Southern California Employment Law Report : Los Angeles Employment Lawyer & Attorney : Diane Crumpacker : Crumpacker Law Group : Discrimination, Disability

As social networking among employees becomes second nature, employers are increasingly confronted with a difficult dilemma?  What to do with the employee who the employer learns has posted a derogatory and potentially damaging post on the employee's Facebook, Twitter or other social networking page?

In a recent report on CNNMoney.com, a 22 year old candidate for a position with Cisco who was pursuing her master's degree in information management and systems at Berkeley, posted on the micro-blogging site, Twitter.  She wrote: "Cisco offered me a job!  Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work."  A managerial employee saw the post and responded with the tweet :  "Who is the hiring manager?  I'm sure they would love to know that you will hate the work.  We here at Cisco are versed in the Web."  While the applicant apologized on her personal blog, explaining that she was merely being sarcastic and had already rejected the offer, the issue is front and center in the minds of employees, applicants and employers alike.  How safe are you on in the social media arena?

Although there is very little in the way of guidance in the law yet as social media has only recently exploded, the answer is fairly clear from decisions in other similar areas of employment law.  You are not safe at all.  If you post something in such a public arena, assume it will be read by everyone, including your employer and  be prepared to accept the consequences. Employees have no right to privacy on things they post in the public domain. Your employer is free to read it and to react as they deem appropriate given the nature of the post, assuming of course, no discriminatory motive for any decision they might make.  In a nutshell, if you wouldn't say it to your boss, you probably shouldn't put it on Facebook, Myspace or in a tweet.

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Under the federal disability law, the Americans with Disabilities Act ("ADA"), an employee is considered to be "disabled" within the protection of this law if the employee suffers a mental or physical impairment that "substantially limits one or more major life activities".  This law applies to most employers with 15 or more employees.  Recent amendments to the ADA were intended to broaden the meaning of the term "disability" and, in turn, to extend the reach of the ADA to cover a larger proportion of the workforce.  Unfortunately, many of the difficult interpretive questions presented by this law remain unanswered.

Last week, a federal Court of Appeals found that a public health nurse who had attendance problems due to panic attacks which made her too anxious to drive, had no viable ADA claim.  In a Seventh Circuit decision (the court that governs in Illinois, Indiana and Wisconsin), entitled Winsley vs. Cook County Department of Public Health, the court found that that nurse could not bring an ADA claim because driving was not a "major life activity".

In the Winsley case, the nurse worked in the field and was required to be able to drive two hours a day to her assignments.  Because of an automobile accident, the nurse had been diagnosed with post traumatic stress disorder.  Her doctor restricted her driving because she "would go into a full panic attack when she got into a car."  When the employer failed to accommodate her driving restrictions, the nurse resigned, claiming that the employer had violated the ADA.

The Winsley court found that the "major life activities" identified by the federal agency charged with enforcing the law, the Equal Employment Opportunity Commission, have a number of things in common with each other that driving does not share with them.  "Most importantly, the listed activities are so important to everyday life that almost anyone would consider himself limited in a material way if he could not perform them.  This is not the case with driving.  In fact, many Americans choose not to drive and do not consider the quality of their lives to have been diminished by their choice."  In ruling this way, the Seventh Circuit joined the Second Circuit which governs New York, Connecticut and Vermont, the Tenth Circuit which governs Wyoming, Colorado, New Mexico, Kansas and Oklahoma and the Eleventh Circuit which governs Florida, Georgia and Alabama in ruling that driving is not a major life activity.

This decision is significant for employers in that it emphasizes the importance of carefully drafting job descriptions to define all essential functions of the job.  It also underscores the importance of analyzing all ADA or other disability type claims with the assistance of employment counsel since the law in this area remains, to say the least, extremely gray.

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Yesterday the Department of Health and Human Services (DHHS) issued a formal declaration of public healthy emergency as the number of confirmed cases of swine flu continued to climb. 

