Posts Tagged ‘Employment Law’

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.

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.

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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.

By far, the majority of questions we receive from Humboldt County employers concern meal and rest period requirements. If you haven’t heard, California employers and employees alike (as well as the Division of Labor Standards Enforcement (“DLSE”) await a decision by the California Supreme Court in the Brinker Restaurant Corporation v. Superior Court case.   Until then, in California, the Industrial Welfare Commission (“IWC”) Wage Orders require that employers authorize and permit nonexempt employees to take a rest period that should be taken in the middle of each work period.  You should always check the Wage Orders for your employees’ industries because more than one Wage Order may apply to a single employer,  particularly those who employ in different job functions.

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On September 18, 2008, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a race harassment lawsuit against Big Lots, Inc. (EEOC v. Big Lots, Inc., CV-08-06355-GW(CTx).)  The EEOC alleged that Big Lots violated Title VII of the Civil Rights Act of 1964 when it subjected a black maintenance mechanic and other black employees to race harassment and discrimination at the Big Lots Rancho Cucamonga, Calif., distribution center.  According to allegations by the EEOC, an immediate supervisor and co-workers,  all Hispanic, made racially derogatory jokes, comments, slurs and epithets. The EEOC further alleged that Big Lots learned of the harassment but took no steps to either prevent or correct it.

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If you follow the news, you are familiar with Goldman Sachs’ current spotlight in the hot seat.   And you may know that the Securities and Exchange Commission used a Goldman Sachs’ employee’s e-mail to draft its historic complaint against the company for fraud, which also brought Congressional hearings in which Goldman Sachs’ executives have to testify, as well as intense media scrutiny.   Local employers should use this financial giant as a cautionary tale.

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Identifying which employment laws affect which employers is sometimes a difficult exercise, despite all of the available information. Sometimes, it takes a careful read of the applicable statutes and regulations to determine a law’s applicability.   For small Humboldt County employers, the first question in a discrimination complaint or lawsuit is whether a state or federal law even applies to the employer.   Many laws that apply to California employers require a minimum number of employees before the law is applicable.   As a general rule of thumb,  California state discrimination laws (concerning protected classes such as race, gender, national origin, religious affiliation, etc.) apply to employers with five or more employees.   Additionally, employers with five or more employees must comply with laws prohibiting pregnancy discrimination.

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If you’re an employer in California, you know the difficulties associated with proving an employee meets an exemption from overtime. Last month, a California appellate court issued an opinion highlighting those difficulties.  The case is entitled Pellegrino v. Robert Half International, Inc. (2010) 181 Cal.App.4th 713 (out of the Fourth Appellate District).   In Pellegrino, six former employees of a temporary staffing agency, most of whom were “account executives” sued the agency for Labor Code violations,  primarily failure to pay overtime and failure to provide meal periods.  The agency defended the lawsuit by arguing that the employees fell under the Administrative Exemption from wage requirements.   The appellate court decided in favor of the employees.

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A Northern California carpenter’s union has filed a civil rights lawsuit against the city for allegedly violating their right to freedom of speech by citing a group of protesting carpenters and confiscating their protest banner under a city sign ordinance.  According to the lawsuit,  protesters had set up on a public curb in November in front of a Citation Homes Central sales office to protest unfair wages. Lawyers representing the union said that since the sign was political speech and not advertising, the citation is invalid and their rights to free speech were violated. “If we don’t stick up for our standards, it brings down everyone’s wages,” said Shaun Kinney, the veteran union carpenter named as a plaintiff in the suit. “You need to make as much as you can when you do work, to cover the times when you’re not working.”   Tracey Kaplan, San Jose Mercury News 01/24/2010.

If you have questions regarding rights of Humboldt County employees regarding prevailing wages or free speech issues please contact the Janssen Law Firm to meet with a Humboldt County Employment Lawyer.

As of November 21, 2009, employers must post a supplement next to the 2009 Employment Poster.  The new posting includes changes to the Equal Employment Opportunity Commission (“EEOC”) notice concerning the Genetic Information Nondiscrimination Act (“GINA”),  signed into law by President Bush on May 21, 2008.  The purpose of GINA is to prohibit any improper use of genetic information (for example, any genetic predisposition to developing a disease) in health insurance and employment.  Employers may not use an employee’s genetic information when making hiring, firing, job placement or promotion decisions.  Today, employers must begin complying with GINA.  Nor may group health plans or health insurers deny coverage to healthy individuals—or charge higher premiums—on the basis of genetic information.

The posting also explains changes in the Americans with Disabilities Act of 1990, as well as revisions to laws pertaining to employers who hold federal contracts or subcontracts.

The 2009 Employment Post supplement is available to employers for free at the EEOC web site.