California Supremes Expanding Employment Law Docket

The California Supreme Court is taking up several cases for review that will have significant effects on California employment law.  Once the Supreme Court grants review, the lower court opinion is not precedent and cannot be cited in briefs or relied upon unless the Court says otherwise.

Here are two recent "grants," courtesy of the California bar's employment law section email blast (and thank you, Phyllis Cheng as always):

In this case, the court of appeal expanded appellate review of arbitration decisions beyond what was previously the law.  One of the reasons parties turn to arbitration is finality - no appeals unless there are very specific circumstances.  This case carved a huge loophole.  This case also rejected the employer's argument that it had an "honest belief" that an employee was faking the need for medical leave, justifying discharge.

Richey v. Autonation, Inc. (2012) 149 Cal.Rptr.3d 280 (SC S207536/B234711review granted 2/13/13) CFRA/honest belief defense Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issues: (1) Is an employer’s honest belief that an employee was violating company policy or abusing medical leave a complete defense to the employee’s claim that the employer violated the Moore-Brown-Roberti Family Rights Act (Gov. Code, §§ 12945.1, 12945.2)? (2) Was the decision below to vacate the arbitration award in the employer’s favor consistent with the limited judicial review of arbitration awards? Review granted/brief due.

This one is a "grant and hold" that likely will depend on the outcome of the pending Iskanian decision, which addresses overlapping issues.  The Court is going to decide whether class action waivers are lawful in California after the U.S. Supreme Court's decision in ATT Mobility v. Concepcion.

Franco v. Arakelian Enterprises, Inc. (2012) 149 Cal.Rptr.3d 530 (SC S207760/B232583 review granted 2/13/13) Class Action Waiver Petition for review after the Court of Appeal affirmed an order denying a petition to compel arbitration in a civil action. The court ordered briefing deferred pending decision in Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (#12-97), which includes the following issue: Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S.Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights?  Review granted/briefing deferred. The High Court of course has a number of other significant employment law cases pending. f you want to review all of the cases the California Supreme Court has on its docket (employment law and otherwise), the Court keeps a list here.

Court of Appeal: Statutory PDL Maximum Isn't

In California, employees disabled by pregnancy are entitled to up to four months of job-protected leave during any period in which they are disabled.  The leave has not length of service requirement.  There is no employer job-site requirement either.  And those employees eligible for California Family Rights Act leave may have up to 12 weeks of that for baby bonding.   The California Family Rights Act does not include pregnancy disability as a "serious health condition."   So, time under that law does not run during pregnancy disability.  Get it?  If not, don't feel like you're the Lone Ranger. It's one of California's most confusing sets of laws.

So, what happens when an employee is disabled by pregnancy and uses up all four months of PDL before delivering the baby, or before  she is able to return to work?  We know the 12 weeeks of FMLA leave (if employee is eligible) are exhausted, because FMLA does run during pregnancy disability.  The CFRA time did not start to run yet unless the employer and employee agree, because pregnancy disability is not a covered condition under CFRA.  Can it be that a worker in California could run out of medical leave and be denied reinstatement?

Nah. The PDL statute's four months of leave, and the potential for seven months of combined PDL/CFRA, are not the last word on leaves for those with long periods of pregnancy disability.  How can this be?

Swissport gave its employee, Ana Sanchez, nineteen weeks of leave. That's all the four months of PDL and then tacked on her unused vacation time.  But Fuentes had not yet given birth.  She was due in October. But, her leave exhausted in July, Swissport terminated her employment. Sanchez sued, claiming, among other things, that Swissport owed her more leave as a form of "reasonable accommodation" under California's anti-disability discrimination provisions contained in the Fair Employment and Housing Act.  The trial court dismissed her case because Swissport had provided her with all statutory leave to which she was entitled.

