disability discrimination

EEOC Alleges ADA Disability Discrimination California Health System Hospital Provider

ADA and Disability Discrimination

EEOC Alleges Dignity Health Fired Longtime Employee with Vision Loss in Violation of ADA

On July 12, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit against Dignity Health, a healthcare company headquartered in San Francisco and operator of a medical center in Redding, California.  The EEOC claims the company violated federal law when it refused to provide accommodations to allow a 10-year employee to return to work after she suffered a sudden loss of vision, and instead fired her by selectively applying a previously unused vision requirement.

According to the EEOC’s investigation, Alina Sorling worked as a food service technician in Mercy Medical Center’s cafeteria for over ten years, performing tasks that included cashiering, grilling, cleaning and stocking. A severe illness left her with vision loss and Sorling took an unpaid leave of absence to rehabilitate and learn non-visual techniques necessary for independent living. According to the EEOC report, Sorling successfully mastered everyday tasks such as cooking in her own kitchen and proficiency with knife skills. Therefore, Sorling sought to return to work and informed her employer of multiple accommodations that she or the California Department of Rehabilitation could provide to allow her to perform the duties of her job. Making unsupported assumptions about safety and her capacity, Dignity Health unilaterally rejected the suggestions, and cited a 20/40 vision requirement when they fired her in June 2015 – even though they had never administered a vision test in the ten years she had worked there.

Americans with Disabilities Act (ADA)    ADA disability discrimination

Americans with Disabilities Act  – The ADA prohibits discrimination against people with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government’ programs and services. As it relates to employment, Title I of the ADA protects the rights of both employees and job seekers. The ADA makes it unlawful to discriminate against people with a disability, a record of a disability, or who are regarded as having a disability. Further, the ADA requires employers to provide reasonable accommodations to employees absent an undue hardship.

In this case, the EEOC filed suit in U.S. District Court for the Northern District of California after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s lawsuit seeks lost wages and expenses, front pay, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future. Speaking specifically of the case and disability discrimination, William Tamayo, the EEOC’s San Francisco District Office Director remarked, “Instead of allowing her (Sorling) to demonstrate her abilities, Dignity Health excluded her due to fixed assumptions about her disability and limitations. Congress enacted the ADA to combat exactly this type of injustice.”

According to the EEOC release, Dignity Health is the fifth-largest health system in the United States and comprises more than 60,000 caregivers and staff, delivering care to communities across 21 states. Dignity Health is the largest hospital provider in California and operates Mercy Medical Center in Redding, where Sorling worked for ten years before she was fired.

Questions about Disability and Discrimination

Should you have questions about ADA or disability discrimination don’t hesitate to contact leading California employment lawyers at Kingsley & Kingsley. Call and speak to an experienced California lawyer toll-free at (888) 500-8469 or 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.)

Court House California

SCOTUS Strikes Down Union Dues Paid by Nonconsenting Government Employees

Agency Fees – Background

In Janus v. AFSCME, Counsel 31, Mark Janus, a child-support specialist with the State of Illinois Department of Healthcare and Family Services, challenged the constitutionality of the public-sector agency fee arrangement created by Abood v. Detroit Bd. Of Ed., 431 U.S. 209 (1977). Mr. Janus argued that the “agency fees” or “fair share fees” deducted from his paychecks by the American Federation of State, County and Municipal Employees (AFSCME) constituted compelled political speech in violation of his First Amendment Rights.

Reversal of Abood v. Detroit Board of Education Decision (1977)

The U.S. Supreme Court’s (SCOTUS) decision in this case overturned 41 years of precedent set by Abood, where the Court previously held that public-sector unions could collect an agency fee from employees in union-represented bargaining units who opted not to become members of the union. Because all employees in such units are represented by the union and covered by the collective bargaining agreement regardless of union membership, Abood permitted unions to collect a fee to help cover the costs of collective bargaining and other services, as long as the fee did not support the union’s political and ideological activities.   agency fees - employment law California

In a 5-4 decision, the Court held that “States and public-sector unions may no longer exact agency fees from nonconsenting employees… [as this] procedure violates the First Amendment.” The decision was authored by Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Thomas and Gorsuch. Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor, filed a dissenting opinion.

