1 EMPLOYMENT LAW OUTLINE REGULATORY BODIES 4 DISCRIMINATION: LAWS AND REGULATIONS 4 DISCRIMINATION CLAIMS & PRIMA FACIE CASE. 4 CA LAWS (AND HOW MANY PEOPLE IT TAKES FOR THEM TO APPLY) 5 FEDERAL LAWS (AND HOW MANY PEOPLE IT TAKES FOR THEM TO APPLY) 6 EMPLOYEE CLASSIFICATION, WAGE AND HOUR 7 AT WILL EMPLOYMENT 7 EXEMPT EMPLOYEE 7 NON-EXEMPT EMPLOYEE 8 FULL TIME VS. PART TIME 9 EMPLOYMENT PROCEDURE & DOCUMENTS 9 HIRING 10 ACCEPTABLE PRE-EMPLOYMENT INTERVIEW PRACTICES 10 UNACCEPTABLE PRE-EMPLOYMENT PRACTICES & INQUIRIES 10 IF PERSON NOT HIRED 10 HIRING NO’S 10 PRE-EMPLOYMENT JOB TESTING: 10 START WORK DOCUMENTS: 10 TERMINATION 12 LEAVE RIGHTS 13 EMPLOYERS WITH: 13 ONE OF MORE EMPLOYEES: 13 FIVE OR MORE EMPLOYEES: 13 FIFTEEN OR MORE EMPLOYEES 13 TWENTY FIVE OR MORE EMPLOYEES 13 FIFTY OR MORE EMPLOYEES (within 75 miles of office) 14 OTHER TIME OFF: 14 GENERAL & SEXUAL HARASSMENT 15 STEPS TO TAKE UPON RECEIVING A COMPLAINT 17 DISABILITY ACTIONS 18 EMPLOYEE REMEDIES AVAILABLE: 20 ACCEPTABLE PRE-EMPLOYMENT INQUIRIES 20 UNACCEPTABLE PRE-EMPLOYMENT INQUIRES 20 PRE-EMPLOYMENT MEDICAL EXAMS 20 ABUSE OF DRUGS AND ALCOHOL 21 DRUG TESTING 21 HEALTH CARE 21 2 ANALYSIS LOGIC CHAIN (1) Do we have an employee? (PAGE 5) a. Who is the employer? b. Employee vs. IC vs. volunteer c. Implied relationships? (2) If Employee, Exempt? Non-Exempt? At will? (PAGE 5) a. Look to job description i. Admin, Exec, Prof.? ii. Do they meet 2x min wage test? b. Implied K? c. Collective bargaining K? (3) Are there wage and hour violations? (PAGE 7 a. Misclassification i. IC vs. Employee ii. Exempt vs. Non-Exempt b. Meal and Rest Period i. 6 hour lunch waiver? ii. Leave (40 hours a year for kids). iii. Exemption: Nature of work reqs on duty? (4) Is there a leave right? (PAGE 10) a. Has notice been given that SOL is beginning to run? b. FMLA /CFRA (50+ employees, 1 year, 1250 hours). c. Sick leave, doc pay (non-exempt hourly, exempt weekly). (5) Is there harassment? (PAGE 11) a. Requires reasonable investigation. b. Sexual Harassment: i. Quid Pro Quo or Hostile Environment? ii. Are requisite elements present? iii. Steps to take upon receiving a complaint c. General Harassment: i. Protected Category? ii. Hostile Work Environment? iii. Burden Shifting Test met? (6) Is there discrimination? (PAGE 3) a. Equal Opportunity Employment Discrimination based on protected classes? b. Job Interview – Improper questions? c. Uneven wages & bonus’ i. Performance reviews? d. Are there grievance & response procedures in place? (an employment manual) e. Document everything 3 (7) Is there a qualified disability? (PAGE 15) a. Has there been an interactive discussion? b. Do reasonable accommodations need to be made? i. Balance vs. undue hardship (necessity). c. Does handbook require a doctors note? d. (8) Is there a retaliation claim? a. No retaliation for whistle blowing. (9) Defenses & Procedure: a. Is there an employer policy handbook? b. Does an administrative action have to be filed before a civil action. c. Has EEOC SOL expired? d. After acquired evidence creating a reasonable basis to fire I hindsight? 4 REGULATORY BODIES California: (1) “DFEH” -Department of Fair Employment and Housing Agency that regulates employment law Enforces FEHA (Fair Employment Housing Act). (2) “DLSE” -Dept. Labor Standards Enforcement Agency that enforces wage orders. Federal: (1) EEOC – Equal Opportunity Employment Commission. a. Agency that enforces : b. Title VII c. PDA d. ADA SOL: Must file with EEOC within 300 days in CA, or 180 days elsewhere. DISCRIMINATION: LAWS AND REGULATIONS DISCRIMINATION CLAIMS & PRIMA FACIE CASE. Two types of Discrimination (against a protected class) (A) Direct (B) Indirect – As a side effect. a. Cannot Express preference for a category or advertise in a discriminatory manner. Particular Scenarios: (C) Dress Policy: a. Use: Professional Dress, (D) Safety Concern OK (E) Particular Business Qualification and Experience Level: OK **PRIMA FACIE CASE: