Governor Schwarzenegger Vetoes SB 1583
As previously reported in the Stoel Rives World of Employment, the California Assembly passed Senate Bill 1583, which would have made paid consultants who advise employers to treat workers as independent contractors to avoid employee status jointly and severally liable with the employer if it is determined the workers are not independent contractors. The Governator vetoed (terminated?) the bill on September 28. It does not appear likely that there is enough support in the Assembly to override the veto.
California Bans Texting While Driving
Add "texting" to the list of things you may not do in California while driving. As previously reported in the Stoel Rives World of Employment, on July 1 this year, California banned talking on a cell phone while driving (although talking on a hands-free device is still okay). However, the California legislature forgot to add texting to that ban.
Senate Bill 28, signed by the Governator on September 24, 2008, fixed the loophole. It reads: “A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.” The bill took effect immediately.
Employers in all states should consider amending their employee handbooks to discourage texting, cell phone use, computer use, or other distracting habits while employees drive on company business. In the event of an accident during work time, an employer risks significant liability if it is found the accident was caused by a distracted employee. If you don't believe the Stoel Rives World of Employment, perhaps you will believe Katie Couric:
President Bush Signs ADA Amendments Act
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As expected, President Bush yesterday signed the ADA Amendments Act ("ADAAA") into law, significantly expanding the scope of the Americans with Disabilities Act. The final version of the law can be downloaded here. The Stoel Rives World of Employment has been actively covering the law as it wound its way through Congress, and you can follow our reporting here.
The ADAAA goes into effect January 1, 2009. To help you get ready, Stoel Rives is offering free seminars on the ADAAA in its Portland, Boise and Seattle offices on December 2, 2008. For more information and to register, click one of these links:
Ninth Circuit Asks Washington Supreme Court to Define "Disability" under WLAD
The Ninth Circuit Court of Appeals earlier this week certified a question to the Washington Supreme Court, seeking that court's help in defining "disability" under the Washington Law Against Discrimination (WLAD).
Two years ago, in McClarty v. Totem Electric, 137 P.3d 844 (2006), the Washington Supreme Court significantly narrowed the definition of "disability" under the WLAD. In 2007, the Washington Legislature passed a law codifying the broader, pre-McClarty definition of disability, and explicitly stated that definition would apply retroactively.
This week, in Moore v. King County, the Ninth Circuit certified to the Washington Supreme Court the question of whether the retroactive application of the 2007 law is lawful under the separation of powers doctrine in the Washington Constitution, where the cause of action arose prior to the McClarty decision.
This case is of interest to Washington employers with pending disability claims under the WLAD. It will be a significant win for Washington employers if the Washington Supreme Court answers that the retroactive application is unlawful, as any WLAD disability cases arising before July 6, 2007 (the effective date of the new definition of "disability"), will be decided under the narrower McClarty definition of disability.
Congress Passes Bills Requiring Health Plans to Cover Mental Illness
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Yesterday, the U.S. House of Representatives and the U.S. Senate both passed laws that will require employee health plans to offer the same benefits for mental illness as they do for other medical conditions.
The House approved H.R. 6983 by a 376-47 vote, and the Senate passed another version, H.R. 6049 (a tax and energy bill containing the mental health parity legislation as a rider), by a 93-2 vote. There are some minor discrepancies between the two versions (such as how it will be paid for) to be worked out, but that should not prevent the bill from becoming law. The Bush administration has stated that it supports the Senate version of the law.
If Congress can iron out the differences before it adjourns for the year, the bill will go into effect January 1, 2008. Keep an eye on the Stoel Rives World of Employment for more developments.
Oregon Announces New Minimum Wage of $8.40 Effective January 1, 2009
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The Oregon Bureau of Labor and Industries recently announced that Oregon's minimum wage will increase from the current $7.95 an hour to $8.40 an hour effective January 1, 2009. For Oregon Labor Commissioner Brad Avakian's press release, click here.
As a result of Ballot Measure 25, passed by voters in 2002, the minimum wage is adjusted annually based on changes in inflation as measured by the Consumer Price Index (CPI). The Commissioner is charged with adjusting the minimum wage for inflation every September, rounded to the nearest five cents.