Leave in excess of statute, however, can be a form of "reasonable accommodation" under disability discrimination law.  Under California law it has to be reasonably definite in duration and effective, meaning that it is likely that at the end of a reasonably definite leave, the employee will be able to perform her essential job functions, with or without accommodation.

So, stautes collide; judges have to sort out the wreckage.  Here, the Court of Appeal decided that the limiting language in the PDL statute does not "supplant" the general obligation to grant reasonable accommodation to an employee with a disability.  That also means that the employee is not entitled to indefinite leave, or additional leave that would cause undue hardship.  In this case, however, the employer discharged the employee for exceeding four months of leave, without any "interactive process" or attempt to accommodate.

The bottom line, then, is that most employees disabled by pregnancy will be entitled to leave until they recover from childbirth, unless the period of leave sought is indefinite, or undue hardship would result.

This case is Sanchez v. Swissport and the opinion is here.

Are you an FMLA geek?

If so, you're going to have lots to read.  If not, pass this along to someone you love who loves FMLA.  Here is a whitepaper covering major FMLA developments courtesy of the ABA's Federal Labor Standards committee and the FMLA Insights blog.   It's long, but well organized.  Enjoy!

US Department of Labor Stats on Leaves

The DOL's Bureau of Labor Statistics just released data from a survey regarding leaves of absence.

You can read the full press release about the survey here.


Here's the summary.


In 2011, 90 percent of wage and salary workers had access to paid or unpaid leave at their main jobs, the
U.S. Bureau of Labor Statistics reported today. Twenty-one percent of wage and salary workers took
paid or unpaid leave during an average week. Workers who took leave during an average week took an average of 15.6 hours of leave. Fifty-six percent of wage and salary workers were able to adjust their work schedules or location instead of taking leave or because they did not have access to leave in 2011. Seven percent of workers made such an adjustment in an average week.

End of summary. Begin my annoyed rant.

Let's read it again: 1/5 of workers take leave in an average week.  20% of people cannot report to work in a given week. Yes, there are some people who need leave.  But the system is abused.

End rant.

U.S. Supreme Court Holds No Self-Care FMLA Claims Against State

I know it's been a while. I'm on strike waiting for Brinker.  In the meantime, though, the U.S. Supreme Court held that the Family and Medical Leave Act's "self-care" provision is not applicable to the states (and their agencies) in federal courts because of the Eleventh Amendment to the Constitution.

While interesting to constitutional law scholars and state governments, the Court's decision in Coleman v. Court of Appeals of Maryland (opinion here) does not affect FMLA claims against private employers at all.  It also does not disturb the Court's prior decision in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), in which the Court held that FMLA claims based on leave to care for family members or baby bonding are authorized against the states.

The difference between this case and Hibbs is that the Fourteenth Amendment to the U.S. Constitution permits Congress to implement its guarantee of due process and equal protection via "appropriate legislation."  In Hibbs, the Court decided that baby-bonding and family care leave are "appropriate" because Congress was concerned with sex discrimination, and that there was evidence that states were engaging in sex discrimination against parents and women caring for family members.  The "self-care" provision, though, is applicable to both sexes and is intended to remedy the costs of losing a job when one is ill.  That subject is not appropriate for legislation under the Fourteenth Amendment. As the plurality opinion put it:

what the family-care provisions have to support them, the self-care provision lacks, namely evidence of a pattern of state constitutional violations accompanied by a remedy drawn in narrow terms to address or prevent those violations.

There, you're all constitutional lawyers now.  The decision was fractured, with only 4 justices signing the lead opinion (Kennedy, Thomas, Roberts and Alito).  Four justices dissented, joining an opinion written by Justice Ginsburg (Kagan, Sotomayor, and Breyer).  Justice Scalia did not join the opinion, but agreed that the FMLA's self-care section does not apply to the states.  Justice Scalia's concern is that the analysis the Court uses to decide if the Eleventh Amendment bars a lawsuit against a state is mushy and should be revised.

