Tuesday, September 28, 2010

The “Three-Stage Burden-Shifting Test” For Discrimination


What is the “three-stage burden-shifting test” for discrimination cases, and does it eliminate an employers’ ability to obtain a summary judgment?

Summary Judgment

Sandell v. Taylor-Listug, Inc., the court discussed how the “3 stage burden-shifting test” for discrimination cases is applied when a trial court is deciding a motion for summary judgment.  Black’s Law Dictionary defines summary judgment as a judgment granted on a claim about which there is no genuine issue of material fact and upon which the movant is entitled to prevail as a matter of law.  In an employment law context, what this means is that a trial court decides that the plaintiff-employee is unable to produce sufficient evidence upon which a jury could find that he/she was discriminated against, or that the employer’s rebuttal evidence establishes a legitimate, non-discriminatory reason for the employer’s actions upon which a reasonable trier of fact would have to find in the employer’s favor.

However, the Sandell court stated that the traditional three-stage burden-shifting test, as defined in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 , needed to be considered when applying the legal principles of a summary judgment motion.  The three-stage burden-shifting test was established because of the difficulty of proving discrimination claims since there rarely is direct evidence of intentional discrimination, and it is therefore typically proven circumstantially. 

Step-One

Step one of the test places the initial burden of establishing a prima facie case of discrimination on the plaintiff-employee. The purpose of requiring a prima facie case is to eliminate “patently meritless claims.” It is therefore a fairly light evidentiary burden, with only minimal evidence needed to infer discrimination.  In other words, the plaintiff-employee need only minimally establish the basic elements of his or her claim; specifically, present evidence that he or she is within a protected class, and provide some evidence that there was adverse action taken against the plaintiff-employee because he or she was within the protected class.

Step-Two

If the plaintiff-employee is able to establish the above, the case moves to step two, where the establishment of a prima facie case has raised a presumption of discrimination and the burden now shifts to the employer to rebut the presumption.  The rebuttal evidence must be sufficient to raise a genuine issue of fact from which a conclusion could be reached that the employer’s actions were for legitimate, non-discriminatory reasons.  In other words, the employer must show that the adverse action was taken for legitimate business reasons which had nothing to do with the plaintiff-employee being within the protected class.

Step-Three

If the employer is able to produce such rebuttal evidence, the case moves to step three, where the presumption of discrimination disappears and the burden shifts back to the plaintiff-employee.  The plaintiff-employee then has the opportunity to present evidence which attacks the employer’s proffered reasons as pretext, by demonstrating weaknesses, implausibilities,  inconsistencies or contradictions, in the proffered evidence, such that a reasonable fact finder could determine that the employer’s explanation was simply a cover-up of discriminatory intent.  Evidence of dishonest reasons for the adverse employment action, along with the elements of a prima facie case, may permit a finding of discrimination.  The plaintiff-employee may also offer other evidence of a discriminatory motive.  Ultimately, therefore, the burden lies with the plaintiff-employee.

However, the burden shifting test and the rules of a summary judgment are not consistent.  In fact, as the court notes, the three-part burden shifting test was established for use at the trial stage, not for a summary judgment.  Thus, keeping both of these legal principles in mind, the court found that in a discrimination claim, where a motion for summary judgment or other summary issue adjudication is made, the burden is going to ultimately rest with the moving party to negate their opponent’s right to prevail on the issues, unlike the three-step burden-shifting test. Therefore, if there is any evidence upon which a finding could be made, by a reasonable trier of fact, that the plaintiff-employee was discriminated against, then the motion for summary judgment should be denied. 

Based upon the Sandell case, it seems almost impossible for an employer to obtain a summary judgment in a discrimination case, unless the case is patently meritless on its face.  As the court noted, most discrimination cases are proven by circumstantial evidence. Since the credibility of the witnesses is often a factor, it is unlikely that there would be no triable  issues of material facts as a matter of law.  For example, if the plaintiff-employee establishes a prima facie case, and the employer can then shift the evidentiary burden back to the employee with evidence of non-discriminatory reasons, this in and of itself seems to raise a question of fact: whose version of the story is true?  Based upon the Sandell decision, employers should expect to face a trial with most discrimination lawsuits unless an early settlement can be achieved. Therefore, due to the huge legal costs associated with defending a discrimination lawsuit, especially if it involves more than one plaintiff, employers should be sure to implement and enforce anti-discrimination policies in the workplace.