McDonnel Douglas Burden Shifting Test: a. Burden on Plaintiff: i. “You discriminated against me because I am in a protected category” b. Must be discrimination related to a protected category. i. Title VII, FEHA, ADA, ADEA c. Burden then shifts to employer (defendant) to show a legitimate nondiscrimminator reason for the action taken. Show i. Performance Reviews 5 ii. Policy handbook d. Plaintiff may then show that that “legitimate” reason is really a pretext or a cover up for discrimination Employer: require an interactive discussion and reasonable accommodation balanced against undue hardship. Whistle Blowing: It is a protected activity to not follow an order because you believe it is protected or for whistle blowing. (YANOWITZ V. LOREAL) i. Then there are adverse employment actions by the employer ii. Causal Link. iii. Damages CA LAWS (AND HOW MANY PEOPLE IT TAKES FOR THEM TO APPLY) Applies its laws to employment even if a K has a different choice of law jurisdiction. FEHA (Cal. Gov’t Code § 12940) (comes into play in CA before ADA & ADEA). (1) 5 or more employees: a. Except: Harassment section always applies. (2) Protected Classes (RAMPS N DRAGG): a. Religion b. Ancestry c. Marital Status d. Pregnancy e. Sex f. National Origin g. Disabilities h. Race i. Age j. Gender k. Gender Identity (3) All claims under FEHA must be brought to DFEH (or is it Labor Standards Enforcement. Before taking to courts. FLSA -FAIR LABOR STANDARDS ACT (1) Employers with at least 50 people, must provide two hours of sexual harassment training to all supervisory employees. Government Code § 12950.1 (2) Must train once every two years. (3) No criteria other than interactive. Can be online or in person. (4) Law firms recommend training all employees. 6 CRFA (FMLA ) (50+ employees) CA CONSTITUTION Article I Section 8 protected classes (1) Sex (2) Race (3) Creed (4) Color (5) National or ethnic origin CA EQUAL PAY ACT (Labor Code) Gender: Can’t pay less than any other gender. CA MANDATORY WORKPLACE POSTINGS (1) Worker’s Comp Info (2) Worker’s Comp Info (3) EEOC (4) Minimum Wage (5) Pay Days (CA) (6) Safety – OSHA (7) Non-Discrimination & Harassment (8) Pregnancy & Disability Leave (9) Voting Time Off (10) Emergency #’s (11) Whistle Blowing (New), anti-retaliation statute. (12) Wage Order Classification (13) Maybe multiple languages CA LABOR CODE (any number of employees) CA CASE LAW FEDERAL LAWS (AND HOW MANY PEOPLE IT TAKES FOR THEM TO APPLY) All claims under Fed law must be brought to Agency before it can go to civil court. FEPA -Federal Equal Pay Act – Equivalent to CA Equal Pay Act. FMLA (CFRA) (50+ employees) FEDERAL TITLE VII (15+ Employees) (1) Race (2) Color (3) Religion (4) Sex 7 (5) National Origin (6) Pregnancy (under Federal Pregnancy Discrimination Act). (7) Age (under Age Disc. Employment Act, 20+ employees). ADA (American’s with Disabilities Act) (15+) Disabilities: Severely Limits Life Activities. EEOC REGULATIONS FEDERAL CASE LAW EMPLOYEE CLASSIFICATION, WAGE AND HOUR EMPLOYEE (A) AT WILL EMPLOYMENT: (1) Employer can fire or Employee leave anytime. (2) Should be listed on employment materials (3) *Rebuttable presumption of At-Will employee status Exceptions to At-Will Firing: (a) No violation of protected classes (b) No violation of public policy statutes (c) No violation of public policy (d) Implied Contracts from employers actions (e) Labor Code 970 – If solicit a person to leave gainful employment by promising things and don’t deliver and fire them, then could owe treble damages +atty fees. EXEMPT EMPLOYEE (salaried) (a) NO OT (b) Can withhold pay for absence only if misses a whole weekly increment. Requirements for exemption (1) Salary must be 2x minimum wage (2) Must fall within one of these categories: a. Executive i. President /CEO /CFO. ii. Must be in charge of at least 2 other employees, iii. Manage enterprise by making decisions without approval. iv. Authority to hire /fire /promote b. Administrative i. Office /Non-Manual duties ii. Oversee business operations iii. Independent judgment 8 iv. Directly assists executives v. Requires training & skill vi. Sales: 1. Inside – Wage Order 7 wholesale or retail establishments. 