2013 Best Best & Krieger Labor Employment Update

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2013 Best Best & Krieger Labor Employment Update

  1. 1. Labor & Employment Law
  2. 2. Labor & Employment Law Annual Labor and Employment Law Update for 2013 December 11, 2012
  3. 3. Labor & Employment Law Speakers • Alison Alpert Partner, BB&K • Roger Crawford Partner, BB&K • Joseph Ortiz Partner, BB&K
  4. 4. Labor & Employment Law Speakers • Arlene Prater Partner, BB&K • Cynthia Germano Partner, BB&K
  5. 5. Labor & Employment Law New Legislation PRESENTED BY Roger Crawford Partner
  6. 6. Labor & Employment Law AB 1844 •Adds Labor Code section 980, which prohibits companies from asking job applicants and employees for access to their social media accounts. Access may be requested, however, as part of an investigation into misconduct. •Application to public employers?
  7. 7. Labor & Employment Law AB 2386 •Amends the Fair Employment and Housing Act (FEHA) to prohibit discrimination against breastfeeding mothers. Redefines the definition of “sex” to include breastfeeding and medical conditions related to breastfeeding. •Declaratory of current law.
  8. 8. Labor & Employment Law AB 1964 • Amends Government Code section 12926(p) to include religious dress and grooming practices as covered “beliefs and observances” against religious discrimination. • FEHA's “significant difficulty or expense” definition of undue hardship, not the narrower federal Title VII standard, applies to the FEHA religious discrimination section. • Also specifies that segregation, such as assigning an employee to a stock room out of public view, will no longer be an acceptable religious accommodation.
  9. 9. Labor & Employment Law AB 2674 •Amends Labor Code section 1198.5 to require employers to respond to employees’ written request for personnel files within 30 days. Also allows for review of personnel file by an “employee representative.”
  10. 10. Labor & Employment Law AB 2103 •Amends Labor Code section 515(d) to provide that, regardless of any agreement between an employer and an employee, salaried, non- exempt employees must be paid overtime that is at a rate of at least 1.5 times the weekly salary divided by no more than 40.
  11. 11. Labor & Employment Law AB 2675 •Adds Labor Code section 2751, which requires that commission plans be in writing and acknowledged by employees. Commissions do not include “temporary, variable incentive payments that increase, but do not decrease, payment under the written contract.”
  12. 12. Labor & Employment Law AB 1744 and SB 1255 •Amends Labor Code section 226 to require that itemized wage statements for employees of temporary services employers include the rate of pay and total hours worked on each assignment. •Also broadens the definition of “injury” under Section 226 so that an employee may recover penalties even in the absence of an actual injury.
  13. 13. Labor & Employment Law SB 1193 • No later than April 1, 2013, certain business are required to post a notice in a conspicuous place near the entrance of the establishment, or in another conspicuous location in clear view of the public and employees where similar notices are customarily posted, that contains information about organizations that provide services to eliminate slavery and human trafficking. • Department of Justice is tasked with developing a model notice that complies with requirements.
  14. 14. Labor & Employment Law New Legislation (Public) PRESENTED BY Alison Alpert, Esq. Partner Joseph Sanchez, Esq. Partner
  15. 15. Labor & Employment Law Assembly Bill 1203 Paid Leaves of Absence for Unelected Members • Amends sections 45210 and 88210 of the Education Code. • Requires a school district or a community college district to provide a paid leave of absence to a classified employee who is an unelected member of a school district public employee organization or community college district public employee organization for activities the member is authorized by the organization to attend. • Requires the employee organization to reimburse the school district or community college district on behalf of an unelected member who receives a paid leave of absence. • Requires an employee organization to provide reasonable notification to the employer requesting a leave of absence without loss of compensation for any of the above-described activities.
  16. 16. Labor & Employment Law AB 1908 • AB 1908 amends sections 45117 and 88017 of the Education Code. • Requires written notice be given to a classified employee of a school district or community college district subject to layoff not less than 60 days before the effective layoff date if the termination date of a specially funded program is other than June 30, or if a classified employee is subject to layoff as a result of a bona fide reduction or elimination of a service performed by a department.
  17. 17. Labor & Employment Law AB 340 and 197 • Implements comprehensive pension reform – Public Employees’ Pension Reform Act of 2013 (PEPRA). • PEPRA applies to all public employers and pension plans on or after Jan. 1, 2013 with the exception of the University of California, as well as charter cities and charter counties that do not participate in the California Public Employees’ Retirement System (CalPERS) or the ‘37 Act System including the cities of Los Angeles, San Francisco, Fresno, San Diego, and San Jose. It also excludes any retirement plan approved by the voters of any entity before Jan. 1, 2013.
