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Employment Law Blog

Friday, November 14, 2008

The Likely Rise Of Unionization In The New Political Environment

The idea of revamping the National Labor Relations Act in favor of unions has been floating around for some time now, but legislation has stalled. No more. At the dawn of a new political regime, employers are bracing for monumental change.

Political analysts believe that Congress is likely to pass legislation titled the Employee Free Choice Act (“EFCA”) sometime in 2009, perhaps as early as the first 100 days of the new administration. The President-elect co-sponsored the legislation, and it is reasonable to expect him to sign it into law.

For those of you who have not been following the legislation, it is time to get up to speed. Generally, the EFCA would change labor law in three ways:

First, if enacted the law would require the National Labor Relations Board to certify a union after union organizers have gathered signed union cards from a simple majority of company workers. Currently, the certification process typically involves secret ballots where workers can vote without the union or employer eyeing their decision.

Second, after the card check certification, the EFCA would give the union and company 120 days to negotiate a new contract. If no agreement is reached, the union and company would be required to enter binding arbitration, where a government arbitrator would set the terms of the contract. Currently, if the union and company cannot agree to terms, the union may call a strike, and the employer may implement its last best offer or lock out workers, until eventually a compromise is reached.

Third, the EFCA would significantly increase penalties for unfair labor practices committed by employers during an organizing drive. Fines would rise to $20,000 per violation, and affected employees would be entitled to treble their back pay if terminated for participating in an organizing campaign.

The U.S. Chamber of Commerce has issued numerous statements in opposition to the legislation. “nions are now emphasizing the card check process in their organizing drives, not because they do not win secret ballot election—they win over 50—but because it eliminates any chances of losing. As an open-ended process, they can keep their campaign going as long as necessary rather than resolve the issue on a specific date as with an election. Not only are employees often targeted for intimidation, but the card check process also often leads to other coercive tactics, known as “corporate campaigns.” These campaigns are designed to pressure employers through demonstrations, false and misleading stories in news media, and other public expressions to recognize unions as the exclusive bargaining representative of their employees without having to go through an election. These tactics are how organized labor’s leadership intends to restore its declining membership base in the private sector.”

The Chamber adds: “In addition to its card check provisions, EFCA also contains a provision to impose mandatory interest arbitration of first contracts. Interest arbitration would set all the terms of the initial contract between an employer and a union, including wages and benefits, but also other provisions typically in collective bargaining agreements, such as outsourcing and union security clauses. While sometimes used in the public sector, binding interest arbitration is completely unprecedented in the private sector. The idea of government arbitrators determining contract terms and what business decisions must be taken to meet those commitments is simply beyond the pale.”

“Finally,” observes the Chamber, “EFCA includes provisions to increase penalties on employers for certain violations of the NLRA. The fact that these provisions apply only to employer violations and not to union violations illustrates the bias inherent in EFCA. Union coercion is no less contemptible than employer coercion.”

The US Chamber’s comments can be found here.

Organized labor, of course, has a completely different view. According to the AFL-CIO “Today, CEOs get contracts that protect their wages and benefits. But some deny their employees the same opportunity. Although U.S. and international laws are supposed to protect workers’ freedom to belong to unions, employers routinely harass, intimidate, coerce and even fire workers struggling to gain a union so they can bargain for better lives. And U.S. labor law is powerless to stop them. Employees are on an uneven playing field from the first moment they begin exploring whether they want to form a union, and the will of the majority often is crushed by brutal management tactics.”

“The current system is not like any democratic election held anywhere else in our society. Employers have turned the NLRB election process into management-controlled election process—the employer has all the power, controls the information workers can receive and routinely poisons the process by intimidating, harassing, coercing and even firing people who try to organize unions. On top of that, the law’s penalties are so insignificant that many companies treat them as just another cost of doing business. By the time employees vote in an NLRB election, if they can get to that point, a free and fair choice isn’t an option. Even in the voting location, workers do not have a free choice after being browbeaten by supervisors.”