1.5x minimum wage + commissions. Commissions must be at least 50% of income. 2. Outside: 50% or more time away from business (on the road). c. Professional i. Can be licensed or certified in the industry working in. ii. Ex. Accountant, teacher, agent. 1. Bookkeepers & paralegals not included 2. Engineers may be exempt iii. Can be a learned and artistic profession 1. Graphic artist at a newspaper might be exempt 2. Looking for individuality in application. NON-EXEMPT EMPLOYEE (not salaried) Rate Structure CA: (a) 8 hours at normal rate. (b) 8-12 is 1.5x (c) 12+ is 2x FED: (d) Over 40 in a week paid at 1.5x (e) 1.5x on 7th consecutive day (f) 4 days per month off HOLIDAYS: (a) No additional time off (b) No additional OT MEAL PERIODS (Can throw into OT): (a) 30 min. within 5 hours of starting shift (b) Unpaid (c) Penalty is one hour of pay (d) Meal period can be waived if whole period not more than 6 hours (e) Meal period can be paid on duty if necessary. REST PERIODS (Can throw into OT) (f) 10 minutes every 4 hours (g) Must be fully relieved of duty (h) Penalty is one hour of pay, no matter how many missed. (i) Not required to be documented, but should be. (j) Employee cannot tack to meal period 9 SPECIAL PROVISIONS: (a) Employee can request to miss time and make up in the same week as long as doesn’t work more than 11 hours in a day. (b) Bounty hunter provision: Any employee who sues on behalf of himself or his fellow employers can keep 25% of the settlement or damages and get attorney’s fees. DAMAGES: For failure to pay OT or comply otherwise: (a) OT Arrears: Up to 3yrs OT in arrears, or 4 years if civil claim for breach of employment K (b) Penalties: If employee not paid OT, termination pay, or penalty as should have, for each day late: (a) 2x day rate (basically 1 day extra pay) with cap at 30 days, Automatically applies if money does not make it to employees account. (c) $200 penalty for first pay period violation, $100 thereafter (for not keeping right documentation). FULL TIME VS. PART TIME (a) Each employer can set standard for full time, but once reached must be treated as full time with all benefits. (B) INDEPENDENT CONTRACTOR IC’s Get: (1) NO OT (2) NO WC (3) NO withholding (4) NO meal & rest periods (5) For a finite duration Procedure: (1) Contract (C) DETERMINING STATUS (IC V. EMPLOYEE) Balancing Test looking to totality of the circumstances (1) #1 Factor is control (2) What is the nature of the work? (3) Does IC bring own tools? (4) Is the service normally done in the course of Company’s business? (5) Salary or weekly pay makes employee (6) How permanent is the relationship (7) Payment via Invoice (D) PAYROLL DOCUMENTATION: See section below. EMPLOYMENT PROCEDURE & DOCUMENTS 10 HIRING ACCEPTABLE PRE-EMPLOYMENT INTERVIEW PRACTICES (1) State essential job functions and requirements (helps with defending later discrimination claims). (2) The employer may inquire about the applicant’s ability to perform job related functions with or without reasonable accommodation. (3) Employer may ask an applicant with a known obvious disability to describe or demonstrate how the applicant would be able to perform the hob position, with or without reasonable accommodation. UNACCEPTABLE PRE-EMPLOYMENT PRACTICES & INQUIRIES (1) Questions regarding any protected class. Common question mistakes: a. School b. Grad Year c. Classmates (2) Is applicant disabled, or severity of disability (3) May not ask about applicant worker’s comp history (4) May not ask about attendance or illness records (5) Skirts the line asking previous employers about the employee. IF PERSON NOT HIRED (a) Always document why to protect against later discrimination claims. HIRING NO’S When guarantee a right to an employee (i.e. stock plan or medical benefits) must give reasonable notice of change and their continuance of work is acceptance by silence. PRE-EMPLOYMENT MEDICAL EXAMS (1) Employer may require post-offer, pre-employment medical exams as long as all applicants are required to undergo similar testing, regardless of disability. PRE-EMPLOYMENT JOB TESTING: (A) Job Testing: Only for legit job related functions. (B) Do it after you offer the job. (C) Test everyone accepted for job. (D) Sets a baseline for employee, especially with worker’s comp claims. I.e. they already had back problems. (E) No genetic testing (F) Can’t exclude for non-illegal drugs in system START WORK DOCUMENTS: (1) W4 (2) I9 w/in 3 days of work start. Should be separate from personnel files because it shows national origin. Can call Social Security hotline to 11 check SS# against name and birth date. Can’t question employee’s documentation because it smells funny, because it has been held de facto national origin discrimination. (3) Emergency Contact Info (4) Insurance Benefit Forms (5) Arbitration Agreement a. Can make a condition of employment. b. Company has to pay all arbitration fee’s. Otherwise is invalid as against public policy. c. No arbitrary SOL d. Cannot restrict ability to file WC, EEOC, DFEH, LC claims. (6) Non Disclosure Agreement (7) Acknowledgement of Conviction (if any) (8) Notice of State Disability Insurance (9) Notice of paid family leave (10) Network use and policy Initial Training a. Harassment (req. if over 50 employees) b. Complaint Procedure c. Safety (OSHA reqs) d. Disaster Prep – Injury and illness prevention program e. Job Description i. Hours ii. Title iii. Duties and Responsibilities iv. Reporting Relationships (who’s over and who’s under) v. Who prepped the description and who approved it. Three key areas where this will help (1) Evaluation (2) Exempt vs. non-exempt determination (3) Defense of a claim (4) Disability Defense Employee Handbook f. Standards of Conduct g. Defense of claims h. Collective bargaining agreements (see notes) Employment handbook can be contract, but usually not, therefore no new consideration required to make changes from time to time. (11) Get acknowledgements for all the aforementioned Employee Personnel File a. Cal. Lab Code 1198.5 gives employee access to it. b. Need to know supervisors, HR, and employee have access. Consists of: c. Performance Reviews 12 i. Make explanatory comments ii. What happened iii. When iv. Resolution Options v. Advise Employee of penalties 1. Time frame to fix 2. progressive discipline Payroll Documentation vi. Itemized pay stubs with checks: CA Lab Code § 226: vii. Pay stub content: 1. Vacation earned 2. Hours Worked 3. Rate 4. Employee Tax ID viii. Keep all on file min 3 years, pref 4 years. ix. (12) CA Wage Orders (CA Code of Regulations Title 8 § 11000) a. Enforced by Dept. of Labor Standards Enforcement. b. Know type of employee dealing with c. Post wage applicable wage order in the workplace TERMINATION 1) Good Reasons: a. For Cause b. Doctrine of After Acquired Evidence (lied on app) 2) Termination Documentation i. Why & When ii. Notice to return work product and company property iii. Benefits and Salary as of termination iv. Re-Affirmance of confidentiality agreement. File is Confidential and can only be turned evidence with a court order or employee’s release. 3) Investigate 4) Security 5) Secure Company Property 6) Final Pay (72 hours from notice). i. Any approved and unused vacation at rate when she quits. ii. Severance pay in exchange of a release. 7) Pay for a release to never be sued. a. Federal law requires an employee who is releasing an age related discrimination action right must have 21 days to review the agreement, and 7 days from signing to revoke the agreement. Payment on or after eight day following employees signature. 