Ninth Court Circuit of Appeals: Medical Marijuana Use Not Protected by ADA

May 28, 2012

In Ross v. Raging wire, the California Supreme Court held that an employer may lawfully terminate an employee (or refuse to hire an applicant) who tests positive for marijuana, even if the marijuana use if for lawful medical purposes under California law.  This week the Ninth Circuit held that the ADA similarly does not protect medical marijuana use.  In James v. City of Costa Mesa, the Ninth Circuit held that the ADA does not protect individuals who claim discrimination against them because of medical marijuana use.  The court reasoned that the ADA excludes from coverage disabilities based on illegal drug use, and that “illegality” is tied to federal, not state, law.  Because marijuana is illegal under federal law, medical marijuana use is not covered under the ADA, even if states such as California have legalized the medical use of marijuana.  Employers should note that while it is not unlawful to discriminate against an applicant or employee on the basis of their marijuana use (even if for medical reasons), it is still unlawful to discriminate against an applicant or employee for an underlying disability (for which the individual may be using the medical marijuana).  As such, employers should use caution in handling these situations to minimize risk and ensure they can demonstrate that any adverse employment decisions were based on knowledge of illegal marijuana use and not on knowledge of an underlying disability.

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Federal Court Invalidates NLRB’s New Union Election Rule!

May 21, 2012

The United States District Court for the District of Columbia issued a ruling last week invalidating the NLRB’s new election rule.   The court held that the rule was not properly adopted because the NLRB lacked a quorum when it voted to adopt the rule.  Only two NLRB members voted on the rule.  A third had voiced opposition to the rule and made clear that his position was to oppose the rule’s adoption.  However, he did not actually participate in the vote.  According to the court, this resulted in the lack of a quorum and rendered the rule’s adoption ineffective.  As a result of the court’s holding, for now the new election rule is invalid and representative elections will proceed under the old rules.  It is of course possible that the NLRB will simply hold a new vote on the election rule, and employers will be back in the same position shortly only to await legal rulings on substantive challenges to the election rule. 

On the heels of the federal court decision invalidating the NLRB’s new election rule that had taken effect April 30, the NLRB announced today that it is suspending implementation of the rule as a result of the court decision.  The NLRB stated that it is reviewing the court decision and considering how it will respond. We’ll keep you posted on any further developments. However, for now, do not be concerned about putting up the union election posters.


Federal Court Invalidates NLRB’s New Union Election Rule!

May 21, 2012

The United States District Court for the District of Columbia issued a ruling last week invalidating the NLRB’s new election rule.   The court held that the rule was not properly adopted because the NLRB lacked a quorum when it voted to adopt the rule.  Only two NLRB members voted on the rule.  A third had voiced opposition to the rule and made clear that his position was to oppose the rule’s adoption.  However, he did not actually participate in the vote.  According to the court, this resulted in the lack of a quorum and rendered the rule’s adoption ineffective.  As a result of the court’s holding, for now the new election rule is invalid and representative elections will proceed under the old rules.  It is of course possible that the NLRB will simply hold a new vote on the election rule, and employers will be back in the same position shortly only to await legal rulings on substantive challenges to the election rule.  

On the heels of yesterday’s federal court decision invalidating the NLRB’s new election rule that had taken effect April 30, the NLRB announced today that it is suspending implementation of the rule as a result of the court decision.  The NLRB stated that it is reviewing the court decision and considering how it will respond. So, for now, do not be concerned about putting up the federal poster regarding union elections.

We’ll keep you informed of any further developments. For now, no new union election posters are required.

 


Transgender Individuals Are Now Protected Under Federal Law

May 14, 2012

The Equal Employment Opportunity Commission (EEOC) issued a ruling giving transgender individuals protections against discrimination in the workplace, concluding that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex’ and such discrimination…violates Title VII.”  For California employers, discrimination against transgender employees and job applicants has been prohibited since 2004, when the Legislature passed the Gender Nondiscrimination Bill of 2003 and in so doing amended the Fair Employment and Housing Act to specifically include transgender people.  But California is in the minority of states, as only fifteen other states prohibit employment discrimination based on gender identity.  No federal court has held that Title VII’s anti-discrimination provisions apply to transgender people, but the practical effect of the EEOC’s ruling is transgender people are now protected by federal law and have legal recourse if they are denied a job or fired because they are transgender.

The ruling came as a result of a discrimination complaint filed by a transgender woman who was denied a job as a ballistics technician at the Walnut Creek, California laboratory of the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives.  The applicant was a veteran and former police detective, and initially applied for the position as a male and was told that she was virtually guaranteed the job.  After she disclosed her gender transition in the middle of the hiring process, the applicant was told that funding for the position had been cut, and subsequently learned that someone else had been hired for the job.