The AFL-CIO’s comments can be found here and here.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 11/14 at 12:34 AM
California Employment LawEmployment LawLabor Law
Monday, November 03, 2008

California Employee Time Off For Voting

In the nick of time for Election Day, below is a FAQ relating to the right of California employees to take time off for voting.

Q: Which employers are covered by this law?

A: All California employers.

Q: When is the leave available?

A: Employees are eligible for paid time off for the purpose of voting in any statewide election only if they do not have sufficient time outside of working hours to vote. The intent of the law is to provide an opportunity to vote to workers who would not be able to do so because of their jobs. The polls are open from 7am to 8pm. Most employees work shifts that would permit them to vote either before or after work, without taking any time off.

Q: How much time off must be given?

A: An employee is entitled to take off enough working time on the day of the election so that, when added to the voting time available outside of working hours, the employee will be able to vote.

Q: Is the leave paid?

A: Yes, but only a maximum of two hours is paid.

Q: Must the employee give advance notice?

A: Yes, usually. If an employee on the third working day prior to election day knows that he or she will need time off to vote on election day, the employee must give the employer at least two working days’ notice of the need for time off.

Q: Can employees take time off to vote in the middle of a shift?

A: No. Employers may require time off to be taken only at the beginning or end of the employee’s shift

Q: Must the employer post notice of the voting leave rights?

A: Yes. At least 10 days before any statewide election, every employer must conspicuously post a notice at the workplace (or, if impracticable, elsewhere where employees can see it as they come or go to the work site), setting forth the provisions of Election Code § 14000. Most employers simply leave the notice posted all year round. Some “all-in-one” posters include the proper notice among the multitude of other required postings.

Q: Where can I get the required posting?

A: The Secretary of State offers the official posting. Click here for the poster.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Friday, October 17, 2008

Politics In The Workplace

As Election Day approaches, politics inevitably seeps into the workplace. What if employees become disruptive, argumentative, annoying, or just plain unproductive on account of politics in the workplace? Does an employer have the right to limit political activities of employees in the workplace?

The answer is: “It depends.” In the private sector, in some jurisdictions, it is unlawful for employers to prevent employees from engaging in political activities or affiliations. But that does not mean employees are free to engage in any kind political activity on the clock, in the workplace.

In California, for example, Labor Code Section 1101 makes it unlawful for an employer to make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.  Labor Code Section 1102 makes it unlawful to coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.

Retaliating against, or terminating an employee for engaging in political activity may give rise to wrongful termination or retaliation claims. For example, in one California case, a newspaper editor who was fired for publicly criticizing public official outside the workplace was held to have valid wrongful termination claim.

But California law does not prohibit employers from limiting political activity inside the workplace while on the clock. After all, employees are paid to do their job, and typically political activity or discussions are not part of the job description. The two employees arguing about Obama and McCain instead of answering phones, taking sales orders, or doing whatever they are paid to do can be told to knock it off and get back to work.  Neutral policies limiting political campaigning or other political activity in the workplace may be necessary in order to keep employees productive. Policies or practices that are not neutral (for example, a conduct code giving preference to one political view over another) should be avoided. Moreover, policies that limit union activity (which is in some sense political) may run afoul of state and federal law.

Please let me know what your experiences with politics in the workplace have been. You can email me by clicking my name below.

Submitted by:
{encode=“” title=“Christopher W. Olmsted”}
Barker Olmsted & Barnier, APLC

Thursday, October 16, 2008

To save time and money, mediate, don’t litigate

When clients are facing difficult financial conditions, attorneys should help them conduct a cost-benefit analysis of whether to continue to litigate. According to a recent study by DecisionSet, a consulting firm that advises clients on litigation decisions (New York Times 8/8/2008), it only made economic sense to go to trial in 15% of the cases. Mediation, a dispute resolution process conducted by a neutral third party, results in successful settlement in generally 80% of litigated matters. With the volatility in the stock market, and bleak economic conditions faced by many businesses, lawyers and clients should seriously consider use of mediation to resolve disputes without litigation.

