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Thursday
Dec102015

Wrongful Termination & Disability Discrimination: Sarkisian Goes Head to Head With USC

Wage and Hour DefenseEmployment Litigation Defense

 

 

by Sue M. Bendavid

818.907.3220

 

Employment Discrimination Defesne

 

After a much publicized struggle with alcoholism and public firing by the University of Southern California, former head coach for the football team, Steve Sarkisian, has filed a lawsuit against the university.

According to several media outlets, one of the incidents that led to Sarkisian’s termination was the coach’s inability to speak properly at a USC pep rally in August.

The coach was slurring, and used an expletive while speaking onstage. In contrast, Sarkisian claims he had a few beers and took some anti-anxiety medication before the event. Allegedly, USC’s athletic director, Pat Haden, demanded Sarkisian sign a letter requiring the coach apologize to the team and the media, and to obtain counseling with a school therapist.

Sarkisian’s lawsuit against USC asserts claims for, among other things, breach of contract, disability discrimination, medical confidentiality violations, and wrongful termination. Sarkisian is seeking $12.6 million in contract damages as well as additional sums for “extreme mental anguish as a result of not only his wrongful termination, but also the manner in which he was terminated and the statements made about that termination by USC.”

The complaint also states that:

“Instead of supporting its Head Coach, Steve Sarkisian, when he needed its help the most, USC kicked him to the curb. Instead of honoring the contract it made with Steve Sarkisian, USC kicked him to the curb.”

Sarkisian and his attorneys further allege that Haden repeatedly and derisively said “Unbelievable” during a phone call in which Sarkisian asked for time off to get help for alcohol addiction, placed the coach on indefinite leave, and subsequently wrongfully terminated him.

Both state and federal law provide protections for disabled employees. California’s law is the Fair Employment and Housing Act (FEHA).  The federal law is the Americans with Disabilities Act (ADA).  Both FEHA and the ADA recognize that alcoholism is a form of disability. As noted by the Equal Employment Opportunity Commission (EEOC), employers must make reasonable accommodations for disabled employees if the accommodation will not result in an undue hardship on the employer.

Also, under California Labor Code Sections 1025-1028, certain employers must make reasonable accommodations for employees who ask for time off to enter rehab. And, the employer must maintain the employees’ privacy.

What Should Employers Do To Keep Workplaces Running Safely and Efficiently?

Lawyer for EmployerEmployers should remember that alcoholism is a disease recognized by the American Medical Association, and that this disease may entitle an employee to take time off from work. Not only may employees have leave rights under the ADA and FEHA, but also under other leave laws such as the Family and Medical Leave Act and the California Family Rights Act (for employers with more than 50 employees).

Employers who must terminate an alcoholic should do so with caution. They should consider all of the circumstances of the employee, including work history, performance records and other factors. Documentation of misconduct is key to helping prove that the termination was due to performance and not to a disability.

Employers should also establish policies and ensure all employees are aware of such policies prohibiting the use of alcohol or controlled substances while working.

 

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her by phone: 818.907.3220, or by email: sbendavid@lewitthackman.com.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Friday
Mar072014

Employers: Don't Forget to Designate Employees' Time Off

Wage and Hour DefenseEmployee Leave of Absence Claim Defense

No Harm No "Fowl" in FMLA Case - 9th Circuit

by Sue M. Bendavid

818.907.3220

 

Score one for the employers in this case, but do so with caution:

Foster Farms did not violate California and federal law when the company fired an employee for returning to work more than two weeks after her vacation ended, according to the Ninth Circuit Court of Appeals.

Lawyers for Employers - FMLA ClaimsThe employee, Maria Escriba, requested two weeks' vacation to tend to her ill father in Guatemala. Her supervisor asked Escriba twice if she needed to apply for leave under the Family and Medical Leave Act (FMLA), which Escriba declined. She then asked for additional vacation time, but that request was denied.

When her vacation ended, Escriba did not contact Foster Farms to request time under FMLA. Foster Farms fired her because of their "three day no-show, no call" policy. Escriba claimed her FMLA rights should have automatically gone into effect to cover the additional two weeks because her employer knew she was attending to a sick parent.

The Ninth Circuit disagreed with Escriba, saying: 

An employer’s obligation to ascertain “whether FMLA leave is being sought” strongly suggests that there are circumstances in which an employee might seek time off but intend not to exercise his or her rights under the FMLA…We thus conclude that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

A notable fact in this case was that Escriba had obtained FMLA leave 15 times in her 18 year work history at Foster Farms, indicating a familiarity with the request process. Escriba’s supervisor knew she needed time off to care for an ill family member, and thus asked Escriba twice, with the help of a Spanish language interpreter, whether Escriba wanted to take FMLA leave. 