  18. 18. Labor & Employment Law AB 340 and 197 (cont.) • Amends various provisions of the Public Employees' Retirement Law ("PERL"), Teachers' Retirement Law ("TRL") and County Employees' Retirement Law of 1937 ("CERL") • Centerpiece of AB 340 is the California Public Employees' Pension Reform Act (“PEPRA”) • PEPRA applies to nearly all public employers in California • Key provisions of AB 340 that are of interest to local public agencies, including counties, cities, special districts and school districts, include the following ten pension reform measures: (1) equal sharing of the annual normal cost of benefits; (2) compulsory reduced retirement formulas and increased retirement ages; (3) limitations on pensionable compensation; (4) anti-spiking provisions; (5) limitations on post- retirement employment; (6) forfeiture of pension benefits upon the conviction of certain felonies; (7) equal health benefits; (8) prohibition of pension funding holidays; (9) final compensation for local elective or appointive office; and (10) improved industrial disability retirement benefits.
  19. 19. Labor & Employment Law AB 340 and 197 (cont.) • Some of these pension reform measures will apply to all employees, most will only apply to what PEPRA refers to as new members. • The term "new member" means: (1) an individual who has never been a member of any public retirement system prior to January 1, 2013; (2) an individual who was a member of any other public retirement system prior to January 1, 2013, but was not subject to reciprocity; or (3) an individual who was an active member in a retirement system who returns to active membership in that same system with a new employer after a more than six month break in service. • What to think about immediately: New Formulas take effect January 1 even if in the middle of an MOU Cost Sharing Can Be Deferred Pursuant to an MOU
  20. 20. Labor & Employment Law AB 340 and 197 (cont.) •Pension reform package clean-up introduced- SB 13. •Urgency bill-will become effective immediately. •Likely bill will be used to address several areas of clean-up. •For detailed analysis and information on PEPRA and to keep up-to-date on proposed clean-up legislation, visit bbklaw.com
  21. 21. Labor & Employment Law SB 1021 • Further Amends Rules on the Employment of CalPERS Retirees. • Salary must be reflected as an hourly rate which is no higher than the maximum monthly base salary paid to employees performing similar duties, divided by 173.333. • Retirees may not receive any benefits or compensation in lieu of benefits. • Agencies that appoint a retiree pursuant to Section 21221(h) to fill a vacant position no longer have the option of requesting an extension to the 960 hour limitation. However, the 12 month term limit on the appointment was deleted.
  22. 22. Labor & Employment Law AB 1606 • Amends provisions of AB 646 (2012) regarding MMBA fact-finding procedures during impasse: Provides mediation is not a prerequisite for fact- finding under MMBA. Procedural right of employee organization to request fact-finding cannot be expressly or voluntarily waived.
  23. 23. Labor & Employment Law WAGE & HOUR CASES PRESENTED BY Joseph Ortiz Partner
  24. 24. Labor & Employment Law MEAL & REST PERIOD ISSUES
  25. 25. Labor & Employment Law Brinker v. Superior Court (2012) 53 Cal.4th 1004 EMPLOYERS MUST PROVIDE OFF-DUTY MEAL PERIODS, BUT THEY ARE NOT OBLIGATED TO ENSURE THEM • Employees, including cooks, stewards, buspersons, wait staff, host staff, and other hourly employees against defendants restaurant owners on the basis of failing to provide meal and rest periods through the workday, or premium pay in lieu of breaks. • Held: The California Supreme Court determined that the employer is not required to ensure employees cease all work during meal periods. Instead, under state law an employer must provide its employees an uninterrupted 30-minute duty-free period. Absent a statutorily permissible waiver, a meal period must be afforded before five hours of work, and a second meal period before ten hours of work. With regard to rest periods, the Court determined that employees are entitled to ten minutes of rest for shifts from three and one-half to six hours in length, and to another ten minutes rest for shifts from six hours to ten hours in length.