Posted by Patrick Della Valle on 10/16 at 01:30 PM
Alternative Dispute Resolution
Wednesday, October 15, 2008


We are working through the most volatile economic conditions in history: employees are nervous about their job security and the jobs of family members and are confronting higher prices for almost every consumer good from food to tuition to health care.  There is a great deal of uncertainty on every front and even the so-called “experts” are unwilling to make predictions for the future. So what can Human Resources professionals do to bring value to their management clients and employees who may look to them for answers? First, encourage upper management to communicate clearly, truthfully and often to employees about the status of the company’s business and the future outlook. Employees hate to be left in the dark. Human Resources can help management craft a message and then repeat it often and in different ways to convey to employees that now is the time for them to be engaged in doing everything possible to be productive and to promote the company’s business objectives. Second, encourage employees to keep up their skills, knowledge, technological savvy and to stay physically and mentally fit. Employee wellness helps to prevent stress, low morale, and dips in productivity. Third, Human Resources must be sure that personnel records are in order as they may be called upon to help with retention of high-performers or plan for attrition if necessary. Finally, even in economic crises, life goes on and Human Resources must tend to the run-of-the-mill decisions that keep the company on the right side of the employment laws. Now is not a good time to be distracted by expensive and time-consuming employment litigation.

Posted by Patrick Della Valle on 10/15 at 10:21 AM
Human Resources
Friday, October 10, 2008

EDD Offers Alternative To Layoffs For California Employers

Some companies are facing tough choices during the current economic downturn. Layoffs may allow the company to survive. But when the economy rebounds, those laid off workers may not be available for rehire. Hiring and training a new workforce is time consuming and expensive.

The California Employment Development Department (EDD) offers a program that may make sense for some employers.

The EDD offers what it calls a “Work Sharing Unemployment Insurance program.” The program allows eligible employers to reduce hours of workers, and offers the employees partial unemployment benefits. 

For example, if a business with 100 employees faces a temporary setback and could file a Work Sharing plan with EDD reducing the work week of all employees from five days to four days (a 20 percent reduction). The employees would be eligible to receive 20 percent of their weekly unemployment insurance benefits.

Says the EDD in a publication on the program: “Under this plan everyone benefits. The employer is able to keep a trained work force intact during a temporary setback and no employees lose their jobs.”

The catch of course is that the employer takes a hit on its EDD reserve account, which in turn would lead to higher employer contribution rates to make up for the depletion. That is, payroll taxes will increase. Of course, some increase may occur in a straight layoff too. Also consider that an employer may risk offending its entire workforce in an across the board reduction of hours, rather than offending only those who would receive the pink slip in a straight layoff.

The EDD offers a Guide for Work Sharing Employers.

Below are some FAQs offered in the publication:

Q. Who may participate in the Work Sharing program?

A. Any employer who has a reduction in production, services or other condition that causes the employer to seek an alternative to layoffs. The Work Sharing plan requires the participation of at least two employees, a minimum reduction of 10 percent of the regular permanent work force or work unit(s), and a minimum reduction of 10 percent of the wages earned and hours worked of participating employees.

Q. Who may not participate in the Work Sharing program?

A. Leased or temporary service employees may not participate.

Q. How does an employer apply for the Work Sharing program?

A. Employers must either call or write EDD’s Special Claims Office to request a Work Sharing Plan Application.

Q. How do employees qualify for the Work Sharing program?

A. To qualify for the Work Sharing program an employee must meet the following requirements for each Work Sharing week:

1. The employee must be regularly employed by an employer whose Work Sharing Plan Application has been approved by EDD.

2. The employee must have qualifying wages in the base quarters used to establish a regular California unemployment insurance claim.

3. The reduction in each participating employee’s hours and wages must be at least 10 percent.

4. The employee must have completed a normal work week (with no hour or wage reductions) prior to participating in Work Sharing.

