The U.S. Supreme Court in Gross v. FBL Fin. Servs. (blogged here) limited "mixed motive" cases under federal law. The Court said there is no need for that defense in age discrimination cases under the federal ADEA. Employees must prove "but-for" causation, so the employer need not prove it would have made the same decision with or without additional discriminatory motivation. The defense remains viable in discrimination cases brought under Title VII.
Anyway, in California, the mixed motive is alive and well. The Court of Appeal in Harris v. Santa Monica, opinion here, held that the trial court prejudiced the city of Santa Monica by refusing to instruct the jury that even if discrimination played a role in Harris' termination, the City was entitled to win if it would have made the same decision regardless.
The opinion is noteworthy for a few reasons:
- it reinforces the relevance of employment at will in discrimination cases.
- it explains clearly that the employer's decision cannot be attached for being "unwise" or "factually incorrect" if it is not motivated by discrimination.
- it revives the old "BAJI" jury instruction on mixed motive cases, given the new CACI instructions do not contain model for mixed motive cases.
- "mixed motives" need not be pleaded as an affirmative defense because it is not "new matter."
Sunday, 1 November 2009
Saturday, 31 October 2009
New Poster!
The EEOC has issued a revised “Equal Employment Opportunity is the Law” poster. See the announcement here.
Here's your chance to update the look of your breakroom, time clock wall, and anywhere else that employees are likely to see the poster. Those of you with laminated multi-posters will contribute to our economic recovery by purchasing the new versions.
Click here for the compliance options. You either may print and post the "supplement" or replace your existing posters.
Greg
Here's your chance to update the look of your breakroom, time clock wall, and anywhere else that employees are likely to see the poster. Those of you with laminated multi-posters will contribute to our economic recovery by purchasing the new versions.
Click here for the compliance options. You either may print and post the "supplement" or replace your existing posters.
Greg
Monday, 26 October 2009
TUPE and Duty to Consult
As you are no doubt aware, when a business or part of a business is going to be transferred elsewhere the obligations posed by the TUPE Regulations are that employers must consult with their employees pre transfer and tell them about the legal, social and economic implications.
But what about if the employer gets it wrong? What if the employer (wrongly) believes that the TUPE regulations do not apply? It could of course be argued that by getting it wrong the employer has failed to tell their employees about the legal implications of the business transfer.
This matter has been considered in Royal Mail Group Ltd v Communication Workers Union in the Court of Appeal.
The Court of Appeal held that a transferor employer is only duty bound to communicate the legal, social and economic implications of the transfer as they believe them to be. There is no duty to get it right as such providing of course they have made reasonable effort.
This will be great news to employers but, saying this there are implications over what reasonable efforts employers will have needed to go to. Normally the Employer would get legal advice on this issue which might be legally privileged. An employer might need to consider waiving his right to legal privilege and disclosing what advice he was provided with.
For advice on business transfers please contact me on gda@hrlegalonline.com
Employment Judges - No longer a cushy number
Most Employment Lawyers at some point approaching their later career think about an appointment as an Employment Judge, and some might be persuaded. But perhaps there should be an element of danger money!
The Daily Telegraph last week reported that an Employment Judge has actually been assaulted during a Case Management Discussion. The assault allegedly took place in a Case Management Discussion which is a very neutral hearing where the Judge gives Orders for the good management of the case moving forward.
The Employment Judge concerned (Judge Carstairs) I have appeared before, and whilst he is rather robust (as good Employment Judges should be), I have always found him to be even handed. I am also aware that Judge Carstairs has been considerably unwell some months prior to this hearing - I don't suppose this instance helps.
For the full story click here
Sunday, 25 October 2009
New California Employment Statutes 2009
The California Bar's Labor and Employment Law Section provided this helpful list of the employment law bills Governor Schwarzenegger signed.... He vetoed the scary ones. The long list below primarily involve public sector employees and their benefits.
SB 519 by Senator Roy Ashburn (R-Bakersfield) - This one affects certain retirement benefits calulations for public employees.
SB 538 by Committee on Public Employment and Retirement - County employees’ retirement: mandatory retirement.
SB 751 by Senator Gloria Romero (D-Los Angeles) - Teacher credentials - permits California to issue teaching credentials to teachers certified in other countries.
AB 399 by Assemblymember Julia Brownley (D-Santa Monica) - Public employee retirement benefits.
SB 11 by Senator Gloria Negrete McLeod (D-Chino) - County employees retirement: San Bernardino County health benefits.
SB 37 by Senator Tony Strickland (R-Thousand Oaks) - State employees: statement of deductions. This law permits state employees to receive electronic wage statements unless they opt out.
