Court of Appeals: Employers Cannot Just Terminate When an Authorized Leave Expires!

February 25, 2013

A California Court of Appeal recently issued its decision in Sanchez v. Swissport, Inc., addressing whether an employee fired after exhausting her 16 weeks of pregnancy disability leave could assert valid claims against the employer for pregnancy discrimination and failure to accommodate a disability. The court said yes.

In Sanchez, the plaintiff employee only worked for Swissport for about a year and one-half when she learned she was pregnant and that she had a high-risk pregnancy requiring bed rest. She informed her employer that she needed a leave of absence from February through at least her due date in October. Her employer provided her with the full 16 weeks of pregnancy disability leave required under California’s pregnancy disability leave law. The employer also allowed her to use an additional three weeks of accrued vacation, bringing the employee’s total leave to 19 weeks. The employee was unable to return to work at the end of that 19 weeks, as it was only July and she was not due to give birth until October. Swissport terminated her employment. Can you guess what happened next?

You guessed it. The employee sued. Swissport promptly moved to dismiss the case, arguing that because it provided the maximum leave (16 weeks) required for pregnancy disability in California, the employee’s claims for pregnancy discrimination, gender discrimination, and failure to accommodate a disability were invalid as a matter of law. The trial court agreed and threw out the case. Not so fast, though…the employee successfully appealed.

In its recent decision, the California Court of Appeal held that the trial court should not have thrown out the case at the motion to dismiss stage. The court held that an employer’s providing of the 16 weeks of leave for pregnancy disability does not automatically shield the employer from claims for failure to accommodate a disability or for gender/pregnancy discrimination under FEHA. The court reasoned that an extended leave of absence (beyond 16 weeks of pregnancy disability leave) may be a “reasonable accommodation” for a disability required under FEHA, and that Swissport may have been required to provide the additional leave time absent a showing of undue hardship. The case was, therefore, remanded to the trial court level so that the employee’s FEHA claims could be litigated.

The Sanchez v. Swissport case is a good reminder for employers that simply complying with maximum leave entitlements provided under laws such as California’s pregnancy disability leave law and/or FMLA/CFRA does not necessarily satisfy an employer’s obligation to a disabled employee. Employers who terminate disabled employees simply because they have exhausted statutory leave entitlements are likely to face claims for failure to accommodate and disability discrimination. Employers should always engage in an interactive process with the employee at or near the expiration of the leave to assess how much additional leave time (or other accommodations) the employee needs and determine whether additional leave can be provided as a reasonable accommodation and without undue hardship to the employer.

NOW hopefully you understand why we always stress not to be so quick in terminating an employee who has exceeded any leave period. As we have always stated just wait, let the time pass, the more time that passes beyond the return date the better for you. You have to be patient. I know it can be frustrating but as you can see it could cost you.


Steps to Take in Advance of Workplace Investigations

February 19, 2013

Although I strongly suggest that major workplace investigations be conducted by outside assistance (less chance of bias), I wanted to provide some steps to take in advance of any investigation to make sure you have your ducks in a row.
The effective resolution of conflict in the workplace is often contingent upon proactive prevention programs including sound policies, effective training, and comprehensive intervention and follow up. Thus, an effective investigation begins with sound policies in place that are consistently and fairly followed. Even before you are aware of the need for an investigation, you need to carefully consider the company policies with regard to misconduct. Familiarize yourself with the general guidelines that the company has in place. This applies whether you are reviewing your policies overall or if you suddenly find yourself thrust into an investigation. When I do investigations, I typically will ask to see the employee handbook or policy manual prior to meeting with anyone in order to review some of these polices.

So, what exactly are you looking for? To assess all of the company’s policies, there are seven basic questions you must ask. The results of these questions will yield a great deal about the organization’s culture, method of problem-solving, consistency, communication style, and the seriousness with which the organization addresses these types of problems.