Q. How much lead time is required to initiate a plan for participation in the Work Sharing program?

A. All Work Sharing plans begin on a Sunday. The earliest a plan may begin is the Sunday prior to the employer’s first contact date withEDD. If the Work Sharing Plan Application is submitted timely, the employer chooses the effective date. To be considered timely a DE 8686 must be submitted within 28 days of the employer’s first contact date with EDD.

Q. Can an employer with multiple locations have more than one Work Sharing plan?

A. No. Only one Work Sharing plan is approved for one California employer account number. However, units at the same or different locations may be included in the Work Sharing plan.

Q. When Work Sharing is no longer necessary, how does an employer cancel the Work Sharing plan?

A. Discontinue issuing the Work Sharing Certifications to participating employees. The Work Sharing plan will expire six months after the effective date without any further action from the Work Sharing employer.

Q. How many subsequent Work Sharing plans can an employer receive?

A. Subsequent Work Sharing plans will be approved provided the employer meets the requirements of the program. Each Work Sharing plan is effective for six months and subsequent plans may be approved until the employer’s economic conditions improve.

Q. Are Work Sharing participants required to serve a one week waiting period like regular unemployment insurance claimants?

A. Yes, like regular unemployment insurance claimants, Work Sharing participants must serve a one week unpaid waiting period. Usually the waiting period is the first week claimed after the initial claim is filed. Even though the waiting period is an unpaid week, all the eligibility requirements for the Work Sharing program must be met.

Submitted by:
{encode=“” title=“Christopher W. Olmsted”}
Barker Olmsted & Barnier, APLC

Friday, September 26, 2008

California Bans “Texting” Behind the Wheel; California Employers Should Update Personnel Policies

California has banned text messaging while driving, and employers need to respond promptly by updating policies.

SB 28, signed by Governor Schwarzenegger on September 24, 2008, amends the California Vehicle Code to state: “A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.”

As the governor sorted through 800 bills on his desk, he said he was “happy” to sign this one. “Banning electronic text messaging while driving will keep drivers’ hands on the wheel and their eyes on the road, making our roadways a safer place for all Californians.”

What about fumbling with your PDA’s phone directory to dial out a call? That doesn’t count as texting under the new law: “For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.”

The penalty for violating the law is $20 for the first violation and $50 for subsequent violations. No violation points will be given as a result of the offense.

The new law closes a loophole left by Senate Bill 1613. Effective July 1, 2008, that new law provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. But the law did not expressly ban texting. (Separate legislation has already banned drivers under age 18 from using cell phones or any texting device while driving.)

California joins Alaska, Minnesota, New Jersey, Louisiana, Washington and the District of Columbia, where legislators have also recently enacted laws that ban sending text messages while driving. At least a dozen other states are currently considering such a ban.

Texting while driving is a frighteningly common occurrence, especially among younger drivers. According to a survey conducted by, 47 percent of drivers between the ages of 18 and 24, and more than a quarter (27 percent) of drivers 25 to 34, admit to texting while behind the wheel. Seventeen percent of adults surveyed say they have texted while driving.

Studies suggest that texting while driving is more dangerous than driving while under the influence of alcohol or drugs.

The California Highway Patrol reports that statewide last year, 1,091 crashes with 447 injuries were blamed on drivers using cell phones. In accident cases, lawyers may argue that an employer is liable where an off-duty employee makes or answers a business-related call, or sends a business text message while driving.

Have you updated your employee handbooks? In order to minimize liability issues arising from employees using cell phones, PDAs, or other electronic communication devices on the road while in the course and scope of employment or while taking work-related calls, employers should implement a policy that requires all employees to refrain from texting and to use “hands free” devices while driving on company business or when making business calls on the road. Better yet, employees could be prohibited from using cell phones or PDAs while driving.

Contact me for a complimentary sample policy.

Find the text of the new law: California Texting Ban

Submitted by:
Christopher W. Olmsted, Esq.
Barker, Olmsted & Barnier, APLC

Friday, September 19, 2008

House Passes Bill Amending ADA

The U.S. House of Representatives passed legislation on Wednesday significantly amending the federal Americans with Disabilities Act.