DSkeren

Friday, September 24, 2010

Sexual Harassment: A Best Practices Primer For Employers


Sexual harassment is a form of sex discrimination. The Fair Employment and Housing Act (FEHA) defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions. The definition of sexual harassment includes many forms of offensive behavior, including harassment of a person of the same gender as the harasser.

The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature” (CFR sec. 1604.11 (a)).

Such conduct constitutes sexual harassment when:

  • Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment;

  • Submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual;

  • Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment (CFR sec. 1604.11 (a)).

Examples of Sexual Harassment

  1. Unwanted sexual advances;
  2. Offering employment benefits in exchange for sexual favors;
  3. Actual or threatened retaliation ;
  4. Leering; making sexual gestures; or displaying sexually suggestive objects, pictures cartoons or posters;
  5. Making or using derogatory comments, epithets, slurs, or jokes;
  6. Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes, or invitations;
  7. Physical touching or assault, as well as impeding or blocking movements;
  8. Staring, even if not done in a sexually suggestive manner (Birschtein v. New United Motor Manufacturing, Inc., 92 Cal.App.4th 994(2001);
  9. Obscenities, particularly if accompanied by sexual jokes (DFEH v. Sigma Circuits, Inc., FEHC No. 88-14 (July 28, 1988);
  10. Offensive emails or cell phone text messages;
  11. Bullying, yelling at or otherwise intimidating employees that is gender based or creates a disproportionate impact on that gender.

Two Types of Sexual Harassment

  • Quid Pro Quo (“this for that”)

This type of harassment occurs when a person with higher power in the workplace, such as a manager or supervisor, seeks sexual favors as a condition of employment, including adverse employment actions such as demotion, loss of benefits or termination.

  • Hostile Environment

A hostile work environment occurs when someone in the workplace creates an objectively offensive and/or abusive environment that is subjectively perceived by the victim as abusive, which interferes with the victim’s ability to perform his or her job.  However, the harassing conduct must be sufficiently pervasive and severe to rise to the level of a hostile work environment. The harasser’s conduct will be evaluated from the objective of a “reasonable” person. The Ninth Circuit U.S. Circuit Court of  Appeal has held that that offensive conduct does not need to be sexual in nature to create a hostile work environment, if the conduct such as shouting, using obscenities, and/or invading an individual’s personal space is directed at one particular group in the workplace. (Christopher v. National Education Assoc. 422 F.3d 840 (9th Cir. 2005).

Employer Liability

In general, employers are liable for harassment that occurs on the premises or that is associated with an employment relationship.

  • Harassment by Supervisors
Under California law, employers may be strictly liable for a supervisor or manager’s sexual harassment of a subordinate. This means an employer may be liable even though the employer was not aware of the fact that the harassment was occurring.
  • Harassment between Co-Workers
An employer is liable for harassment between coworkers if the employer knew about the harassing conduct and failed to take immediate action to correct the problem.
  • Harassment by NonEmployees
An employer may be liable for sexual harassment committed by nonemployees in the workplace if the employer (or the employer’s agents) knew or should have know of the harassing conduct and failed to take action to correct the problem (Gov. Code 12940 (j)(1)).

Supervisor Liability and Employee Liability

The FEHA provides that supervisors may be personally liable for sexually harassing an employee; under these circumstances, the supervisor’s personal assets may be at risk. Further, the employer does not have to reimburse an employee who must pay out of pocket to resolove a sexual harassment claim (Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992 (1995). Employees can also be personally liable for sexual harassment, and their assets are also at risk for such harassment should a lawsuit be filed.