13 LEAVE RIGHTS EMPLOYERS WITH: ONE OF MORE EMPLOYEES: Mandated Leaves (all un-paid, unless specify different) (1) Workers Comp Leave (2) Jury Duty, Witness or Victim of a crime for court proceeding (3) Voting (PAID) (4) School visit for pupil suspension. (5) Volunteer emergency fire fighter (6) OSHA leave for Employer refusal to perform work in violation of safety or health standard. (PAID) (7) Military Leave (very complex) (8) Sick Leave to care for spouse, child, parent, or domestic partner. (PAID 50% as accrued). (9) Family leave (paid from State Disability Insurance) a. Care for family member or new child (6 weeks) b. Eligibility determined by EDD c. No minimum period of employment d. Receive 55% of base pay to set max ($728/wk) e. One week waiting period f. No language guaranteeing reinstatement g. 6 weeks within any 12 month period. Employer Rights: Can argue undue hardship FIVE OR MORE EMPLOYEES: (10) Pregnancy Leave (max 88 working days per pregnancy) (FEHA) a. If employee still disabled at end, consider reasonable accommodation vs. undue hardship. (11) Physical or Mental Disability FIFTEEN OR MORE EMPLOYEES (12) ADA Leave TWENTY FIVE OR MORE EMPLOYEES (13) Drug and Alcohol Rehabilitation (leave w/out pay) a. Make sure there is no opportunity for retaliation in workplace. (14) School visits to participate in children’s activities (max 40 hours per year) (15) Victims of sexual assault, domestic violence, or serious crimes to seek medical treatment or counseling. a. Give employee opportunity to make up time 14 b. No legal right to take a leave after a rape, but would not look good to a jury. FIFTY OR MORE EMPLOYEES (within 75 miles of office) (16) Family and Medical Leave a. Baby Bonding b. Disability of self or immediate family member c. 12 weeks of leave in one year (employer chooses year). (17) CFRA -California Family Rights Act (applies to domestic partners too). Really the “Family Leave Act” a. Unpaid family care medical leave i. Newborn or adopted child ii. Serious illness of self, child, parent, spouse. b. Applies to employees with: i. More than 1 year at this job, and ii. More than 1250 hours worked at job in last 12 months c. Up to 12 week leave mandatory when requested, d. Can be intermittent. e. Employee entitled to Reinstatement, i. Doesn’t protect from a layoff. f. Employer must pay insurance premiums g. Employer must reinstate to same or equivalent position Pregnancy disability and baby bonding leave from all sources: Paid time off: Paid time off: 4 months from State Disability Insurance, plus Paid Family Leave for 6 weeks tacked on (paid by state) Time off (Runs concurrently with paid time off) FMLA – 12 weeks. (federal) Pregnancy Disability Leave (state) – 4 months concurrent with above California Family Rights Act – 12 weeks tacked to above. Total: 29.5 weeks off. OTHER TIME OFF: (18) Sick Leave (don’t have to give) (19) Vacation (must roll over, but can cap at 2x annual leave). a. Must give employee 9 months to use vacation time. (20) Personal Days (vacation days) (21) Holidays (up to employer, no OT required) (22) Bereavement Leave (23) Make-Up Time 15 GENERAL & SEXUAL HARASSMENT (2) Proper Plaintiff’s: Employees, IC’s, and Volunteers. (3) Proper Defendants: a. Harassing employee Employee liable for own harassment (and company individually liable as well). FEHA 12940(h)(3). b. Company: i. Company must take all reasonable steps necessary to abate harassment, otherwise: (Faragher v. City of Boca Raton) ii. Management Harassment: A manager, supervisor, officer, or owner who harasses another employee creates “Strict” i.e. automatic liability for the Company. Burlington Industries v. Ellerth. iii. Liab. From Supervisors: Company liable if the company (i.e. a supervisor) was aware or reasonably should have known of the conduct and failed to take appropriate action. Should have been aware means: a. “Red flags” b. Prior Complaints c. Change in behavior by complainant d. Rumors /General references. iv. Company liability for the Actions of Third Parties: 1. If a supervisor was aware of the conduct