  26. 26. Labor & Employment Law Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 COURT OF APPEAL AGAIN AFFIRMS ORDER DENYING CERTIFICATION OF MEAL AND REST PERIOD CLASS POST-BRINKER • Plaintiff worked at a Chipotle restaurant as an hourly worker. He filed suit against his employer for failure to provide meal and rest periods to hourly employees. • The appellate court affirmed the trial court’s decision to deny class certification on the basis that the individual issues predominated over common issues, and class treatment was not superior to individual actions. The California Supreme Court granted review and held pending its decision in Brinker v. Superior Court (2012) 53 Cal.4th 1004, and remanded the case for reconsideration. • HELD: The California Supreme Court conclusively resolved the issue, stating that an employer’s duty with respect to meal breaks under Labor Code section 512(a) and Wage Order No. 5 was an obligation to provide a meal period to its employees. However, the employer was not obligated to police meal breaks and ensure no work was performed. The trial court appropriately decided the threshold legal issue as it could not otherwise assess whether class treatment was warranted. Substantial evidence supported findings that (1) individual issues did predominate, given that the employer did not have a universal practice with regard to breaks; (2) time records could be unreliable, given that employees were paid for breaks, eliminating their incentive to clock in and out; (3)introducing evidence by the use of a sampling of employee testimony was not manageable; and (4) there were conflicts of interest among the putative class members.
  27. 27. Labor & Employment Law Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244 CALIFORNIA SUPREME COURT SAYS NO ATTORNEYS’ FEES IN MEAL AND REST PERIOD ACTIONS • Plaintiff worked for a contractor, IFP, and filed suit against his employer alleging that IFP violated a number of wage and hour laws. • The trial court awarded IFP its attorneys’ fees under Labor Code section 218.5, after Plaintiff dismissed the matter against IFP. • HELD: No availability of statutory attorneys’ fees to either party for such claims for violations of the rest and meal period statute. An action for meal and rest period compensation under Labor Code section 226.7 is not a claim for which attorneys’ fees can be awarded to a prevailing employee under Labor Code section 1194. Labor Code section 218.5 does not authorize a prevailing party, either the employer or the employee, to recover its attorneys’ fees in an action under section 226.7 because such an action does not constitute an “action brought for the nonpayment of wages” within the meaning of section 218.5.
  28. 28. Labor & Employment Law The Use of Statistics to Support Class Certification
  29. 29. Labor & Employment Law Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 SUPREME COURT REINS IN USE OF STATISTICAL DATA SUPPORTING CLASS CERTIFICATION • Gender discrimination class action claim asserting that corporate culture discriminates against women. • No corporate-wide explicit policy on promotion; rather, local management choices. • Plaintiffs use sociological and statistical analyses to support class certification. • HOLDING: Class certification was not appropriate. No “commonality” in the various cases & statistics were not reliable indicators of disparate promotion practices.
  30. 30. Labor & Employment Law Duran v. U.S. Bank N.A. (2012) 203 Cal.App.4th 212 **Review granted 2012 Cal. LEXIS 4635 CALIFORNIA COURTS CONTINUE TO WRESTLE WITH USE OF STATISTICAL ANALYSIS • “Business banking officers” file class action asserting misclassification and overtime violations. • Court allowed class action to proceed based on a statistical sampling to smooth over issues concerning commonality, predominance, and individual proof. After trial, employer appeals. • HOLDING: In light of Dukes such use of statistical sampling is “fatally flawed.”
  31. 31. Labor & Employment Law The Enforceability of Class Action Waivers in Arbitration Agreements
  32. 32. Labor & Employment Law AT&T Mobility v. Concepcion (2011) 131 S.Ct. 1740 SUPREME COURT PREEMPTS CALIFORNIA RESTRICTIONS ON CLASS ACTION WAIVERS • Consumers file class action against AT&T alleging that supposed “free cell phone” with service plan was fraudulent because of tax charge. • Service plan had an arbitration agreement and, notably, a class action waiver. The trial court held that under Discover Bank and Gentry, the class action waiver was unenforceable via the contract of adhesion. The Supreme Court eventually granted review. • HOLDING: The Federal Arbitration Act (FAA) was enacted to counter judicial hostility to arbitration clauses and to make such clauses “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”
  33. 33. Labor & Employment Law DR Horton, Inc. (Jan. 3, 2012) 357 NLRB No. 184 **Currently under review by the 5th Circuit THE NLRB ASSERTS THAT CONCEPCION IS NOT RELEVANT IN EMPLOYMENT SETTING • At issue was DR Horton’s practice of requiring employees to sign arbitration agreements and class action waivers as a condition of employment. • NLRB ruled that the Concepcion ruling did not mitigate the statutory requirements of the NLRA in the employment setting. • HOLDING: Class action waivers violate Section 7 rights to engage in concerted activity in the NLRA.