Charles Johnson, the DHHS Secretary reported that the declaration allowed the DHHS the flexibility to take additional steps to fully mobilize the prevention, treatment and mitigation capabilities available as those actions become necessary.

In connection with this declaration, the Centers for Disease Control and Prevention (CDC)  recommended following certain basic hygiene and social distancing precautions in the workplace.  At this stage, all employers should insure that they have communicated these precautions to their workforce, in writing.  

• Employees should cover their noses and mouths with a tissue when they cough or sneeze. Employers should provide customers, employees and the public with tissues, trash receptacles and a place to wash or disinfect their hands.
• Employees should wash hands often with soap and water, or use alcohol-based hand cleaners.
• Employees should avoid touching their eyes, noses or mouths.
• Employers should encourage sick employees to stay home.
• Employees should avoid close contact with their coworkers and customers (maintain a separation of at least six feet).
• Employers should keep work surfaces, telephones, computer equipment and other frequently touched surfaces and office equipment clean. Employers should discourage employees from using other employees' phones, desks, offices or other work tools and equipment.
• Employees should be encouraged to use email, phones and text messages to communicate with each other. When meetings are necessary, employees should be counseled to avoid close contact and assure that there is proper ventilation in the meeting room.
• Employees should practice good health habits (e.g., get plenty of sleep, be physically active, manage stress, drink plenty of fluids, and eat nutritious foods). 

Unfortunately, the panic surrounding the potential pandemic appears to be escalating.  However, employers can potentially minimize  the loss of productivity such panic engenders by continuing to educate the workforce as new information such as these recommendations becomes available.

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The Equal Employment Opportunity Commission ("EEOC") is the federal agency charged with enforcement of federal discrimination laws such as Title VII and the ADA. Today a Task Force commissioned by the EEOC released an extensive document entitled "Best Practices of Private Sector Employers" outlining its findings and providing significant recommendations for all employers.

The 183 page document reflects the results of many individuals and companies and months of research into the inner workings of American companies both large and small.  The Task Force divided its study into six major groupings:  (1) recruitment and hiring practices; (2) promotion and career advancement; (3) terms and conditions; (4) termination and downsizing; (5) alternative dispute resolution and (6) other. 

The Task Force noted that, in order to qualify as a "best practice", the practice should promote equal employment opportunity and address one or more barriers that adversely impact equal employment opportunity.  The practice must also involve a serious commitment from management to the EEO objectives and must involve management accountability for equal employment opportunity.  The practice must essentially embrace fairness to all employees and must be implemented conscientiously and should show noteworthy results.

In attempting to obtain data from a statistically significant slice of the American workplace, the Task Force sent letters to any employer with 25,000 or more employees.  In addition to numerous surveys sent to associations representing employers, employees and civil rights groups, the Task Force sent letters to each member of the Senate Labor and Human Resources Committee and the House Committee on Education and the Workforce asking for input on all matters under Task force consideration.

All employers are well advised to review this detailed analysis of the types of practices this governmental agency would consider to be acceptable in the area of EEO compliance.  It provides many suggestions and recommendations applicable to many businesses.  

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For many years, California employers have been able to avoid overtime liability by offering employees, under certain situations,  the option of working an alternative workweek schedule (an "AWS").  However the rules regarding such schedules were very rigid and the employer had few options in terms of the schedule it proposed to its workers.

Under a new amendment to the California Labor Code Section 511, both employers and employees have more options when it comes to working a non-traditional workweek.  These changes can bring savings to the company and provide flexibility to employees who wish to work an AWS.

Under existing rules regarding the AWS, California employers were required to propose to all affected employees in an "identifiable work unit" either a single, fixed weekly schedule such as four ten hour days, or a menu of work schedules from which the employees could choose.  However, under the current law, employers were not able to give employees the option of continuing to work the traditional eight hour day. 

Under current law, employees were not able to swtich between the different available schedules easily.