The majority understood that dollars are fungible, and that therefore all fees required by public-sector unions are a matter of speech. The majority rejected the argument that the “free rider” problem discussed in Abood justified burdening the First Amendment rights of employees who object to supporting the union financially. Writing for the majority, Justice Alito stressed the importance of rectifying the unconstitutional burden placed on public-sector employees. “It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue…”

Impact of SCOTUS Decision

The bottom line of the Janus decision is that neither agency fees nor any other payment to a union may be deducted from a nonmember’s wages unless the employee affirmatively consents to pay. This decision immediately affects 22 states and D.C., all of which have “fair share” laws on the books authorizing public-sector unions to collect agency fees from non-union employees who fall within the union’s collective bargaining unit. It remains to be seen how public sector unions will adapt to smaller member-pools in the short run and the need to encourage new members in the long run.

California employers and employees alike may have questions about this most recent SCOTUS decision. Should you have questions about federal or California’s wage and hour laws don’t hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers if you have questions about any of California’s existing employment laws.

Kingsley & Kingsley

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

wage and hour laws

California Wage and Hour Laws

California employers face an ongoing challenge in keeping up with federal and California wage and hour laws that regularly change. Large employers may face stiff penalties for seemingly small violations or claims for unpaid wages increasing exponentially since wage and hour claims often accrue on a per employee, per day basis. On the other hand, small and mid-sized companies can also be negatively impacted by violations related to overtime payments, improper reimbursement of expenses, not paying prevailing wages, or not offering proper meal and rest breaks. The primary wage and hour laws are briefly described below. As you navigate this complex area of the law, don’t hesitate to reach out to an experienced employment or labor lawyer for guidance or to discuss your unique situation.

Overtime
While there are some exceptions, in the state of California, if you are over the age of 18 and work more than eight hours a day or 40 hours a week, you are entitled to overtime compensation. You can work more than eight hours a day or six days in a row, provided you are paid overtime compensation equal to:

  • One and a half times the regular rate of pay for any hours worked over 40 hours in a week
  • One and a half times the regular rate of pay for any hours over eight hours in one day
  • Double the regular rate of pay for all hours worked above 12 hours in one day
  • Double the regular rate of pay for all hours in excess of eight hours, when working the seventh consecutive day in a work week

Reimbursement for Expenses
California Labor Code Section 2802 requires an employer to reimburse an employee for all necessary expenses or losses incurred in direct consequence of the discharge of his or her duties, including driving expenses and cell phone use. The law further provides that the penalty for failing to reimburse an employee includes liability for the expenses plus interest, as well as attorney fees and costs incurred in obtaining reimbursement. Employees can recover up to four years of un-reimbursed expenses.

Prevailing Wages
California Wage and HourCalifornia wage and hour laws require payment of locally prevailing wages (including employer payments for employee benefits) to workers, laborers, and mechanics on state government contracts in excess of $1,000 for public works projects. California prevailing wage requirements may also apply where a construction contract between private persons involves public works. Contractors and subcontractors on covered projects must also comply with additional requirements, such as providing workers’ compensation coverage, maintaining certified payroll records and making such records available for inspection, and complying with apprenticeship obligations.

Commission & Piece Rates
Piece-rate is defined as “work paid for according to the number of units turned out.” Consequently, a piece-rate must be based upon an ascertainable figure paid for completing a particular task or making a particular piece of goods. The most recent change to California’s Labor Code in this area was the passing of AB 1513, which went into effect on January 1, 2016. AB 1513 added section 226.2 to the California Labor Code, which applies “for employees who are compensated on a piece-rate basis for any work performed during a pay period.” Labor Code section 226.2 does two things:
1. Establishes compensation and wage statement requirements for rest and recovery periods and “other nonproductive time” for piece-rate employees going forward from the effective date of the statute.
2. Establishes, for certain employers and under certain circumstances, an “affirmative defense” to any claim or cause of action for damages or statutory penalties based on an employer’s alleged failure to pay compensation due for rest and recovery periods and other nonproductive time for time periods prior to the effective date of the statute.

Meal & Rest Breaks
California employers cannot employ someone for a work period of more than five hours without providing an unpaid, off-duty meal period of at least 30 minutes. The first meal period must be provided no later than the end of the employee’s fifth hour of work. Further, during this meal period, the employer shall:

  • Relieve its employees of all duty.
  • Relinquish control over their activities.
  • Permit employees a reasonable opportunity to take an uninterrupted, 30-minute break.
  • Not impede or discourage employees from taking a break.

A meal break can be unpaid only if all of the above conditions are met. Note: When a work period of not more than six hours will complete the day’s work, the meal period may be waived by mutual consent of the employer and the employee.

California employers must provide a second meal break of no fewer than 30 minutes for all workdays on which an employee works more than 10 hours. The second meal break must be provided no later than the end of an employee’s 10th hour of work. Similar to the above situation, an employee can waive the second meal period only if all of the following conditions are met:

  • The total hours worked on that workday are not more than 12.
  • You and the employee mutually consent.
  • The first meal break of the workday was not waived.