  34. 34. Labor & Employment Law Brown v. Ralph’s Grocery (2011) 197 Cal.App.4th 489 STATE PAGA CLAIMS ARE NOT SUBJECT TO CONCEPCION’S PREEMPTION ANALYSIS • Cal.’s Private Attorney General Act (PAGA) gives plaintiffs the right to bring class-like representative wage claims that are normally available only to the attorney general’s office. Resulting penalties are split between the plaintiffs (25%) and the State (75%). • HOLDING: Concepcion does not apply to representative actions under PAGA. Concepcion “does not purport to deal with the FAA’s possible preemption of contractual efforts to eliminate representative private attorney general actions to enforce the Labor Code.”
  35. 35. Labor & Employment Law Iskanian v. CLS Transp. L.A. (2012) 206 Cal.App.4th 949 **Review granted 2012 Cal. LEXIS 9288 • Driver for a limo company signed an arbitration agreement that contained a class action waiver. Initially, after the state rulings in 2007 under Gentry, the parties agreed to litigate. • Following Concepcion the employer renewed its motion for individual arbitration. The trial court granted. • HOLDING: The Court of Appeal affirmed citing Concepcion.
  36. 36. Labor & Employment Law Classification/ Other Wage Issues
  37. 37. Labor & Employment Law Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580 INSURANCE AGENT PROPERLY CLASSIFIED AS INDEPENDENT CONTRACTOR • Former insurance agent was classified as an independent contractor • She sued to challenge wage and hour issues (failure to pay wages and overtime) • Court held that she was properly classified as an “independent contractor” – based on control Agent controlled whom she solicited as well as the time, place, and manner in which she solicited Agent not required to use Company resources (training, office space, & customer leads) Agent was not exclusive – she worked for other insurance companies, too At-will termination provision not determinative where parties showed they thought they had an independent contractor relationship
  38. 38. Labor & Employment Law Harris v. Superior Court, 2012 Cal.App. LEXIS 830 (July 23, 2012) INSURANCE CLAIMS ADJUSTERS ARE NOT ADMINISTRATIVELY EXEMPT • Liberty Mutual classified their claims adjusters as “exempt” under the administrative exemption • Class action filed challenging exempt status • HELD: claims adjusters not exempt Applied the “production/administrative” dichotomy Deviates from prior opinions holding adjusters can be exempt Limits the application of the administrative exemption to those who “set management policy” or perform “general operations” • NOTE: Opinion de-published by California Supreme Court – questionable legal precedent but still insightful for employers
  39. 39. Labor & Employment Law Muldrow v. Surrex Solutions Corp. (2012) 208 Cal.App.4th 1318 COMMISSIONED SALES EMPLOYEE EXEMPTION APPLIED TO SALES-RELATED ACTIVITIES • Employment recruiters challenged their exempt status as commissioned sales employees • Recruiters claimed they did not primarily engage in “sales” and weren’t compensated based on “price” • HELD: “Sales-related activities” should be viewed more broadly than the time involved in the sale itself Recruiters negotiated the client’s rates and billing structure, so they were compensated based on “price”
  40. 40. Labor & Employment Law Cash v. Winn (2012) 205 Cal.App.4th 1285 PERSONAL ATTENDANT EXEMPTION APPLIED EVEN WHERE MINIMAL MEDICAL-RELATED TASKS ARE PERFORMED • Employee worked as an in-home personal attendant for elderly client. She was treated as exempt under the “personal attendant” exemption • She challenged the exemption because she performed some daily medical-related tasks, including adjusting oxygen, testing blood sugar, providing medications • HELD: Personal attendant exemption still applies – even if some minimal medical-related tasks are performed. Court evaluated purpose of the exemption
  41. 41. Labor & Employment Law Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62 EMPLOYERS CAN PAY A “SPECIAL” VACATION RATE TO CURRENT EMPLOYEES • Truck drivers sued for various wage and hour violations, including failure to pay vacation • Employer paid employees a flat rate of $500 for a week of vacation (instead of the truck driver’s “regular rate”) • HOLDING: Employers can pay a special “vacation” rate to current employees, as long as it’s in the policy or contract Court specified that, on termination, employers must pay employees at the then-current “regular rate” for any accrued, unused time
  42. 42. Labor & Employment Law Sciborski v. Pacific Bell Directory (2012) 208 Cal.App.4th 1152 EMPLOYER CANNOT RECOUP PAID COMMISSION OR SHIFT COST OF MISTAKE TO EMPLOYEE • A sales representative for Pacific Bell Directory made a sale and earned $36,000 in commission • Pac Bell then realized that the account had been assigned to the sales representative in error • Pac Bell then started making deductions from subsequent commissions to recoup the $36,000 • HOLDING: The sales rep was entitled to the commission. The commission plan did not specify that clerical errors will preclude an employee from earning commissions Employer cannot shift responsibility for an internal mistake to the employee Commissions can be conditioned only on various items related to the sale - a “final” sale (i.e., no returns for specified time), customer payment, and providing follow-up activities