Stoel Rives Offers ADA Amendments Act Seminars in Boise, Portland and Seattle
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The ADA Amendments Act (ADAAA) will become law on January 1, 2009, substantially expanding the Americans with Disabilities Act, and increasing employers' obligations to accommodate disabled employees. To help you get ready to comply with this important new law, Stoel Rives is offering free ADAAA seminars in its Seattle, Portland and Boise offices on December 2, 2008. To register, see the links below:
For more information on the ADAAA from the comfort of your desk (or easy chair, or beach if you have an Iphone), check out the Stoel Rives World of Employment's ADAAA coverage here.
"Permanent" Strike Replacements Can Be Employed At Will
Earlier this week, the Seventh Circuit Court of Appeals ruled that an employer does not violate the National Labor Relations Act by refusing to reinstate economic strikers because it had hired permanent replacements, even though those "permanent" workers are at-will employees. The decision in United Steelworkers v. NLRB upheld an earlier National Labor Relations Board ruling, also in favor of the employer.
The court upheld the NLRB's ruling board permissibly held that employer and the replacement employees had a "mutual understanding" that, despite an at-will clause in the replacements' employment applications, their employment was, for purposes of replacing the strikers, "permanent." The Court agreed with the NLRB that an at-will employment clause in the striker replacements' job applications did not make them "temporary" replacements who normally must be terminated in favor of returning strikers.
This ruling gives employers greater flexibility in hiring permanent replacement workers in the event of a strike. Nevertheless, whether an employer may "permanently" replace strikers in a particular strike is a very complex legal issue. In any strike situation, employers need to be very careful about whether to hire "permanent" or "temporary" replacement workers, and to only permanently replace strikers if they are legally entitled to do so. And in any event, employers may not ever replace a striking Tina Fey, because she's too funny.
Ninth Circuit Upholds Legal Arizona Workers' Act
This week the Ninth Circuit Court of Appeals ruled that the Legal Arizona Workers Act (LAWA) is not preempted by the federal (IRCA). Rather, the court held, LAWA falls within the scope of the “savings clause” of IRCA’s express preemption provision as a “licensing law” and is therefore enforceable. A coalition of human rights and employers' groups challenged the law on several grounds, all of which were rejected by the Ninth Circuit. To read the court's opinion, click here: Chicanos Por La Causa v. Napolitano.
LAWA allows Arizona state courts to suspend or revoke business licenses of employers who intentionally employ "unauthorized aliens," and also required Arizona employers to use the E-Verify System to check applicants' eligibility for employment. Arizona employers should review this Notice to Employers from the Arizona State Legislature for more information.
Now that the Arizona law has been upheld (and assuming the U.S. Supreme Court does not hear further challenges), the Stoel Rives World of Employment expects anti-immigration groups to push for similar laws in other states.
President Bush to Sign ADA Amendments Act
The White House yesterday confirmed that President Bush will sign the ADA Amendments Act ("ADAAA") into law. The White House issued the following statement, which can be accessed here:
"The Americans with Disabilities Act of 1990 is instrumental in allowing individuals with disabilities to fully participate in our economy and society, and the Administration supports efforts to enhance its protections. The Administration believes that the ADA Amendments Act of 2008, which has just passed Congress, is a step in that direction, and is encouraged by the improvements made to the bill during the legislative process. The President looks forward to signing the ADAAA into law."
To read the final version of the law, click here.
The law will go into effect January 1, 2008. The House of Representatives yesterday passed the version of the bill previously approved by the Senate, which included some employer-friendly revisions designed to reach a compromise. For example, the new version removed a list of "per se" disabilities, and consistent with current law places the burden of proving a disability on the employee. However, the new law will overturn the U.S. Supreme Court's decision in Sutton v. United Airlines that mitigating measures must be considered in determining whether an individual is disabled, and the Court's decision in Toyota v. Williams, which takes a restrictive view of what constitutes a substantial limitation in the major life activity of working.
The ADAAA will make it much more difficult for employers to take the position that an individual is not "substantially limited in a major life activity" and therefore not disabled under the ADA. More requests for accommodation (and more lawsuits) are expected to follow. Watch the Stoel Rives World of Employment for continuing updates as the law goes into effect.
