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Total Articles: 32

WHEN MUST EMPLOYERS PROVIDE A SUITABLE SEAT?

Managers unfamiliar with the Industrial Welfare Commission (“IWC”) Wage Order applicable to their businesses may be unaware that California requires most employers to furnish many employees with “suitable” seats to do their work. The U.S. Court of Appeals for the Ninth Circuit has asked the California Supreme Court to interpret the requirement in connection with pending class action lawsuits. If the California Supreme Court takes up the case, its answers could have significant effect on the structure of employees’ jobs, not to mention the physical layout of workplaces all over California.

Organ Donor Succeeds On Rare FEHA Association Discrimination Claim

Can an employer be held liable for discrimination based on an employee’s mere association with a disabled person? Under a recent California case, the answer may be yes. In Rope v. Auto-Chlor System of Washington, Inc., the California Court of Appeal ruled an employee stated a claim for associational discrimination based upon his sister’s need for a kidney transplant.

Court of Appeal: Request for Accommodation Not Protected Activity Supporting FEHA Retaliation Claim and Much More

The Legislature passed a paid, organ donation leave provision a couple of years ago (Labor Code Sections 1508-13), which became effective January 1, 2011. (The court calls it the Donation Protection Act or DPA) Upon hire in September 2010, Scott Rope told his new employer, Auto-Chlor System of Washington, Inc. that he would need time off in February 2011 to donate a kidney to his sister. When he found out about the new paid leave law, he asked for a longer leave under the new statute.

Organ Donor’s Association-Disability Discrimination Claim Can Proceed, California Court Rules

An employee who told his employer that he would need time off because he intended to donate a kidney to his sister and was fired two days before California’s new Donor Protection Act became effective could pursue a claim for associational disability discrimination under the California Fair Employment and Housing Act, the California Court of Appeal has ruled. Rope v. Auto-Chlor System of Washington, Inc., No. B242003 (Cal. Ct. App. Oct. 16, 2013). However, the employee could not assert a statutory claim under the Michelle Maykin Donor Protection Act, because the Act does not apply retroactively.

NEW DEVELOPMENTS REGARDING DISABILITY ACCESS LAWS AND THEIR EFFECTS ON EMPLOYERS

California employers are required to “reasonably accommodate” disabled employees under the Americans with Disabilities Act (“ADA”) and the Fair Employment and Housing Act. Entities operating places of public accommodation – including retail establishments, schools, hotels, restaurants, banks, theatres, and stadiums – also must make their facilities and services accessible to disabled members of the public under the ADA and the California Disabled Persons Act (“DPA”). Businesses are obligated to remove physical barriers – including architectural, communications, and transportation impediments – to ensure access.

Legal Alert: California Expands Protections for Disabled Employees

Key Points: Recent California case law and new regulations stress the importance of the employer's duty to engage in the interactive process with disabled workers who require accommodation. Now more than ever, it is important for employers to review their current policies and procedures to ensure compliance with California's broader disability protections.

Totally but Temporarily Disabled Worker Denied Additional Leave Could Pursue Disability Discrimination Claim, California Court Rules

An employee who was discharged after seeking an extension of his leave of absence was a qualified individual entitled to proceed with his disability discrimination claim under the California Fair Employment and Housing Act, even though he was totally disabled while on leave, where leave may be a reasonable accommodation of his temporary disability, the California Court of Appeal has ruled. Prock v. Tamura Corp. of Am., No. E054185 (Cal. Ct. App. Jan. 25, 2013) (unpublished). The Court found the employee’s receipt of disability benefits did not bar his claims where he also asserted he could have returned to work if given additional leave. It also found the employer failed to engage in the interactive process when the employee requested an extension of his leave. The Court reversed summary judgment in favor of the employer and returned to case to the trial court.

New California Disability Regs Allow Support Animals in Workplace, Mandate Broad Protections for Disabled Workers

California employers should be prepared to welcome support dogs and other animals into the workplace as a reasonable accommodation for disabled workers requiring support under new disability regulations issued by the California Fair Employment and Housing Commission. The new regulations significantly expand protections for disabled workers and outline new requirements regarding reasonable accommodations, the interactive process, and proof of discrimination. The regulations took effect on December 30, 2012. Key provisions are set forth below.