  43. 43. Labor & Employment Law Ruiz v. Affinity Logistics Corp. (2012) 667 F.3d 1318 EMPLOYER CANNOT IMPOSE A REMOTE CHOICE OF LAW PROVISION • Drivers were provided with written agreements upon being hired • These agreements had two important provisions: (1) drivers were independent contractors; and (2) Georgia law would apply to any dispute • Drivers challenged independent contractor status • HELD: Georgia choice of law provision could not be enforced It undermined California law protecting employees California law is significantly more protective than Georgia law California had substantial connection to the matter because the work was to be performed in California, the contract was entered into in California, and the drivers lived in California
  44. 44. Labor & Employment Law Sullivan v. Oracle Corporation (9th Cir. 2011) 662 F.3d 2165 EMPLOYERS MUST PAY NONRESIDENT EMPLOYEES OVERTIME FOR WORK IN CALIFORNIA • Three Oracle Corporation employees, who worked as instructors, teaching customers how to use the company’s products, filed suit against the employer on the basis of unpaid overtime wages earned when working in California, as required by the Fair Labor Standards Act • The employees were residents of Arizona and Colorado, and primarily worked within their home states; however, occasionally the employees traveled to California to conduct trainings. Oracle Corporation’s headquarters is located in California • HELD: The California Supreme Court held that California’s overtime provisions apply to all employees working in California for a full day or week for California-based employers, regardless of their residence or principal place of work. The Court also noted that excluding nonresidents from overtime laws protection would tend to defeat the purpose by encouraging employers to import unprotected works from other states.
  45. 45. Labor & Employment Law Aleman v. Airtouch Cellular (2012) 209 Cal.App.4th 556 EMPLOYEES NOT ENTITLED TO “REPORTING TIME PAY” OR ADDITIONAL COMPENSATION FOR “SPLIT SHIFTS” IN ALEMAN • In an underlying wage and hours class action, employees who worked at AirTouch stores and mall kiosks alleged violations concerning two separate provisions of the Industrial Welfare Commission (“IWC”) Wage Order No. 4-2001, on the basis that defendants: (1) failed to pay reporting time pay for days when they were required to report work just to attend work-related meetings; and (2) failed to pay shift compensation for days on which they attended a meeting in the morning and worked another shift later the same day • HELD: The appellate court concluded that the plaintiffs were not entitled to receive “reporting time pay” for attending meetings at work, because all of the meeting were scheduled and they worked at least half the scheduled time. Additionally, the defendant did not owe the plaintiffs additional compensation for working “split shifts” because on each occasion the employee worked a split shift he or she earned more than the minimum amount required by the wage order.
  46. 46. Labor & Employment Law See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889 ROUNDING POLICY IS PERMISSIBLE IF FAIR AND NEUTRAL ON ITS FACE • Plaintiff was a non-hourly exempt employee from 1993 to 2010. Plaintiff filed a wage and hour class action seeking recovery of unpaid wages, and challenged her former employer’s rounding policy. See’s Candy uses a timekeeping software system, known as Kronos, to record its employee work hours • During relevant times, See’s Candy calculated an employee’s pay based on his or her Kronos punch times, subject to adjustment under two policies: (1) the nearest- tenth rounding policy; and (2) the grace period policy. For example, if an employee clocked in at 7:58 a.m., the system rounds the time to 8:00 a.m., and if the employee clocked in at 8:02 a.m., the system rounds down the entry to 8:00 a.m. • HELD: The determined that time entry rounding is permissible under California law on the basis that the employer rounding policy is fair and neutral on its face, and it is used in such a manner that will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked. See’s Candy presented evidence that across all of its employees the rounding policy actually resulted in a total gain of 2,749 hours for the class of employees involved in the litigation. Accordingly, the court held that there was clear evidence establishing the effect on the total time paid to employees did not result in a loss to the employees, as the rounding rule was both mathematically and empirically unbiased.
