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Friday, August 29, 2014

Common Sense Prevails: Being a Jerk Not a Disability

By: Hannibal Odisho

Is an employee who attributes his/her interpersonal problems with his coworkers and inability to work to attention deficit hyperactivity disorder (ADHD) protected under the Americans with Disabilities Act (ADA)? According to a recent ruling by the 9th Circuit Court of Appeal, that answer may be no.

On August 15, the 9th Circuit published a ruling in Weaving v. City of Hillsboro, a case in which a police officer alleged wrongful termination by the Hillsboro Police Department in violation of the ADA. The officer claimed that because of his disability (ADHD), he was unable to work and interact with his work colleagues, and was thus terminated. In a rare reversal of the jury verdict, the 9th Circuit disagreed and held that based on the evidence presented at the jury trial, ADHD did not substantially limit the officer’s ability to work or to interact with others.

The ADA forbids discrimination against a “qualified individual on the basis of disability.” A disability is defined as “a physical or mental impairment that substantially limits one or more major life activities of [the] individual [who claims the disability],” or “a record of such an impairment,” or “being regarded as having such an impairment.” The officer claimed that his disability substantially limited two major life activities: “working” and “ability to interact with others.”

Major Life Activity: Working

The Court was not convinced that the officer’s disability substantially limited his ability to work. In fact, the evidence showed that the officer was a skilled police officer – his supervisors recognized him as being knowledgeable and technically competent to perform his duties, he was selected for high-level assignments, he was promoted to sergeant, and a psychologist and a physician/psychiatrist both deemed the officer to be fit for duty.

Major Life Activity: Interacting with Others

The Court was also not convinced that the officer’s disability substantially limited him from interacting with his work colleagues. Specifically, the Court did not find the officer’s inability to interact with others was severe (i.e. high levels of hostility, social withdrawal, or failure to communicate when necessary). The Court distinguished an employee simply “not getting along” with coworkers as opposed to not being able to “interact” with people in general. The Court found that the officer did not show that he was unable to interact with people in general – while the officer’s interpersonal problems involved his peers and subordinates, he was able to engage in normal social interactions with his supervisors.

The Court does not close the door on all persons who claim a disability based on ADHD. In fact, the Court rarely reverses a jury verdict for an employee who asserts a claim for an ADA violation. A valid claim will be based on how the condition’s impairment “substantially limits” one or more major life activities (NOTE: the effects of medication are not relevant under California or federal law). If an employee has a severe disability that prevents them from relating to people in general (as opposed to just coworkers), he/she may still have a valid disability claim. On the other hand, an employee who simply acts like a jerk by being offensive or inappropriate at times is unlikely to have a valid disability claim under the ADA.

To read the Court’s decision, click here: http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/15/12-35726.pdf

This document is intended to provide you with general information about employment law developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Hannibal Odisho at 415-697-3463 or at hodisho@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

Saturday, August 16, 2014

Employees Required to Use Their Personal Cell Phones for Work Must Be Reimbursed By Employer

By: Hannibal Odisho

It is well-established under Labor Code § 2802 that employers must reimburse their employees for reasonable expenses their employees incur when they are required to use their personal cell phones for work.  However, what if you have one of the following situations:

  • The employee’s cell phone bill is paid for by a family member or friend;
  • The employee uses his/her phone for work under a personal rather than separate work cell phone plan;
  • The employee has an unlimited cell phone plan for which he/she does not incur an additional expense when the phone is used.

A recent California case, Cocharn v. Schwan’s Home Service Inc., addressed these issues and ruled that none of the three scenarios above excuses an employer from reimbursing their employees under Labor Code § 2802. Under § 2802, “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties or of his or her obedience to the directions of the employer[.]”

The Court considered the above three scenarios and it determined that under § 2802, it does not matter whether the phone bill is paid for by a third person (i.e. family member or friend); whether or not the employee purchased a separate cell phone plan to accommodate work-related cell phone usage; or whether the employee has unlimited usage under his/her cell phone plan. For an employer to be liable, an employee only has to show that he/she was required to use a personal cell phone to make work-related calls, and he/she was not reimbursed.

In calculating what an employee is due, an employer may consider “not only the actual expenses that the employee incurred, but also whether each of those expenses was ‘necessary,’ which in turn depends on the reasonableness of the employee’s choices.” In other words, courts will deal with each case separately in order to determine an employee’s damages once he/she has proven the employer is liable.

To read the Court’s decision, click here.

This document is intended to provide you with general information about employment law developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Hannibal Odisho at 415-697-3463 or at hodisho@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

Sunday, July 27, 2014

The Next Big Thing: Ban the Box

By: Peter Glaessner

“Ban-the-box” refers to the question on the employment application that asks: “Do you have a criminal conviction?”

Effective July 1, 2014, California adopted a “ban-the-box” law prohibiting public employers from asking job applicants about criminal convictions  until after the employer has determined that the applicant meets the minimum qualifications for the job. The law makes an exception for any position where a criminal background investigation is required by law, as well as for criminal justice agencies. California Penal Code § 432.9.