An Employer’s Obligations

  1. Take all reasonable steps to prevent discrimination and harassment in the workplace;
  2. If harassment occurs, take immediate and effective steps to correct the problem; to the extent possible treat the matter confidentially (for example conduct interviews in a private area);
  3. Develop and implement a detailed sexual harassment policy that includes a procedure for filing complaints of harassment;
  4. Post the Department of Fair Employment and Housing (DFEH) employment poster in the workplace;
  5. Distribute an information sheet on sexual harassment to all employees;
  6. Employers who do business in California and employ 50 or more part-time or full-time employees must provide 2 hours of sexual harassment training every two years to all supervisors and to all new supervisors within 6 months of hire.
Filing a Complaint

An employee must file a complaint with the DFEH within one year of the alleged violation, or with the EEOC within 180 days, unless a charge is first filed with the DFEH, then within 300 days of the alleged violation or within 30 days of receipt of notice from the DFEH that their proceedings are terminated.

Conclusion

In their ongoing effort to prevent sexual harassment in the workplace, employers should therefore immediately and effectively address any complaint of harassment; develop a detailed sexual harassment policy; post and distribute any required information on sexual harassment in the workplace and, if applicable, train all supervisors within the required time frames.

BOBrien

Saturday, September 11, 2010

Supreme Court Rules On Text Messaging Case


On June 17, 2010, the U.S. Supreme Court unanimously issued a decision in a much anticipated case, City of Ontario v. Quon, No. 08-1332, 560 U.S. (2010), holding that the employer’s review of an employee's text messages on an employer-issued pager was a reasonable search pursuant to the Fourth Amendment. Justice Kennedy authored the opinion. In dicta, the Court emphasized the importance of employer policies on this issue, stating that "employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated" (Quon, No. 08-1332, slip op. 11). In light of the Court's reasoning on this important issue, employers should implement written workplace policies that specifically refer to all forms of employer issued electronic devices (i.e. computers, cell phones, pagers, etc.), and that clearly and unequivocally advise employees that they should have no expectation of privacy in these devices.

However, two aspects of the decision may limit broader application of the case. One, the case involved a government entity, and two, the Court narrowed its decision by specifically limiting it to the facts of this particular case. On this point, the Court noted that, "[p]rudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . [a] broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted" (Quon, No. 08-1332, slip op. 10). The Court thus took a narrow approach to its decision by assuming that Quon had a reasonable expectation of privacy in his text messages, and then finding that the city's search was reasonable under the circumstances. The Court emphasized that it "must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear" (Id. at 10).

Therefore, the question is what guidance, if any, does this case provide for employers when implementing workplace policies regarding employer issued communications devices? Certainly the case emphasizes the importance of clearly written workplace policies that address privacy expectations in employer issued electronic devices. I was particularly intrigued by the Court’s comment that "[c]ell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy." However, alternatively, the Court noted that, "the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own."

Justice Scalia, in his concurring opinion, observed that, “Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court's implication . . . that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)--or that we should hedge our bets by concocting case-specific standards or issuing opaque opinions--is in my view indefensible. The-times-they-are-a-changin' is a feeble excuse for disregard of duty" (Id. at 2) (Scalia, J. concurring). So, where does this leave employers?

BOBrien

Wednesday, September 8, 2010

Workplace Practices On Medical Marijuana Use


Medical Marijuana Use: Employers Caught Between "A Rock And A Hard Place"

“Medical marijuana” refers to the use of marijuana as a physician-recommended form of treatment or therapy, often for pain management or to treat nausea caused by chemotherapy.  Numerous states, including California (pursuant to the Compassionate Use Act) have legalized the use of marijuana for medicinal purposes. Of these states, California was the first state to legalize medical marijuana, and as a result since 2004, thousands of marijuana cards have been authorized.  However, under federal law, specifically, the Controlled Substances Act, marijuana use is illegal, even for medicinal purposes. This has created a dilemma for employers trying to enforce workplace polices that prohibit illegal drug use, especially since medical marijuana users are not technically a protected class, although obviously the issue raises disability discrimination considerations. Thus, the question is, if an employer has a zero-tolerance policy on drug use, can an employee be terminated for using medical marijuana?