The House vote follows the recent approval in the Senate. The bill will now go to President Bush. He is expected to sign the legislation.

Proponents of the bill have argued that U.S. Supreme Court decisions in the last decade have eroded rights of disabled workers.

As quoted in a House of Representatives press release: “The Americans with Disabilities Act guaranteed that workers with disabilities would be judged on their merits and not on an employer’s prejudices. But, court rulings since the law’s enactment have dramatically limited the ability of people with disabilities to seek justice under the law,” said Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Today we make it absolutely clear that the Americans with Disabilities Act protects anyone who faces discrimination on the basis of a disability.”

Some of the more significant changes:

<u>Expanded Definition of Major Life Activities</u>

A disability is a physical or mental condition that substantially limits a “major life activity.” The ADA currently does not include a definition of “major life activities.” The EEOC regulations provide examples, and these are incorporated into the ADA by the amendment: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” Most courts have followed the EEOC regulations and therefore this part of the amendment does not represent a major change.

However, the amendment adds “major bodily functions” such as “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” This could lead to a substantial expansion of workers considered disabled under federal law, as it could potentially include conditions such as high blood pressure, asthma, and other conditions not traditionally viewed as disabilities.

<u>Disregard of Mitigating Measures</u> 

U.S. Supreme Court decisions have held that mitigating measures, such as prosthetic devices, should be taken into account when determining whether the workers are disabled. For example, Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), involved myopic twin sisters who were rejected for employment by an airline because of their poor vision, although their vision was correctable with prescription lenses. The airline’s policy required “uncorrected visual acuity” at a certain level, which the sisters did not have. The Supreme Court held that because the sisters’ vision was correctable, they did not satisfy the ADA definition of “disability” and therefore could not make out a claim for discrimination.

The ADA amendment rejects the Supreme Court’s interpretation of the ADA. Now, a worker may qualify as disabled under the ADA without regard to corrective measures such as medication, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; or learned behavioral or adaptive neurological modifications.

<u>Inclusion of Condition in Remission</u> 

The amendment expands the definition of disability include a condition that is in remission or that is episodic, if it would substantially limit a major life activity when active.

<u>“Substantially Limits” Liberalized</u>

A disability must “substantially limit” a major life activity. The Supreme Court and the EEOC has set a high standard for “substantially limits.” An individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives. The ADA amendment rejects this standard.

But the amendment creates a definitional vacuum. The amendment does not provide an alternative definition. It merely states that the existing definition is invalid, and the ADA should be interpreted under a looser standard. Earlier versions of the legislation included a definition, but the definition was deleted as a compromise in order to pass the bill.

<u>“Regarded As” Restricted</u>

The ADA protects workers who, while not actually disabled, are regarded as disabled by the employer.  The amendment excludes from “regarded as” claims minor/transitory conditions lasting six months or less.

It will be some time before the effects of the ADA amendment can be gauged. Undoubtedly, there will be a period of uncertainty while employers seek to comply with the new standards. An increase in federal disability law litigation is inevitable. The EEOC may issue new regulations or guides, which may help employers comply with the new standards.

In some states, a more liberal definition of disability is already in place. For example, the law in California, under the Fair Employment and Housing Act, already includes many of the provisions found in the ADA amendment.

Employers should continue to monitor developments in ADA law and look for compliance advice in the coming months before the law becomes effective on January 1, 2009.

Text of the ADA amendment can be found here.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Friday, September 12, 2008

Week In Review (September 12, 2008)

Most Popular Federal Law Article

[url=“”>‘Tis the (Political) Season: NLRB Clarifies Its Rules on Politics at Work.</A>
Basic workplace etiquette dictates that religion, sex, and politics are taboo conversation topics. But in this contentious election season, the American workplace is politically charged, with many employees eager to speak out on issues that affect their employment. Of course, employee expressions of political sentiment are not limited to presidential election years. Pending legislation can stimulate arguments, and as many employers saw in May, 2006, proposed immigration reforms sparked nationwide protests, disrupting some employers’ workplaces.
Located On: Fisher & Phillips, LLP

