Some years ago (2003 or so) I was lucky enough to be involved in a case where the court struck down California's AB 1889. That law requires employers receiving state funds not to use them to oppose (or support) union organizing. The California Chamber of Commerce and other groups challenged the law. The district court granted summary judgment in favor of the Chamber and held the law preempted.
On appeal, the Ninth Circuit initially upheld the district court's holding that federal law preempted AB 1889. But, the court then heard the case "en banc" and changed its mind, upholding the California law.
Then, my prior firm was replaced by Supreme Court experts who sought (and obtained!) certiorari review of the decision.
The Supreme Court decided today 7-2 that AB 1889 is preempted by the National Labor Relations Act. That is, California's law impermissibly regulated employers' conduct that is otherwise regulated by the National Labor Relations Act.
This is a very important case for nursing homes and other businesses that receive state funds. The case is Chamber of Commerce v. Brown and the opinion is here.
Thursday, 19 June 2008
Saturday, 14 June 2008
Court of Appeal Permits Claim of "Preemptive" Retaliation
Lisa Steele, a new employee of the California Youth Offender Parole Board, was a participant in a bikini contest (away from work). Her boss, Galindo, attended the contest. When they saw each other, Galindo kissed her on the cheek on a single occasion. No one was offended. Galindo otherwise treated Lisa professionally.
But another employee was in the process of complaining about Galindo's conduct at work. The powers than be apparently were worried that Steele would be a witness against Galindo, although she had not yet complained or participated in an investigation. So, according to the record, the higher-ups engaged in conduct forcing her to resign.
A jury found for Steele on a constructive discharge claim. But the YOPB appealed, arguing (among other things) that Steele had not engaged in protected activity, so she could not have suffered "retaliation."
The Court of Appeal, though, decided that Steele's status as a "potential" witness was enough to confer "protected activity" status. Steele's proof that the constructive discharge was related to management's fear that Steele would testify against Galindo was enough to prove Steele's retaliation claim. Preemptive retaliation for future possible protected activity ... Minority Report anyone?
So, what employee is not a "potential witness" in a workplace discrimination, harassment or retaliation claim? The lower courts will be left to sort that out, I guess. The opinion is Steele v. Youth Offender Probation Board and the opinion is here.
But another employee was in the process of complaining about Galindo's conduct at work. The powers than be apparently were worried that Steele would be a witness against Galindo, although she had not yet complained or participated in an investigation. So, according to the record, the higher-ups engaged in conduct forcing her to resign.
A jury found for Steele on a constructive discharge claim. But the YOPB appealed, arguing (among other things) that Steele had not engaged in protected activity, so she could not have suffered "retaliation."
The Court of Appeal, though, decided that Steele's status as a "potential" witness was enough to confer "protected activity" status. Steele's proof that the constructive discharge was related to management's fear that Steele would testify against Galindo was enough to prove Steele's retaliation claim. Preemptive retaliation for future possible protected activity ... Minority Report anyone?
So, what employee is not a "potential witness" in a workplace discrimination, harassment or retaliation claim? The lower courts will be left to sort that out, I guess. The opinion is Steele v. Youth Offender Probation Board and the opinion is here.
Court of Appeal Rules on Holiday Pay, Regular Rate, and Overtime
Sometimes employers pay workers "holiday premium" pay for working on a holiday. Under federal law, if the holiday premium is at least 1.5 times the normal rate, such premiums may be taken as a "credit" against overtime premiums due in the same workweek.
The Court of Appeal just decided that this federal regulation also applies in California. If you're not familiar with this rule, here's an example from the opinion of how it works:
The plaintiff argued that she was entitled to time and one-half for the 20 hours of overtime she worked. The employer argued it paid her time and one-half for eight of those hours because of the holiday premium policy.
The Court of Appeal decided nothing in the California overtime law required the employer to pay more than the time and one-half for 20 hours of overtime work. However, the court expressly reserved judgment on whether the employee could bring a breach of contact claim for the holiday pay premium.