The California Supreme Court, in Ross v. Ragwire Telecommunications (2008) 42 Cal.4th 920, provided guidance for employers on this point by holding that an employer could terminate an employee who tested positive for marijuana even though the employee’s physician had prescribed the marijuana to treat the employee’s chronic back pain. The employee argued that he had a disability pursuant to the Fair Employment and Housing Act (FEHA). However, the Court disagreed, finding that employers do not have to accommodate an employee who is using marijuana for medicinal purposes. Specifically, the court noted that “Plaintiffs position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug. But the Act's effect is not so broad. No state law could completely legalize marijuana for medical purposes because the drug remains illegal under federal law (21 U.S.C. §§ 812, 844(a)), even for medical users. . . Instead of attempting the impossible, as we shall explain, California's voters merely exempted medical users and their primary caregivers from criminal liability under two specifically designated state statutes. Nothing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.” This decision was a victory for employers who understandably had concerns about medical marijuana users performing their jobs safely while impaired by drugs.

However, the issue continues to plague employers as evidenced by the recent lawsuit filed by the American Civil Liberties Union (ACLU) against Wal-Mart. The lawsuit involves Wal-Mart’s termination of a Michigan (which permits the use of medical marijuana) employee whose physician certified that his illness qualified for medical marijuana use. In spite of this, Wal-Mart terminated the employee after he failed an on-the-job injury-related drug test. The employee suffers from a rare form of cancer in his nasal cavity and brain, and he uses medical marijuana to alleviate the daily pain. According to Scott Michelman, staff attorney with the ACLU, "Medical marijuana has had a life-changing positive effect for Joseph, but Wal-Mart made him pay a stiff and unfair price for his medicine. . .No patient should be forced to choose between adequate pain relief and gainful employment, and no employer should be allowed to intrude upon private medical choices made by employees in consultation with their doctors." Alternatively, as reported by CNN, Wal-Mart’s director of media relations, Lorenzo Lopez, asserted that "As more states allow this treatment, employers are left without any guidelines except the federal standard. . .In these cases, until further guidance is available, we will always default to what we believe is the safest environment for our associates and customers."

For California employers, although Ross v. Ragwire Telecommunications provides important guidance, the possibility of a claim for disability discrimination still lurks in the background. Perhaps the U.S. Supreme Court will have the final say.

BOBrien

When Can an Employer Require Drug Testing?


Pursuant to California law, drug testing in the workplace is permitted under certain limited situations. However, because the courts are concerned about unreasonable intrusions into an employee’s privacy, they look to a number of factors and circumstances in determining if a particular drug testing program is lawful, including pre-offer versus post-offer testing, prospective versus current employee status, the reasons for the test, the type of test to be administered, and the job duties of the employee who will be tested.  Because drug testing can raise serious privacy issues regarding employees, employers should exercise caution in adopting drug testing programs and consult with an attorney before instituting any such policy. In addition, any drug testing program should be detailed in the employee handbook. The following is a general review of the circumstances under which drug testing is permissible under California law.

  • Pre-Employment Drug Testing

A job applicant may be required to submit to a drug screening test as a condition of employment.  However, to ensure compliance with the Americans with Disabilities Act, an employer should only require a drug test when a conditional offer of employment has been made to the employee and a signed consent form should be obtained prior to the drug testing. The employer should also wait for the drug test results before allowing the prospective employee to begin working.  Reliable and up-to-date testing methods must be used and the drug testing should be conducted in such a manner as to ensure confidentiality.  The particular circumstances under which such drug testing will occur, including the facility to be used and the exact nature of the testing, should be detailed in the employee handbook.

  • Random Drug Testing

Random drug testing refers to situations in which an employee is required to submit to testing at any time during the course of their employment, with no specific reason for the drug testing required. Such testing is not allowed under California law, except for employees working in positions critical to public safety (such as public transportation) or to the protection of life, property or national security; these employees are known as “safety-sensitive employees.”   If an employee’s job duties do not directly impact public safety, then the employee cannot be subjected to random drug testing. The federal Omnibus Transportation Testing Act regulates drug testing for safety- sensitive employees in occupations such as aviation, rail and mass transit.