Misclassification – Contractors vs. EmployeesCalifornia Wage and Hour

According to the Wage and Hour Division of the Department of Labor, misclassified employees often are denied access to critical benefits and protections they are entitled to by law, such as the minimum wage, overtime compensation, family and medical leave, unemployment insurance, and safe workplaces. Employee misclassification generates substantial losses to the federal government and state governments in the form of lower tax revenues, as well as to state unemployment insurance and workers’ compensation funds.

The IRS has a 20-factor “right-to-control” test that is used to determine whether an individual is an employee or an independent contractor. However, the IRS says that the facts that provide evidence of the degree of control and independence fall into three basic categories:

  1. Behavioral
  2. Financial
  3. Type of relationship

The DOL, the IRS, state government agencies and courts construe independent contractor status narrowly and impose large penalties for misclassification.

California’s Labor Commissioner is charged with enforcement of worker misclassification and like other provisions of the Labor Code, it gives those affected the right to file a complaint. The definition of willful misclassification is voluntarily and knowingly misclassifying an employee as an independent contractor. The willful misclassification of individuals as independent contractors can cost employers civil penalties of between $5,000 and $25,000 per violation.

California Employment Lawyers
California employers must maintain compliance with both federal and California wage and hour laws year-round. This means understanding when those laws are similar and when differences exist. This also means knowing which legal provisions are most favorable to employees. Should you have questions about federal or California’s wage and hour laws don’t hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers if you have questions about any of California’s existing employment laws.

Kingsley & Kingsley

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

 

Los Angeles, California, USA

Fair Employment and Housing Council Broadens Definition National Origin

National Origin Discrimination

Changes Made to Protect Against National Origin Discrimination to Include
Specific Provisions Relating to Language Restrictions and Employees’ Immigration Status

The California Fair Employment and Housing Council published new regulations on May 17th relating to national origin discrimination. The regulations will take effect on July 1, 2018, and will be codified in the California Code of Regulations sections 11027 and 11028.

The revised regulations expand the scope of the current discrimination provisions of California’s Fair Employment and Housing Act (FEHA) specific to national origin by extending the definition of “national origin”, which includes the individual’s or ancestors’ actual or perceived national origin to include:

  1. physical, cultural, or linguistic characteristics associated with a national origin group;national origin discrimination
  2. marriage to or association with persons of a national origin group;
  3. tribal affiliation;
  4. membership in or association with an organization entified with or seeking to promote the interests of a national origin group;
  5. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  6. name that is associated with a national origin group.

Including both current and revised regulations, the following activities are expressly prohibited unless there is a business necessity.

  • An employer cannot discriminate against a person based on their level of English proficiency unless proficiency is required to effectively fulfill the employee’s job duties. Relevant factors include the type and degree of proficiency and the nature and job duties of the position.
  • Policies that limit or prohibit the use of any language, including, but not limited to an English-only rule. The new regulations state that unless an employer can demonstrate a business necessity “any language” restrictions are presumed unlawful. In addition to a business necessity, an employer with a policy limiting or prohibiting any language must demonstrate that the restriction is 1) narrowly tailored and 2) the employer notifies employees of the circumstances and time when the language restriction must be observed, in addition to notifying the employees of the consequences for the violation.
  • An employer cannot discriminate against a person because of his or her accent unless the employer can show that the accent “interferes materially” with the employee’s ability to do his/her specific job.
  • The regulations go into further detail as to what constitutes a business necessity.
  • The regulations prohibit discrimination against employees due to their immigration status unless the employer shows by “clear and convincing” evidence that its actions were necessary to comply with federal immigration laws. California employers must still ensure proper completion of Form I-9 for each individual they hire and may not hire individuals who cannot demonstrate their identity and employment authorization.

In addition to the specific prohibitions above, the new FEHA anti-discrimination regulations also include a number of miscellaneous provisions related to height and weight restrictions that disproportionately affect members of one national origin group as well as derogatory comments, slurs, or non-verbal conduct based on national origin, including threats of deportation, derogatory comments about immigration status, or mockery of an accent or a language,

California Employment Lawyers
The regulations specifically note that “a single unwelcomed act of harassment may be sufficiently severe to create an unlawful hostile work environment”. With this in mind, an experienced employment lawyer may be able to help you determine if you’ve been a victim of discrimination. To discuss new FEHA regulations, or any of California’s discrimination 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.

 

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.]

Background

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.

Conclusion
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.)