In Humboldt County, as throughout California, the law requires that all employers “engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (California Government Code section 12940, subdivision (n).) An employer who fails to engage in the interactive process will be liable under the Fair Employment and Housing Act (“FEHA”).
The statute’s phrasing, “in response to a request[,]” makes one think that there must be some formal request by the employee, but that’s just not true. California courts have decided that there are “no magic words necessary” to be used by the employee, and furthermore, the employer’s “obligation arises once the employer becomes aware of the need to consider an accommodation.” In other words, employers must be extremely careful to hear “requests” by employees that the employer engage in the interactive process.
A California appellate court recently put some limits on the bounds of an employer’s obligation. In July, the California Court of Appeal, Fourth Appellate District, decided the case of Milan v. City of Holtville (No. D054139). There, an employee injured on the job received a letter from her employer’s self-insured workers’ compensation program which told the employee that she would not be able to return to her regular job because of her work injury. The employee did not communicate with her employer for 18 months after that about her condition or any return to work plans, and she received retraining benefits through the workers’ compensation program. Tthe employer did not contact the employee to ask about her condition or any plans to return to work. The employer terminated the employee after 18 months of silence, and the employee filed a FEHA complaint on the grounds that the employer failed to engage in the interactive process.
Reversing the decision of the trial court, the Court of Appeal found for the employer because the employee’s duty was to, at the very least, “communicate to [her employer] that she planned to continue working….” Good faith, the court decided, required that the employee “directly express” her interest in retaining her job.
While that sounds reasonable, cases where plaintiffs allege a failure of the employer to engage in the interactive process are fact-specific. And, there’s room in the appellate court’s opinion to believe that employees who make any expression of desire to return to their jobs trip an employer’s obligation to engage in the interactive process in good faith. In short, employers and employees should be proactive in communicating about reasonable accommodation.
Posted in Amelia Burroughs, Employment Law | No Comments »
Tags: Amelia F. Burroughs, Employment Law
Recently, the U.S. Court of Appeals for the Ninth Circuit published a decision regarding the misidentification of employees as independent contractors. Such a decision by a court could have serious consequences for Humboldt County employers. In short, having your employees acknowledge that they’re independent contractors doesn’t make it so.
In Narayan, et al. v. EGL, INC., et al., No. 07-16487, the employer, “a global transportation, supply chain management and information services company[,]” was a Texas company with driving operations in California. Three of the employer’s California drivers signed agreements for “Leased Equipment and Independent Contractor Services,” which provided that the parties’ intentions were to enter into an independent contractor relationship. Subsequently, the California drivers filed a lawsuit seeking unpaid overtime, expense reimbursement, meal compensation, and reimbursement for unlawful wage deductions—all owed to employees under California law.
Posted in Amelia Burroughs, Employment Law | No Comments »
Tags: Amelia F. Burroughs
In a series of decisions in 2010, the U.S. Supreme Court narrowed and refined the scope of the landmark decision Miranda v. Arizona that established important protections for criminal suspects.
On June 1, 2010, the Court issued an opinion in Berghuis v. Thompkins. New York Times article.
Posted in Criminal Law, Frances K. Greenleaf | No Comments »
Tags: Criminal Law, Frances K. Greenleaf
Do you run a small, closely held corporation, partnership, or limited liability company in Humboldt County, Trinity County, Del Norte County or Mendocino County?
If so, do you have a Buy-Sell Agreement that provides for the transfer of your ownership interest if you die, retire, become disabled, or want to sell your interest in the business?
The purpose of a Buy-Sell Agreement is to provide for an orderly transition of ownership interest on the occurrence of any number of events. In addition to those events mentioned above, a Buy-Sell Agreement can also be important when an owner files for bankruptcy, loses a required license or is voluntarily or involuntarily terminated from his or her employment in the business.
Posted in Business Law, Dennis Reinholtsen | No Comments »
Tags: Business Law, Employment Law
Owners of real estate, as well as renters and managers of real estate, should be aware of their duties to maintain safe conditions on the property that they control because if someone is injured on the property, they could be sued and held liable for significant damages. With the exception of the greater Eureka-Arcata area, Humboldt County has remained largely undeveloped over the years. As a result, there are many buildings that were originally built in complete disregard of the County’s applicable codes. Owners and occupiers should know the legal status of their buildings before it is too late and someone is injured as a result of failing to maintain appropriate living conditions.