California Adopts New Disability Discrimination Regulations

Regulations proposed by California's Fair Employment and Housing Commission governing disability discrimination have been finalized after public comment and are now in effect. According to the Statement of Purpose, the Commission intends that the definition of "disability" be construed as broadly as allowed by the Fair Employment and Housing Act (FEHA), California's principal anti-discrimination law. The Commission urges that the primary focus in cases brought for alleged violation of the FEHA should be on whether employers have provided reasonable accommodations, whether employers and employees have met their obligations to engage in the "interactive process," and whether discrimination has occurred. The Commission opines that whether the employee meets the definition of disability "should not require extensive analysis." It is true that, in many cases, an employee's status as a disabled person will be obvious. In other cases, unfortunately, the convoluted definitions of "disability" adopted by the Commission in its efforts to define that term to the outer limits of the law will require just the sort of extensive analysis the Commission wishes to avoid – unless employers are to abandon the question of a disability's existence entirely and simply assume that anyone requesting an accommodation is disabled under the law.

California’s New Disability Regulations: Clarifying the Interactive Process

In October 2011, the California Fair Employment and Housing Commission (FEHC) proposed amended regulations governing disability discrimination, reasonable accommodation, and the interactive process under the California Fair Employment and Housing Act (FEHA).

New California Law Targets Frivolous Disability Access Lawsuits

California Governor Jerry Brown has signed into law a bi-partisan measure that seeks to curb rampant, frivolous Americans with Disabilities Act access lawsuits in the state and expand access to businesses for those with disabilities. This is good news for California businesses. The state reportedly has 12 percent of the country’s disabled population, but 40 percent of the nation’s ADA lawsuits.

"Sitting Down On The Job" – And Not Just In California

You've probably heard a lot recently about employees of retail stores in California standing up for their right to sit down on the job. A California state law requires store employees to be provided with seating under certain circumstances, and the courts there have been busy interpreting and applying the law in response to numerous lawsuits.

Termination One Year After Disability Too Remote To Show Discrimination

All too often a company is faced with disciplining or terminating a misbehaving employee who happens to have had a disability. How do we separate out the legitimate business concerns from the inevitable claim of disability discrimination? A California appellate court recently considered these issues in a case titled Rickards v. UPS.

Clerks/Cashiers Need Not Be Provided Seats While Operating Cash Register, Court Holds

In a much anticipated decision, a federal judge in California's Southern District ruled last week that CVS Pharmacy was not required to provide its cashiers with seats to use while operating cash registers. The plaintiff is a former customer service representative (“clerk/cashier”) at CVS who filed a lawsuit on behalf of all California customer service representatives alleging that CVS violated Wage Order 7–2001, section 14(A) when it failed to provide its clerks/cashiers with suitable seats during the performance of their job duties. Section 14 of Wage Order 7–2001 provides:

REASONABLE ACCOMMODATION AND JOB APPLICANTS

Consider this scenario: An individual calls in response to an employer’s listing for a warehouse position. When asked to come in for a two-hour interview, the applicant mentions having “trouble sitting for long periods” due to his “bad back,” and asks if the interview can be broken up into two, one-hour visits. He also discloses that he never graduated from high school because of a “learning disability,” but states he has great prior experience.

New California Bill Lifts Hospital's Obligations Beyond ADA

California’s Governor has just signed a bill (AB 1136) requiring hospitals in his state to implement a patient handling policy that includes "lift teams" trained in moving patients with appropriate equipment. Among other things, the law provides that “employer[s] shall maintain a safe patient handling policy at all times for all patient care units, and shall provide trained lift teams or other support staff trained in safe lifting techniques in each general acute care hospital.” Significantly, under this law, a hospital “employee who refuses to lift, reposition, or transfer a patient due to concerns about patient or worker safety or the lack of trained lift team personnel or equipment shall not, based upon the refusal, be the subject of disciplinary action.”

Ninth Circuit Rejects Employee’s Disability Accommodation Claim.

California disability law imposes stringent requirements on employers when it comes to accommodation. Employees and their lawyers will criticize an employer’s participation in the “interactive process” and second-guess decisions regarding what is or is not a “reasonable accommodation.” But a diligent employer can safely navigate the rigors of the Fair Employment and Housing Act. In a recent Ninth Circuit Court of Appeals case titled DFEH v. Lucent Technologies, Inc., the court reviewed one employer’s actions and found no fault.

Employee With Mental Disability Properly Terminated For Threats

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? A recent California case titled Wills v. Superior Court examined the question but issued a narrow ruling.

Employer Repels Rehabilitated Drug Addict's ADA / FEHA Discrimination Case.

The ADA and California’s Fair Employment and Housing Act protect rehabilitated drug addicts from employment discrimination. Does that mean that employers must hire or rehire qualified rehabilitated addicts, all other things equal? Generally, yes, but there are narrow exceptions, according to a Ninth Circuit court of appeal in a case titled Lopez v. Pacific Maritime Association.