ADA Amendments Act Passes House - Next Stop White House
The ADA Amendments Act ("ADAAA") was passed by the U.S. House of Representatives earlier today. For more information, read the House's Press Release. As reported previously by the Stoel Rives World of Employment, the same version of the bill was recently approved by the U.S. Senate.
The next stop for the ADAAA is the White House. President Bush previously indicated he has some misgivings about the ADAAA, but given the broad bipartisan support that carried the bill through Congress, he is expected to sign it into law. (Keep in mind, it was George H.W. Bush that signed the original ADA.)
Assuming it becomes law, the ADAAA will greatly broaden the scope of the ADA. Some highlights of the ADAAA:
- Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
- Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
- Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
- Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
- Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability
The Stoel Rives World of Employment will let you know as soon as we receive word on what the White House intends to do. Stay tuned!
Failure to Accommodate Disabled Employee May Result in Constructive Discharge
According to a recent Americans with Disabilities Act case from the U.S. Sixth Circuit Court of Appeals, a failure to accommodate an employee's disability may result in a constructive discharge and expose the employer to the same kind of liability it would face had it terminated an employee because of a disability.
In Talley v. Family Dollar Stores of Ohio Inc., Talley, a former store cashier with severe arthritis, could not stand more than 15 minutes without extreme pain. She requested a stool to sit on while working, but the employer refused the request because employees complained of "favoritism" and wanted stools of their own. After the employer refused her request for an accommodation, Talley quit her job and sued for disability discrimination under the ADA, claiming that her employer's refusal to accommodate her forced her to quit.
The Sixth Circuit agreed that Talley proved a claim for constructive discharge--in other words, the employer made her working conditions so intolerable that a reasonable person would feel compelled to resign. If Talley proves her case to a jury, her former employer can be liable for several years' of backpay damages, as well as attorney's fees and possibly even punitive damages.
This case underscores employers' obligation to provide reasonable accommodations for disabled employees. While most anti-discrimination laws do not allow "favoritism," the ADA is different: an employer does have an obligation to provide disabled employees with accommodations (such as giving a disabled cashier a stool) that non-disabled employees do not receive. Perceived favoritism is simply not a defense. For technical assistance in complying with the ADA, check out the U.S. Department of Justice's ADA Page.
Stoel Rives' Seattle Office Offers "Termination Without Tears" Seminar
The touchstone in any litigation regarding termination is fairness. A jury will look to see if the employee was treated fairly given the circumstances, or if the employer acted in an arbitrary and unfair manner. An employer should always ask, "Is this termination fair to the company? To the employee? To our customers? To our shareholders?"
Please join Stoel Rives' Seattle Office for "Termination Without Tears," presented by Jim Shore and Molly Daily of the firm's Labor and Employment Group. This seminar will include:
- Interactive dramatization
- Written materials guiding you through the important steps leading up to a termination
- How to avoid pitfalls in the termination process
- How to minimize the risk of employment litigation
For more information (including registration information) click here.
Employer Violated Title VII by Terminating Employee for Undergoing In-Vitro Fertilization
In the first case of its kind before a federal circuit court, the Seventh Circuit Court of Appeals held recently that an employer violated Title VII for terminating a female employee who underwent in vitro fertilization treatments. To read the opinion in Hall v. Nalco Company, click here.
The employer terminated the employee citing “absenteeism—infertility treatments.” It then replaced her with a female employee who was incapable of becoming pregnant. The employee sued, alleging her termination violated the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy and childbirth as bases for discrimination. The employer argued that the termination was for a gender-neutral reason: infertility. However, the Seventh Circuit held that there was evidence the termination was for her gender-specific quality of childbearing, in violation of Title VII.
Despite Hall, employment actions based on infertility are not unlawful as long as they affect men and women equally. For example, employers may lawfully exclude all treatments for infertility from their health benefit plans. Employers should beware, however, of adverse treatment of a particular infertility-related procedure that affects women only. Just as an employer may not discriminate against women because of pregnancy or maternity leave, it may not discriminate against women who undergo in vitro fertilization. For more information on avoiding pregnancy discrimination, read this fact sheet from the EEOC.