US DOL Proposing New FMLA Regulations

The U.S. Department of Labor has issued a notice of proposed regulations regarding a couple of FMLA issues.  The draft regulations implement recent modifications to the FMLA contained in the 2010 National Defense Authorization Act.

There will be changes to military servicemember leave. There also will be new rules for certain airline employees, who would otherwise be ineligible for leave.  According to the DOL, the proposed
regulations cover the following:

• the extension of military caregiver leave to eligible family members of recent veterans with a serious injury or illness incurred in the line of duty;
• a flexible, three-part definition for serious injury or illness of a veteran;
• the extension of military caregiver leave to cover serious injuries or illnesses for both current servicemembers and veterans that result from the aggravation during military service of a preexisting condition;
• the extension of qualifying exigency leave to eligible employees with covered family members serving in the Regular Armed Forces;
• inclusion of a foreign deployment requirement for qualifying exigency leave for the deployment of all servicemembers (National Guard, Reserves, Regular Armed Forces);
• the addition of a special hours of service eligibility requirement for airline flight crew employees; and
• the addition of specific provisions for calculating the amount of FMLA leave used by airline flight crew employees.

The DOL has created a web page containing links to the proposal, fact sheets, and more here.

Employers may comment on the draft regulations before April 16, 2012.  For details on how to comment, see the Notice of Proposed Rulemaking here.  Instructions regarding comments are at the beginning of this document.

DGV

Court of Appeal: No Reinstatement after 12 weeks of CFRA Leave

After taking 19 weeks of leave, the first 12 of which was covered under the California Family Rights Act, LA County reinstated Katrina Rogers, but then transferred her to a new job as a business decision. Rogers did not take the transfer well and sued under various causes of action, including the CFRA.  A jury awarded her damages and the county appealed.

The court first rejected Rogers' argument that the transfer amounted to "interference" with her rights under the CFRA:

Here, the following is undisputed—the County accorded Rogers the full 12 workweeks of leave to which she was entitled under the CFRA; Rogers did not return to work at the end of this period, but instead remained on leave for 19 weeks; and the decision to transfer her was made within the 12-week leave period, but never communicated to Rogers during her leave. Rogers nevertheless argues that she suffered interference with her CFRA rights because the transfer decision was made during her protected CFRA leave. But she cites no authority to support her position, which we therefore disregard. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591–592.) Based on the foregoing, we conclude that Rogers’s right to reinstatement expired when the 12-week protected CFRA leave expired. Her CFRA interference claim therefore fails as a matter of law, and should never have been submitted to the jury.

 
Then the court turned to Rogers' claim that the transfer was "retaliation" for her exercising her rights. The court could not find any evidence that the county took its action because Rogers took leave, other than the fact that she took it and the transfer occurred thereafter:

In short, Rogers “failed to establish the requisite causal connection between her protected actions in taking a CFRA medical leave” and the decision to transfer her to another position. (Neisendorf, supra, 143 Cal.App.4th at p. 519.) “The unchallenged finding that [the County] had a legitimate, nondiscriminatory reason to [transfer Rogers], which had nothing to do with her CFRA leave, bars [Rogers] from articulating a cognizable cause of action for the jury’s consideration based on [the County’s] alleged refusal to honor the CFRA’s right to reinstatement.” (Id. at p. 520.) The Neisendorf court cited to several federal courts interpreting the FMLA that endorse this principle. (See e.g. Throneberry v. McGehee Desha County Hosp. (8th Cir. 2005) 403 F.3d 972, 979 [“‘As long as an employer can show a lawful reason, i.e., a reason unrelated to an employee’s exercise of FMLA rights, for not restoring an employee on FMLA leave to her position, the employer will be justified to interfere with an employee’s FMLA leave rights’”].) Like the Neisendorf court, we conclude that because the County’s “legitimate, nondiscriminatory reason” for the decision to transfer Rogers eliminated any obligation the County might have had to reinstate her, Rogers “could not state a valid claim under the CFRA.” (Neisendorf, supra, at p. 520.)