That worked in Foster Farms' favor, as the evidence demonstrated the supervisor took reasonable steps to protect the employee's FMLA rights, and the interpreter later served as a witness who could attest that proper steps were taken.

 

Employer's Responsibility to Communicate and Designate

 

Though the decision went in favor of Foster Farms, this case provides some important reminders for employers: 

  • Communication – a key factor in preventing employee claims. First, supervisors should be fully aware of employee rights regarding the California Family Rights Act and the federal FMLA rules. Secondly, it's the employer's responsibility to determine the nature of a leave.


  • Documentation – equally important. Be sure to document the employee's decision when they choose whether or not to take a leave of absence.


  • Designation – When an employee elects FMLA/CFRA leave, make sure you specifically designate the time off as FMLA/CFRA. 

 

Sue M. Bendavid is an Employer Defense Attorney, and Chair of our Employment Practice Group. Contact her via email: sbendavid@lewitthackman.com

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Mar052013

Employers: New Posting Requirement & Expanded FMLA Regs

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Marking the 20th anniversary of the federal Family and Medical Leave Act (FMLA), the US Department of Labor (DOL) issued new FMLA regulations on February 6, 2013. 

The regulations, which take effect Friday, March 8, 2013, expand FMLA protections for military family members and airline flight crews. The regulations also clarify intermittent leave calculations, and remind employers of their confidentiality obligations under the Genetic Information Nondiscrimination Act (GINA).

Highlights from the new FMLA regulations are summarized below:

 

Military Family Leave

 

Current FMLA regulations provide “qualifying exigency” leave for eligible family members of certain military personnel to address issues related to certain military deployments. The revised regulations clarify that qualifying exigency leave is intended for family members of persons serving in the regular Armed Forces, National Guard or Reserves who are on active duty or called to active duty in a foreign country.  

Additionally, a new category of qualifying exigency leave – parental leave -- has been added. Parental care exigency leave may be utilized to make arrangements for care of parents of military members.

 

Military Caregiver Leave

 

FMLA regulations currently provide leave to care for certain military members with serious injuries or illness. 

Military caregiver leave has been expanded to include leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A covered veteran is an individual who was discharged or released under conditions other than dishonorable in the five-year period prior to the date the employee’s military caregiver leave begins.  

 

Intermittent Leave

 

Regarding intermittent leave, the new regulations clarify that employers must use the shortest increment of time the employer uses to account for other forms of leave, provided it is not greater than one hour. For example, if an employer allows an employee to take vacation in 15-minute increments, it must allow employees to take FMLA in 15-minute increments. 

 

Airline Flight Crew Eligibility

 

The new regulations state airline flight crew employees meet the FMLA hours-of-service eligibility requirement if they:

(1) have worked or been paid not less than 60 percent of the applicable total monthly guarantee (i.e., not less than 60 percent of the minimum number of hours an employer has agreed to schedule the employee), and

(2) have worked or been paid for not less then 504 hours during the previous 12 months. 

Airline employees who are not flight crew members continue to be covered under the general FMLA hours-of-service eligibility standard (1,250 hours in the preceding 12 months).

 

Genetic Information Nondiscrimination Act (GINA)

 

The regulations include a reminder to employers of their obligation to comply with the confidentiality requirements of GINA to the extent records and documents created for FMLA purposes contain family medical history or genetic information. 

Under both FMLA and GINA, employee information relating to medical certification or family medical history must be maintained as confidential medical records in separate files from the usual personnel files, and may only be disclosed under certain limited circumstances.

 

New FMLA Poster/Forms

 

In addition to the above, the DOL has published an updated FMLA poster for covered employers (i.e., employers with 50+ employees), as well as several updated (optional-use) forms. The new poster, which must be posted by March 8, 2013, is available on the DOL website. California employers should use caution when using the DOL’s forms, which may not be compliant with state law.

 

FMLA covered employers should review their policies and forms to ensure consistency with the new regulations. Employers should confirm they are properly accounting for intermittent leave (increments of one hour, or shorter if other forms of leave are permitted in shorter increments). Employers should be aware of and provide qualifying exigency and military caregiver leave when needed. 

Finally, covered employers should replace their current FMLA posters with the revised poster and review recordkeeping policy and practice to ensure compliance with FMLA and GINA.