and fails to take appropriate action, or 2. Company should have reasonably known and failed to take appropriate action. c. Supervisor i. Failure to intervene or report creates no personal liability (but can still lead to company liability, see above). ii. Active participation or encouragement creates personal liability. PROCEDURE: (4) Must file a DFEH administrative remedy action first. SOL = 1 year from the date of the wrongful conduct. Can link between wrongful occurrences over time if conduct was ongoing, thus stringing out SOL. (“continuing course of conduct theory”) (5) If fail, then get a right to sue letter and then can file a civil claim w/in 1 year of the date of the letter. (Cal. Gov’t Code 1294-(0)(H) (6) Burden applies to Plaintiff to prove prima facie case (McDonnell-Douglas Burden Shifting Test) a. “You discriminated against me because I am in a protected category” 16 (7) Must be harassment related to a protected category. a. Title VII, FEHA, ADA, ADEA i. Religion: Three Prong Test: (FEHC vs. Gemini Alum) 1. Legitimate Belief 2. Knowledge by Employer 3. Adverse employment action (including failure to accommodate). ii. Same sex harassment is actionable. Oncate v. Sundowner Offshore Services. (8) Conduct must be unwelcome. Cannot be: (a) Invited. (invited = no harassment). (b) Uninvited but welcome conduct Can be: (c) Offensive but tolerated conduct (d) Flatly Rejected sexual comments/advances (9) Intent: No intent required. a. A harasser need not intend for the conduct to be harassing or offensive; nor be aware of the fact it is harassing or offensive. PROVE EITHER: (10) Quid Pro Quo – “Something for Something” (Supervisor and subordinate). (11) Hostile Work Environment: alters ability to work. Must satisfy the following tests: a. Objective Test: Would Objectively Reasonable Person find it hostile? (Meritor Savings & then Harris v. Forklift) i. CA – A reasonable person in that particular plaintiff’s position. b. Subjective Test: Did this particular claimant perceive as hostile? (Harris v. Forklift Systems) c. Reasonability under the Obj. test should be taken in the light of the duties off plaintiff’s job. (Clark County Schools v. Breedon) i. Is it Severe or pervasive given the duties of the job? (12) Applies anytime, not just during work hours. a. Office Parties b. Company Outings c. After Hours Meetings d. Out with buddies – if a supervisor, always a supervisor. (13) Burden then shifts to employer (defendant) to show a legitimate nondiscrimminator reason for the action taken. a. Show b. Performance Reviews 17 c. Policy handbook (14) Plaintiff may then show that that “legitimate” reason is really a pretext or a cover up for discrimination (15) DAMAGES: (a) Attorney’s Fees (b) Injunctive Relief (c) Compensatory Damages (d) Lost Wages (e) Lost Benefits (f) Emotional Distress (g) Punitive Damage (h) Re-Instatement of Employment. (i) Tort: Assault, Defamation etc. Whistle Blowing is protected. (Yanowitz v. Loreal) (1) It is a protected activity to not follow an order because you believe it is protected or for whistle blowing. (2) Then there are adverse employment actions by the employer (3) Must be Causal Link. STEPS TO TAKE UPON RECEIVING A COMPLAINT (j) Company must make a reasonable investigation (k) Within 24 hours. (l) Designate fully trained person to handle all complaints (m) Make sure the investigation is documented i. Acknowledge Complaint ii. Determine Who iii. Interview Victim iv. Ask victim what did they do? v. Was the advance unwelcome? vi. Interview Harasser vii. Have explain complaint viii. Is there documentation ix. What was the social /personal context x. Did victim initiate or participate xi. Did victim protest? xii. Names of all Witnesses xiii. Don’t prejudge the situation xiv. Organize Docs – statements, policies, personell files (n) Make list of interviews i. Don’t tape record without consent, because in CA there is criminal liability for doing so. ii. Can tell people