The decision is important regarding CFRA/FMLA leave, but it does not address reasonable accommodation obligations under the ADA/Fair Employment and Housing Act.  So, employers still need to consider reinstatement following extended leave when an employee has a covered disability and takes more leave than allowed under CFRA / FMLA.

The case is Rogers v. County of LA and the opinion is here.

Ninth Circuit Defines FMLA Interference Claim

Hello, it's been a while. I've missed you.  You never write. You never tweet. Alas. But I press on to write about the FMLA.

Diane Sanders worked for Newport, Oregon. She took an FMLA leave. Her doctor believed the air quality at work was poor and she suffered from certain chemical sensitivities. The Oregon OSHA and the city's own experts found the air to be within legal standards. After receiving an extended FMLA, her doctor released her to return to work provided the City stop using "low grade" paper, which the City apparently agreed to do.

The City refused to reinstate Sanders from her leave. The City took the position that it could not provide her with a safe workplace because it was not clear what caused her medical issues.

A jury found that the City acted lawfully. But the trial court found in Sanders' favor on a state law claim under Oregon's family leave law.  Oregon claims are tried to the court rather than a jury.

The Ninth Circuit explained there are two types of FMLA claims: discrimination/retaliation and interference.  Sanders pursued an interference claim at trial.  The court explained the applicable legal analysis:

The Sixth and Seventh Circuits have ably summarized the elements of an employee’s prima facie case where the employer fails to reinstate the employee:“the employee must establish that: (1) he was eligible for the FMLA’s protections, (2) his employer was covered by the FMLA, (3) he was entitled to leave under the FMLA, (4) he provided sufficient notice of his intent to take leave, and (5) his employer denied him FMLA benefits to which he was entitled.”  [citations] We agree with this approach. In interference claims, the employer’s intent is irrelevant to a determination of liability.. . .

The court then went on to hold that if the employee makes out a prima facie case, the employer bears the burden of establishing that the employee was not entitled to reinstatement. That is, the employer must prove that the employee was denied reinstatement for one of the reasons authorized by the FMLA, such as that the employee would not have remained employed if she had not taken leave.  Because the district court's jury instructions required the plaintiff to prove she was denied reinstatement "without reasonable cause," the court vacated the judgment in the City's favor.

The case is Sanders v. City of Newport and the opinion is here.

U.S. DOL Expands Who Can Take FMLA Leave to Care for a Child

The U.S. Department of Labor is busy writing new "interpretations" of the law, rather than promulgating regulations through the normal process. In their third effort, the DOL has decided to explain who is eligible to take Family and Medical Leave under the FMLA to care for a "son" or "daughter."

It is true that the FMLA and its regulations permit leave by employees who are not biological parents when they stand "in loco parentis." But what is "in loco parentis"? Well, the statute, the courts, and the DOL's own regulations have defined the term before. The DOL cited some of the interpretations in its letter:

In loco parentis is commonly understood to refer to “a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties.” . . . “The key in determining whether the relationship of in loco parentis is established is found in the intention of the person allegedly in loco parentis to assume the status of a parent toward the child. The intent to assume such parental status can be inferred from the acts of the parties.” . . . Courts have enumerated factors to be considered in determining in loco parentis status; these factors include the age of the child; the degree to which the child is dependent on the person claiming to be tanding in loco parentis; the amount of support, if any, provided; and the extent to
which duties commonly associated with parenthood are exercised.

After reciting these definitions, the DOL goes on to say in its letter: "The FMLA regulations define in loco parentis as including those with day-to-day responsibilities to care for and financially support a child. 29 C.F.R. § 825.122(c)(3). . . .