Everyone Please Take Your Seat

You will want to sit down when you read this. A California appellate court handed down a decision last week involving 99¢ Only Stores that impacts virtually every California business. The appellate panel ruled that California employers who don't provide employees with suitable seating may be sued in a class action type of suit for sizeable penalties. Here is what happened.

Court of Appeal: No Attorney Present at Plaintiff's Mental Examination

The court of appeal's opinion in Toyota v. Superior Court should be interesting to employment lawyers and maybe to their clients involved in employment litigation.

Accommodation Discussions Need Clear Guidelines

Recent case tests limits of the obligation of employers to meet mandate of disability laws.

DON’T ASK, DON’T TELL.

Workplace anti-discrimination laws generally mandate treating similarly situated individuals in a like manner. However, if an employee (or job applicant) discloses a physical or mental disability, the law requires much more. At a minimum, employers must meet with the employee to ferret out whether adjustments to the working conditions would enable the employee to do the job. This so-called "interactive dialogue" is an essential element of the "reasonable accommodation" process mandated by the federal and state disability bias laws. And, if the employer fails to fulfill this obligation, the employee can sue for damages even if the discussion(s) would have been fruitless.

Court Flushes Sewage Facility Employee’s Accommodation Claim

The ADA and the California Fair Employment and Housing Act require employers to engage in an interactive process with disabled employees in order to determine whether a reasonable accommodation may be offered. What happens if the employee does not initiate the process? Does the employer still have an obligation to offer an accommodation? A recent California appellate court addressed this question in a case titled Milan v. City of Holtville.

Grocer Liable After Uninformed Supervisor Fails To Provide Accommodation To Disabled Employee.

When an employer grants a reasonable accommodation to a disabled employee, what happens if an uninformed supervisor later fails to provide that accommodation? In a recent California case titled A.M. v. Albertsons LLC, that very thing happened, and the employer was held liable for failing to provide an accommodation. The case offers important lessons for employers who offer accommodations to disabled employees.

Cal Supreme Court Lets Stand A Key Disability Ruling.

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

Armored Truck Company Has Ironclad Defense to Disability Claim.

Employers frequently experience the following scenario: Employee is suspected of wrongdoing. Employer investigates and decides to terminate Employee. At the eleventh hour, before he is fired, he claims that he is injured and disabled. He files a workers’ compensation claim. Employer wants to fire Employee, but is concerned about the appearance of discrimination and retaliation. Has the employee trapped the employer?

California Employers Not Required To Accommodate Medical Marijuana Users.

The California Supreme Court recently rejected a lawsuit brought by an employee who was terminated shortly after his employer learned that he had tested positive for marijuana. According to the court, employers have the right to conduct preemployment drug tests and to fire, or refuse to hire, individuals who test positive for illegal drugs – even if they are used for medicinal purposes. Ross v. RagingWire Telecommunications, Inc., No. S138130, California Supreme Court (January 24, 2008).

Employers Must Engage In The Interactive Process For Disabled Employees, Regardless Of Whether Reasonable Accommodations Are Later Found To Exist.

In Wysinger v. Automobile Club of Southern California, the California Court of Appeal (Second Appellate District) delivered a blow to management in its defense against Fair Employment and Housing Act (FEHA) claims brought by disabled employees. The court found that the interactive process and providing reasonable accommodations are separate requirements in disability discrimination claims, and thus constitute separate causes of action with separate burdens of proof.

Plaintiffs Alleging Disability Discrimination under California Law Have Burden of Proving They Can Perform Essential Duties of the Job.

In Green v. State of California, a 4-3 split decision, the state Supreme Court brought the burdens of proof under the disability provisions of the Fair Employment and Housing Act (“FEHA”) more in line with the evidentiary burdens under the federal Americans with Disabilities Act (“ADA”), holding that FEHA requires plaintiffs alleging disability discrimination to prove that they are “qualified individuals” under the statute, just as the federal ADA requires.

Disabled Employee’s Claims Cannot Survive Summary Judgment Absent Specific Evidence of Pretext or Denial of Requests for Accommodation (scroll down).

In King v. United Parcel Service, Inc., the California Court of Appeal affirmed summary judgment against a plaintiff who alleged that he was terminated because of his blood disorder, and that he was denied accommodations, but had no specific evidence of pretext, and failed to identify any specific requests for accommodation he had made.

Preemployment Testing Challenged under Antidiscrimination Laws,

Anti-discrimination laws generally are simple to understand and abide by. Employers are prohibited from making decisions that are based on illegal criteria such as race, sex, or religion. In most cases, there is a straightforward analysis regarding the reasons an employer treated a plaintiff less favorably than a similarly situated co-employee.