  47. 47. Labor & Employment Law DISABILITY CASES PRESENTED BY Arlene Prater Partner
  48. 48. Labor & Employment Law REGULAR ATTENDANCE MAY BE AN ESSENTIAL FUNCTION OF WORK (Samper v. Providence St. Vincent (9th Cir. 2012) 675 F.3d 1233) • Attendance policy allowed five unplanned absences. • Plaintiff, a neonatal nurse, sought accommodation to allow an unspecified number of unplanned absences. • Court: Regular and predictable attendance is not a per se essential function of all jobs. Employer has the burden of establishing which job functions are essential. Employer proved attendance on-site was essential by demonstrating job required teamwork, face-to-face interactions with patients and working with medical equipment.
  49. 49. Labor & Employment Law MARIJUANA FOR MEDICAL USE IS NOT PROTECTED BY THE ADA (James v. City of Costa Mesa (9th Cir. 2012) 684 F.3d 825) • Plaintiffs were severely disabled individuals who had prescriptions for medical marijuana to alleviate chronic pain. • The Cities of Costa Mesa and Lake Forest enacted ordinances to close marijuana dispensing facilities operating within their boundaries. • Plaintiffs brought suit against the Cities, alleging that the anticipated closures of the marijuana dispensaries would violate Title II of the ADA. • Court: Plaintiffs’ medical marijuana use was not protected by the ADA because the exception to the exclusion for illegal drugs use requires that the drug use must both be “under supervision” and “be authorized by . . . federal law.”
  50. 50. Labor & Employment Law EMPLOYEE’S INABILITY TO WORK OVERTIME WAS NOT A SUBSTANTIAL LIMITATION ON MAJOR LIFE ACTIVITIES (Boitnott v. Corning, Inc. (4th Cir. 2012) 669 F.3d 172) • Plaintiff sued his employer under the ADA claiming the inability to work more than eight hours per day and rotate day/night shifts as a result of his physical impairments, was a disability that Employer failed to reasonably accommodate. • Court: An employee under the ADA is not “substantially” limited if he or she can handle a forty hour work week but is incapable of performing overtime due to an impairment. The determination of whether an employee capable of working 40 hours in a week but unable to work overtime is disabled necessitated an individualized inquiry and that in certain circumstances, the employee may be disabled. • However, FEHA only requires a disability that “limits” not “substantially limits.”
  51. 51. Labor & Employment Law EMPLOYERS NEED NOT MAKE REASONABLE ACCOMMODATIONS FOR NON-DISABLED EMPLOYEE TO CARE FOR DISABLED PERSON (Magnus v. St. Mark United Methodist Church (7th Cir. 2012) 688 F.3d 331) • Plaintiff refused to work weekend days because she cared for her disabled daughter on the weekends. After Plaintiff arrived an hour late to work because of a medical situation with her disabled daughter she was terminated. • Court: An employer can lawfully fire a non-disabled employee because her responsibilities caring for a disabled child preclude her from working weekends. Employer was not required to provide Plaintiff with an accommodation to enable her to perform her job to Employer’s satisfaction and Employee was not entitled to an accommodated schedule.
  52. 52. Labor & Employment Law ABILITY TO WORK ROTATING SHIFT MAY BE AN ESSENTIAL FUNCTION OF THE JOB (Kallail v. Alliant Energy Corporate Services, Inc. (8th Cir. 2012) 691 F.3d 925) • To provide coverage twenty-four hours per day, seven days per week, Employer required Resource Coordinators to work a rotating schedule. Plaintiff had medical conditions that were exacerbated by working a rotating shift. • Plaintiff sued alleging disability discrimination in violation of the ADA because Employer refused to accept her proposal to work a regular eight hour day shift as a Resources Coordinator. • Court: “[R]otating shift is essential to the Resource Coordinator position, and lists it as a requirement on the written job description for the position.”
  53. 53. Labor & Employment Law MEDICAL LEAVES
  54. 54. Labor & Employment Law EMPLOYER TERMINATING EMPLOYEE BECAUSE OF AN HONEST BELIEF THAT EMPLOYEE COMMITTED DISABILITY FRAUD IN TAKING FMLA LEAVE IS NOT PRETEXT FOR FMLA RETALIATION (Seeger v. Cincinnati Bell Telephone Co. (6th Cir. 2012) 681 F.3d 274) • Plaintiff took FMLA leave and concurrent paid leave under Employer’s own disability plan to treat and recover from a herniated disc in his back. • Employer terminated Plaintiff for disability fraud after several of Plaintiff’s co-workers saw him at an Oktoberfest during his FMLA leave period. • Court: Essence of Plaintiff’s claim was retaliation, not interference, with his substantive FMLA rights because he had received all of the FMLA leave to which he was entitled and did not deny him reinstatement. Employer articulated a legitimate, nondiscriminatory reason for terminating Plaintiff — disability fraud. Plaintiff failed to refute Employer’s evidence that it had an “honest belief” in its nondiscriminatory basis for Plaintiff’s termination because Employer made a reasonably informed and considered decision before it terminated Plaintiff.