you will keep information on a need to know basis. Can’t be kept strictly confidential. iii. Ask: When, who, what, where iv. Ask if there is anything else you should know? Give contact info. 18 (o) Put accuser on admin leave with pay if need to get out of work environment. (p) Re-interview the accuser after doing due diligence. (q) Give the accused an opportunity to respond and re-interview witnesses as necessary. (r) Report: i. Chronology of the investigation ii. Final Interview Statements iii. Evidence iv. Summary of Findings v. No recommendations – that is not for the investigator, rather the management of the corp. (s) Discipline: Implement appropriate action. (t) Audit Procedures. (u) Entire investigation should take a week or less. DISABILITY ACTIONS State: FEHA (5+ Employees) Fed: ADA (15+ Employees) EEOC PLAINTIFF’S BURDEN (1) has burden to prove Prima Facie Case (McDonnell Douglas Burden Shifting Test Applies. EMPLOYER STANDARD OF CARE: (2) Must give equal opportunity for employment, however: (3) No Requirement to overlook the performance deficiencies of disabled employees. (4) Must: i. Engage in an interactive discussion, and ii. Reasonably accommodate a qualified disabled employee. 1. See “employees is qualified” section below. EMPLOYER’S RIGHTS (AND DEFENSES): (1) Require appropriate documentation of disability (2) NO NEED TO ACCOMMODATE IF AN UNDUE HARDSHIP (3) May impose job related qualifications, tests, and selection criteria. DEFINITION OF DISABLED: 3 party test: 2. Plaintiff is Disabled (or Pregnant) a. Impaired i. Physical: Physical Disorder or Disability ii. Mental: Psychological, Learning Disability, Stress or Depression not from job. iii. Medical Condition: Cancer and Genetic conditions only 19 iv. NO: Sexual Disorders, Klepto’s, Pyro’s, Gambling, Physical Characteristics, Common personality traits (quick temper), Cultural Characteristics (lack of education), Stress or Depression from Job, Temporary Conditions (bone breaks). b. If employer thinks in protected class, then considered in that class (i.e. thinks is pregnant). c. Disability limits (FEHA -CA) or Substantially Limits (ADA -FED) one or more major life activities. i. Caring for oneself ii. Performing manual tasks iii. Walking iv. Seeing v. Hearing vi. Speaking vii. Breathing viii. Learning ix. Working 3. Employee is qualified to perform the essential duties of the position a. Requisite skill, experience, and education b. Employee can perform essential functions with or without reasonable accommodation. i. Essential = 1. Job exists to perform that function, or 2. There are a limited number of other employees available to perform the function 3. Function is highly specialized (ie actor) ii. Sources of Essential Functions: 1. Employer’s Judgment 2. Written Job Descriptions 3. Employee’s Typical Duties iii. Reasonable Accommodation: 1. Includes 2. Change in work schedules 3. Part time or modified work 4. Reassignment to vacant position 5. Job restructuring 6. Change in work location 7. Modified or new equipment 8. Assistance 9. Medical leave 10. Modifying existing facilities 11. Allowing employee to provide own equipment /devices. 12. Does Not Include: 13. Giving a second chance after failure to perform 14. Forgiving past misdeeds 15. Foregoing disciplinary action 16. Promoting employee 20 17. Bumping another employee 4. Employee was subject to an adverse employment action a. An employment decision or action that results in an adverse change in the terms and conditions of the employee’s employment. i. Demotion ii. Firing EMPLOYEE REMEDIES AVAILABLE: (1) Job Related Disability: 1. Workers Compensation § 132 recovery (no fault recovery) a. Accommodation: Modified Work, Alternative Work, Vocational Rehab (are these required of the employer?) b. Can also file FEHA lawsuit (City of Moorpark Case). 2. FMLA /CFRA Leave a. Reinstatement b. Los Wages and Benefits c. Up to 12 week leave d. Can be intermittent e. Employer must pay insurance premiums f. Employer must reinstate to same or equivalent position. 