Most Popular State Law Article

<a >Mandatory Sick Leave to be Removed from November Ballot.</A>
This morning, the Service Employees International Union announced that it will ask to remove Issue 4, the Ohio Healthy Families Act, from the November ballot.
Located On: Baker Hostetler LLP

Most Popular Headlines

<a TARGET=“_blank”]Absurd case shows mess caused by illegal hirings[/url]
HeraldNet - September 08, 2008

Posted by Patrick Della Valle on 09/12 at 09:42 AM
Week in Review
Tuesday, September 09, 2008

New EEOC Publication Addresses Thorny ADA Issues

What happens when an employee with a mental disability misbehaves in the workplace? If the mental disability causes the employee to misbehave and violate workplace conduct rules, can the employer discipline the employee?

The EEOC has tackled this thorny ADA question, and many others, in a new publication titled: “The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.”

An EEOC press release acknowledges that employers struggle greatly with the ADA’s vague proscriptions and mandates. “The EEOC continues to receive numerous questions on these topics from employers and from individuals with disabilities, indicating that there is still a high level of uncertainty about how the ADA affects these fundamental personnel issues. This document will serve a critical need and enhance compliance with the ADA.”

According to the new guide, the ADA permits employers to apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards, notes the press release.  “At the same time,” cautions the EEOC, “employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”

For example, the EEOC provides the following hypothetical example:

Steve, a new bank teller, barks, shouts, utters nonsensical phrases, and makes other noises that are so loud and frequent that they distract other tellers and cause them to make errors in their work. Customers also hear Steve’s vocal tics, and several of them speak to Donna, the bank manager. Donna discusses the issue with Steve and he explains that he has Tourette Syndrome, a neurological disorder characterized by involuntary, rapid, sudden movements or vocalizations that occur repeatedly. Steve explains that while he could control the tics sufficiently during the job interview, he cannot control them throughout the work day; nor can he modulate his voice to speak more softly when these tics occur. Donna lets Steve continue working for another two weeks, but she receives more complaints from customers and other tellers who, working in close proximity to Steve, continue to have difficulty processing transactions. Although Steve is able to perform his basic bank teller accounting duties, Donna terminates Steve because his behavior is not compatible with performing the essential function of serving customers and his vocal tics are unduly disruptive to coworkers. Steve’s termination is permissible because it is job-related and consistent with business necessity to require that bank tellers be able to (1) conduct themselves in an appropriate manner when serving customers and (2) refrain from interfering with the ability of coworkers to perform their jobs. Further, because Steve never performed the essential functions of his job satisfactorily, the bank did not have to consider reassigning him as a reasonable accommodation.

Employers addressing day-to-day personnel issues are often left guessing about the ADA’s ill-defined requirements. The EEOC’s guide does a laudable job providing specific examples and straightforward answers to questions. The explanation and examples regarding disciplining ADA employees are particularly helpful.

Other topics addressed include issues related to attendance, dress codes, and drug and alcohol use, and the circumstances in which employers can ask questions about an employee’s disability when performance or conduct problems occur.

Employers should carefully study the EEOC’s new publication. However, keep in mind that the courts have the final say on the ADA, and the judiciary is not bound to follow the EEOC’s guidance. For example, in Gambini v. Total Renal Care, Inc. dba DaVita, 486 F.3d 1087 (Wash. 2007), an employee was terminated for making violent outbursts at work. She claimed that it was caused by her bipolar disorder. The Ninth Circuit reversed a lower court decision, finding that the outbursts were protected ADA conduct. For more details on this case, click here.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Thursday, September 04, 2008

A Hard Lesson To Learn

E-mail Blunder Alerts Carat Staff to Major Restructuring

Posted by Patrick Della Valle on 09/04 at 10:05 AM
Human Resources
Wednesday, August 27, 2008

ICE Continues Enforcement Trend With Largest Raid Ever

Federal immigration authorities conducted the largest single-workplace immigration raid in U.S. history on August 25, 2008.  In a small southern Mississippi town, federal agents rounded up nearly 600 plant workers suspected of being in the country illegally.