OK. But then, they say:

It is the Administrator’s interpretation that the regulations do not require an
employee who intends to assume the responsibilities of a parent to establish that he or she provides both day-to-day care and financial support in order to be found to stand in loco parentis to a child. For example, where an employee provides day-to-day care for his or her unmarried partner’s child (with whom there is no legal or biological relationship) but does not financially support the child, the employee could be considered to stand in loco parentis to the child and therefore be entitled to FMLA leave to care for the child if the child had a serious health condition. The same principles apply to leave for the birth of a child and to bond with a child within the first 12 months following birth or placement.

Huh? It may be news to parents that they can "intend to assume the responsibilities of a parent," without providing "financial support." It may also be news to the person who wrote the sentence right before the language quoted above, since the word "and" connects "day-to-day responsibilities"and "financially support."

And that last part of the above quote suggests that boyfriends can take "leave for the birth" of a girlfriend's child and for "bonding"? That sort of undercuts the entire statute and regulatory scheme. Why include "parent" in the statute at all when just about anyone can qualify as standing "in loco parentis?"

Here's another interesting quote from the DOL attempting to explain its interpretation:

Neither the statute nor the regulations restrict the number of parents a child may have under the FMLA. For example, where a child’s biological parents divorce, and each parent remarries, the child will be the “son or daughter” of both the biological parents and the stepparents and all four adults would have equal rights to take FMLA leave to care for the child.

If I read this right, any step-parent automatically can take FMLA leave even when the step-parent does not indicate any interest in acting as the parent of the other spouse's biological child from a previous relationship? What if the divorced parents meet their soul mates and choose not to remarry? Is that enough to confer "in loco parentis" status on the non-biological soul mate?

Can it be that anyone with a significant other who has a child can grab some job-protected leave, ostensibly to care for the child? Of course not. The DOL has stringent verificiation requirements to ensure that only persons really and truly standing in loco parentis can have leave:

Where an employer has questions about whether an employee’s relationship to a child is covered under FMLA, the employer may require the employee to provide
reasonable documentation or statement of the family relationship. A simple statement asserting that the requisite family relationship exists is all that is needed in situations such as in loco parentis where there is no legal or biological relationship. See 29 C.F.R. § 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).

OK, not so stringent. There is no documentation requirement other than a "simple statement": "My girlfriend has a child who has a serious health condition and I need leave to take care of her." No chance for abuse there.

If you sense I'm annoyed, it's not about whether bona fide FMLA leave is important for parents and children. The issue is that some may be tempted to seek refuge in taking FMLA leave for no reason other than to shield themselves from discipline. Yes, this has actually happened. The DOL has opened up a gaping hole permitting abuse of a well-intentioned law, but without issuing regulations and without persuading Congress to amend the statute.

Administrator Interpretation 2010-3 is here.
DGV

FEHC Updates FMLA / CFRA Comparison Chart

California's anti-discrimination agency just updated its chart comparing the FMLA and California's CFRA. It's posted here.

California FEHC Compares New FMLA Regulations with CFRA/PDL

The California Fair Employment and Housing Commission issued a helpful comparison chart covering the new FMLA regulations and their effect on California's Family Rights Act and Pregnancy Disability Leave law. Here it is.

New FMLA poster

Merry Christmas from the US DOL. Here's your new FMLA poster, necessary for complying
with the new regulations when they become effective next month.

Merry Christmas / Happy Chanukah / Happy Kwanzaa! Happy New Year, too.

Greg

New FMLA Regulations Are Here

The federal DOL finalized its FMLA regulation revisions. We analyzed earlier drafts here and here. We'll publish a full analysis of the final regulations soon.

To find the new regulations, page down to p. 141 of the PDF, here. The first 140 pages are analysis and commentary. No one can read all that and stay awake. You'll put your eye out. Of course, that could earn you up to 12 weeks of leave....

