Reasonable Accommodation and Disability Discrimination

Discrimination by non-governmental employers against physically or mentally disabled persons has only been illegal for less than 20 years. However, the area tends to be highly technical.

California’s Department of Fair Employment and Housing website might make appear that the issues are straightforward. Sometimes they are. The site states that an employer may only discriminate against person because of his or her disability if the employer can clearly demonstrate:

1. “The person is unable to perform the essential functions of the job and that no reasonable accommodation exists that would enable the person to perform the essential functions of the job”; or
2. “The person would create an imminent and substantial danger to himself/herself or a substantial danger to others by performing the job and that no reasonable accommodation can be made to remove or reduce the danger.”

Even a little research will show the potential complexity starts with the definitions of the key terms such as “disability,” “impairment,” “essential functions of the job,” “reasonable accommodation,” “undue hardship” and many others. There are literally thousands of published court decisions interpreting what these words and phrases mean as well as other multiple aspects of the applicable statutes and regulations.

We have published a number of articles on the subject seeking to simplify the subject. Please see, for example, Say “ADAAAAHHH” – More People to be Protected Under Federal Workplace Disability Law.

Bowles Law Report, Vol. 10, Issue 2; Pre-Employment Background Checks, Bowles Law Report, Vol. 9, Issue 3; and “Mental Disability” Laws Do Not Protect Incompetent Workers, Bowles Law Report, Vol. 1 Issue 3.

However, the area is sufficiently loaded with twists and turns that any manager faced with the hiring, discipline, termination, or other major employment decision regarding a disabled person (or even a possibly disabled person) should probably seek competent legal guidance for the task. If you have any questions about identifying and/or accommodating disabilities, please let us know.

Attempted Hook-Ups Can Lead to Litigation Shake-Downs

We have already outlined a roadmap for handling alcohol at holiday office parties. By its off-the-clock and put-work-aside nature, the annual December office gathering may also be a prime setting for unwelcome sexual advances by employees, worse yet by managers. Such harassment is not an experience anyone would want to go through. It can also lead to serious legal liability no company wants to experience.

Examples of inappropriate, unwelcome party behavior are:

• Bringing risqué joke gifts;
• Wearing suggestive “party” attire;
• Complimenting a co-worker’s body after one too many drinks;
• Frat house antics, e.g., “competition” for predatory sexual liaisons; or
• Dancing romantically or suggestively with a subordinate or co-worker.

The employer must be proactive to prevent and, where it occurs, to deal fairly and effectively with incidents of unwelcome advances at the holiday office party. For example:

• Re-publish, re-distribute the company’s sexual harassment policy before event takes place;
• Remind employees in advance that while holiday festivities are to be enjoyed, they do not offer an excuse for violating policy;
• Issue a business attire or other appropriate “dress code” in advance;
• Limit the availability of free alcoholic drinks and take other measures suggested in our “Office Holiday Survival Guide I, A Risky Cocktail: Alcohol and an Employee Party;”
• Hold the party during the day, with work to continue afterwards;
• Reduce the opportunities for unwelcome situations by avoiding inappropriately suggestive music or party games like “Twister” or “Truth or Dare” (strip poker is also out); and
• Avoid decorating with mistletoe.

It goes without saying – but we will say it anyway – that if your business does not have a written sexual harassment policy, the time to establish one is yesterday, if not sooner. Please let us know if we can advise you on such matters.

The Supreme Court on Monday agreed to hear an appeal in the biggest employment discrimination case on record, one claiming that Wal-Mart discriminated against hundreds of thousands of women in pay and promotion. The lawsuit seeks back pay that could amount to billions of dollars.

The question before the court is whether claims by individual employees may be combined as a class action. A decision on that issue will almost certainly affect all sorts of other class action suits. If nothing else, many pending class actions will slow or stop while litigants and courts await the decision in the case.

Wal-Mart objects to the class action in part because the number of potential claimants would be so large. Lawyers for the plaintiffs argue that the size of the class is inevitable because Wal-Mart is such a huge company, and is anyway legally irrelevant.