  • “Reasonable Suspicion Drug Testing”

In California, the courts have held that an employer may have a compelling business interest in ensuring a drug free workplace. Thus, if an employer observes sufficient objective factors (e.g. slurred speech, lapses in performance, inability to respond to questions) , which indicate that an employee may be under the influence of illegal drugs or alcohol while performing his or her duties, the employer may require the employee to undergo a drug screening test. However, it is good practice to have two trained supervisors make this determination because the employer must be able to prove actual reasonable suspicion or face liability for violation of the employee’s privacy. Again, the ability of the employer to require drug testing under these circumstances should be detailed in the employee handbook.

  • Post-Accident Drug Testing

In California, courts have upheld drug testing following a serious work- related accident, where the employer has a reasonable suspicion that the employee involved in the work-related accident was under the influence of illegal substances or alcohol. Again, the circumstances in which such testing might occur should be detailed in the employee handbook. Any workplace drug testing must be conducted in a non-discriminatory manner, and in a manner that ensures the privacy and confidentiality of the employee. However, if administered properly, workplace drug testing programs can provide a valuable tool for employers to use in their efforts to ensure and maintain a drug free workplace.

BOBrien

Must Employees Request The Interactive Process?


In a recent case (Milan v. City of Holtville 186 Cal App 4th 1028), a California appellate court confirmed that employees must request the interactive process. The case involved Tanya Milan (Milan), who worked for the City of Holtville (City). She filed a lawsuit against the City  alleging that they failed to accommodate her disability in violation of the Fair Employment and Housing Act (FEHA). Milan had sustained a work-related injury to her neck, which required surgery to remove herniated discs and to fuse the vertebrae with a metal plate inserted into her neck.  Milan received workers’ compensation benefits for this injury.  Early on in her treatment, Milan was seen by a doctor for the City, who opined that Milan would not be able to return to work at the water treatment plant because her job required significant bending, twisting, and lifting.  The City chose to wait and see if Milan’s condition would improve, before making a final determination regarding her employmen

However, the workers’ compensation claims administrator forwarded a notice to Milan that she was deemed unable to perform her usual and customary job, and offered her rehabilitation benefits.  Milan accepted the rehabilitation benefits and did not contact anyone at the City about her plans, including her intent to return to work [1] Apparently, although she accepted the rehabilitation benefits, Milan still believed that she was employed by the City because she was receiving a regular pay check even though she had not returned to work.  However, on March 30, 2004, Milan received a letter from the City, notifying her that she had been terminated as the City did not believe she was capable of returning to work.  This letter was sent more than 18 months after the last day that Milan actually performed work for the employer.  Milan conceded that during this time, she did not contact anyone at the City about her condition or her plans to return to work. Milan subsequently filed a disability discrimination lawsuit alleging that the City failed to accommodate her disability.

In reaching its decision, the court relied on Government Code §12940 (n), which specifies that an employer is required to engage in an interactive process in response to a request by an employee for a reasonable accommodation.  The court provided an overview of  the interactive process as defined by case law, including Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4th 34), emphasizing that the interactive process “is at the heart of the [FEHA’s] process and essential to accomplishing its goals” and that it is “more a labor tool than a legal tool” used “to allow for early intervention by an employer, outside of the legal forum, for exploring reasonable accommodations for employees who are perceived to be disabled.”   The Milan court also reiterated that the importance of §12940 (n) is the requirement that the employee initiate the process, although it cautioned that an employee does not have to use any particular words to request an accommodation. Quoting from Gelfo, the court noted:

[T]he obligation arises once the employer becomes aware of the need to consider an accommodation. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party.  Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith (Id. at p.62, fn.22).

The court then concluded that the facts could not support a finding that Milan met her obligations under the statute because when Milan received the notice of termination in March 2004, she was “aware she had not been at work for more than 18 months” and had not contacted the City. The court determined that although the extended absence did not create a duty for Milan to specifically request an accommodation, it “did require, at the very least, she communicate to the City that she planned to continue working at the water treatment plant.”  The court further observed that §12940 (n) does not allow an employee to:

Ignore notice from their employer which indicates that the employer believes the employee is not capable of performing his/her job; 
Remain absent from work for more than 18 months and make no attempt to communicate a desire to return to work for the employer.

Additionally, the court found that Milan’s response to the workers’ compensation claims administrator was not adequate to trigger the employer’s obligation under §12940(n), because ultimately Milan accepted rehabilitation benefits and retraining.“In this context, good faith required that Milan directly express to the City her interest in retaining her job”, in order for the employer’s obligations under the statute to be triggered.

