reasonable accommodation

Employee Bears Burden Trial Proving Available ADA Accommodation

On May 11, 2018, the Ninth Circuit Court of Appeals ruled that the plaintiff, not the employer, maintains the burden of proving the availability of a reasonable accommodation, even if the employer did not take advantage of the interactive process under the Americans with Disabilities Act (ADA). [Snapp v. Burlington Northern Santa Fe Railway Co.]


Plaintiff, Danny Snapp worked for BNSF from 1971 through 1999. Due to tiredness and low energy, he went to a doctor in 1994. He was diagnosed with sleep apnea and had surgeries in 1996 and 1998 in unsuccessful attempts to correct his condition. In 1999, BNSF received a report from Snapp’s physician. Snapp’s supervisor told Snapp he did not believe Snapp could work in a safe manner. In 1999, Snapp took a “fitness for duty” evaluation, was determined to be totally disabled, and went on short-term disability leave. He applied for long-term disability benefits through CIGNA, the third-party administrator for BNSF’s disability plan. In February 2000, BNSF’s medical director told Snapp that CIGNA had approved Snapp’s claim for disability benefits and that, should CIGNA later find him ineligible, he should contact BNSF’s medical director to plan a “return to work.”

Snapp began a period of long-term disability leave and received payments from CIGNA. In 2005, CIGNA requested a sleep study to verify Snapp’s continuing disability. When Snapp arrived at a clinic for the study, the clinic asked him to sign a release accepting personal financial responsibility for the test. He refused and did not complete the study. In November 2005, CIGNA terminated Snapp’s disability benefits citing an absence of evidence of continuing disability.

Snapp brought action against the United Transportation Union and his former employer, Burlington Northern Santa Fe Railway Company (BNSF), alleging a failure to accommodate under the Americans with Disabilities Act. A jury returned a defense verdict, and Snapp appealled. At trial, the parties disputed whether Snapp had requested an accommodation. In addition, the parties disagreed as to whether and how the jury instructions should address the “interactive process,” i.e., the statutorily required collaborative effort for identifying an employee’s abilities and an employer’s possibly reasonable accommodations. Snapp argued the district court improperly rejected a proposed instruction that would have imposed liability on BNSF merely for failing to engage in the interactive process, regardless of the availability of a reasonable accommodation. Snapp also argued the district court improperly rejected a proposed jury instruction that would have described his overall burden of proof as a mere burden of production rather than as an ultimate burden of persuasion. Finally, Snapp argued the district court erred by refusing to treat statements by BNSF’s Federal Rule of Civil Procedure 30(b)(6) corporate representative as binding admissions.

ADA reasonable accommodation
The ADA treats the failure to provide a reasonable accommodation as an act of discrimination if 1) the employee is a “qualified individual,” 2) the employer receives adequate notice, and 3) a reasonable accommodation is available that would not place an undue hardship on the operation of the employer’s business. 42 U.S.C. § 12112(b)(5)(A) (“[T]he term ‘discriminate against a qualified individual on the basis of disability’ includes—not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity[.]”). The statute itself places on the employer the burden to demonstrate an undue hardship.

Ninth Circuit Decision
After losing on the motion and the trial, the plaintiff again appealed to the Ninth Circuit, this time questioning the jury instruction on the burden of proof. The Ninth Circuit found no error and affirmed the judgment of the district court. The plaintiff argued that under the Supreme Court’s Barnett decision, employers that fail to take advantage of the interactive process to explore accommodations bear the burden of proof through trial as to whether there were any available measures which could have been taken. The court disagreed, limiting the impact from not engaging in the interactive process to the summary judgment stage, and not at the trial itself. Almost every federal court considering this question has concluded that at trial, the plaintiff must demonstrate the availability of a reasonable accommodation not provided by the employer.

California employers avoided an almost impossible situation as the court ruled against the plaintiff. Due to this decision, companies will not face an insurmountable legal hurdle when later called upon to defend their decisions, however, this case reinforces the importance of engaging with employees facing medical issues relating to work performance. This case also demonstrates the complexities in both state and federal laws when it comes to disability and sex-based discrimination. The experienced California employment lawyers at Kingsley & Kingsley can quickly answer your questions about the ADA, disability , or any of California’s employment laws. To discuss these laws, or a potential claim on your behalf, feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)


ICE worksite investigations

ICE to Increase Worksite Investigations This Summer

Form I-9 Audits Have Already Increased Significantly
U.S. Immigration and Customs Enforcement (ICE) has already commenced twice as many worksite investigations in 2018 than it completed in all of 2017, according to a recent ICE news release. Since October 2017, Homeland Security Investigations (HSI) has opened 3,510 worksite investigations, initiated 2,282 I-9 audits, and made 594 criminal and 610 administrative worksite-related arrests. That’s up from 1,716 investigations, 1,360 I-9 audits, 139 criminal arrests and 172 administrative arrests the previous fiscal year.