  55. 55. Labor & Employment Law FMLA LEAVE REQUIRES AN EMPLOYER TO ADJUST PERFORMANCE STANDARDS (Pagel v. Tin Inc. (7th Cir. 2012) 695 F.3d 622) • Plaintiff worked as the equivalent to an outside sales person and took two leaves of absence due to a serious medical condition. Employer thereafter terminated Plaintiff for poor performance, including not meeting sales expectations. • Plaintiff brought suit alleging Employer violated FMLA by interfering with his right to take leave and retaliating against him for exercising that right. • Court: FMLA does not require an employer to adjust its performance standards for the time an employee is actually on the job, but it can require that performance standards be adjusted to avoid penalizing an employee for being absent during FMLA-protected leave.
  56. 56. Labor & Employment Law THERE IS NO HONEST BELIEF DEFENSE FOR CFRA VIOLATIONS (Richey v. AutoNation, Inc. (November 23, 2012) 2012 Cal.App.LEXIS 1177 [unpublished decision]) • Plaintiff was terminated from his job four weeks before the expiration of his approved medical leave under CFRA because his employer believed Plaintiff was misusing his leave by working part-time in a restaurant he owned. • Court: Employer cannot, in terminating or failing to reinstate an employee who had been granted leave under the CFRA, defend a lawsuit based on its honest belief the employee was abusing the leave. Employer bears burden of “adequately investigating and developing sufficient facts to establish the employee had actually engaged in misconduct warranting dismissal.”
  57. 57. Labor & Employment Law Discrimination, Harassment and Retaliation PRESENTED BY Cynthia Germano Partner
  58. 58. Labor & Employment Law Harris v. County of Orange • Class action by retired county workers arising out of changes to retiree medical benefits; alleged age discrimination • Only one plaintiff had filed DFEH complaint prior to lawsuit • HOLDING: similarly-situated plaintiff class can “piggyback” on one plaintiff’s DFEH complaint (thereby satisfying exhaustion requirement)
  59. 59. Labor & Employment Law Hunt v. County of Orange • Lt. Hunt assigned as “chief” for San Clemente as part of Orange County Sheriff’s contract for police services • Hunt unsuccessfully challenged Sheriff Corona in election; later demoted for disloyalty in campaign statements • HOLDING: Hunt not a “policymaker,” so campaign speech protected by 1st Amendment
  60. 60. Labor & Employment Law Schechner v. KPIX-TV • Laid off TV reporters (ages 66 and 48) presented statistical evidence of age discrimination by TV station, but did consider station’s business reasons for layoff • HOLDING: preemptively accounting for employer’s reasons not required for prima facie case using statistical evidence • In any event, plaintiffs failed to show employer’s reasons were pretextual
  61. 61. Labor & Employment Law Dahlia v. Rodriguez • Dahlia reported alleged misconduct by colleagues (abusive interrogation techniques) • Dahlia was placed on administrative leave; sued for 1st Amendment retaliation and for whistleblower claims • HOLDING: California police officers required to report acts of corruption as part of job, so therefore not protected speech
  62. 62. Labor & Employment Law Rehmani v. Superior Court • Terminated employee Mustafa Rehmani claims that he was harassed by 3 coworkers from India because of his Pakistani nationality and Muslim faith and that his supervisor failed to take remedial action when he reported the conduct • Employer asked court to dismiss lawsuit before trial because Rehmani never actually complained about harassment or discrimination, the coworkers were not managerial employees, and the employer had conducted an investigation of a coworker prank
  63. 63. Labor & Employment Law Rehmani v. Superior Court • HOLDING: Even though case might seem weak, because “evidence in the aggregate” could suggest that conduct of coworkers was motivated by Rehmani’s national origin and religion and that the employer did not take sufficient steps to respond to Rehmani’s complaints, Rehmani’s claims should be decided at trial by trier of fact
  64. 64. Labor & Employment Law C.A., a Minor v. William S. Hart Union High School District • A former student sued his public high school guidance counselor and the school district for damages arising out of sexual harassment and abuse by the counselor. • He alleged, in part, that the school district was liable for negligent hiring, retention and supervision of the counselor. He claimed that the school district knew or should have known that the counselor would commit wrongful sexual acts with minors based on her past sexual abuse of minors and her propensity and disposition to engage in such abuse.