In conclusion, the court stated that where “an employer has not received any communication from an employee over a lengthy period of time, and after the employee has been given notice of the employer’s determination the employee is not fit, an employer is not required by section 12940, subdivision (n), to initiate any discussion of accommodations.”  The court also emphasized that imposing such a duty under these circumstances would be contrary to the express terms of the statute which requires that an employee initiate the interactive process.

Importantly, from a commonsense perspective, the court emphasized that when an employee is on an extended disability or workers’ compensation leave of absence, if the employee intends on returning to work, the employee has a duty to communicate that intent to the employer, thereby initiating the interactive process under FEHA, before an employer can be deemed to have failed to engage in the interactive process. In reaching its conclusion, the Milan court specifically noted two key factors: (1) there was no communication from the employee over a lengthy period of time; (2) the employee had been notified, by the workers’ compensation administrator, that pursuant to a medical report, she was deemed incapable of performing her job.

No Communication From The Employee Over A Lengthy Period Of Time
Milan never directly communicated to the City regarding her intention or desire to return to work.  Moreover, the court found that her communications to the employer’s workers’ compensation carrier, disputing the determination that she was not able to return to her usual and customary job, were not sufficient notice of her intent to return to work. However, the court seemed to qualify this by adding that it was not adequate notice “because in the end, Milan accepted rehabilitation benefits and retraining.”  By adding this qualification, the court seems to suggest that Milan’s dispute of the determination might have been sufficient to trigger the employer’s obligations under §12940(n) if she had not accepted the rehabilitation benefits. Therefore, the court’s decision might have been different if Milan had never accepted the rehabilitation benefits, which are no longer available under workers’ compensation law. 

In terms of the specific length of time in which Milan did not communicate with her employer, the court found that 18 months was excessively lengthy.  However, the court does not say whether or not a shorter time frame would or would not fall within their term of “lengthy period of time.”  Thus, all we can take from this is that if an employee who is on a leave of absence fails to communicate with an employer for a lengthy period of time, in this case 18 months, the employer may start making some decisions regarding a disabled employee. However, employers must exercise caution as another court, under similar facts, with the only factor being that there was no direct communication from the employee to the employer for 18 months, might still find that the employer failed to meet its obligation under §12940 (n), since an employer could be made aware of an employee’s desire to return to work or to be accommodated through many different avenues. Further, the court does not state that 18 months is the cutoff point that definitely defines “lengthy” period of time. Each case will have different facts that determine what is “lengthy.”

The Employee Was Notified That She Was Incapable Of Performing Her Job
The second factor that the court considered was that Milan was notified (via the workers’ compensation administrator) that the physician considered her incapable of performing her usual job.  However, it is important to note that in the Milan case, the only notice given to the employee, prior to the termination letter, was the notice sent via the City’s workers’ compensation administrator advising Milan that pursuant to the doctor’s findings she was deemed incapable of performing her usual job and  she was thus being offered rehabilitation and retraining benefits. Under current workers’ compensation laws, this notice is no longer sent to the injured worker, as there is no longer any such benefit available.  Therefore, in the Milan case, the only notice that the employee received directly from the City indicating that they considered Milan incapable of performing her job was contained in the termination letter, which was sent 18 months after the last day Milan worked for the City. 

Would this be deemed sufficient notice from the employer in the post-rehabilitation era? Most likely not, since this was not the notice that theMilan court focused upon. Instead, the court focused on the notice regarding rehabilitation benefits which the employee received from the workers’ compensation administrator, and this occurred a significant time prior to the termination notice sent by the employer.

In conclusion, although the Milan case provides employers with some reassurance that there is a line that courts will draw in determining if an employee did act in good faith by initiating the interactive process in a timely fashion, and, employers can take heart that the courts will require a disabled employee to make some effort and proceed in good faith if they desire to return to work and obtain a reasonable accommodation,  since the underlying facts of this case occurred during a period of time when rehabilitation benefits were offered, in my opinion, employers still need to exercise caution when considering whether or not to terminate a disabled employee who has been on an extended leave of absence. Certainly, prudence dictates that employers should always engage in the interactive process before taking any steps that could be deemed an adverse employment action.