Immigration and Customs Enforcement (“ICE”) spokeswoman Barbara Gonzalez said federal agents arrested the workers in a raid at the Howard Industries Inc. factory in Laurel, Miss, on Monday. “This is the largest targeted workplace enforcement operation we have carried out in the United States to date,” said Gonzales, as quoted in a Reuters article .

Reuters reported that the swoop at the plant, which makes electrical equipment including transformers, was part of an ongoing crackdown on identity theft and fraudulent use of Social Security numbers by illegal immigrants.

The news account notes that the raid comes amid a toughening stance toward illegal immigrants in the United States, where some 12 million live and work in the shadows. Since October 1 last year, more than 4,000 people have been nabbed in stepped-up enforcement raids across the country.

It remains to be seen whether company executives will be prosecuted.

The Associated press reports here that Gonzalez said agents had executed search warrants at both the plant and the company headquarters in nearby Ellisville. She said no company executives had been detained, but this is an “ongoing investigation and yesterday’s action was just the first part.”

The AP report notes that in a statement to the Laurel Leader-Call newspaper, Howard Industries said the company “runs every check allowed to ascertain the immigration status of all applicants for its jobs.” “It is company policy that it hires only U.S. citizens and legal immigrants,” the statement said.

As noted here, criminal and civil fines against employers has increased markedly since 2007.

Earlier this year, ICE issued worksite enforcement advisory titled “Know Your Workforce: The Key to Immigration Compliance.” The advisory notes: “A recurrent issue encountered in ICE worksite enforcement investigations today is the abuse of the Social Security card by individuals seeking to satisfy the work authorization requirements mandated by federal law. The Social Security card has long been a favorite of fraudulent document vendors. In fact, immigration fraud investigators have coined the term ‘three pack’ to refer to the frequently encountered fraudulent document combination of the Social Security card, the state driver’s license or identity card, and a work authorization document.”

The publication provides some compliance “so that employers do not inadvertently facilitate acts of identity theft within their own workforce.”

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC


Posted by Christopher W. Olmsted on 08/27 at 12:40 AM
Employment LawHuman ResourcesImmigration
Sunday, August 17, 2008

Sick Pay To Remain A Benefit, Not Entitlement—-For Now

Is sick pay an employee entitlement or a benefit? In California, a bill seeking to make sick pay an entitlement that all employers must provide has died in the Senate. But it will be back.

For details on the provisions of AB 2716, see our May 2008 summary here.

The bill died in the Senate because of budget constraints, noted Dean Calbreath, a San Diego Union Tribune columnist in a recent article. “The Schwarzenegger administration opposed the bill on the grounds that it would add costs to the state budget. The Department of Finance estimated that paying for the sick leave would add $600,000 to the budget, because the state would have to pay for sick leave for nurses who provide health care to elderly, blind and disabled patients in their homes.”

The cost to private employers would be much more. Although many employers offer sick pay as a benefit, most employers bristle at the thought of a state mandate requiring such pay. In a letter to the California Senate Appropriations Committee, the Cal Chamber of commerce wrote: “The ever-increasing burden of costly mandates on employers can cumulatively result in lower wages, reducing available health insurance, limiting training programs and - in the worst case scenario- job loss or reduced work hours. Job loss translates to lower tax revenues from employers and employees, as well as increased utilization of Unemployment Insurance. In an already troubled economy California should be seeking ways to stimulate job growth and avoid forcing costly mandates on employers.”

Supporters of the bill came up with all manner of public policy arguments. The pro-labor group Labor Project for Working Families argued in a fact sheet that employers should support the sick pay mandate because it would decrease employee turnover, increase productivity, and improve public health. 