ICE Planning Surge of Audits This Summer
The heightened worksite enforcement efforts will increase over the summer, according to Derek Benner, ICE’s acting executive associate director for HSI. “Our worksite enforcement strategy continues to focus on the criminal prosecution of employers who knowingly break the law, and the use of I-9 audits and civil fines to encourage compliance with the law,” says Benner, adding that “HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices.”

Guidance for California Employers
Worksite audits are designed to ensure that all U.S. employers verify the identity and work authorization of each employee with the Form I-9, and only employ those with proper work authorization. In addition to being aware of the increased enforcement activity, employers need to understand the serious consequences of violations of Form I-9 rules and other immigration laws.

ICE worksite investigations

Failure to comply can lead to criminal and civil penalties, judicial forfeitures, restitution, and debarment. In FY17, businesses were ordered to pay $97.6 million in judicial forfeitures, fines and restitution, and $7.8 million in civil fines. Last year, one company faced financial penalties that represented the largest payment ever levied in an immigration case. Criminal arrests of employers and administrative arrests of unauthorized workers can result as well. Employers should plan for the possibility of receiving a Notice of Inspection (NOI) of their Forms I-9, or even a workplace “raid.”

Fortunately, there are steps employers can take to prepare for a government visit or inspection of their immigration law compliance, and to limit their potential liability. One such move is to participate in the ICE Mutual Agreement between Government and Employers program, in which ICE certifies organizations for complying with the law. As part of the program, ICE and U.S. Citizenship and Immigration Services provide education and training on proper hiring procedures, fraudulent document detection and use of the E-Verify employment eligibility verification system. Keep in mind, however, E-Verify doesn’t enforce compliance for people paid as independent contractors, outsourced workers or those paid off the books.

California Employment Lawyers
An experienced California employment lawyer can quickly answer your questions about the Immigrant Worker Protection Act, Form I-9, and ICE worksite investigations. To discuss these developments, or any of California’s labor laws, feel free to contact leading California employment lawyers at Kingsley & Kingsley. Call toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

New Classification Test California’s Independent Contractors

Employee or Independent Contractor

On Monday, April 30, 2018, the California Supreme Court issued a landmark decision establishing the presumption that a worker is an employee and not an independent contractor in California unless the employer meets a new three-prong test. In Dynamex Operations West Inc., v. The Superior Court of Los Angeles County, the state’s highest court rejected the longstanding nine-factor test articulated in S.G. Borello & Sons, Inc. v. Department of Industrial Relations. The Court adopted an “ABC” test which presumes a worker is an employee unless three criteria are met:

  1. the worker is free from the hiring entity’s control and direction; 
  2. the work is outside the hiring entity’s usual course of business; and
  3. the worker is customarily engaged in an independently established trade, occupation, or business. 

Note:  The new test requires the employer to prove ALL three factors, making it more difficult to classify workers as independent contractors and not employees.


Dynamex is a nationwide delivery and same-day courier service with business centers in California. Prior to 2004, Dynamex classified its drivers and couriers as employees. However, in 2004, Dynamex changed its policies and contractual agreements, and reclassified its drivers as independent contractors. Two former drivers that had been classified as independent contractors filed a class action lawsuit in 2005 against Dynamex for violations of California wage orders and misclassification. They claimed that the company violated California law by re-classifying the drivers as contractors, arguing that drivers continued to perform the same tasks, in the same manner, as they did previously as employees. The plaintiffs sought to represent approximately 1,800 drivers who they claimed were misclassified as independent contractors.

California Supreme Court

For almost 20 years the Dynamex case was held up in a series of appeals until the case ended up in the California Supreme Court. The Supreme Court, in a sweeping decision, eliminated the complex, ten-factor test that was used to determine if a worker was an independent contractor or an employee. The Court cited the common understanding that an “independent contractor” typically has “independently” made the decision to go into business for him or herself by establishing and promoting his or her independent business through incorporation, licensure, advertising, or other means. The Court emphasized that a hiring entity cannot unilaterally classify an individual as an independent contractor or, as a condition of hiring, require that individual to sign a contract designating him or her as an independent contractor.

The Court did not opine as to whether the “ABC” test will be applied to claims other than those brought under the Wage Orders. However, Wage Order application alone imposes liabilities and penalties for hourly and overtime pay, meal and rest breaks, and many other mandates.


California is not the only state to move away from complex multi-factor tests to determine if a worker is an independent contractor or an employee. The Washington legislature is considering a similar rule and Massachusetts and New Jersey are already applying a similar test. In every case, the laws seem to be moving forward with the goal of protecting workers, even if that increases costs for businesses.

