Posted on September 12, 2013 by Marisa S. Ratinoff

California's Leave Laws May Create the Perfect Storm for Employers

In this month’s Take 5 newsletter, I discuss how California is unique for making numerous types of protected leaves of absence available to employees.  All of these options can add up to a lot of protected leave.

Following is from the introduction:

National employers often find it challenging to navigate the employment laws of the various states in which they do business. In most cases, the easiest solution may be to adopt national policies that follow federal law. This process will not work, however, for employers that do business in California, where state protections are often more expansive and provide greater employee rights than their federal law equivalents. This is particularly true in the leave of absence arena. California is unique in that it makes numerous types of protected leaves of absence available to employees. The cumulative impact of administering all of the available leaves in California can be quite burdensome and lead to a perfect storm in which an employee may continue to be on a protected leave of absence for more than one year. Here's why …

The full issue is here.

Posted on April 08, 2013 by Epstein Becker & Green

April 2013 Take 5 Newsletter: Five Recent Actions Employers Should Consider

The April 2013 issue of Take 5 was written by David W. Garland,  Chair of Epstein Becker Green's Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.

In it, he summarizes five recent labor and employment actions that employers should consider:

  1. EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
  2. Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
  3. House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
  4. New York City Human Rights Law Expanded to Prohibit "Unemployment" Discrimination
  5. New Jersey May Become the Latest State Law Banning Employers from Requesting Social Media Passwords

Click here to read the full version on ebglaw.com

Posted on March 26, 2013 by Epstein Becker & Green

Court Finds Continuing Duty Exists to Engage in Interactive Process with Employees Who Exhaust Medical Leave

By Marisa S. Ratinoff and Amy Messigian

In a matter of first impression, the California Court of Appeal held last month that an employee who exhausts all permissible leave under the Pregnancy Disability Leave (“PDL”) provisions of the California Fair Employment and Housing Act (“FEHA”) and is terminated by her employer may nevertheless state a cause of action for discrimination.

In Sanchez v. Swissport, Inc., the plaintiff, a former employee of Swissport, alleged that she was diagnosed with a high risk pregnancy requiring bed rest in February 2009 and was due to give birth in October 2009. The plaintiff alleges that she made Swissport aware of her condition and need to remain on bed rest until after the birth of her child. However, with three months remaining in her pregnancy, the plaintiff was terminated by Swissport in July 2009 after exhausting her 4-month PDL entitlement as well as her accrued vacation. The plaintiff alleges that she would have been able to return to work shortly after October 2009 and that her employer never engaged in the interactive process in order to identify available accommodations, such as the extended leave of absence she had requested.

At the trial court level, Swissport challenged the lawsuit on the grounds that the plaintiff had exhausted her PDL entitlement and that no further leave was required. The trial court agreed and the plaintiff appealed. Reversing the decision, the Court of Appeal stated that an employee’s entitlements under PDL are supplemental to the general non-discrimination provisions of FEHA.

While an employer must provide 4 months of PDL to an employee disabled by pregnancy without regard to the hardship to the employer, its duty continues after PDL has been exhausted to engage in the interactive process with the employee to determine whether it may accommodate the disability. Continuing the leave of absence may be a possible accommodation if it will not be an undue hardship to the employer.

This case presents a cautionary tale to employers who base termination decisions simply on the exhaustion of a guaranteed leave entitlement under state or federal law. In all cases, where an employee exhausts their guaranteed leave entitlement but seeks to continue his or her leave of absence due to disability, employers should consider whether an extended leave of absence may be accommodated. If it will be difficult to accommodate an extended absence in the employee’s current position, an employer may also consider transferring the employee to a comparable vacant position and continuing his or her leave of absence from that position. Discussing available options with counsel is highly recommended.

Posted on May 16, 2011 by Epstein Becker & Green

New Regulations Make ADA Claims More Accessible

by Teiko Shigezumi and Carrie Corcoran

The EEOC recently published its long-awaited final regulations (the “Regulations”) and interpretive guidance for the Americans with Disabilities Act Amendments Act (the “ADAAA”), which became effective on January 1, 2009.  The Regulations significantly alter the analysis of “disability” under the Americans with Disabilities Act (“the “ADA”) and reflect Congress’ intention to expand the ADA’s coverage.  The ADAAA retained the ADA’s definition of “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. The Regulations, however, alter the interpretation and application of this term in fundamental ways. 