The public health argument appeared to strike a chord with voters. The argument is that sick workers make more people sick. Korye Capozza,  of the UC Berkeley Center for Labor Research and Education hypothesized in a policy brief that mandatory sick pay would improve decrease food poisoning and save the elderly. “AB 2716 would have clear benefits for individual workers but, importantly, it would also have public health benefits that extend beyond the household and workplace” wrote Capozza. “Specifically, such a policy could reduce the transmission of foodborne illness, decrease disease outbreaks in nursing homes, reduce the spread of infections in childcare settings and mitigate the transmission of seasonal influenza. There is also some evidence that paid sick leave influences workers’ decisions to see a doctor, parents’ decisions to stay home and care for a sick child and patients’ decisions about treatment choices. Finally, AB 2716 has the potential to improve patient compliance with preventive health-care guidelines and chronic care management, and thus to reduce health-care spending over the long term.”

Mandatory sick pay will be back. Assemblywoman Ma has vowed to reintroduce the bill next year. It is likely to gain public support. The California Center for Research on Women and Families, a program of the nonprofit Public Health Institute, publicized a public poll finding 73% of voters would support a law to guarantee that workers receive a minimum number of paid sick days from their employer.

Similarly, the poll found that 81% agree (57% strongly) that guaranteeing paid sick day laws to all restaurant workers who handle food would increase the chances that these workers would stay home when they get sick and not infect the public. Another 76% agree (50% strongly) that paid sick days should be considered a basic worker right, like being paid a decent wage.

The text to the most recent version of the bill can be found here.

Submitted By:
Christopher W. Olmsted
Barker Olmsted & Barnier APLC

Thursday, August 14, 2008

Cal Supreme Court Lets Stand Key Disability Ruling

The California Supreme Court denied a petition for review in a case titled Arteage v. Brink’s Incorporated, letting stand an appellate court ruling that circumscribed the definition of “disability” under California law.

Defining the term “disability” under California law is a very important issue, and California employers ought to pay careful attention to the definition. Unlike the federal ADA, California’s FEHA has a very broad definition of disability. Until the Arteaga appellate opinion, now left untouched by the California Supreme Court, courts have not focused much on whether particular physical conditions do or do not qualify as disabilities.

FEHA is explicitly and unabashedly liberal—it says so right in the text of the statute. As stated in the FEHA: “The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” “The provisions of [the FEHA] shall be construed liberally for the accomplishment of [its] purposes . . . .”

FEHA fulfills its liberal aspirations in the definition of “disability.” Under the FEHA, “physical disability” includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, “limits” a “major life activity.” The key word is “limits.” It is very broad, and is contrasted with the federal ADA, which requires a “substantial” limitation. “Limits” is synonymous with making the achievement of a major life activity “difficult.”

Management attorneys and HR experts have long lamented this broad definition. They are heard to complain that just about any condition can make life difficult. They say that it is too easy to allege disability discrimination.

The appellate court in this case tackled the definition head on. The court began by considering what the “baseline” for “difficult” should be. “In deciding whether [the employees’] limitations . . . make them ‘disabled’ under FEHA, the proper comparative baseline is either the individual without the impairment in question or the average unimpaired person.”

For example, one could look at an employee with a 25 percent reduction of former capacity to lift, or an employee who lost approximately 50% of her pre-injury capacity for manual tasks. Additionally, one could look to the normal or average population. For example, in considering whether a disability caused difficulty with tasks such as dressing and sleeping, one can look to whether most people can perform those tasks without difficulty.

Turning to Arteaga, the appellate court examined his claim of pain symptoms. Arteaga did not have an actual disability while employed by Brink’s because his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline.

By denying the petition for review, the California Supreme Court has given implicit approval of the appellate court’s disability definition. It is also notable that the Court denied a motion to “depublish” the lower court’s opinion. If the opinion had been depublished, it could not be cited as a precedent in future cases. The Supreme Court’s decision to preserve the precedential authority of the lower court opinion adds weight to the assumption that the Supreme Court approves of the opinion. 

For a more complete analysis of the appellate court decision, click here.

Submitted by
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Friday, August 08, 2008

Well, Duh

From the New York Times: Study Finds Settling Is Better Than Going to Trial
Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.

Posted by Patrick Della Valle on 08/08 at 12:55 PM
Employment Law
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