The new amendment to the Labor Code which will become effective on May 21, 2009 corrects both of these flaws.  Employees may now be given the option to work the traditional eight hour day and they may switch between the different proposed schedules on a weekly basis, with the employers consent.

Although this new lesgislation will undoubtedly provide substantial savings to employers who will be able to avoid costly overtime and will provide signficant flexibility to employees, employers should use caution before implementing an AWS.  The rules regarding these types of arrangements are strictly enforced and somewhat complex.  Any employer considering such an arrangement should consult with employment counsel in order to avoid the risk of  overtime liability for an improerly implemented AWS.

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The recent enactment of several pro labor executive orders by President Barack Obama and the fears surrounding the potential enactment of the Employee Free Choice Act have left many employers clamoring for workplace advice. Rightfully concerned that the passage of the Free Choice Act would make unionization ot their workforce much easier, traditionally non-union employers have sought legal counsel to educate themselves even before the bill is law. The reasoning behind the onslaught of questions to attorneys, law firms and labor consultants is that if the law is passed, aggressive unions will quickly target employers and attempt to intimidate the workforce into a pro union vote. Only with advance training of supervisors can such attempts be thwarted.
Although the bill is currently stalled by opposition in the Senate, many experts believe that some version will eventially become law.

In addition to the trepidation concerning the Free Choice Act, many more employers now seek advice concerning garden variety layoffs, reductions in force, disciplinary actions and terminations than they did in the past. Fearing that the stagnant economy will spur employment claims, even smaller employers are making their way to attorneys' offices to seek preventative counsel. In many respects these fears are well placed as many employment related experts report a significant uptick in employment claims, even based on weak facts which would not have previously made it past most plaintiff's attorneys' desks. When faced with months and potentially years of unemployment, terminated employees appear much less reluctant to sue (or at least threaten to sue) a former employer than they have in the past.

Wise employers analyze each anticipated action with regard to its employees from the standpoint of their vulnerability to an employment claim. Some of the questions which should always be asked are : Is there any evidence that the decision in question has a discriminatory motive (or even a partially discriminatory motive? Are there any statistics of the employer which would support a finding of a discriminatory motive or even a discriminatory impact on a group of employees? How likely is it that the employee in question would make a claim if the action is taken? How likely is it that an attorney would be interested in the employee's claim? What would a resolution of the claim be likely to cost the employer? Is there any proactive way to take the action yet avoid the claim? Once these questions have been asked and thoughtfully answered, the employer will be well on the way to minimizing its potential exposure for the tough decisions it may be forced to make.

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No employer has escaped the seemingly incessant headlines announcing layoffs, reductions in force and closings of entire businesses. In fact, to some extent, every business is looking for ways to cut corners and boost the bottom line, more so now than perhaps ever. 

While the greatest cost cutting measure may be a reduction in force, decisions to layoff must be structured carefully as they are fraught with both legal and emotional peril. Because the need to cut costs often appears pressing, many employers rush to quickly make and communicate the decision to terminate employees. However, if the process is not handled properly, the cost saving may well be eroded by the cost of defending lawsuits, administrative claims or responding to the demand letters sent by plaintiff’s attorneys.

When contemplating a reduction in force, employers must ask themselves a number of questions. First and foremost, is the decision to layoff a particular employee truly intended to be simply a reduction in headcount or is it an attempt to address a festering performance issue. If it is the latter, the decision should not be called a layoff. When an employer terminates an employee, tells him that he is being laid off and then shortly thereafter hires someone else to do the job, the terminated employee often cries foul. Such actions often lead to claims that the decision was merely a pretext to hide discriminatory motives. Such claims are viable in either state or federal court and can cost the well- meaning employer hundreds of thousands to defend and resolve.