Even though the complaint was brought against a federal agency, the EEOC’s ruling applies to both public and private employers alike.  California employers should have already taken measures to ensure against discrimination, including discrimination against those who are transgender.  But given yesterday’s decision, companies in all fifty states – including California employers with operations in other states – should take steps to prevent such discrimination.  For example, employers should make sure that “gender identity” is part of the existing company nondiscrimination and anti-harassment workplace policies, and strive to create a non-discriminatory environment in the workplace so as to avoid costly litigation.

 

Enforcement of Attendance Policy Does Not Violate ADA Where Attendance is Essential Function  

The Ninth Circuit held that where attendance is an essential function of the job (isn’t it always?), an employer’s enforcement of its attendance points policy as to a disabled employee does not constitute a failure to reasonably accommodate under the ADA.  In this particular case, the employee was a neonatal intensive care nurse who had an abominable attendance record due to a multitude of stated reasons, ranging from fibromyalgia to personal life issues.  Even though she worked part-time and only a couple of shifts per week, she was continually absent.  She also took a variety of leaves of absence, all accommodated by her employer.  The employer had an attendance policy that allowed up to five unplanned absences in a rolling 12 month period.  This employee regularly exceeded the limit and had a history of performance discipline for her unexcused absences.  The employer quite reasonably tried to work with the employee to save her, allowed several exceptions from the policy for her, and gave her numerous chances to improve her attendance and escape termination.  The employee nonetheless did not improve her attendance and admittedly continued to exceed the allowed unplanned absences under the attendance policy (she was even absent for a planned meeting to discuss her attendance).  She requested that her employer except her from the attendance policy and essentially allow her uncapped unplanned absences, apparently as a “reasonable accommodation” for some sort of disability.  The employer did not agree.  She was ultimately terminated (duh).  Not to be deterred, she filed a lawsuit claiming the employer violated her ADA rights by not excepting her from the attendance policy as a reasonable accommodation under the ADA.   

In the lawsuit, the employer did not dispute that the employee was disabled.  The dispute focused instead on whether the employer had a duty to except the employee from the attendance policy as a reasonable accommodation.  The trial court said no and granted the employer summary judgment.  The employee appealed to the Ninth Circuit, which agreed with the trial court.  The Ninth Circuit held that the employer had adequately established that regular attendance is an essential function of the position of a neonatal ICU nurse and that an employer is not required by the ADA to relieve a disabled employee from essential functions as an accommodation. Note: The ADA is a federal protection. Those employers in California have to be careful under the Fair Employment & Housing Act which has a stricter guideline than the ADA.


California Supreme Court Rules No Attorney Fees For Claims for Missed Breaks

May 7, 2012

Image The California Supreme Court has issued a very important decision as to whether or not   a prevailing party in a rest break case is entitled to recover attorneys’ fees incurred in litigating the case.  In a recent case, the defendant employer was the prevailing party on a claim by plaintiffs for alleged missed rest breaks. The employer, as the prevailing party, sought to recover its attorneys’ fees under Labor Code section 218.5, which on its face allows for an award of attorneys’ fees to “the prevailing party” in “any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.”  The trial court awarded attorneys’ fees to the employer on multiple claims, but the court of appeal reversed because each of the Labor Code provisions specifically allow for only one-way fee shifting in favor of a prevailing plaintiff.  The court of appeal upheld the award of attorneys’ fees to the employer on the rest break claim, holding that the claim sought additional “wages” and was, therefore, covered by Labor Code section 218.5 and its mutual fee shifting provision.  The plaintiffs sought review by the California Supreme Court, arguing that the rest break claim was governed by section 1194’s unilateral fee shifting provision because it was really in the nature of an action for payment of less than the minimum wages required by law. 

The Supreme Court rejected the plaintiffs’ argument. As such, the Court held that section 1194 does not provide a mechanism for a prevailing party to recover attorneys’ fees on a rest break claim.  Using somewhat strained reasoning, the Court held that a claim for missed rest breaks is not a claim for “nonpayment of wages” within the meaning of 218.5 (even though the Supreme Court recently held that the premium pay owed for missed breaks is a “wage” and not a “penalty”).  Nor is a claim for missed rest breaks a claim for nonpayment of fringe benefits or health and welfare contributions.  Instead, according to the Court, a claim for missed breaks is a claim for denial of a mandated break and, as such, is not covered by the express language of section 218.5 and 1194 of the Labor Code does not provide a mechanism for a prevailing party to recover attorneys’ fees on a claim for missed breaks.

The Supreme Court’s decision is a good one for California employers because the decision precludes prevailing plaintiffs from recovering attorneys’ fees in connection with meal and rest break claims.  This should operate to drive down the incentive for the plaintiffs’ attorneys to file so many actions against employers for rest and meal breaks.