 

Nicole Kamm is an Employment Attorney who helps employers minimize the risk of wage and hour, harassment, discrimination and FMLA claims. Contact her via email: nkamm@lewitthackman.com.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
Thursday
Apr282011

Top 10 Management Mishaps

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Editor's Note:  This list by Los Angeles Employment Lawyer Nicole Kamm was initially posted on the blogsite TheHiveMarketing.com on April 18, 2011. Please visit The Hive Marketing if you would like to read this post in its original format. 

 

Today's economy makes managing employees much more difficult. There's increased pressure to do more with less -- and in many cases, a lot less.  Mistakes inevitably occur. But you can sidestep some of these pitfalls if you know what to watch for.

Here are the Top 10 Management Mishaps to avoid so you can take steps to stay compliant with California employment laws, and hopefully safeguard your company against potential claims:

 

1.  E-mail Hazards - Watch What You Write

 

Hazard #1A more senior employee e-mails you that after 25 years with the Company, he is considering retirement.  You reply that it is about time he retire and attach information about Social Security and MediCare benefits.

Hazard #2:  You and an employee argue or disagree, which prompts you to vent by sending some particularly nasty comments about the employee to another supervisor. 

Hazard #3:  While checking your personal e-mail account, you watch a hilarious YouTube video full of offensive language. . .which you forward to a coworker you know will love it.

Recommendation

Cases in litigation are often made or broken by e-mails. Common e-mail mistakes include:

▪  Thinking e-mails are deleted after pressing the delete button.

▪  Believing e-mails are confidential if written only to internal management.

▪  Viewing e-mails as a conversation instead of a formal letter.

Don't hit the "Send" button until you visualize your e-mail as a 3’x4’ poster read aloud by opposing counsel in front of a 12-person jury.  This exercise helps you avoid some of the most common e-mail mistakes.

 

2.   Document Everything! (Even Verbal Warnings)

 

Remember: “If it is not in writing, it didn’t happen.”

As a Los Angeles employment lawyer, my mantra is “document, document, document.” 

As a human resources or management executive, you can help cover your bases with notes to the file, letters to the employee, memos to general staff, e-mails to management personnel, minutes of management meetings, etc. 

Everything that happens in the workplace that may be employee claim-related should be documented. And this definitely includes in-person meetings and verbal warnings.

 

3.   Improper or Incomplete Documentation - Be Detailed

 

 

Remember: “If it’s not documented well, better that it not be documented at all.”

Incorrect or incomplete documentation weakens even the strongest case.  As an employer, you should review all documentation and consider consulting an employment attorney before finalizing any writing.

 

4.  Reviews and Terminations - Say What You Mean

 

Sometimes human resources or management can “sugar coat” reviews and employee termination notices.  This could turn sour if the employee is angry and inclined to sue. 

Avoid telling the employee, “Your layoff has nothing to do with your performance." If  the employee takes you to court, it's hard to make a case for poor performance when you sugarcoat. 

Employees in litigation commonly use positive performance reviews when terminated in an effort to demonstrate they were good performers and the reasons they were given for termination were “pretextual,”  defined as “a fictitious reason that is concocted in order to conceal the real reason.” Examples of pretextual reasons include termination:

▪  Due to a work-related injury,

▪  For lodging a complaint (e.g., harassment, discrimination), or

▪  For excessive absences related to “protected activities” (e.g., disability, jury duty, witness duty).

Recommendation: 

Plan what you are going to communicate before saying or writing it.  Be honest and concise.  Explain the reasons behind the review or termination, but don’t be defensive or argue.  Remember, a single review or termination may be the linchpin for a future claim.

 

5.  Employee Complaints - Never Ignore Them

 

As a supervisor, you must notify HR or upper management immediately when you learn of potentially unlawful conduct.  Legally speaking, once a supervisor is aware of harmful or illegal conduct, the company is deemed to be on notice.

As a business owner or HR executive, you must promptly conduct an investigation when certain complaints arise (e.g., harassment, discrimination, etc.) or potentially illegal conduct is reported.  Employers are under a legal obligation to conduct investigations in these situations.

And investigations are essential to managing the workplace and resolving disputes before lawsuits arise.  You'll want to protect yourself as properly conducted investigations often lead to an important defense after a lawsuit is filed. 

Here are some basic tips for conducting investigations:

▪  Interview both the complainant and alleged perpetrator.

▪  Interview additional witnesses.

▪  Gather additional evidence.

▪  Document every step.

▪  Evaluate and conclude, based on the facts.

▪  Assess and address (if necessary) the future impact of the complaint on the workplace environment.