ADAAA Update: Senate Approves ADA Amendments Act
The U.S. Senate yesterday approved the ADA Amendments Act (ADAAA) by unanimous consent, making enactment of the ADAAA likely. As the Stoel Rives World of Employment previously reported, the ADAAA would overturn several U.S. Supreme Court decisions that many critics claim have too narrowly interpreted the Americans with Disabilities Act's coverage. To read the Senate version of the ADAAA, click here.
The ADAAA passed the House of Representatives in June by a 402-17 vote. There are minor differences between the House and Senate versions of the bill, and the House is expected to adopt the Senate version on September 17. After that, it's on to President Bush to sign the bill, which he is expected to do. Keep watching the Stoel Rives World of Employment for further updates.
Union Liable for Improperly Accessing Drivers' Licence Records
Earlier this week, the U.S. Court of Appeals for the Third Circuit held labor union UNITE HERE liable under the federal Driver's Privacy Protection Act (DPPA) for accessing the motor vehicle records of Cintas Corp. employees to find their home addresses. The decision is available here: Pichler v. UNITE.
As part of a 2002 organizing drive, union organizers recorded the license plate numbers on employees' cars in Cintas parking lots, then sought the names and addresses of the vehicle owners, using an online database, private investigators, or information brokers. Cintas employees sued the union as part of a class action alleging that the union's activities violated the DPPA, and the Third Circuit agreed.
The court rejected the union's argument that its activity was allowed under DPPA exceptions for "activity related to litigation or law enforcement," stating that the union attempted to conceal its "clear labor-organizing purpose" for obtaining the vehicle records. The court also held that the union could be liable for punitive damages.
This decision may have far-reaching implications for unions and their conduct of organizing campaigns. Unions will often go to great lengths to obtain employees' home addresses so that union organizers can make home visits to employees (usually during prime time television) for the purposes of obtaining signatures on authorization cards or petitions. This decision takes away one common means of obtaining such information.
What Labor and Employment Law Question Would You Ask the Presidential Candidates?
The Presidential election is less than two months away, and the candidates' campaigns are in full swing. Oddly enough, the candidates have been strangely silent on labor and employment law issues, focusing their attention on other pressing national security concerns, such as putting lipstick on pigs. Glad to see they're taking the high road.
In any event, Daniel Schwartz at the Connecticut Employment Law Blog has this great post about what labor and employment law issues the presidential and vice-presidential candidates should address in their upcoming debates, withs suggestions like the Employee Free Choice Act and a bill to provide employee with paid sick leave. And if that's not your cup of tea, Dan's got this great post about the use of the phrase "lipstick on a pig" in labor and employment law.
City of Vancouver Settles Race Discrimination Suit for 1.65 Million
The City of Vancouver, Washington announced yesterday that it will pay a former police officer $1.65 million to settle a federal retaliation and racial discrimination lawsuit he filed two years ago over his termination. To read the Oregonian's coverage on the case, click here.
This isn't plaintiff Navin Sharma's first settlement with the city: he settled another race discrimination claim against the city in 2001 for $287,000. In the most recent lawsuit, Sharma claimed that his 2006 firing was in retaliation for his 2001 settlement. Vancouver admits no wrongdoing, but claims that the cost of a trial and keeping police officers in the courtroom for two or three weeks instead of performing their regular police duties promted the settlement decision.
Sharma's attorneys are calling the settlement the Northwest's largest-ever individual settlement for employment discrimination. We'll never know for sure: most discrimination cases are settled privately and the terms are confidential. This settlement is public only because the 'Couve is a public entity. In any event, it appears that the bar has been raised.
California Assembly Passes Four Employment-Related Laws
California employers take note: The California State Assembly recently passed four significant employment-related bills that you should pay close attention to:
- Medical Marijuana: A.B. 2279 would prohibit discrimination against an employee based on marijuana use, as long as the use was for medical reasons and did not occur at the workplace or during the hours of employment.
