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Entries in reasonable accommodations (5)

Thursday
Dec292016

Employer Responsibilities re Mental Health Conditions

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

The Equal Employment Opportunity Commission recently issued a “User-Friendly Document” explaining the rights of job applicants and employees with mental health conditions. In doing so, the EEOC has confirmed that individuals with such conditions are protected from discrimination and harassment.

Employment Law Mental Health Disability

As noted, employers cannot fire, deny a job, deny a promotion or force an employee to take leave because of a mental health condition (there are exceptions when employees pose a “direct threat” to safety or cannot perform their jobs). The guidelines remind employers of the obligation to provide reasonable accommodations that would enable employees perform their jobs.

In our work advising and counseling employers, we often encounter employers who struggle with how to properly respond to disabled employees.

Whether it is an employee’s injury, mental health condition or stress, employers face confusion as to their legal obligations. Since failure to communicate and/or accommodate may sometimes result in costly litigation, we are providing a few basic guidelines to assist employers when facing similar issues.

Do not discriminate against employees with a mental or physical health condition:

Employers do not have to hire or retain employees in jobs they cannot perform, or employ people who pose a “direct threat” to safety (based on objective evidence, not merely myths and stereotypes). However, firing an employee or rejecting an applicant with a disability (whether physical or mental) is prohibited, unless the employee or applicant cannot perform the job with reasonable accommodation.

For example: Jane notified her employer she was depressed and needed two weeks off. Her employer believed depression was not a “real disease” and rejected Jane’s request without further discussion. When Jane failed to show up because of her condition, her employer fired her for unpermitted absence.

The employer’s actions in this scenario were potentially unlawful. When Jane gave notice of her mental condition and asked for accommodations in the form of time off, her employer was required to engage in an “interactive dialogue” (explained below) rather than rejecting her request for time off and then terminating her employment.

Even if you don’t believe an employee’s health condition and request for accommodation are legitimate, you must at least engage in an interactive dialogue. Under some circumstances (e.g., if the need for an accommodation is not obvious), you can ask the employee to provide reasonable medical documentation to confirm the existence of the disability and the need for reasonable accommodation.

Timely engage in “interactive dialogue” with the employee, even if the employee does not “officially” ask for accommodations:

This can be tricky. Under California law, an employer is required to initiate the interactive process when: (1) the employee requests an accommodation; or (2) the employer otherwise becomes aware of the need for an accommodation through a third party or by observation.

For example: Robert was cleaning a window when he fell off a ladder and hurt his hand. Emily, Robert’s supervisor, witnessed the incident. The next day, Robert came back to work with bandages on his hand. Robert never asked for an accommodation but was struggling with his usual manual tasks. As Robert never asked for an accommodation, Emily assumed Robert did not require one.

Emily assumed wrong. Since Emily witnessed the incident and saw Robert’s bandages she was on notice regarding his possible need for accommodations. Even if Robert did not need accommodations, it was Emily’s duty, as the employer, to engage in the interactive process with Robert to determine whether accommodations could be provided.

Even if the employee is not eligible for protected time off under the Family Medical Leave Act or California Family Rights Act, consider time off as reasonable accommodation:

Family and medical leave laws generally cover employers with 50 or more employees. However, even if you are not a covered employer, you may be large enough and must consider whether protected time off can be provided as a reasonable accommodation (See also 2 CCR 11065(p)(2)(M)).

Don’t rely on the undue hardship defense:

Generally, employers are not required to accommodate a disabled employee or applicant if the accommodation would cause an “undue hardship” to the employer. The term “undue hardship” generally means an accommodation that is unduly costly, extensive or substantial, or that would fundamentally alter the nature of the business’s operation. (See definition and factors to consider in 2 CCR 2 11065(r))

However, employers are advised to use the “undue hardship” defense narrowly and only when the accommodations might place extensive financial burden or would prevent the ongoing operation of the business. Further, employers should engage in the interactive dialogue before concluding an undue hardship exists.

For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time. (From California Department of Fair Employment Housing guidelines).