Second, the employer should make sure to investigate all potential candidates for layoff carefully. It should attempt to insure that the layoff doesn’t affect any particular protected category of employee more severely than others. For example, if the employer has a workforce which is equally divided between those who are 40 and over and those who are under 40, the employer should be wary of a layoff which only involves those 40 and over. Such a reduction might well lead to claims of age discrimination. Likewise, employers should consider carefully whether any affected employee has a disability, a pending workers’ compensation claim, is pregnant or has any other personal situation which might warrant further analysis. Such employees often claim retaliation when selected for lay off. None of these scenarios means the employee cannot be laid off. They simply mean that the employer must give the decision extra thought and should consult employment counsel before implementing the reduction in force.

Third, an employer who is laying off employees should consider offering a separation payment in exchange for a release of all potential claims against the employer. Such releases buy the employer peace of mind that it will not save money by reducing its workforce only to lose money defending against their employment claims. Because the rules about these types of agreements are complicated, no employer should attempt to use one which hasn’t been prepared by an attorney who is well versed in employment law.

While layoffs can save a company a lot of money, they should be carefully planned and orchestrated to insure that they deliver the savings they promise.

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While many employers are well aware that state and federal law protects employees against employment discrimination on the bases of race, sex, national origin, religion, sexual orientation and disability, few are aware that these laws also protect against associational discrimination. Title VII of the Civil Rights Act of 1964, the federal civil rights statute, makes it unlawful to discriminate against individuals who associate with members of a protected class and who experience discriminatory treatment, even if they are not members of that protected class.

A recent appellate decision entitled Barrett v. Whirlpool Corp. addressed a lawsuit filed by three Caucasian women who claimed they were discriminated against based upon their friendship with and advocacy on behalf of African American employees.

The allegations in the Barrett matter involved egregious conduct such as statements that “we missed you ladies at the [Ku Klux] Klan meeting last night” and the fact that the plaintiffs were forced to view racial graffiti in the workplace and listen to racial slurs and racist jokes. However, the Court made a significant finding that no particular degree of association is needed in order to state a claim of associational discrimination under federal law. The court stated that “If a plaintiff shows that 1) she was discriminated against at work and 2) the discrimination was because she associated with members of a protected class, then the degree of the association is irrelevant.”

The Barrett decision is a harsh reminder for all employers that the discriminatory comments and actions of its employees may subject the employer to liability, not only to the one at whom the comments or actions are directed but also to others who associate with these employees. Since a valid claim for associational discrimination brings with it the potential liability for compensatory and punitive damages as well as attorneys’ fees, employers are well-advised to insure that all supervisory employees are instructed as to the risks posed by any discriminatory comment or action.

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The new and highly publicized American Recovery and Reinvestment Act of 2009 (“ARRA”) imposes many new obligations on California employers. One of the most significant is the requirement that group health plans notify certain current and former plan participants about a COBRA premium subsidy required by the new law. This subsidy requires employers to fund 65% of eligible employees’ COBRA continuation premiums for up to nine months.

On March 19, 2009, the United States Department of Labor issued several model notices to cover a variety of COBRA situations impacted by the recent stimulus law. These notices include three different forms to address situations which employers may face. The forms must be modified for use with your group health plan by inserting specific information and deleting inapplicable provisions.

In general, employees who were terminated involuntarily on or after September 1, 2008 and who are not currently covered by COBRA, may have a second chance to elect COBRA. They must be notified by their former employer of their new COBRA rights and the 65% subsidy no later than April 18, 2009.

Employers should provide such notice as soon as possible because former employees have 60 days from the date the notice is provided to exercise their second chance election rights, and employers will want to start the clock ticking on this exercise.  The Department of Labor has a great job loss poster describing important information employees should know about this change in the law.

The DOL has also developed model notices for notifying current COBRA participants of the potential availability of the COBRA subsidy, and for notifying employees who are involuntarily terminated during the remainder of 2009 of their general COBRA rights as well as the potential subsidy.

The DOL model notices are available at the Department of Labor informational website.

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