SB 634 by Committee on Public Employment and Retirement - State Teachers’ Retirement System.
AB 65 by Assemblymember Mary Hayashi (D-Hayward) - Public employee health benefits: vision care: local, school, and university members.
AB 239 by Assemblymember Julia Brownley (D-Santa Monica) - Teacher credentialing.
AB 468 by Assemblymember Mary Hayashi (D-Hayward) - Public Employees’ Medical and Hospital Care Act: employer contributions.
AB 506 by Assemblymember Warren Furutani (D-South Los Angeles County) - State teachers’ retirement: postretirement earnings.
AB 544 by Assemblymember Joe Coto (D-San Jose) - Teaching credential: American Indian languages.
AB 854 by Assemblymember Juan Arambula (I-Fresno) - Employment regulation and supervision: unpaid wages.
AB 1319 by Assemblymember Paul Krekorian (D-Burbank) - Talent services.
AB 1584 by Assemblymember Dr. Ed Hernandez (D-West Covina) - Public employees’ retirement: retirement boards.
SB 72 by Committee on Budget and Fiscal Review - State employees: payroll: health care.
SB 752 by Senator Lou Correa (D-Santa Ana) - County employees’ retirement: Orange County.
AB 1025 by Assemblymember Connie Conway (R-Tulare) - Schools: employees and volunteers: Activity Supervisor Clearance Certificate.
AB 381 by Assemblymember Marty Block (D-San Diego) - Unemployment compensation disability benefits: academic employees.
AB 395 by Assemblymember Felipe Fuentes (D-Sylmar) - Employment: apprenticeship programs.
AB 720 by Assemblymember Anna Caballero (D-Salinas) - Peace officers: marital privilege.
SB 519 by Senator Roy Ashburn (R-Bakersfield) - This one affects certain retirement benefits calulations for public employees.
SB 538 by Committee on Public Employment and Retirement - County employees’ retirement: mandatory retirement.
SB 751 by Senator Gloria Romero (D-Los Angeles) - Teacher credentials - permits California to issue teaching credentials to teachers certified in other countries.
AB 399 by Assemblymember Julia Brownley (D-Santa Monica) - Public employee retirement benefits.
SB 11 by Senator Gloria Negrete McLeod (D-Chino) - County employees retirement: San Bernardino County health benefits.
SB 37 by Senator Tony Strickland (R-Thousand Oaks) - State employees: statement of deductions. This law permits state employees to receive electronic wage statements unless they opt out.
SB 634 by Committee on Public Employment and Retirement - State Teachers’ Retirement System.
AB 65 by Assemblymember Mary Hayashi (D-Hayward) - Public employee health benefits: vision care: local, school, and university members.
AB 239 by Assemblymember Julia Brownley (D-Santa Monica) - Teacher credentialing.
AB 468 by Assemblymember Mary Hayashi (D-Hayward) - Public Employees’ Medical and Hospital Care Act: employer contributions.
AB 506 by Assemblymember Warren Furutani (D-South Los Angeles County) - State teachers’ retirement: postretirement earnings.
AB 544 by Assemblymember Joe Coto (D-San Jose) - Teaching credential: American Indian languages.
AB 854 by Assemblymember Juan Arambula (I-Fresno) - Employment regulation and supervision: unpaid wages.
AB 1319 by Assemblymember Paul Krekorian (D-Burbank) - Talent services.
AB 1584 by Assemblymember Dr. Ed Hernandez (D-West Covina) - Public employees’ retirement: retirement boards.
SB 72 by Committee on Budget and Fiscal Review - State employees: payroll: health care.
SB 752 by Senator Lou Correa (D-Santa Ana) - County employees’ retirement: Orange County.
AB 1025 by Assemblymember Connie Conway (R-Tulare) - Schools: employees and volunteers: Activity Supervisor Clearance Certificate.
AB 381 by Assemblymember Marty Block (D-San Diego) - Unemployment compensation disability benefits: academic employees.
AB 395 by Assemblymember Felipe Fuentes (D-Sylmar) - Employment: apprenticeship programs.
AB 720 by Assemblymember Anna Caballero (D-Salinas) - Peace officers: marital privilege.
Court of Appeal: "Reasonable Accommodation" Must Be Perfectly Executed Every Time
It is one thing to grant a reasonable accommodation. It is another thing to ensure that it is implemented perfectly, every time. Hard cases make bad law. This is a combination of a sympathetic plaintiff, a big company, and a one-time event resulting in a huge verdict.
