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.)

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.)

 

parental leave

EEOC, Estee Lauder Reach Deal Parental Leave Lawsuit

Estée Lauder and EEOC Agree to Settle Sex Discrimination / Parental Leave Case

Summary
California employers must understand the multitude of laws affecting time off for the birth of and bonding with children. At the federal level, it all started with the Family and Medical Leave Act, or FMLA which provides for 12 weeks of unpaid leave for the birth or adoption of a child. The FMLA also allows time off for an employee’s own serious health condition, including any pre- and post-birth health issues that the mother may have. That fact alone suggested to some employers that mothers need more time to deal with the birth of a child than fathers. This is true with regard to paid pregnancy-disability leave but not the fact with paid child-bonding leave.

Estée Lauder Companies, Inc. is one of the world’s leading manufacturers and marketers of skin care, makeup, fragrance and hair care products. The Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit that the company violated federal law when it implemented and administered a paid parental leave program that automatically provides male employees who are new fathers lesser parental leave benefits than are provided to female employees who are new mothers. Estée Lauder and the EEOC agreed to settle the case earlier this year, however the terms of the settlement were not disclosed.

Bottom Line: Employers should ensure that their policies distinguish between disability leave following childbirth, which applies only to biological mothers, and bonding leave, which the EEOC has stated cannot distinguish between mothers and fathers under Title VII.

Background

The EEOC case against Estée Lauder arose when a male employee working as a stock person in an Estée Lauder store in Maryland sought parental leave benefits after his child was born. He requested, and was denied, the six weeks of child-bonding leave that biological mothers automatically receive, and was allowed only two weeks of leave to bond with his newborn child. Such conduct violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on sex.

According to the suit, in 2013 Estée Lauder adopted a new parental leave program to provide employees with paid leave for purposes of bonding with a new child, as well as flexible return-to-work benefits when the child bonding leave expired. Under its parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, Estée Lauder also provides eligible new mothers an additional six weeks of paid parental leave for child bonding. Estée Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding. The suit also alleged that new mothers are provided with flexible return-to-work benefits upon expiration of child bonding leave that are not similarly provided to new fathers. The EEOC sought back pay and compensatory and punitive damages on behalf of the aggrieved class members, as well as injunctive relief.

Discussion parental leave
It has becoming increasingly common for employers to offer paid leave to new parents even though the Family Medical Leave Act (FMLA) does not require an employer to pay an employee who is taking this leave. In fact, according to the Society for Human Resource Management’s (SHRM’s) 2017 Employee Benefits survey, on average, organizations that offer paid leave for a new child provide 41 days for new mothers and 22 days for new fathers. Notwithstanding the fact that Estee Lauder was not required to offer any paid child bonding leave to males or females, the EEOC took the position that by not offering the same benefit to men and women, Estes Lauder was discriminating against men.

California, New Jersey, Rhode Island, Washington and New York City currently have paid-leave statutes that cover parental leave and other family-related leave. Further, many states have laws on pregnancy-disability leave, accommodation and parental leave. Some cities and counties do as well and these laws can require either paid or unpaid time off. If an employer has employees in multiple locations, it should make sure that its parental-leave policy complies with all local laws.

Conclusion

Numerous employers still make a distinction in their parental-leave policies between primary and secondary caregivers. The EEOC lawsuit and the resulting settlement should not deter companies from implementing paid-child-bonding-leave policies, however employers should ensure that these benefits apply equally to all new parents.

The preceding case highlights the number of parental leave and paid time-off laws California employers must fully understand. Should you have questions about FMLA, parental leave, or sex-based 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.)

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.)

SCOTUS Rejects Narrow Construction FLSA Overtime Exemption

FLSA Overtime Exemption

The Fair Labor Standards Act (FLSA) requires employers to pay overtime compensation to covered employees, but provides numerous categories of workers an overtime exemption. On April 2, 2018, the Supreme Court of the United States (SCOTUS) rejected the longstanding principle that these FLSA exemptions must be construed narrowly, holding that service advisors at a California automobile dealership are exempt from the overtime requirements under the FLSA.

Background

As we covered in previous posts about overtime exemptions, at issue in Encino Motorcars, LLC v. Navarro was the “exempt” classification of service advisors at a car dealership. The service advisors premised their argument for overtime on a 2011 Department of Labor rule that expressly excluded service advisors from the definition of “salesman.”  The specific section of the FLSA is section 213(b), which exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles ….” Service advisors sell, but they sell mechanic service rather than cars, and they are not mechanics themselves. The advisors argued that they fall into a gap in 213(b): they are not “salesm[e]n … primarily engaged in selling … automobiles,” and they are not “partsmen, or mechanic[s] primarily engaged in … servicing automobiles.” In response, the dealer argued that service advisors are plainly “salesm[e]n … primarily engaged in … servicing automobiles ….”

The district court found that the FLSA overtime exemption applied to service advisors. The Ninth Circuit reversed, deferring completely to the 2011 DOL rule.  The Supreme Court rejected this conclusion, holding that the regulation was procedurally defective and courts should not defer to it or rely upon it.  The Supreme Court remanded the case to the Ninth Circuit for reconsideration. The Ninth Circuit again found that service advisors were entitled to overtime because they do not fall within the exemption.

SCOTUS Opinion  FLSA overtime exemption

In its second look at this particular exemption in recent years, the Supreme Court again reversed, basing its conclusion on what it called a “best reading” of the statute’s text. The Court held 5-4 with its opinion reading, “We reject this principle as a useful guidepost for interpreting the FLSA…. Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to give [them] anything other than a fair (rather than a “narrow”) interpretation.’”

Justice Clarence Thomas’ opinion noted that the FLSA contains “over two dozen” exemptions, that the exemptions “are as much a part of the FLSA’s purpose as the overtime-pay requirement,” and that “[w]e have no license to give the exemption[s] anything but a fair reading.” The Court further held that the exemption was not limited to sales employees primarily engaged in selling automobiles and ultimately held that service advisors were exempt because they are “salesm[e]n . . . primarily engaged in . . . servicing automobiles.”

In dissent, Justice Ginsburg, along with Justices Breyer, Sotomayor, and Kagan, sought to emphasize how the majority’s holding was a stark departure from precedent. Underscoring the importance of the Court’s holding regarding the interpretation of FLSA exemptions, Justice Ginsburg wrote that the Court was overruling “half a century” of precedent by rejecting the narrow construction principle.

Conclusion

The Court’s decision is significant as it abandons the longstanding principle that FLSA exemptions are to be construed narrowly in favor of non-exempt status. Generally speaking, courts will now need to place exemptions on the same statutory and interpretive footing as the substantive overtime requirements in the statute. For example, the more common FLSA exemptions, such as the executive, administrative and professional employee exemptions may now be subject to the broader “fair reading” standard in cases that come before the High Court. 

The lawyers at Kingsley & Kingsley will continue to monitor SCOTUS opinions on FLSA exemptions. In the meantime, should you have questions about California’s wage and hour laws, don’t hesitate to contact one of our leading California employment lawyers.

Call and speak to an experienced California lawyer toll-free at (888) 500-8469.

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