  65. 65. Labor & Employment Law C.A., a Minor v. William S. Hart Union High School District • The school district argued that a public entity could not be liable for negligent supervision of employees. • However, given the special relationship between public school personnel and students, the school district’s administrative employees had a duty of reasonable care to protect students from foreseeable dangers. • HOLDING: A public school district may be vicariously liable for the negligence of administrators in hiring, supervising and retaining a school employee who sexually harasses and abuses a student.
  66. 66. Labor & Employment Law Touchstone Television Productions v. Superior Court • Touchstone hired actress Nicollette Sheridan to appear in the first season of the television series Desperate Housewives. • The agreement was for the series’ initial season but it gave Touchstone the option to renew each year. Sheridan alleged that during filming in season five, the creator, Marc Cherry, hit her, and not long thereafter Touchstone decided not to exercise its option to renew. Sheridan filed suit, claiming she was wrongfully terminated.
  67. 67. Labor & Employment Law Touchstone Television Productions v. Superior Court • HOLDING: Sheridan could not sue for wrongful termination in violation of public policy based upon Touchstone’s refusal to renew her employment contract because she was not fired, discharged or terminated. • No cause of action exists for the tortious nonrenewal of an employment contract in violation of public policy. • However, Sheridan could amend her complaint to allege a retaliation cause of action if she was discriminated against because of complaints about unsafe work conditions.
  68. 68. Labor & Employment Law • Pending before California Supreme Court • Bus driver for the City of Santa Monica told her supervisor that she was pregnant before she was terminated, but while she was still on probation as a new hire • After she is terminated, she sues the City, alleging she was terminated because she was pregnant. The City alleges she was terminated for poor performance. Harris v. City of Santa Monica
  69. 69. Labor & Employment Law Harris v. City of Santa Monica • Issue before the Supreme Court is the scope of permissible jury instructions • The trial court refused the City’s request to give a “mixed- motive” instruction • In a mixed-motive case, to establish termination “because of” a protected classification, the employee has the initial burden of proving that discrimination was “a” motivating factor for the termination, even if other factors may have contributed. The employer can then defeat liability by demonstrating that there were legitimate, non-discriminatory reasons for the termination
  70. 70. Labor & Employment Law Harris v. City of Santa Monica • The trial court refused City’s request, and instead instructed the jury that the City was liable for discrimination if the employee’s pregnancy was a motivating factor for the termination, even if other factors may have contributed to the decision • The jury found in favor of the employee • The City appealed, arguing that because the mixed-motive instruction was not given, the jury was not allowed to determine whether the employee could have been terminated for legitimate reasons, even though the City knew the employee was pregnant at the time of the termination
  71. 71. Labor & Employment Law NLRB Decisions on Social Networking and Investigations PRESENTED BY Alison Alpert, Esq. Partner Joseph Sanchez, Esq. Partner
  72. 72. Labor & Employment Law Recent NLRB Cases Involving Social Networking Is it protected activity? • AMR • JT’s Porch Saloon and Eatery • Wal-Mart • Knauz BMW • Costco
  73. 73. Labor & Employment Law Protected Speech Under Labor Law and Online Social Networking • Is the online content part of a group effort by employees to improve working conditions? • Individual personal gripes are not protected • Complaints to non-coworkers not protected • Social networking policies may not be so overly broad as to restrict union activity
  74. 74. Labor & Employment Law NLRB Limits on Talking Given During Investigations •Banner Health System Determined Could Not Tell Employees Not To Discuss the Investigation Could Not Discipline the Employee For Failure to Follow the Admonition Not To Discuss Investigation
  75. 75. Labor & Employment Law Investigations •What Should You Do Now? Evaluate the Harm if the Employee Speaks to Others Do Witnesses Need Protection Will Evidence be Destroyed Will Testimony Be Fabricated Will there be a Cover-up
  76. 76. Labor & Employment Law Thank you for attending. Alison Alpert Alison.Apert@bbklaw.com Roger Crawford Roger.Crawford@bbklaw.com Cynthia Germano Cynthia.Germano@bbklaw.com www.bbklaw.com Joseph.Ortiz Joseph.Ortiz@bbklaw.com Arlene Prater Arlene.Prater@bbklaw.com Joseph Sanchez Joseph.Sanchez@bbklaw.com

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