Mandatory Sick Leave Legislation Resurfaces in California

March 28, 2011

Last month, San Francisco Assemblywoman Fiona Ma reintroduced mandatory sick leave legislation in California.  Under the bill, which is labeled Assembly Bill 400, employers with 10 or less employees would have to offer full-time employees five days of paid sick time annually.  Employers of more than 10 employees would have to offer nine paid sick days per year to all full-time employees.  The bill would provide that this sick leave is mandatory for any employee who works in California for 7 or more days in a calendar year.  However, the provisions of the bill would not apply to any employees who are covered by a collective bargaining agreement that provides for sick leave.

The bill states that the leave would be available for diagnosis, care, or treatment of health conditions of the employee or an employee’s family member, or for leave related to domestic violence or sexual assault.  The bill also provides that there shall be a rebuttable presumption of unlawful retaliation if an employer denies an employee the right to use sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 90 days of filing a complaint under the statute or participates in any investigation related to denial of sick leave.

This is the third time Assemblywoman Fiona Ma has introduced mandatory paid sick leave legislation. It was introduced in 2008 and 2009 and defeated both times.  The question now is whether the economic climate and/or the fact that we have a much more employee friendly Governor will cause this bill to be more seriously considered by the California Legislature.


Ninth Court Ruling For Employers-No Marijuana Use!

March 20, 2011

Many employers require new hire candidates to undergo, and (believe it or not) pass, a drug test prior to commencing employment.  There has been a fair amount of litigation over employers’ decisions not to hire candidates who fail drug tests.  These candidates most commonly sue, claiming their drug use is tied to some sort of disability and, therefore, is “protected” under the law.  Fortunately, this is one of the few areas of law where courts have generally decided the cases favorably to employers.  The California Supreme Court has upheld an employer’s right to refuse employment to applicants who test positive for marijuana, even where the employee subsequently claims “medical” marijuana use.  Last week, the famously liberal Ninth Circuit also upheld an employer’s right to deny employment to an applicant who failed a drug test, even where the applicant claimed protection under the Americans with Disabilities Act (ADA).

In Lopez v. Pacific Maritime Association, the Ninth Circuit held that an employer’s “one-strike” rule permanently barring employment for any applicant who fails a drug test, did not violate the ADA.  The plaintiff applied to be a longshoreman in 1997.  At that time, he was apparently addicted to drugs and alcohol and unsurprisingly failed the employer’s drug test, disqualifying him from employment.   A few years later, Plaintiff allegedly decided to become clean and sober and re-applied for employment as a longshoreman in 2004.  The employer rejected Plaintiff’s application because it had a one-strike rule, whereby applicants who fail a drug test, even once, are permanently disqualified from employment.  Plaintiff sued, claiming the employer violated the ADA by discriminating against him based on his protected status as a rehabilitated drug addict.  The Court threw out the claim, holding that there was no ADA violation.  The employer’s policy treated all test failures the same–whether the failure was due to a disability or mere recreational drug use.  The employer did not even know of any disability or rehabilitation status at the time of the drug test or subsequent rejection of his employment application.  As a result, the employer could not have discriminated against the Plaintiff on this basis. 

The bottom line for employers is that drug testing policies barring employment based on test failures should be bright-line policies and administered as such.  In the absence of such a policy, employers remain exposed to claims based on alleged disability discrimination.


California Legislature Seeks annual “Automatic” Increases In Minimum Wage

March 14, 2011

Well, as if employers did not have enough to worry about now the California Legislatures want to add to thier financial woes by increasing minimum wage automatically every year! The current California minimum wage is $8.00 per hour.  The Industrial Welfare Commission is not currently scheduling any hearings to consider modifying the wage orders to increase the minimum wage.  The Legislature is moving forward on legislation on this issue however.  In December, California Assemblyman Luis Alejo introduced a bill to increase California’s minimum wage to $8.50 effective January 1, 2012.

The bill, AB 10, further provides that the minium wage would rise each year starting in 2013, effective January 1, in proportion to any rise in the the California Consumer Price Index.  Many in the business community do not oppose a modest minimum wage increase.  However, most people are adamantly against mandatory annual increases tied to the CPI.

Alejo is aggressively pushing this bill.  Last week he wrote an opinion piece in the editorial section of the San Jose Mercury News in support of the bill. 

Currently the bill has yet to be voted on by the Assembly but has been referred to the Assembly Committee on Labor and Employment.  Employers interested in minimum wage issues should keep a close eye on AB10 as it moves forward.  

 The impact may be more than you think. If this bill passes, it would mean that every business that has a minimum wage base (manufacturing operations, restaurants, fast food establishments, commissioned employees who do not make commissions greater than the hours worked, security guards, and automobile techs who are being paid twice minimum wage for having their own tools) will increase their services or products to meet the demand of the increase in payroll.

I will keep you posted.


Plaintiff Did Not Have To Prove Discrimination To Win

March 6, 2011

In a unanimous ruling, the United States Supreme Court held that a plaintiff can prove discrimination even though there is no evidence the ultimate decision maker harbored any discriminatory ill will toward the former employee.  The evidence determined that a different employee (not the ultimate decision maker) harbored discriminatory feelings and influenced the “innocent” decision maker thereby causing the adverse employment action to occur.  

In Staub v. Proctor, the plaintiff was a medical technician for Proctor.  He was also a member of the Army Reserves, which required him to attend drill sessions one weekend per month as well as trainings for two to three weeks per year.  Plaintiff’s employment with Proctor was ultimately terminated based on a decision by Human Resources.  Plaintiff sued for discrimination under the USERRA, which prohibits employment discrimination based on military service.  Plaintiff did not have any evidence that Human Resources was motivated by a desire to discriminate.  The evidence demonstrated that the termination decision itself was not made for discriminatory reasons.  However, Plaintiff argued that his immediate supervisor harbored a discriminatory attitude and that he ultimately triggered the termination because he had issued him a bogus written warning that played a role in the decision to fire him.  The lower courts disagreed on whether the evidence was sufficient to entitle the Plaintiff to a trial on his discrimination claim.  The appeals court held that Proctor was entitled to summary judgment because the evidence showed that the ultimate termination decision was made by someone with no discriminatory ill will who independently reviewed the facts and that the decision wasn’t wholly dependent on the written warning that had been issued by Plaintiff’s supervisor.

The United States Supreme Court reversed, holding that the evidence was sufficient to support a finding that the termination decision was proximately caused by the written warning, and that there was some evidence that the written warning was discriminatorily motivated.  As a result, the Court held that an employer cannot shield itself from liability simply by demonstrating that the ultimate decision maker did not discriminate.  If there is evidence that the ultimate decision maker was influenced by other supervisors who had such a motive, a plaintiff can prove discrimination based on such a theory. 

It is clear that human resources needs to double check each termination request to ensure that the supervisor making the recommendation does not have an ulterior motive.