WTK EMPLOYMENT CASE LAW AND REGULATORY UPDATE
March 2015
U.S. Department of Labor Updates Family and Medical Leave Act’s Definition of Spouse
Regardless of which state they live in, workers in legal, same-sex marriages will now have the same rights as those in heterosexual marriages to federal job-protected leave under the Family and Medical Leave Act (FMLA).
The rule change updates the FMLA regulatory definition of “spouse” so that an eligible employee in a legal, same-sex marriage will be able to take FMLA leave for his or her spouse. Previously, the regulatory definition of “spouse” did not include same-sex spouses if an employee resided in a state that did not recognize the employee’s same-sex marriage. Under the new rule, eligibility for federal FMLA protections is based on the law of the place where the marriage took place. This “place of celebration” provision allows all legally married couples, whether opposite-sex or same-sex, to have consistent federal family leave rights regardless of whether the state in which they currently reside recognizes such marriages.
The effective date for the rule is March 27, 2015.
EEOC Releases Its Fiscal Year 2014 Enforcement and Litigation Data
The U.S. Equal Employment Opportunity Commission (EEOC) released its enforcement and litigation data for the fiscal year of 2014 (which ran from October 1, 2013, to September 30, 2014). Highlights from this report include:
These percentages add up to more than 100 because some charges allege multiple bases. The EEOC’s full press release regarding its 2014 report can be found here: http://www1.eeoc.gov/eeoc/newsroom/release/2-4-15.cfm
Allegedly Discriminatory Statements Made by Supervisors Sufficient to Defeat Summary Judgment in Disability Discrimination Case, Even Where Presented in Self-Serving Declaration
The Ninth Circuit Court of Appeals reversed summary judgment in a disability discrimination case, finding the employee’s declaration regarding allegedly discriminatory statements made by his supervisors were sufficient to raise a triable issue of material fact as to discriminatory animus.
The employer had prevailed on summary judgment with the trial court by putting forth evidence that it terminated the employee for failing to comply with its leave of absence and attendance policies, resulting in job abandonment. On appeal, the employee argued that his declaration and deposition testimony regarding allegedly discriminatory statements made by his supervisors (e.g. “if you are going to stick with being sick, it’s not helping your situation…you’re not going to be accommodated;” “I’m done with that guy…he’s not going to be here anymore”) were sufficient to defeat summary judgment. The ninth circuit agreed, holding that self-serving declarations, even if not given much weight by a trier of fact, should not be disregarded at the summary judgment stage, and may be sufficient to create a triable issue of material fact on the issue of discriminatory animus.
The ninth circuit also reversed summary judgment on the employee’s failure to accommodate and failure to engage claims, finding there were genuine issues of fact regarding whether the employer continued to accommodate the employee’s request to arrive at 9 a.m. rather than 6 a.m. due to his alleged sleep disorder. The employee put forth sufficient evidence to show at least one of his supervisors refused to approve his accommodation request, thereby “chilling” his right to the accommodation.
(Nigro v. Sears, Roebuck & Co. (9th Cir. Feb. 25, 2015) 2015 U.S. App. LEXIS 2810)
Employer Entitled to Summary Judgment on Disability Claims
The employee worked as a maintenance worker for employer. Over the course of several years he sustained several work related injuries, had multiple surgeries and leaves of absence due to his injuries. Although he had previously worked as a trash collector, as an accommodation for his work restrictions, he began working as a groundskeeper in 2005. In 2006 employee reported trouble performing his duties as a groundskeeper. Although the employee’s doctor indicated he could perform the groundskeeper position, the employer continued to search for another alternate position.