Keep an employee’s mental or physical health condition confidential:

Medical information that employers obtain regarding the medical or mental conditions or history of an employee or applicant must be maintained in separate medical files and kept confidential. The employee’s medical information may be discussed only under the following circumstances:

1. Supervisors and managers may be informed of restriction(s) on the work or duties of employees with disabilities and necessary reasonable accommodations; and

2. First aid and safety personnel may be informed, where appropriate, that the condition may require emergency treatment; and

3. Government officials investigating compliance are to be provided relevant information on request. (See 2 CCR 11069(g))

Document, Document, Document:

We cannot emphasize this enough. A little documentation can go a long way.

When you meet with an employee as part of the interactive process, prepare a written summary of the meeting and indicate the reasonable accommodation options discussed. If you decide to grant the employee’s request, document that as well. If you deny the employee’s request because of undue hardship, put that in writing and explain the reasons for the denial. You should invite the individual to further engage in the interactive process and keep the door open to other options. In fact, any change in accommodations should be in writing.

Bottom line:

A little communication and documentation can go a long way and prevent costly litigation. Don’t rely on stereotypes or your personal knowledge and beliefs when an employee requests accommodations or gives notice of medical or psychological conditions. Meet with the employee, discuss his/her restrictions and discuss possible accommodations, if necessary.

As always, if you have questions or concerns regarding your obligations as an employer, contact an attorney in our Employment Practice Group: 818-990-2120.

Sue M. Bendavid and Tal Burnovski Yeyni are  Employer Defense Attorneys at our Firm. 

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
Sep202016

Employers' Legislative Update: Governor Brown Signs New Bills

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

Tis the season for new laws in California and not all of it brings good tidings and cheer for employers.

Recently, Governor Jerry Brown signed several state Assembly and Senate Bills affecting those who employ domestic staff; agricultural workers; teachers; etc. Most companies with employees (or individuals with domestic staff) in California will be affected.

Here’s the current employment law update:

SB 1015 – Domestic Work Employees: Labor Standards

Previously, employees that worked as personal attendants were exempt from overtime and other wage and hour rules.

On January 1, 2014 the Domestic Worker Bill of Rights went into effect and provided that a “domestic work employee who is a personal attendant” is eligible for overtime at one and one-half times the employee’s regular rate of pay if the employee works more than nine hours per day or more than 45 hours per week. The Domestic Worker Bill of Rights was to be in effect until January 1, 2017 – at which time the legislature will decide whether to renew it.

SB 1015 deletes the repeal date, which means that the Domestic Worker Bill of Rights will remain in effect indefinitely.  

AB 1066 – Agricultural Workers: Wage, Hours, and Working Conditions

Federal, state and local laws require employers to comply with wage and hour rules and pay non-exempt employees overtime and minimum wage – and to comply with meal and rest break rules.

Currently, Wage Order 14 sets different standards for overtime for agricultural employees (e.g., 1.5 times the employee’s regular rate of pay for hours worked beyond 10 hours per day and for the first eight hours or the 7th consecutive day of work; two times the employee’s regular rate of pay for all hours worked over eight on the 7th consecutive day.)

AB 1066 added sections 857 through 864 to the Labor Code which creates new overtime standards for agricultural employees (“under the same standards as millions of other Californians”), on a gradual basis: 

The Governor is authorized to suspend a scheduled “phase-in” only if the Governor suspends a scheduled minimum wage increase (SB 3, signed in April). If suspension occurs, all phase-in dates will be postponed by an additional year.

AB 2337 – New Notice Requirement to Employees 

Current law (Labor Code § 230.1) prohibits employers with 25 or more employees from retaliating or discharging employees who are victims of domestic violence, sexual assault, or stalking, for requesting time off to: 

  • Seek medical treatment;

  • Obtain services from a domestic violence shelter or program; or

  • Obtain counseling or participate in safety planning.

This act requires employers to give written notice to new employees regarding the right to take protected time off for the purposes stated above. The notice must also be provided to current employees upon request.

The Labor Commissioner will develop a form that employers may use to comply with this notice requirement. The notice will be available before July 1, 2017. Employers are not required to comply with notice requirement until the Labor Commissioner posts the form on the DLSE website.

AB 2230 – New OT Exemption Requirements for Certain Teachers 

Current law provides that individuals employed as teachers at private elementary or secondary academic institutions are exempt from overtime payment requirements if, among others, they earn no less than two times the state minimum wage for full time employment.

