider whether the employee was potentially engaging in protected activity, such as discussing workplace grievances.

Ninth Circuit Rules on Female-on-Male Sexual Harassment Suit

2010-10-01T22:32:24Z

Does female-on-male sexual harassment exist or is it simply a Hollywood plot line or locker-room joke? According to the U.S. Equal Employment Opportunity Commission (EEOC), while the number of sexual harassment cases overall have consistently declined since 1995, sexual harassment filings by men have doubled during that time span. In 2009, men filed 16% of the EEOC's total sexual harassment claims, and many labor experts believe that this number would be even higher if men did not fear being mocked by their peers should they report the harassing conduct.

Title VII of the 1964 Civil Rights Act protects both men and women from workplace sexual harassment by prohibiting discrimination on the basis of sex, including hostile work environment harassment based on sex. In a recent Ninth Circuit opinion dealing with female-on-male sexual harassment, the Court found in favor of the EEOC and reversed a District Court's decision that the work environment was insufficiently hostile.

In EEOC v. Prospect Airport Services, Inc., a McCarran Airport employee, Rudolph Lamas, accused his co-worker, Sylvia Munoz, of sexual harassment. Lamas claimed that Munoz repeatedly solicited him for sex and a relationship. He further claimed that although he steadfastly rebuffed Munoz's advances, she pursued him for over six months. According to Lamas, Munoz sent him love notes propositioning him for sex, performed gestures imitating fellatio, made sexual innuendos in front of airport passengers and privately towards Lamas, and gave him a risqué photograph of herself. Lamas further claimed that after Munoz recruited coworkers to pressure Lamas, they mocked him by suggesting that he was a homosexual. Following the company's sexual harassment policy, Lamas repeatedly reported the harassing conduct to management officials, who either ignored his complaints or did not take them seriously.

Lamas alleged that as the harassment continued, he became increasingly upset, and as a result, his job performance suffered. Though he had recently been promoted, his employer demoted him and ultimately fired him. In the wake of his termination, Lamas filed a claim with the EEOC. The EEOC determined that Lamas was subjected to a hostile work environment and he filed the lawsuit against his employer. Prospect Airport Services filed a motion for summary judgment, which the District Court granted.

In reviewing the suit, the Ninth Circuit ruled that the EEOC had presented enough evidence to establish a jury question on whether Lamas had been a victim of a hostile work environment. Citing a number of examples, the Court found that he had been subjected to unwelcome verbal and physical conduct that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive environment.

This opinion demonstrates the danger associated with applying double standards to harassment claims. The law recognizes all forms of sexual harassment based on sex, and employers must take non-traditional harassment claims seriously.