- Equal Pay: A.B. 437 would reject the "paycheck rule" established in the U.S. Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007). Under the new bill, the statute of limitations for pay claims under the state Fair Employment and Housing Act would toll with each discriminatory paycheck an employee receives.
- Independent Contractors: S.B. 1583 would make paid consultants who advise employers to treat workers as independent contractors to avoid employee status jointly and severally liable with the employer if it is determined the workers are not independent contractors.
- Arrest Records: A.B. 3063 would prohibit employers from asking applicants about arrests that did not result in convictions, or about participation in pre-trial or post-trial diversion programs.
Will the Governator sign the bills? Right now, he and the state assembly are deadlocked over the state budget, and Schwarzenegger has said he will not sign any new bills unless and until a new budget is agreed on. However, if he does not sign the bills within 30 days of their passage, they automatically become law. Stay tuned to the Stoel Rives World of Employment for more updates!
California Drywall Contractor Settles Meal Break Case for $1.4 Million
California employers beware: the state Attorney General is enforcing meal breaks and overtime laws. This week, an Orange County drywall contractor agreed to pay $1.4 million in damages to employees who did not receive their legally required meal breaks or who did not recieve overtime. To read the settlement in the case, California v. Interwall Dev. Sys. Inc., click here. To read the Attorney General's press release, click here.
The defendant also agreed to pay the state up to $131,000 in payroll taxes it should have paid if it had adequately compensated its employees, civil fines totaling $200,000, $70,000 in attorneys' fees and costs, and $26,000 to cover the cost of a "restitution administrator." Ouch.
So remember: under California law, employees are entitled to a ten-minute break every four hours and to overtime pay for working more than eight hours per day or forty hours per week. If you don't follow the law, you might get a visit from the Governator.
Number of Companies with Top Rating for Lesbian, Gay, Bisexual and Transgender Workers Jumps by One-Third
The Human Rights Campaign Foundation yesterday released its seventh annual Corporate Equality Index ("CEI"), which rates 583 large businesses on a scale from 0 to 100 percent on their treatment of lesbian, gay, bisexual and transgender employees. This year 259 businesses--employing more than 9 million full-time employees--achieved a perfect score, a one-third increase over last year. These companies protect their employees from employment discrimination based on sexual orientation and gender identity or expression through policies on diversity & inclusion, training, health care, and domestic partnership benefits.
One notable trend is that of the 583 business rated in the CEI, 99 percent have policies prohibiting discrimination on the basis of sexual orientation, a 13 percent increase over last year. 92 percent of rated employers provided health insurance coverage to employees' same-sex domestic partners.
According to Marvin Odum, president of Shell Oil, “A 100-percent rating helps us to better attract, recruit and retain diverse talent to contribute to our overall business success.” But having anti-discrimination policies is frequently more than good business--it is also the law. Many states, including California, Oregon, Minnesota and Washington, have state laws prohibiting discrimination on the basis of sexual orientation and/or gender identity, and more states are considering adopting such laws. If you don't already have an anti-discrimination policy that prohibits such discrimination, now might be a good time to adopt one.
Calling Store Manager "Grandma" Evidence of Age Bias
Here's a shocker out of Illinois: a federal district court held that a retail chain's store manager calling a department head "Grandma" was evidence of age discrimination. In McDonald v. Best Buy Co., the plaintiff alleged she was demoted and forced out of her job because of her age in violation of the Age Discrimination in Employment Act (ADEA). The defendant argued she was demoted because of her inability to effectively manage her subordinates.
The case hinged to a large degree on the fact that the plaintiff's supervisor often referred to her as "Grandma," which the plaintiff argued was evidence of age discrimination. The defendant countered that because it is technically possible for a person under age 40 (and not protected by the ADEA) to be a grandmother, "Grandma" is not an age-related nickname. The court noted that while calling someone "Grandma" does not by itself violate the ADEA, it is certainly an age-related comment and does provide evidence of an ageist motive.
Here's the lesson for employers: be careful of "cute" nicknames that could be discriminatory. There are endless cases where nicknames like "Grandma," "Honey," "Baby" and the like supported claims of discrimination. Calling an employee "Grandma" might sound endearing at the time, but in the context of a lawsuit, it will likely sound discriminatory.