For example, the Regulations expanded the list of “major life activities,” to include, among others, eating, standing, thinking, communicating and sleeping.  Moreover, “major life activities” now encompasses “major bodily functions.”  The EEOC sets forth nine “rules of construction” in the Regulations to aid the analysis of whether an impairment substantially limits one or more major life activities.  Further, as required by the ADAAA, the Regulations make it easier for individuals pursuing discrimination claims to establish coverage under the “regarded as” prong of the definition of “disability.” 

Although the Regulations do not become effective until May 24, 2011, employers should immediately take them into account in employment decision making, as they will certainly guide EEOC enforcement activities and employee expectations even before the effective date.  For more detailed information about the Regulations, see EBG’s comprehensive Act Now Advisory.

The defense of most ADA claims will now focus on whether the applicant or employee is qualified for the job, whether a reasonable accommodation was offered, whether the employer engaged in the interactive process to discuss possible accommodations in good faith, and whether any employer action was caused by an individual’s disability, record of disability, or being regarded as disabled.  In most cases, to focus on whether the person has a disability would be misplaced. 

To help minimize the risk of potential disability discrimination and failure to accommodate claims, employers should take certain actions:

  • Review all job descriptions to assure that they accurately and fully capture all “essential functions” of the job.
  • Train supervisors on the new broad coverage of the ADA and require them to enlist the assistance of Human Resources in the “interactive process” to determine whether a reasonable accommodation can be made.
  • Always engage in the interactive process when there is an accommodation request and fully document your organization’s efforts during the interactive process.
  • Review language in any policies and employee handbook to make sure it is consistent with the ADAAA.
  • Review applications and any inquiries that might elicit information about an applicant’s disability, and determine if they are appropriate.
  • Contemporaneously document all employment actions, decisions, and corrective action involving an employee who is an individual with a disability or has a record of a disability.
Posted on May 02, 2011 by Peter Panken

Be Prepared for New EEOC Enforcement Efforts

At the recent ALI-ABA program on Advanced Employment Law and Litigation, two high level officials of the Equal Employment Opportunity Commission spoke on the major issues that will face employers at their agency this year.

One emphasis will be in the field of disability discrimination. The EEOC has issued new regulations which auger an increase in claims and cases in this area.  The definition of disability is now so broad that there may be few employees who do not reach that threshold, whether the disability is temporary, or the employee has recovered or is “regarded as” having the disability.  The emphasis for employers will be on whether the alleged victim can perform the essential functions of the job and what reasonable accommodation can be made to allow him or her to qualify for the position.  Employers are well advised to pay strict attention to job descriptions to identify the essential functions of each job and to engage in a discussion of what accommodations are “reasonable” before rejecting an applicant with a disability or refusing to make a particular accommodation on the grounds that it is not reasonable. A comprehensive analysis of the major changes in ADA enforcement can be found in the firm’s Act Now Advisory.

The EEOC will also be paying special attention to discrimination in hiring as the job market improves.  Thus, another major push will follow from the EEOC’s conclusion that credit checks can lead to class-wide disparate impact because minorities and women may have more credit problems than others and that creditworthiness is not a good predictor of qualification for the vast majority of jobs or of threats to the employer which would warrant their exclusion.  See the firm's Act Now Advisory for more details.  (Several states have already passed or are considering legislation that substantially limits employers’ ability to base employment decisions on credit reports.)  

Another area the EEOC will be examining is whether being out of work is a proper criteria for rejecting applicants, on the theory that minorities and women as a group may have been more adversely affected by layoffs in this recession.   This theory may be bolstered by statistics that unemployment rates for white males may be significantly lower than the unemployment rates for minorities and women

Finally, the EEOC will be looking at English-only rules in non-English speaking work forces. The test here will be whether speaking English is necessary within certain areas of an employer’s operation, such as public areas where employees interact with patrons.  The EEOC will likely view with suspicion disciplinary action against employees for speaking a native language to co-workers.