But knowing about Penal Code § 432.9 is only the start to staying out of legal trouble for employers.  The next chapter is likely to be local cities and counties passing their own ordinances applying “ban-the-box” to private employers.  For example, San Francisco’s “Fair Chance Ordinance” takes effect August 13, 2014, barring private employers with 20 or more employees and operations in the City & County of San Francisco from inquiring about a job applicant’s criminal history during the preliminary stage of the hiring process. Convictions more than seven years old, diversions, and juvenile adjudications can never be considered in San Francisco and only those “directly-related” to the position sought by the applicant can be considered at all. The San Francisco ordinance is chock full of procedural requirements to snare private employers, too. Examples: Before an employer can order a criminal background check, notice must be given to the applicant complying with several federal and state statutes. Job postings and advertisements must include a statement the employer will consider qualified applicants with criminal histories.

At present, few cities and counties have targeted private employers, but with the passage of statewide legislation for public employers, keep an eye out for this development.

Like many areas of employment law, this will be a minefield of legal problems for uninformed employers.  Our practical, ready to implement suggestions to avoid legal claims for California employers, public or private, are as follows:

  • Determine if and how “ban-the-box” applies to you as a public or private employer;
  • Carefully study the local ordinances as there are likely to be important differences between them concerning the timing of any inquiry and limiting the inquiry about criminal history to crimes “directly related” to the particular job, or the staleness of the conviction;
  • If so, review all employment applications hiring materials to determine whether they need to be modified to comply with “ban-the-box” rules where the company is hiring;
  • Train managers involved in the interviewing process about when criminal history inquiries are restricted and permissible. This will require careful review of local ordinances, as some (e.g. San Francisco) only permit limited inquiries, even after a first person-to-person interview or conditional offer of employment.

This document is intended to provide you with general information about employment law developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Peter Glaessner at 415-697-3461 or at pglaessner@aghwlaw.com. This communication may be considered advertising in some jurisdictions.

Saturday, July 26, 2014

Employer May Deduct from Exempt Employees’ Vacation/PTO for Partial Day Absences of Less Than Four Hours

By: Hannibal Odisho

Brief Summary
With its July 21, 2014 decision in Rhea v. General Atomics, the Court of Appeals aligns California law with Federal law regarding employee deductions from Paid Time Off (PTO)/Vacation for Partial Day Absences. Employers may now deduct partial-day absences in increments, including increments of less than four hours, from exempt employees’ accrued leave time without violating California law or losing the employee’s exempt classification.

Background
To provide some background, the California Supreme Court held more than 30 years ago in Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774 that an exempt employee’s accrued vacation qualifies as earned wages.  As such, an employer could not require an exempt employee to forfeit unused vacation/PTO and the employer had to pay out at termination any and all accrued and unused vacation/PTO.

If an exempt employee took a full day off from work, the employer was permitted to deduct a day from the employee’s vacation/PTO bank. However, if an exempt employee took a half day of vacation or worked only a partial day, employers were advised (and as was held by the California Division of Labor Standards and Enforcement – DLSE) that deducting from the employee’s vacation/PTO bank would violate California law’s salary basis test because the employer would effectively be reducing the amount that the employer paid the employee for that day.

Conley
In Conley v. Pacific Gas & Electric Co. (2005) 131 Cal.App.4th 260, the Court of Appeal held that an employer’s policy of allowing the employer to deduct hours from an exempt employee’s accrued vacation/PTO bank to cover partial day absences did not violate California law.  The Conley ruling followed federal law, under which a deduction of this type is allowed because vacation/PTO is not considered “vested.”  However, the DLSE subsequently interpreted Conley to mean that employers could only deduct from an employee’s vacation/PTO bank if the absence was for four hours or more.  Until now, employers complied with the DLSE’s interpretation of Conley by only allowing or requiring exempt employees to use vacation/PTO in increments of less than four hours.

Rhea
Recently, the Court of Appeal finally clarified the ruling in Conley with its decision in Rhea v. General Atomics. Under this decision, the “four hour” minimum absence rule is no longer required under California law. An employee’s vacation/PTO may be deducted for partial day absences, including absences of less than four hours, without jeopardizing an employee’s exempt status.

In Rhea, the employer, General Atomics, had a policy that required exempt employees to use their annual leave hours when they were absent from work for portions of any single day. A salaried, exempt employee sued the employer on the ground that the employer’s policy violated the “four hour” minimum absence rule.

The Court of Appeal agreed that under California law, vacation or annual leave is treated as a type of “wages” or “deferred compensation” that is earned by an employee. However, the Court did not agree with the employee that an employer’s deduction of annual leave for an employee’s partial-day absences constitutes a forfeiture of wages. The Court stated that the employer is not taking away vested annual leave when an employee takes a partial-day absence; it only requires the employee to use the annual leave under the terms and conditions the employer has created.

This document is intended to provide you with general information about employment law developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Hannibal Odisho at 415-697-3463 or at hodisho@aghwlaw.com. This communication may be considered advertising in some jurisdictions.