The questions are:

1. Is there consistency in all policies?
2. Are the policies clear and easily understood?
3. Do the policies utilize a maximum reservation of rights?
4. Is there consistency in application for all policies?
5. Do the policies contain all of the appropriate and required elements?
6. Are positions of authority and their responsibilities clearly defined? (In other words, who is considered management, and what is the hierarchy?)
7. How do employees know about these policies?

For each specific policy, do the following:

1. Review the types of misconduct covered by the policy, the roles and responsibilities of management and employees.
2. Review the extent to which the policy has been disseminated and whether training has been done.
This will determine whether all parties have been properly put on notice as to the policies’ existence and their responsibilities under each of the policies.
3. Review guidelines articulated under the policies with respect to specific steps that management will take in the event of a complaint of alleged violation. Review specific steps that aggrieved employees are required to take to resolve their workplace issues.

Workplace investigations can be very time consuming but in the final analysis they can help ward off allegations that the employer knew of a situation and did nothing. If you need any assistance with an investigation please let us know.


California Supreme Court: The Burden Shifts to Employers to Prove Legitimate, Non-discriminatory Reason for Termination

February 11, 2013

I know the length is longer than usual but you must read it in its entirety even if you have to come back. This is important.

The California Supreme Court issued its decision in Harris v. Santa Monica, addressing the “mixed motive” defense to discrimination claims under FEHA (Fair Employment & Housing Act). This case addresses whether a discrimination plaintiff suing under California law must prove that a discriminatory motive was (1) the “but for” cause for the adverse employment decision, (2) a lesser standard, that the discriminatory motive was a motivating factor behind the decision, even if not the dispositive factor, or (3) something in between. The California Supreme Court went with “something in between.” In short, the Court held that in mixed motive cases, if an employee proves that an employment action was substantially motivated by discrimination (but also motivated in part by legitimate, non-discriminatory reasons), the burden shifts to the employer to prove that it would have made the same decision for legitimate, non-discriminatory reasons. If the employer succeeds in proving this, then the employer wins, right? Not so fast. The Court today held that if the employer proves that it would have made the same decision for legitimate reasons, the employee may not recover back pay, reinstatement, or emotional distress damages. However, the Court held that the employee may still be entitled to declaratory relief (a court declaration that the employer engaged in unlawful discrimination), injunctive relief (a court order requiring the employer to refrain from similar acts of discrimination in the future) and—the real kicker—attorneys’ fees.

In the Harris case, the plaintiff-employee was a bus driver for the City of Santa Monica. Harris had a less than stellar performance record, to put it nicely. Shortly into her initial 40-day training period, she had an accident determined to be her fault and which caused minor damage to the bus. She then had a second at-fault accident within her first three months and while still a probationary employee. In addition to these accidents, within the first few months of her employment (also while she was still a probationary employee) she reported late to her shift twice and failed to give the dispatcher at least one hour’s notice as required by policy. Applicable policies clearly indicated that these circumstances warranted termination of employment. Indeed, following these incidents, the transit services manager and the assistant director concluded that Harris did not meet the standards for continued employment. However, prior to any termination decision actually being made and communicated to Harris, Harris had a chance encounter with her immediate supervisor (not the transit manager or assistant director), who noticed Harris’ uniform shirt sloppily hanging loose and he told her to tuck it in. At that time, Harris informed the supervisor that she was pregnant. Harris claims her supervisor looked displeased at the news. He asked her to get a doctor’s note clearing her to continue to work, which she did. A few days later, Harris’ supervisor was called to a meeting at which time he was given a list of probationary employees who were not meeting the performance standards for continued employment. Harris was on the list. Her employment was then terminated.