Read more of the New York Times article.

Source: New York Times
Photo: Library of Congress

Mandatory Paid Leave for Organ and Bone Marrow Donors

For some time now, state employees have been given paid time off for organ and bone marrow donations by law. Beginning in 2011, this is now mandatory for private employees as well. Effective immediately, employers with 15 or more employees must provide paid leave to employees for organ donation and bone marrow donation whether or not such employees have used up available sick leaves.

Here some of the key elements of the new law that employers need to know.

• The employee’s group health coverage must be maintained during the leave;
• The leave period—30 days for organ donation and five days for bone marrow donation—is the maximum allowed per year. The law does not specify whether or not the year must be calculated as a calendar year or rolling year basis;
• Such leaves of absence are not required to be done at one time but can be taken intermittently;
• The employer has the right to ask for written documentation from a doctor stating the employee’s involvement as well as the procedure’s medical necessity;
• The employer may not interfere, discriminate or retaliate against an employee’s leave rights;
• Upon returning to work from such a leave of absence, the employee must be restored to the same position or an equivalent position i.e. equivalent salary, benefits, etc.;
• The employee must continue to accrue sick leave, vacation, seniority during the leave period and any other rightful benefits of the employee;
• The employer can require that the employee use accrued sick or vacation days if available at the time of the employee’s leave. The employer may credit all five days for the bone marrow donation leave and up to two weeks for organ donor leave;
• Employees may file a lawsuit against their employer, seeking monetary and injunctive relief, for any violation of this statute, published as sections 1508-1513 of the California Labor Code.

To prevent any mishandling of these new leave rights, they should be added to your employee handbook as soon as possible. If you have questions about employees seeking leave for bone marrow or organ donation, consult a labor or employment attorney.

Maximize Ability to Manage by Written At Will Employment Agreements

“At will” means either employer or employee can terminate or quit the relationship at any time, with or without notice and with or without a reason. That’s usually a good thing for an employer since it maximizes the company’s ability to make employment decisions. The law generally presumes an employee is employed at will unless he or she can prove otherwise, usually through oral statements the employer made. So why bother with written employment agreements for at-will employees?

Here’s why. Let’s say Company X woos job applicant Sam, a hotshot salesperson. During the hiring process, Sales Manager Marty assures Sam that his job with Company X “will always be secure” and Sam could work with the company “as long as he wanted to.” Sales Supervisor Susan also assures Sam that he would be fired “only if his sales record consistently tanked, which she doubted would ever happen to a superstar like Sam.”

Sam accepts the job offer. Several years later Company X reorganizes its sales division and lays Sam off. Having never signed an at-will employment agreement, Sam now sues Company X for breach of contract.

A well-drafted written at-will employment agreement would have avoided this lawsuit. Thus, to protect the right to fire at will, companies should simply require employees to sign an at-will statement in the employment agreement. At-will statements can and should ideally be repeated in the employment application and in the employee handbook acknowledgment form.

To avoid any subsequent disputes after the employee signs such statement(s), the employer should also ensure it does not act in a way that could contradict the at will nature of the employment agreement, including making any oral assurances or promises of continued employment.

If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth

New Requirements for Unpaid Internship Programs

Internship programs can promote a business or industry to ambitious students looking for experience and items on their resumés. However, a company must comply with several rules in order to exempt such interns from minimum wage laws.

An April, 2010 opinion letter from the California Division of Labor Standards Enforcement (DLSE) provides updated guidelines for qualifying intern programs. The letter upheld the unpaid “trainee” initiative of Year Up, Inc., a non-profit organization placing disadvantaged young people in the IT industry for 6-month internships. The DLSE listed six factors:

1) The intern’s training actions with the company are similar to those a student would carry out in a vocational school;

2) The training is for the benefit of the trainee;

3) The trainee does not displace regular employees, but works under close observation;

4) The company derives no immediate advantage from the activities of the trainee and on occasion its operations may actually be impeded;

5) The trainee is not necessarily entitled to a job at the completion of the training period; and

6) The employer and the trainee understand that the trainee is not entitled to wages for the time spent in training.