DSkeren

[1] In her lawsuit, although Milan asserted that she attempted to dispute this determination with the claims administrator or the workers’ compensation appeals board, she conceded that she accepted the rehabilitation benefits offered. 

RTW Programs And FEHA Overlap Issues


The Return-to-Work Program detailed under Title 8, California Code of Regulations[1] provides that if an employer serves an injured worker with a notice of offer of regular work, modified work or alternative work “within 60 calendar days from the date that the condition of an injured employee with permanent partial disability becomes permanent and stationary,” (i.e. the injured worker is not likely to get any better with further treatment) the permanent disability benefit payments shall be decreased by 15 %.  However, if the employer fails to offer regular, modified or alternative work as noted above, the injured employee’s permanent disability benefit payments shall be increased by 15%, if the employer has 50 or more employees.

Additional requirements for the offer of work to be valid are:

  1. The employee must be able to perform the essential functions of the job;
  2. The job will last at least 12 months;
  3.  The wages of the offered position are at least 85% of the injured worker’s  job at the time of injury;
  4. The job is located within a reasonable commuting distance from where the injured worker resided at the time of the industrial injury. 

There are two forms that an employer must choose from in order to comply with the regulations: 

  • DWC-AD form 10118 Notice of Offer of Regular Work; or,
  • DWC-AD form 10133.53 Notice of Offer of Modified or Alternative Work. 

All of this can be done unilaterally by the employer, meaning that the regulations do not require that an employer obtain the employee’s input or cooperation in determining if the injured worker can perform a particular job. Unfortunately, the regulations do not give any guidance on what steps an employer must take to make the determination.  However, what seems to be implied is that the employer take some action to determine if the employer can offer work, given the injured workers’ current capabilities, which is likely to be determined by the work restrictions provided by the physician(s).

When that determination is made, and the employer decides to offer regular, modified or alternative work, the employer must complete the appropriate form (or the workers’ compensation insurance claims adjuster does it for the employer) and send it to the employee to accept or reject.  Once the form is properly sent,  the injured worker’s permanent disability benefits are subject to the 15% decrease, whether or not the injured worker accepts or rejects the offered job.

In the alternative, an employer may decide that there is no work that the injured worker can perform, and thus not offer any work.  In this situation, the injured worker is entitled to a 15% increase in his/her permanent disability benefits, and the employer is still in compliance with the applicable workers’ compensation laws for return-to-work issues.

Unfortunately, This Is Where Employers Often Get Into Trouble

Many employers believe that if the injury/disability was work-related, the only laws that they must comply with are the workers’ compensation laws and regulations.  However, in addition to workers’ compensation laws, employers must also comply with an array of other significant laws pertaining to disabilities. For example, under the Fair Employment and Housing Act and the Americans with Disabilities Act (FEHA/ADA respectively), the employer and employee must engage in an interactive process to determine if the disabled worker can perform the essential functions of the job, with or without a reasonable accommodation.  Thus, an employer who only ensures compliance with the Return-To-Work Program under California’s workers’ compensation laws, may still be in violation of FEHA/ADA. Moreover, even if the employee ultimately returns to work, the employee may still have a claim under FEHA, if the employer failed to properly engage in the interactive process.

Disability discrimination claims under the FEHA have risen dramatically in the last few years and the trend is expected to continue.  Employers face high defense costs in defending FEHA claims, which means that even if the employer successfully defends the claim, the employer may still spend thousands of dollars in defense costs, and that’s assuming there is a “win” and no additional costs in terms of a judgment or settlement amount!

Employers must thus recognize that there are significant overlaps between state disability laws and even federal disability laws that they must comply with, depending on the particular circumstances and facts of each case. And, yes, this means that an employer must know, understand and apply the laws and their nuances, including those related to the complicated overlap between workers’ compensation, the Fair Employment and Housing Act and the Americans with Disabilities Act, or they might find themselves out of business.

[1]Title 8 California Code of Regulations, Chapter 4.5.Division of Workers' Compensation, Subchapter 1.5. Injuries on or After January 1, 1990,  ARTICLE 6.5. RETURN TO WORK  §10117(b).