Following this decision, all employers in California with workers classified as independent contractors should immediately review their classifications to ensure compliance with the Dynamex test. The misclassification of workers can result in significant monetary damages for wage and hour and other violations. Employers are advised to review independent contractor relationships and evaluate agreements with third parties, and contact an employment lawyer with questions. To discuss wage and hour laws, or a potential claim on your behalf, feel free to call us toll-free at (888) 500-8469 or click here to contact us via email.

Additional Resources: Daily Journal article by Eric B. Kingsley: Let’s talk about a ‘hybrid’ worker.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

Ninth Circuit Rules on Equal Pay Act Case

Bottom Line
While the Equal Pay Act (EPA) permits “a differential based on any other factor other than sex,” the Ninth Circuit Court of Appeals issued an important decision on April 9, 2018 in Rizo v. Yovino, holding that an employee’s prior compensation is not a “factor other than sex.” Specifically, the Court held that the above exception under the EPA is intended to allow employers to rely upon only job-related factors, such as experience, educational background, ability, or prior job performance. Prior compensation, the Court opined, is not job-related.

Aileen Rizo was hired as a school teacher in Fresno County in 2009. Rizo’s new salary was set according to the County’s Standard Operating Procedure No. 1440 (SOP 1440), which implemented a 10-level salary scale. SOP 1440 determined a new hire’s salary by taking the individual’s prior salary, adding 5%, and placing the new employee in the corresponding step of the salary schedule. Based on her previous position where Rizo earned a salary of just over $50,000 per year, SOP 1440 placed Rizo in the lowest salary tier, earning $62,133 per year.

While one the job, Rizo discovered that she was being paid less than other male teachers performing the same job. She sued for unequal pay under the Equal Pay Act (29 U.S.C. § 206(d)), and sex discrimination under Title VII and California’s Fair Employment and Housing Act (FEHA).

The Equal Pay Act  
The EPA provides that no employer shall discriminate between employees on the basis of sex “by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. . . .”

Unlike Title VII, the EPA does not require a plaintiff to show that the employer intended to discriminate. Instead, the plaintiff need only show that she is doing the same job as a male employee (and only needs to have one comparator) but is paid less. If the plaintiff can establish those facts the employer must prove one of four affirmative defenses. In this case, the relevant affirmative defense was that the pay differential was “based on any factor other than sex.”

Fresno County Motion in District Court
Fresno County conceded that it paid Rizo less than her male counterparts. However, it moved for summary judgment noting that SOP 1440’s reliance on an employee’s prior salary was a “factor other than sex” under the EPA. The district court denied Fresno County’s motion but certified it for immediate appeal.

A three judge panel vacated the district court’s decision. The panel held that a prior Ninth Circuit decision, Kouba v. Allstate Insurance Co., had settled the issue back in 1982. Under Kouba, an employer could rely on prior salary as a “factor other than sex.” Ms. Rizo did not take that decision lying down and asked for the entire Ninth Circuit to weigh in.

Ninth Circuit
Ninth Circuit Court of Appeals overruled prior Circuit law to hold that an employee’s previous compensation, either alone or in combination with other factors, cannot form the basis of a wage differential between men and women. In an en banc decision, the Ninth Circuit did so, indicating its intent to “clarify the law, including the vitality and effect of Kouba.” “Prior salary alone or in combination with other factors cannot justify a wage differential. To hold otherwise—to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum—would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands.”

The Court reserved the question of “whether or under what circumstances, past salary may play a role in the course of an individualized salary negotiation.” It remains an open question, therefore, whether an employer would violate the Equal Pay Act by offering an increased salary to an applicant who had rejected a lower offer because of his or her salary history.

Moving Forward
Employers should exercise extreme caution when using prior salary history to make hiring decisions. In California, recently-enacted Labor Code 432.3 stipulates restrictions on the use of such information, as do laws in several other states. If you have questions about the Equal Pay Act or would like to discuss a situation you are experiencing at work, please call us toll-free at 888-500-8469.  Our attorneys are here to help you understand your rights.

Additional Resources:

The Equal Pay Act of 1963

Equal Compensation

California Wage and Hour Laws

Employee Protections Breastfeeding Discrimination

Breastfeeding Discrimination

Laws that protect employees from breastfeeding discrimination are grounded in both federal and state laws. We recap below the various federal and state laws guiding employee protections, as well as two proposed California laws meant to further guide against breastfeeding discrimination.

Federal Laws

Pregnancy Discrimination Act (PDA) – Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), prohibits discrimination based on an employee currently being pregnant, as well as post pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy or childbirth. In other words, while the PDA focuses on pregnant employees it does provide some protection for employees who are breastfeeding or nursing. In 2015 the Equal Employment Opportunity Commission (EEOC) officially adopted the position that lactation is protected by the PDA.  Accordingly, failure to allow for time to express breastmilk could result not only in FLSA violations, but also a discrimination lawsuit under the PDA. Further, under the PDA, employers may not engage in adverse employment actions on the basis of an employee’s lactation needs, yet the PDA does not require special accommodations.