Harris sued for pregnancy discrimination, and the claim managed to survive summary judgment and get to trial. At trial, the City requested that the jury be instructed on the “mixed motive” defense and, more specifically, that even if the jury concluded that pregnancy discrimination was a motivating factor in the termination decision (along with legitimate reasons), the City would not be liable if it proved that it would have terminated Harris for the legitimate business reasons even without pregnancy discrimination as a motivating factor. The trial court refused to give this instruction to the jury. The trial court instead instructed the jury that the City was liable if Harris proved simply that pregnancy discrimination was “a motivating factor” in the termination decision. The jury thereafter concluded that discrimination was a motivating factor and awarded Harris about $150,000 for emotional distress and $25,000 for wage loss. In addition, because a prevailing employee is entitled to recover attorneys’ fees incurred to successfully litigate a discrimination claim, the court awarded Harris some $400,000 in attorneys’ fees.

The City appealed, and the court of appeal reversed the judgment, holding that the trial court should have given the jury instruction requested by the City. Harris then petitioned for review to the California Supreme Court, which granted review.

Recently, the Supreme Court issued its decision, agreeing with the court of appeal in part. The Court held that an employer is entitled to assert the mixed motive defense but that successful proof of the defense does not absolve the employer of all liability. The Court reasoned that if an employee proves that discrimination was a substantial factor behind an adverse employment action, it would be contrary to public policy and the purpose of FEHA to allow the employer to escape all liability. However, the Court held that where an employer proves that it would have made the same decision for legitimate business reasons irrespective of any partly discriminatory motive, the employee may not recover damages or reinstatement. In such instances, though, the trial court could still award declaratory and/or injunctive relief against the employer and also award attorneys’ fees to the employee as the prevailing party.

Given that the attorneys’ fees often exceed the damages awarded to a prevailing plaintiff in a discrimination case (such as was the case here), this still provides significant exposure to employers litigating this type of claim, even if successful in their defense. To be clear, however, an employer will not be liable for declaratory relief, injunctive relief, or attorneys’ fees in a FEHA case unless the employee proves that discrimination was a “substantial” motivating factor behind the adverse employment action. There is no concrete rule for what type of evidence will suffice, but the evidence of discriminatory motive must be substantial, not slight (e.g. a stray or isolated discriminatory remark likely would not be considered “substantial” evidence).

Thanks for reading the entire article! It is very important information.


New Immigration Waiver and its Impact on Employers

February 4, 2013

The U.S. Department of Homeland Security recently announced that certain foreign nationals who are in the U.S. who either entered the U.S. illegally, or entered legally and overstayed, will be eligible for waivers of the bar to receiving their immigrant visa from abroad. The program begins March 4, 2013 and only certain individuals will qualify.

As a brief background, most individuals must be in status in order to obtain a green card in the U.S. However, some individuals who either had no status or were out of status were nonetheless still able to do so if they had immigrant petitions filed by employers or certain family members prior to April 30, 2001. Individuals who were out of status and had immigrant petitions filed after April 30, 2001 are not eligible to adjust status in the U.S. to obtain permanent residency and must instead obtain an immigrant visa abroad from a U.S. Consulate.
Complicating matters was that Congress created a “ten-year bar” in 1996 whereby individuals who were out of status and then left the U.S. were not allowed to return for 10 years unless they can show extreme hardship to a U.S. Citizen spouse or parent. As a result, many people left the U.S. to file their waiver applications from abroad, only to get stuck abroad (usually at Ciudad Juarez, Mexico) for up to a year while their hardship waiver applications laggard in a long queue.

Fortunately, under the newly announced program, eligible individuals can apply for their waiver state side and then upon approval, they will only need to spend 2 weeks abroad.Eligible individuals must first have an approved immigrant petition filed by a sponsor and be able to show extreme hardship to a U.S. Citizen spouse or parent if the waiver of the 10-year bar is not approved. Ironically, a showing of extreme hardship to U.S. Citizen children does not qualify under the law as written by Congress back in 1996. Also, if an individual has other grounds of inadmissibility (crimes, prior deportation, misrepresentation etc.) then the I-601A waiver will not apply.

I posted this information based on calls regarding employers becoming sponsors. I have never personally been an advocate of employers sponsoring employees because I think it puts employers in the middle of an employee’s private business and possible legal entanglements. Just my opinion.