DSkeren 

Wednesday, September 1, 2010

FMLA Definition of “Son and Daughter”


DOL Offers Guidance On Definition Of "Son And Daughter" For FMLA Purposes

After having “received several requests for additional guidance regarding whether employees who do not have a biological or legal relationship with a child may take FMLA leave for birth, bonding, and to care for the child” (assuming all other FMLA criteria are met), the Department of Labor’s Wage and Hour Division’s Deputy Administrator Nancy J. Leppink (Administrator), issued an interpretation of the meaning of “in loco parentis” on June 22, 2010. The interpretation first outlines to whom the FMLA applies, then describes what Congress intended in creating the FMLA definition of “son and daughter,” then notes case law for assistance in defining in loco parentis, and then finally the Administrator states that the definition of in loco parentis under the regulations includes “those with day-to-day responsibility to care for and financially support a child. 29 C.F.R. §825.122(c)(3)”(emphasis added).  The Administrator then provides her interpretation as follows: “the regulations do not require an employee who intends to assume the responsibilities of a parent to establish that he or she provides day-to-day care and financial support in order to be found to stand in loco parentis to a child” (emphasis added) without providing any analysis as to the aforementioned case law or Congressional intent.

Instead, the Administrator attempts to clarify the interpretation by providing a couple of different examples and generalizations. The first example consists of an employee who provides day-to-day care for his/her unmarried partner’s child, for which the employee has no biological or legal relationship, but provides no financial support for the child. In this example, the employee could take FMLA leave to care for that child, if all the other FMLA criteria are met. A second example involves an employee who is sharing equally in the raising of a child, with the biological parent, but who does not have a legal relationship with that child. In this example, the employee is entitled to FMLA leave to bond with or care for that child.  And, the guidance specifically states that this applies to same sex partners, as well as heterosexual partners.

The Administrator notes that even if a child has a biological parent in the home or has both a biological mother and a father somewhere, this does not exclude another adult from being found to be in loco parentis to that child.  To clarify this latter point, the Administrator offers another example:  a child whose biological parents are divorced, and have both remarried, would be the “son or daughter” of all four of the parents, whether biological or step.   In other words, the FMLA “does not restrict the number of parents a child may have.” Although additional examples are provided, the bottom line of the Administrator’s analysis seems to be that the key factor in determining in loco parentis status is the day-to-day care of the child.  But what does day-to-day care mean? 

The above examples do not provide any guidance on this question.  Elaborating on the Administrator’s example of the divorced parents who both remarried, such situations typically necessitate that the child live with each set of parents on an allotted basis, split up based upon days of the week or number of weeks or even weekends in a month, usually determined by a family law judge.  So how many days equals “day-to-day care”?  Is one day, two days, or three days enough?    Since this question was not answered, employers and employees must await for either another interpretation or court decisions on this point.  In the meantime, take your best guess, and hope yours is not the case the court will use to answer this question.

Yet another question is raised by the Administrator’s guidance.  Is the Administrator interpreting the regulation’s “and” as an “or” meaning that the person provides either day-to-day care financial support or did the Administrator just eliminate the financial support part of the definition all together?  If day-to-day care is not provided, but financial support is, as in a situation where the grandparents are helping support their grandchild, is the financial support sufficient in and of itself to allow the grandparent in loco parentis status and therefore require FMLA leave to bond with the child or care for the child who has a serious health condition?   Given that the statute and regulations do not restrict the number of parents a child may have it seems the answer might be yes. But how is an employer to know for certain?  This is another “best guess” scenario that an employer may face, and once again hope that it is not the case with which a court provides guidance on the guidance. Oh, but wait, the Administrator says an employer is entitled to proof, which might help answer the question.   An employer can require that an employee provide reasonable documentation or a statement of the family relationship.  The Administrator then specifically states that “(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. 29 C.F.R. 825.122(j); 73 Fed. Reg. 67,952 (Nov. 17, 2008).”  So basically, it appears that if the employee “says so” then the child is a “son or daughter” under FMLA.  If that is the case, then why did we need the interpretation?

DSKeren