A.M. was a cashier at an Albertson's in Marin County. After receiving treatment for cancer, she needed to drink copious water. Albertson's let her have water at her station, even though it was against policy. Naturally, A.M. had to use the bathroom more frequently because of the water she was drinking. Albertson's said that she could call her supervisor and they would cover her.
So, Albertson's had granted A.M. extra breaks as an accommodation, and had implemented a system for A.M. to obtain them. The system was working, with A.M. receiving extra breaks by calling her supervisor. On one occasion, the system did not work because the supervisor was the only person who could relieve her and he was unloading a truck. A.M. had an accident at her cashier station. She went home and did not return to work for Albertson's.
According to the court of appeal, that single failure of the supervisor sufficed to be a "denial" of reasonable accommodation. The court upheld a jury verdict of $200K for that one incident. Add the plaintiff's and defense attorney's fees and sooner or later we're talking about a lot of money.
By the same argument, then, if an employee's wrist starts to hurt a few months after the employer installs ergonomic equipment, that alone is the denial of an accommodation? If a diabetic experiences low blood sugar one day, does that mean the employer's accommodation of permitting food at the work area is actionable?
If an accommodation becomes ineffective, the employer is required to engage in the interactive process to come up with a better accommodation, and grant the new accommodation. It is unreasonable to assume that an employee with a disability has a right to a perfect work environment and a guaranteed flawless accommodation, every day. The world does not work that way for anyone - with or without a disability. The issue is: did Albertson's grant her request for accommodation? Yes. Was it effective? Except for the one occasion, apparently so. Was there evidence the company intended to mistreat A.M. or only pretended to accommodate her? No. Could A.M. have filed a workers' compensation claim if she were injured by a work-related condition? Yeah, which was her real remedy here.
Again, A.M. was very sympathetic and what happened that day was truly unfortunate. But absent proof of intentional discrimination, the result of this case is that FEHA is not providing a remedy for a wrong; it is elevating individuals with disabilities above all others and exposing employers to potential liability for isolated failures.
The case is A.M. v. Albertson's and the opinion is here.
My 0.02.
A.M. was a cashier at an Albertson's in Marin County. After receiving treatment for cancer, she needed to drink copious water. Albertson's let her have water at her station, even though it was against policy. Naturally, A.M. had to use the bathroom more frequently because of the water she was drinking. Albertson's said that she could call her supervisor and they would cover her.
So, Albertson's had granted A.M. extra breaks as an accommodation, and had implemented a system for A.M. to obtain them. The system was working, with A.M. receiving extra breaks by calling her supervisor. On one occasion, the system did not work because the supervisor was the only person who could relieve her and he was unloading a truck. A.M. had an accident at her cashier station. She went home and did not return to work for Albertson's.
According to the court of appeal, that single failure of the supervisor sufficed to be a "denial" of reasonable accommodation. The court upheld a jury verdict of $200K for that one incident. Add the plaintiff's and defense attorney's fees and sooner or later we're talking about a lot of money.
By the same argument, then, if an employee's wrist starts to hurt a few months after the employer installs ergonomic equipment, that alone is the denial of an accommodation? If a diabetic experiences low blood sugar one day, does that mean the employer's accommodation of permitting food at the work area is actionable?
If an accommodation becomes ineffective, the employer is required to engage in the interactive process to come up with a better accommodation, and grant the new accommodation. It is unreasonable to assume that an employee with a disability has a right to a perfect work environment and a guaranteed flawless accommodation, every day. The world does not work that way for anyone - with or without a disability. The issue is: did Albertson's grant her request for accommodation? Yes. Was it effective? Except for the one occasion, apparently so. Was there evidence the company intended to mistreat A.M. or only pretended to accommodate her? No. Could A.M. have filed a workers' compensation claim if she were injured by a work-related condition? Yeah, which was her real remedy here.
Again, A.M. was very sympathetic and what happened that day was truly unfortunate. But absent proof of intentional discrimination, the result of this case is that FEHA is not providing a remedy for a wrong; it is elevating individuals with disabilities above all others and exposing employers to potential liability for isolated failures.
The case is A.M. v. Albertson's and the opinion is here.
My 0.02.
U.S. DOT: Medical Marijuana Users Cannot Breathe Easier
And they can't breathe sighs of relief, either. I kill me. Anyway, the Department of Justice announced it would pull back on enforcement against medical marijuana users where they are operating within the bounds of state law. (See DOJ memo: here) But the US Department of Transportation wants you to know they're a completely separate agency and there is no free pass on drug testing for medical marijuana users. Here is the DOT announcement.
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