Eventually, the employee requested a return to the position of trash collector, suggesting that he could drive one of the automated trash collection vehicles the employer used (rather than the manual vehicles, which required two operators and the pushing and pulling of heavy trash bins). The employer conducted several interactive meetings, hired a disability consulting firm to help facilitate the interactive process, and explored many potential accommodations. Ultimately, there were no available positions for which employee could perform the essential job functions that were not a promotion. The employer could not accommodate employee’s request to operate only the automatic trash collection vehicle for two reasons. First, the automatic collection vehicle occasionally required the operator exit the vehicle and manually manipulate the heavy garbage bins, which the employee was unable to do. Second, trash collectors had to be physically able to operate all types of vehicles in order to cover for each other during absences and, in the case of an emergency or disaster all personnel were required to clear out debris. Employment ended in 2010 since the employer could not find an alternate position. Plaintiff filed his DFEH charge in January 2011.
The trial court granted summary judgment for the employer. The court of appeal affirmed. The court held, as an initial matter, that the statute of limitations for the FEHA claims precluded employee from litigating any issue that occurred prior to January 2010. The court found the continuing violation doctrine did not apply, and therefore employee could not argue that employer failed to accommodate him between 2006 and 2010. The employee also disagreed with employer’s characterization of the essential functions of the job. However, the court of appeal found that employee’s disagreement with the essential functions was not sufficient to create a triable issue of fact. Additionally, the court rejected the employee’s arguments that if the employer simply eliminated one or more of the essential functions of the job employee could perform the job. The court of appeal noted that eliminating an essential function of a job is not a reasonable accommodation, and the FEHA does not require employers to excuse a disabled employee from an essential job function. Finally, the court held that requesting a job accommodation is not a protected activity under the FEHA for purposes of a retaliation claim.
(Nealy v. City of Santa Monica (2015), 2015 Cal. App. LEXIS 139)
Employers Must Provide Second Meal Period For Shifts Over 12 Hours, and No Waivers are Permitted
Labor Code section 512(a) generally allows an employer and employee to agree that if the employee works between 10 and 12 hours, the employee may waive her right to a second meal period so long as the first meal period was not waived. The statute was intended to allow employees the option to leave early by waiving their second meal period. However, a second meal period waiver is generally not permitted for shifts longer than 12 hours.
For employees in the health care industry, section 11(D) of Wage Order 5 further provides that employees who work longer than 8 hours in a workday may waive their second meal period, regardless of whether the shift exceeds 12 hours. A putative class of health care workers sued their employer, claiming that section 11(D) of Wage Order 5 is invalid to the extent it permits employees to waive their second meal period on shifts longer than 12 hours.
The court of appeal agreed, holding that section 11(D) is partially invalid to the extent it permits employees who work longer than 12 hour shifts to waive their second meal period. The appellate court reasoned that Labor Code section 516 limited the Industrial Welfare Commission’s ability to regulate meal periods, and the legislature codified that only shifts less than 12 hours were permitted to include a second meal period waiver. Therefore, the Industrial Welfare Commission had gone beyond its authority by creating an exception to the general rule prohibiting waivers on shifts longer than 12 hours.
The appellate court went on to apply its ruling retroactively in regards to the payment of meal period premiums. The court noted that employers had benefited from their employees who worked longer than 12 hours but were not paid a meal period premium. Thus, it was fair to require the employer to retroactively pay premiums up to the statute of limitations.
(Gerard v. Orange Coast Memorial Medical Center (Feb. 10, 2015) 2015 Cal. App. LEXIS 132)
Appellate Court Holds Workers’ Compensation May Not Be the Exclusive Remedy for Employee Residing In Employer-Owned Housing and Injured on the Employer’s Premises While Walking to Work
A correctional officer at San Quentin State Prison (San Quentin), who lived in a state-owned rental unit on the prison grounds, was injured when he fell on his walk to work. He sought and received workers’ compensation benefits and then sued the State for premises liability. The State successfully moved for summary judgment arguing plaintiff’s tort claim was barred by workers’ compensation exclusivity.