The case is Advanced Tech Security Services, Inc. v. Roman and the opinion is here.
Well, the court of appeal decided that
The Court of Appeal just decided that this federal regulation also applies in California. If you're not familiar with this rule, here's an example from the opinion of how it works:
During the week of September 4, 2006, Ms. Roman worked 12 hours on Monday, which was Labor Day, 12 hours on both Tuesday and Wednesday, and 8 hours each on Thursday, Friday, and Saturday for a total of 60 hours. Her paycheck reflected payment of one and one-half times her regular rate for the 4 hours of overtime she worked on both Tuesday and Wednesday of that week, as well as the premium rate of pay of one and one-half times for the 12 hours she worked on Labor Day. As such, Ms. Roman was paid for 40 hours at her regular rate of pay and 20 hours at a rate of time and one-half. Ms. Roman contends that the time and one-half she was paid for working on Labor Day was her regular rate of pay pursuant to the Employee’s Handbook, and she was entitled to be paid one and one-half times the premium rate for the hours she worked on Labor Day.
The plaintiff argued that she was entitled to time and one-half for the 20 hours of overtime she worked. The employer argued it paid her time and one-half for eight of those hours because of the holiday premium policy.
The Court of Appeal decided nothing in the California overtime law required the employer to pay more than the time and one-half for 20 hours of overtime work. However, the court expressly reserved judgment on whether the employee could bring a breach of contact claim for the holiday pay premium.
The case is Advanced Tech Security Services, Inc. v. Roman and the opinion is here.
Well, the court of appeal decided that
OSHA: Employers Must Pay for Most Personal Protective Equipment
Both federal and state OSHA impose rules requiring employees to wear "personal protective equipment" such as work boots, safety goggles, etc. Federal OSHA just issued a final regulation requiring employers to pay for such equipment in most circumstances. The obligation is limited to equipment required for compliance with OSHA standards.
According to OSHA's preface to the regulation:
For a long, detailed discussion and the regulation itself, please see here.
According to OSHA's preface to the regulation:
The items excepted from payment by this rule are: Non-specialty safety-toe protective footwear (including steel-toe shoes or steel-toe boots) and non-specialty prescription safety eyewear, that is allowed by the employer to be worn off the job-site; Shoes or boots with built-in metatarsal protection that the employee has requested to use instead of the employer-provided detachable metatarsal guards; Logging boots required by 1910.266(d)(1)(v); Everyday work clothing; or ordinary clothing, skin creams, or other items used solely for protection from the weather.
For a long, detailed discussion and the regulation itself, please see here.
Local Living Wage Ordinance Not Local
Hayward, California has a "living wage" ordinance. This is a local law that requires employers to pay employees more than state or federal minimum wage. Such ordinances typically apply only to employers with city contracts, but San Francisco applies its local minimum wage ordinance to all employers.
Hayward's applies only to city contractors. Cintas had a contract with Hayward to handle laundry services. But many such services were performed outside of Hayward. Employees brought a class action against Cintas, claiming Cintas was violating the Living Wage Ordinance.
Agreeing with the trial court, the Court of Appeal held that Hayward could require city contractors to pay employees under the Living Wage Ordinance, even though the work was performed outside of Hayward. (The ordinance applied only to employees working on the contract, not to all Cintas employees worldwide).
The case is Amaral v. Cintas Corporation and the opinion is here.
DGV
Hayward's applies only to city contractors. Cintas had a contract with Hayward to handle laundry services. But many such services were performed outside of Hayward. Employees brought a class action against Cintas, claiming Cintas was violating the Living Wage Ordinance.
Agreeing with the trial court, the Court of Appeal held that Hayward could require city contractors to pay employees under the Living Wage Ordinance, even though the work was performed outside of Hayward. (The ordinance applied only to employees working on the contract, not to all Cintas employees worldwide).
The case is Amaral v. Cintas Corporation and the opinion is here.