3. ADA /FEHA Civil Action (for violation of duty of care) a. Regular Tort Remedies b. Employer must reasonably accommodate (may be a leave) c. Employer may have to restructure job (ie days off). (2) Non-Job Related: State Disability Benefits (3) Tort Liability for violation of duty of care. ACCEPTABLE PRE-EMPLOYMENT INQUIRIES (4) The employer may inquire about the applicant’s ability to perform job related functions with or without reasonable accommodation. (5) Employer may ask an applicant with a known obvious disability to describe or demonstrate how the applicant would be able to perform the hob position, with or without reasonable accommodation. UNACCEPTABLE PRE-EMPLOYMENT INQUIRES (6) Is applicant disabled, or severity of disability (7) May not ask about applicant worker’s comp history (8) May not ask about attendance or illness records (9) Skirts the line asking previous employers about the previous. PRE-EMPLOYMENT MEDICAL EXAMS (4) Employer may require post-offer, pre-employment medical exams as long as all applicants are required to undergo similar testing, regardless of disability. 21 ABUSE OF DRUGS AND ALCOHOL (1) Disability laws do not protect employees who use illegal drugs or abuse alcohol. (2) Employee is entitled to rehabilitation leave to recover for substance abuse, but must request such leave prior to violating company policies. DRUG TESTING (1) Only in certain circumstances (2) Post offer pre employment (3) If reasonable suspicion exists (4) After employee has been involved in an accident (5) With a last chance agreement signed by employee HEALTH CARE HIPAA -Health Information Privacy Act of 1996. (1) HIPAA helps ensure that all medical records, medical billing, and patient accounts meet certain consistent standards with regard to documentation, handling, security and privacy. (2) Requires that all patients be able to: 1. Access their own medical records, 2. correct errors or omissions, 3. Be informed how personal information is shared used. 4. Other provisions involve notification of privacy procedures to the patient. (3) The Security Rule was published on February 20, 2003 and provides for a uniform level of protection of all health information that is housed or transmitted electronically and that pertains to an individual. (4) The Privacy Rule protects the privacy of all individual health information. Known as “Protected Health Info” 1. The rule establishes the first “set of basic national privacy standards and fair information practices”. 65 Fed. Reg. at 82464 2. Minimum Necessity Rule: only necessary parties given access. (5) Civil and Criminal Penalties for misuse of health info. COBRA – “Consolidated Omnibus Budget Reconciliation Act” (b) Designed to make sure that employers don’t dump employees (and their families) if they are pregnant, leaving the company, etc from health policies by ensuring that employees maintain health coverage if a Qualifying Event occurs. (c) Qualifying Event: (1) Extended Leave of Absence (2) Divorce (3) Termination (4) Resignation 22 (5) Death (6) Going to Part Time (d) In the event of a Qualified Event, allowed to continue health care for a certain amount of time. Max. 36 months. (e) Will receive a COBRA notice if a qualifying event occurs. Can elect to go on COBRA plan. Has a minimum of 45 days to elect to do it. (f) Once employee is on the COBRA term employee can continue the same coverage, but they have to pay the entire premium, including the companies portion. (g) COBRA premiums are usually $400-600 a month. It is usually much better to shop to another carrier live blue cross. (h) But if the person is uninsurable, then COBRA is a valid plan. (i) If terminated for wrongful reasons, then COBRA costs can be part of damages. (j) COBRA notifications are the responsibility of the employer, even if the insurance company sends the notices. Employer should send a notice anyways.