 

6.  “Off the Clock” Work - Pay Now or Pay Later

 

You must keep track of all hours worked by non-exempt employees.  Record the stop and start time of all work being performed, including the beginning and ending of each meal period.  You'll need to pay for all work being performed by employees (including any “off the clock” work).

Employees often accuse supervisors of pressuring employees to work “off the clock," or of “shaving” time records in an effort to reduce costs and increase bonuses for themselves.  And sometimes managers make honest mistakes, but mistakes don't preclude potential lawsuits.

Example: Employee forgets to clock in or out and manager makes correction on time card.

Recommendation: 

Have your employee initial the change to acknowledge that the corrected time accurately reflects the time worked.

 

7.  Meal and Rest Break Periods - Enforce Them

 

Meal Break Rules:

▪  As an employer, you're required to provide a 30-minute unpaid, duty-free meal break for each work period of more than 5 hours under California law.  However, you and your employee may waive the meal period by mutual consent IF the total work period is no more than 6 hours. 

▪  A second meal period of not less than 30 minutes is required if an employee works more than 10 hours per day.  But if the total hours worked is no more than 12 hours, you and your employee may waive this second period by mutual consent -- but only if the first meal period was not waived.

▪  Employees must be relieved of all duty during their 30-minute meal period.  “On duty" meal periods are permitted only when (i) the nature of the work prevents an employee from being relieved of all duty, and (ii) agreed to in writing by you the employer and your employee. 

The penalty for failing to provide a meal period is one additional hour of pay for each workday the meal period is not provided.

Recommendation

You should make sure employees are provided meal breaks and that records reflect meal breaks. Make sure the breaks are taken (i.e., require employees to clock out and in for the full 30-minute break).

 

Rest Break Rules 

▪  As an employer, you must “authorize and permit” your non-exempt employees to take 10-minute rest breaks every four hours. 

▪  However, no rest break is required for employees whose total daily work time is less than 3.5 hours.  Rest breaks should be taken in the middle of each work period, if possible.  You cannot allow your employees to combine rest breaks with meal breaks or use them to come in late or leave early.

▪  Rest periods are counted as time worked, therefore you must pay your employees for this time.  The penalty for failing to provide a rest period is one additional hour of pay for each workday the rest period is not provided.

Recommendation:

Do not deny employees the ability to take 10-minute rest breaks.

 

8.  Enforce Overtime Rules & Pay for Overtime

 

In California, you must provide time-and-one-half the employee’s regular rate of pay for:

 ▪  All hours worked beyond eight in a single workday (or 40 in a workweek), and

 ▪  The first eight hours worked on the seventh consecutive day worked in a single workweek. 

Employers must pay double the employee’s regular rate of pay for:

▪  All hours worked beyond 12 in a single workday, and

▪  The hours worked beyond eight on the seventh consecutive day worked in a single workweek.

California employers my delay payment of overtime wages earned in a pay period no later than the payday for the next pay period. 

If delaying to the following pay period is unavoidable, you must itemize the hours as corrections on the pay stub for the period in which they are paid and identify the date of the pay period to which they are attributable.

A California employer's failure to pay overtime results not only in an obligation to pay the overtime owed, but the failure may also subject you to other penalties under the Labor Code.

 

9.  Leave Rules - Know Them

 

The state requires certain leaves by law, while others are optional.  To make it more confusing, some leaves apply only to companies employing certain numbers of people. 

For example, Pregnancy Disability Leave (PDL) applies to employers with five or more employees whereas the federal Family and Medical Leave Act (FMLA) and state California Family Rights Act (CFRA) only apply to employers with 50 or more employees. 

All employers (even those with only one employee) must provide workers’ compensation disability leave and jury and witness duty leave.  Yet, no employer is required to provide paid vacation or sick leave.

Because the different types of leaves, both required and not, interact with each other in different ways, it is important to understand the various laws and corresponding obligations.

 

10.   “Protected” Activities - Don't Write Up or Terminate Employees for These

 

California law lists a long roster of activities that you cannot cite as grounds for employee termination.  Nor should employees be written up for these reasons.  Some of these include: 

▪  disclosing wages

▪  political activity

▪  limited time off for a child’s school or day care activities

▪  refusing to take polygraph test

These are the top 10 reasons employers leave themselves open to potential legal battles, but they are not all of the reasons. If you feel you need help understanding California's employment laws, you should seek legal counsel. A good Los Angeles employment lawyer can help you navigate the complicated territories of hiring and firing practices, carrying out proper leave and break policies and more. 

Nicole Kamm, Esq. is an Employment Lawyer who represents clients in all aspects of employment law, from counsel to litigation.  For more information, contact Ms. Kamm at (818) 990-2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

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