The California DLSE states that if a company’s program does not meet all of these conditions for a given intern, that person should be considered an employee subject to both state and federal wage and hour laws.

Employer’s Obligations to Prevent Discrimination and Other Unlawful Employment Practices

In a recent case before the California Fair Employment and Housing Commission (FEHC), paralegal Robin Williams alleged her former employer, Lyddan Law Group, was liable for hostile work environment harassment and discrimination on the bases of race, religion and sex. She also asserted Lyddan retaliated against her because she protested these alleged wrongful acts. Acting on her behalf, the California Department of Fair Employment and Housing (DFEH) also alleged the employer failed to take all reasonable steps to prevent the discrimination and harassment from occurring. DFEH v. Lyddan Law Group, FEHC Case No. E-200607-A-1082-01-rs.

In an October 2010 decision, the FEHC found the employer was not liable for the harassment, discrimination and retaliation claims but was responsible for failing to take all reasonable steps necessary to prevent such discrimination and harassment. The Commission found the employer did not have a written anti-harassment policy, did not conduct trainings for its managers or employees in harassment or discrimination prevention, and did not have an employee handbook. Also, rather than conducting a neutral, independent investigation into Williams’ claims, the employer accused her of “slander.”

The decision serves as an important reminder for all employers to properly train supervisors and employees on preventing workplace harassment, discrimination and retaliation and on how to properly respond to such allegations.

Policies to Keep Your Business in the Fast Lane

Depending on the magnitude of the error, business owners and managers who discover they have been underpaying workers for travel time could be suddenly afflicted with the equivalent of extreme motion sickness.

Hourly employees must be paid for all “hours worked.” Depending on the circumstances, an employee can be considered experiencing a “working hour” even when in deep unconsciousness or obnoxious intoxication in seat 36C, Flight 363 Los Angeles to New York. Where an employee is required to travel for work, near or far, the employer must compensate the worker for that time. Exceptions are normal commute time or road trip downtime, e.g., meals or entertainment. Thus, an hourly worker who boards that New York flight for business is earning pay for his or her hours on the plane except the time spent taking a meal.

Unless there is a clear agreement (and it should be in writing) setting a special, reduced “travel rate,” the compensation is at the employee’s normal hourly rate. In no event should any hourly rate of pay be less than the minimum, currently $8.00 in California. That state’s daily and weekly overtime laws also apply to work-related travel days. Thus, that worker that spent a ten hour day flying to New York and then preparing for a meeting in the hotel room has eight straight time hours and two overtime hours coming to him or her.

Written workplace policy on the rules and obligations is of course the best policy here.

Workplace Misconduct Charges in 2010

The U.S. Equal Employment Opportunity Commission recently published its annual statistical report on unlawful workplace discrimination, harassment and retaliation charges. Individuals filed 99,022 complaints (“charges”) with the agency in 2010, more than in any of the EEOC’s 45 years of existence. The total is a 7% increase over 2009. Many complaints contain multiple accusations. Retaliation and race-based accusations top the 2010 list, comprising 65% of the total:

• Retaliation (36,258)
• Race discrimination (35,890)
• Sex discrimination (29,029)
• Disability discrimination (25,165)
• National origin discrimination (11,304)
• Religious discrimination (3,790)

The EEOC also reports it obtained in 2010 a record $404 million in employer payments for alleged misconduct. The agency also filed 250 lawsuits against employers nationwide last year.

The majority of the 31,000 harassment accusations submitted to the EEOC last year centered on race, national origin and religion, with 11,717, roughly one-third, based on sex.

The volume and increase of charges underscore the importance to employers and employees alike to know and apply clearly written workplace policies prohibiting all types of unlawful discrimination, harassment and retaliation, requiring reporting, and specifying prompt and fair internal investigation procedures to resolve any such allegation.