DGV
Friday, 30 May 2008
Court of Appeal: No Disability and No Retaliation
In 2000, the California Legislature amended the Fair Employment and Housing Act to ensure the definition of "disability" is broader than the definition in the Americans With Disabilities Act. Way broader. For example, under state law, the employee's "mitigating measures" (such as glasses to help the sight impaired) are not taken into account when evaluating if a person has a disability. Another major difference is that an impairment need only make life activities "difficult" to be "limiting." Under federal law, the impairment must be "substantially" limiting, which is much tougher to prove.
I don't know of any published opinion holding that someone failed to demonstrate a "disability" under the new state law version of the definition. Until now.
Arteaga was part of a crew on a Brink's armored car. He picked up money from ATMs. Money was missing, repeatedly. Brink's investigated and let Arteaga know. An investigation into theft could create a certain numbness, as well as stress. Predictably, therefore, after the investigation commenced, Arteaga began complaining of pain and numbness in his arms, fingers, shoulders and feet, and that he was experiencing "stress." No one had noticed any issues with Arteaga's performance related to the numbness, nor had he complained about it before, although he said he had been experiencing it for a couple of years.
Holding Arteaga did not have a disability, the court noted that his alleged impairment did not "limit" his ability to work, either compared with his pre-disabled condition or with others who perform the work. The opinion is full of interesting observations about relevant considerations: Arteaga did not disclose any impairments on medical forms; the company took him to a doctor on two occasions who released him back to work immediately; he had not complained of any issues until he was under investigation; pain alone does not automatically constitute a disability; no duty to accommodate when employee did not disclose disability; and others.
Arteaga also claimed retaliation because he filed a workers' compensation claim. The court held that the timing was not enough to raise a triable issue of fact because the company had been investigating Arteaga's performance before he filed the workers' compensation claim and then simply followed through with the termination decision.
The case is Arteaga v. Brink's Incorporated. The opinion is here.
DGV
I don't know of any published opinion holding that someone failed to demonstrate a "disability" under the new state law version of the definition. Until now.
Arteaga was part of a crew on a Brink's armored car. He picked up money from ATMs. Money was missing, repeatedly. Brink's investigated and let Arteaga know. An investigation into theft could create a certain numbness, as well as stress. Predictably, therefore, after the investigation commenced, Arteaga began complaining of pain and numbness in his arms, fingers, shoulders and feet, and that he was experiencing "stress." No one had noticed any issues with Arteaga's performance related to the numbness, nor had he complained about it before, although he said he had been experiencing it for a couple of years.
Holding Arteaga did not have a disability, the court noted that his alleged impairment did not "limit" his ability to work, either compared with his pre-disabled condition or with others who perform the work. The opinion is full of interesting observations about relevant considerations: Arteaga did not disclose any impairments on medical forms; the company took him to a doctor on two occasions who released him back to work immediately; he had not complained of any issues until he was under investigation; pain alone does not automatically constitute a disability; no duty to accommodate when employee did not disclose disability; and others.
Arteaga also claimed retaliation because he filed a workers' compensation claim. The court held that the timing was not enough to raise a triable issue of fact because the company had been investigating Arteaga's performance before he filed the workers' compensation claim and then simply followed through with the termination decision.
Where the employee relies solely on temporal proximity in response to the employer’s evidence of a nonretaliatory reason for termination, he or she does not create a triable issue as to pretext, and summary judgment for the
employer is proper.
The case is Arteaga v. Brink's Incorporated. The opinion is here.
DGV
Wednesday, 28 May 2008
GINA's Little Secret
We posted on the new GINA law here. Most of the law prohibits employment discrimination based on genetic characteristics and genetic testing except in specified circumstances. But wait, there's more! Jennifer pointed out to me that section 302 of GINA also increases federal penalties for child labor violations by 10%. The new provision modifes the Fair Labor Standards Act, section 216(e).
DGV
DGV
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