Fair Labor Standards Act (FLSA) – The Patient Protection and Affordable Care Act (ACA) modified the Fair Labor Standards Act (a law that establishes basic job protections like minimum wage and overtime pay) to require that covered employers provide eligible employees with the right to pump breast milk on the job. Under the Nursing Mothers Provision, for up to one year after a child’s birth, covered employers must grant eligible employees 1) reasonable break time to express breast milk for a nursing child for one year after the child’s birth; and 2) a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used to express breast milk. The law also protects workers from retaliation (like reassignment to a less desirable job, taking away job duties or benefits, or firing) for asserting their rights or filing a complaint about these issues, if they seek to assert these rights on the job.

State Laws  breastfeeding discrimination

California has its own requirements for how many employees an employer must have to be subject to FLSA’s mandatory accommodations. California employers with fewer than 50 employees are not subject to the FLSA break time requirement for nursing mothers if compliance with the provision would impose an undue hardship. Whether compliance would be an undue hardship is determined by looking at the difficulty or expense of compliance for a specific employer in comparison to the size, financial resources, nature, and structure of the employer’s business. All employees who work for the covered employer, regardless of work site, are counted when determining whether this exemption may apply. California law requires employers to provide a reasonable amount of break time to accommodate employees and make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee’s work area, to express milk in private.

Several California jurisdictions have adopted their own workplace policies in this area.  For example, San Francisco’s Lactation in the Workplace Ordinance went into effect on January 1, 2018, and requires businesses to provide employees with breaks and a designated location for lactation. Employers must also implement policies that notify employees of their right to an accommodation for lactation. The ordinance also requires newly constructed or renovated buildings designated for certain uses to include lactation rooms, and amends the San Francisco building code to specify technical specifications of lactation rooms.

Proposed Bills in the California Legislature

There are currently two proposed bills in the California legislature that would expand employer obligations for providing nursing accommodations.

Assembly Bill 1976 by Assemblywoman Monique Limón, amends current law to specify that employers have to make a reasonable effort to provide a room “other than a bathroom” (not just other than a “toilet” stall) to accommodate such employees. On April 19, AB 1976 was referred to the Senate Committee on Labor and Industrial Relations.

Senate Bill 937 by Senator Scott Weiner would require employers to provide a lactation room (other than a bathroom) that shall be “in proximity to the employee’s work area, shielded from view, and free from intrusion.” SB 937 also specifies that the lactation room must (1) be safe, clean, and free of toxic or hazardous materials, (2) contain a surface to place a breast pump and personal items, (3) contain a place to sit, and (4) have access to electricity.  The bill also requires employers to provide access to a sink with running water and a refrigerator in close proximity to the employee’s workspace. SB 937 also specifies requirements for employers with fewer than five employers, as well as compliance requirements for employers with multitenant buildings. On April 18, SB 937 was re-referred to the Senate Committee on Transportation and Housing for a hearing on April 24.

California Employment Lawyers

We will keep you posted on AB 1976 and SB 937 as these bills develop in the legislature. In the meantime, if you feel you have not been afforded the proper accommodations or the breaks you are entitled for breastfeeding or lactation, don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Should you have questions about your rights as a nursing mother, call and speak to an experienced California lawyer toll-free at (888) 500-8469 or click here to contact us via email.

Kingsley & Kingsley

16133 Ventura Boulevard, Suite 1200
Encino, California 91436
Phone: 888-500-8469
Local: 818-990-8300 (Los Angeles Co.)

wage and hour lawsuit

Protecting California Employees Workers

When seeking lawyers committed to protecting the rights of California employees or workers, look for experienced, and proven, wage and hour legal specialists. It can take a lot of bravery to stand up to an employer who refuses to pay you fair wages or the overtime you deserve, or who requires you and other employees to work under unsafe conditions or without adequate rest periods. Retaining a qualified California attorney will make it easier for you to stand up for your rights and win your case.

You are entitled to all of your earned compensation in California. This includes your hourly or salary wages, overtime, commission, bonuses, off-the-clock work, and vacation time that is unused upon termination of employment.

Our firm has been serving California employees and workers, individuals and families in Los Angeles, San Diego, San Francisco, Sacramento, and throughout California since 1981. As demonstrated in the number of cases we have won for California employees and workers, we are dedicated to helping people across California harmed by the negligence or wrongdoing of corporate America. We has secured large settlements on behalf of employees, appearing in state and federal courts throughout California. No matter the complexity of your case or your employer, we are prepared to advocate on your behalf.

The firm handles most employment cases on a contingency basis, meaning we are not paid unless you win and receive compensation. Meet the team who has dedicated their work to issues of unpaid wages, overtime, rest breaks, harassment, discrimination, and more.

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