Greg

H/T Ross Runkel

Ninth Circuit on Damages Available under FMLA

Farrell worked for Tri-County Metropolitan Transportation District of Oregon. The district denied some FMLA requests that Farrell made because of his own conditions. A jury awarded him $1,110 in lost wages for the work time Farrell lost because of the emotional distress he suffered when the district denied his FMLA claim. Although emotional distress damages are not available under the FMLA, lost work time is. So, the Ninth Circuit decided, a jury was entitled to award Farrell lost wages due to emotional distress.

The case is Farrell v. Tri-County Metropolitan Transportation District of Oregon and the opinion is here.

CA Supreme Court Rules on California Family Rights Act Issues

So, Lonicki was an employee claiming major depression and work-related stress stopped coming to work and requested medical leave. In the employer’s view, the employee did not have a serious health condition and was capable of performing her duties. The employer ordered the employee to return to work, and fired her when she did not. The twist: While taking FMLA/CFRA leave, she worked for another employer. While her other job was not identical, there was a substantial overlap.
The Supreme Court considered two issues: First, could the employer just fire Lonicki without seeking additional medical certifications as provided by the CFRA statute? The court concluded (6-1) that employers need not do so. Justice Moreno, though, said that the employer must follow that procedure before denying leave based on an employer's belief that the employee is not eligible for leave.
The second issue is the one that got the headlines: If an employee seeks FMLA/CFRA leave for her own health condition, and she works another job, does she really have a serious health condition? Here, the Supreme Court split 4-3 that she MIGHT. The court decided that working another position is evidence that the employee's condition might not qualify for FMLA or CFRA. But the Court refused to hold that working in a comparable job was "conclusive" evidence no serious health condition justified leave. So, off to trial with Lonicki and her employer.

The case is Lonicki v. Sutter Health Central and the opinion is here.

U.S. DOL Proposes Revised FMLA Regulations

The U.S. DOL has been hard at work considering revisions to the FMLA regulations. We posted about the initial report here. Lots of time has passed, and the present administration is coming to a conclusion. So, I'm sure employers were wondering if there would indeed be new regulations as much as we were.

Wait no longer! There will be new proposed regulations published in the Federal Register on February 11. Here they are, all 470ish pages of discussion, analysis and proposed regulations. There also are proposed regulations regarding the new FMLA amendments regarding servicemembers.

We will publish an article on the draft regulations in the coming weeks. Until then, get your reading glasses, you're on your own. Thank you Ross Runkel and your Employment Law Memo!

DGV

FMLA Amendments Signed - Leave for Relatives of Military

Congress passed FMLA amendments expanding FMLA protection leave taken under certain circumstances by relatives of soldiers. We covered the amendments here. The president initially vetoed the law in which the FMLA amendments were contained. Now he has signed them. They are included within HR 4986, as section 585. (It's a big bill, concerning a number of issues related to defense; so, please scroll to that section). We will be writing an article regarding compliance with this new law over the next couple of weeks.

Greg

FMLA Amendments Vetoed

Proposed amendments to the FMLA, discussed here, intended to expand the law to cover leave to care for members of the military, are on hold. The President vetoed the proposed legislation, which included a bundle of unrelated measures. The FMLA amendments may pass as part of a new bill. Stay tuned.

Congress Amends FMLA to Cover Leave for Relatives on Active Duty in the Military

Congress has amended the FMLA. The bill is here. The President has not signed the bill yet, but is expected to do so soon.
The new provision permits (1) up to 26 weeks of leave in a one-time 12-month period to care for a service member with a "serious illness" who is injured in the line of active duty and (2) up to 12 weeks of leave in any 12-month period for a "qualifying exigency" related to a service member's call to active duty.
The Department of Labor will define "qualifying exigency."
The 26-week leave is a one-time leave. The "qualifying exigency" leave is available like FMLA - 12 weeks per 12 month period.
The reinstatement rights, benefit protections, etc. will be the same as under the current FMLA. This is all new, so stay tuned. Expect to revise your FMLA policies and replace your posters.

Greg