The court of appeal reversed, holding that a triable issue existed on whether the injury arouse out of and in the course of plaintiff’s employment. Courts generally apply the “premises line rule” for non-resident employees under which workers’ compensation is triggered when the employee enters the employer’s premises. For resident employees, courts apply the “bunkhouse rule” which provides for workers’ compensation coverage for most injuries incurred in employer-owned housing on the employer premises. A triable issue existed here as to whether the “bunkhouse rule” applied (which would limit plaintiff’s remedies to workers’ compensation benefits) because plaintiff’s living arrangement on the prison grounds was purely voluntary (i.e., not a condition of his employment, he paid market rate rent and received no discount or other employment benefits for living on the property).
(Wright v. State of California (2015) 233 Cal.App.4th 1218)
DirecTV acquired 180 Connect, assumed all its assets and obligations, and retained all its employees, including plaintiff. After leaving DirectTV, the employee filed a class action against his former employer, alleging that its practice of paying employees with a debit card that required an activation fee of $ 0.50 or $ 3.50 and a cash withdrawal fee resulted in a failure to pay full wages in violation of Labor Code section 212 and unfair competition law.
In response, DirecTV moved to compel arbitration of the employee’s individual claims and stay the class action per an arbitration agreement signed by 180 Connect and the employee. The employee objected and argued DirecTV lacked standing to compel arbitration as a non-signatory to the arbitration agreement, and that class action waivers were unenforceable under California law.
The California appellate court ruled that a non-signatory to an arbitration agreement governing employment claims may enforce such agreement where it has assumed all rights and obligations of its predecessor who was a party to the agreement, and noted that this is especially true where the other party to the agreement (the employee) has acknowledged the existence of an employment relationship with the non-signatory (DirectTV). The court found that by his continued employment with DirecTV, the employee consented to the arbitration agreement with DirecTV. Citing the U.S. Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740 and the California Supreme Court’s decision in Iskanian v. CLS Trans. Los Angeles (2014) 59 Cal.4th 348, the court also upheld the enforceability of the class action waiver in the arbitration agreement.
(Marenco v. DirecTV (2015) — Cal.App.4th —)
After-Acquired Evidence Applies To Damages Calculation, Not Liability
Based on the after-acquired evidence doctrine a trial court found a union organizer applicant could not make a prima facie case of racial discrimination because a prior felony conviction prevented him from being a union organizer.
Applying Salas v. Sierra Chemical Co, the court of appeal held that the after acquired evidence is not a complete defense to recovery, but rather applied at the damages phase. The FEHA seeks to protect and safeguard the right and opportunity of all persons to obtain and hold employment without discrimination, and after acquired evidence precedes an employer’s discovery of information justifying an employment decision. Perhaps as an illustration, the court of appeal took note that the union was unaware of the applicant’s conviction when he was interviewed-and allegedly discriminated against-and the applicant was unaware of the statute disqualifying him.
The result of an after acquired evidence defense is measuring the damages from the date of failure to hire until the date the employer acquired information regarding ineligibility to work. But, it is not a bar to recovery, and should not be applied during the FEHA liability phase.
(Horne v. District Council 16 International Union of Painters and Allied Trades (2015) ____ Cal. App. ____)
California Appellate Court Holds Alien Status Irrelevant in Product Liability Case Where Plaintiff Did Not Seek Damages for Lost Earnings and His Immigration Status Was Otherwise Irrelevant to His Claims
The employee, an undocumented alien who worked for a food flavoring business, developed a lung decease allegedly caused by workplace exposure to a chemical compound (diacetyl). The employee sued several manufacturers and distributors of the compound for negligence and products liability. During jury selection, the trial judge found the issue of the employee’s immigration status relevant to his ability to receive a lung transplant and advised the prospective jurors of his alienage status.
On appeal, the employee argued the jurors were incapable of being fair given their knowledge of his immigration status. The court of appeal agreed, finding the trial court erred when it disclosed the employee’s undocumented status which was irrelevant because (1) the employee was not seeking damages for lost earnings or earnings capacity and (2) both party’s experts eventually testified that transplant procedures preclude consideration of immigration status in transplant decisions.
(Velasquez v. Centrome, Inc. (2015) 233 Cal.App.4th 1191)
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