Posted in Premises Liability, Shanti Michaels | No Comments »
Tags: Premises Liability, Shanti Michaels
While the lawyers in the Janssen Law firm aggressively prepare their cases for jury trial, there are other dispute resolution methods that may be suitable for a particular case. In fact, most civil cases for money damages settle prior to trial, in recognition of the economic fact that trials are expensive and uncertain for both sides of a dispute.
Posted in Litigation, Michael J. Crowley | No Comments »
Tags: Litigation, Michael Crowley
The U.S. Department of Labor recently updated its Employment Law Guide, as useful starting point for answering basic employment questions for employers. The updated Guide can be found here.
Remember that many federal laws are not as broad as California employment laws, and employers in Humboldt County must comply with both federal and state laws.
Posted in Amelia Burroughs, Employment Law | No Comments »
Tags: Amelia F. Burroughs, Employment Law
On July 6, 2010, the Janssen Law Firm and attorneys from two other firms received for their clients the largest jury verdict in the United States this year. The case is Lavender v. Skilled Healthcare Group, Case No. DR060264, Superior Court of California, Humboldt County. The plaintiff class is represented by W. Timothy Needham, Michael Crowley, Amelia Burroughs and Patrick Griego of the Janssen Law Firm from Eureka, by Michael Thamer from Callahan, and by Chris Healey and Aaron T. Winn of the Luce Forward firm from San Diego. This is the highest verdict ever achieved against a nursing home chain and one of the highest verdicts in the United States this decade.
Posted in Amelia Burroughs, Litigation | No Comments »
Tags: Amelia F. Burroughs, Michael Crowley, Skilled Healthcare Class Action
On July 6th, 2010 a Humboldt County jury returned a verdict in excess of $670 million dollars against Skilled Healthcare Group, Inc., Skilled Healthcare LLC and 22 subsidiaries located throughout California for violating the state minimum staffing requirements. The plaintiff class was represented by members W. Timothy Needham, Michael Crowley, Amelia Burroughs and Patrick Griego of the Janssen Law Firm from Eureka, by Michael Thamer from Callahan, and Chris Healey of the Luce Forward firm from San Diego. This is the highest verdict ever achieved against a nursing home chain and one of the highest in the United States this decade. In its verdict the jury found that defendants understaffing was done with malice. The jury will return on July 15th to decide the amount of punitive damages the defendants should pay as a result of their misconduct. The specific Skilled Healthcare facilities sued were Alexandria Care Center, LLC, Alta Care Center, LLC, Anaheim Terrace Care Center, LLC, Bay Crest Care Center, LLC, Brier Oak on Sunset, LLC, Carehouse Healthcare Center, LLC, Devonshire Care Center, LLC, Elmcrest Care Center, LLC, Eureka Healthcare and Rehabilitation Center, LLC, Granada Healthcare and Rehabilitation Center, LLC, Hancock Park Rehabilitation Center, LLC, Montebello Care Center, LLC, Royalwood Care Center, LLC, Pacific Healthcare and Rehabilitation Center, LLC, Seaview Healthcare and Rehabilitation Center, LLC, Sharon Care Center, LLC, St. Luke Healthcare and Rehabilitation Center, LLC, Sycamore Park Care Center, LLC, The Earlwood, LLC, Valley Healthcare Center, LLC, Villa Maria Healthcare Center, LLC, Willow Creek Healthcare Center, LLC.
Posted in Amelia Burroughs, Healthcare Law, Michael J. Crowley, Patrik Griego, W. Timothy Needham | No Comments »
Tags: Amelia F. Burroughs, Healthcare Law, Litigation, Michael Crowley, Patrik Griego, W. Timothy Needham
Having recently finished a trial where videotaped depositions were used extensively, the following is some practical advice for both taking and defending videotaped depositions.
First, under California law, any deposition may be videotaped provided that the Notice of Deposition indicates the intent to videotape that deposition. [CCP §2025.220(a)(5)]. Further, with any videotaped deposition, there are certain necessary practical requirements under CCP §2025.3430, including (a) the site for the deposition must be “suitably large, adequately lighted, and reasonably quiet”; (b) the operator of the recording of the recording equipment must be competent [CCP §2025.340(b)]; and the operator must not employ any special effects to distort the demeanor of the participants. [CCP §2025.340(g)]
From a practical standpoint make sure that your client is appropriately dressed. Presume that the videotaped deposition will be shown to the jury and have the client dress for that purpose. As an example, one of the witnesses in the recent case wore an orange short sleeve shirt to his deposition which was almost identical to the jump suits that prisoners wear when they are in the dock. Not a good idea!
Posted in Litigation, W. Timothy Needham | No Comments »
Tags: Litigation, W. Timothy Needham