This bill will change the salary requirement for the exemption. As of July 1, 2017, an individual employed as a teacher will be exempt if, among other criteria, the employee earns the greater of:

  1. No less than 100 percent of the lowest salary offered by any school district to a person in a position that requires a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver); OR

  2. No less than 70 percent of the lowest scheduled salary offered by the school district or county in which the private elementary or secondary institution is located, to a person who is in a position that requires the person to have a valid California teaching credential (excluding individuals employed in that position pursuant to an emergency permit, intern permit, or waiver).

In effect, AB 2230 ties private school teaching salaries to that of public school teachers – establishing a wage floor that increases with the public sector.

 

Sue M. Bendavid and Tal Burnovski Yeyni are Employer Defense Attorneys at our Firm. 

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
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.

Tuesday
Sep152015

Can Kim Davis Be Fired? What CA Employers Should Know About Religious Accommodations

Wage and Hour DefenseAttorney for Employers

by Sue M. Bendavid

818.907.3220

 

Last June, the U.S. Supreme Court determined that same-sex marriages are a fundamental liberty protected by the 14th Amendment of the U.S. Constitution – and that states must issue marriage licenses to same-sex couples.

Kim Davis, a county clerk in Kentucky disagreed, citing religious reasons for refusing to sign marriage licenses for gay couples. Davis even spent time in jail for her continual refusal to do so, which promptly led many to wonder, "Can Kim Davis be fired?"

The short answer is no. Davis was elected – she can either resign, be impeached, or finish her term. But if she were NOT a public official chosen via election, merely an at-will employee for a private company…could she be fired then? What if she worked to sell gowns in a bridal shop here in California?

The answer then becomes a little more complicated.

Federal Laws & Religious Discrimination

Many employers know that Title VII of the Civil Rights Act of 1964 prohibits religious discrimination in the workplace. But some employers will not know that the same federal law also prohibits job segregation – an employee like Davis refusing to perform duties because of religious beliefs might be protected from being forced to take another position, such as one with no customer contact, for instance.

Also, Title VII mandates accommodations when reasonable. Workers citing religious reasons for refusing to perform a task or conform to workplace rules (e.g. a bartender refusing to wear a revealing uniform, a healthcare worker refusing to be vaccinated, or a floral designer refusing to provide flowers for a same-sex wedding) may suggest or be offered workaround solutions.

If the requested accommodation does not result in undue hardships such as: additional excessive costs, safety concerns, decreased efficiency, or infringement on someone else's rights – the accommodation should be implemented by the employer.

State Protections for Employees

California's Fair Employment and Housing Act (FEHA) is similar to Title VII in principle – it also prohibits employers from discriminating against applicants and employees because of religious beliefs and requires reasonable accommodations to be made.

Under FEHA, an employer would have to show that there will be significant difficulty or expense should the employer make a religious accommodation.

Keep in mind, there may be reasons to terminate an employee, but employers should be sure those reasons are valid and not in violation of state or federal protections.

In Nava v. Safeway Inc., for example, employee Juan Nava was terminated for destruction of  company property one week after he admitted to being offended by and subsequently removing, a gay pride poster from an employee break room. Nava sued for wrongful termination.  Safeway responded with an anti-SLAPP motion moving to dismiss the case.  Safeway argued that the lawsuit sought to censor and interfere with Safeway’s right to freedom of expression.

The trial court decided for Safeway, but a Fifth Appellate District Court reversed – finding that (although it was a close call and Safeway might later prevail) Nava could also potentially prevail with his wrongful termination suit. Therefore, the Court allowed the lawsuit to proceed.

Employer Takeaway

So back to the question: What do you do with an employee like Kim Davis?

In California, you accommodate when you can because both state and federal laws protect the religious beliefs and practices of the employee.  Absent undue hardship, you cannot take adverse action, like cutting back her hours or denying her training opportunities.  Nor should you let other employees mock her for her beliefs or anything else.  

Accommodations may cost you time or money. But in the long run, it will be less expensive than a discrimination suit.

Sue M. Bendavid is the Chair of the Employment Practice Group at our firm. Contact her via email: sbendavid@lewitthackman.com; or by phone: 818-907-3220 for more information.

Monday
Apr132015

Transgender Rights in the Workplace: A Guide for Employers to Protect Against Harassment & Discrimination

Business LitigationEmployer Attorney

by Hannah Sweiss

818.907.3260

 

Employer Discrimination Defense AttorneyLast week, President Obama signed an executive order banning discrimination against gay or transgender federal employees and contractors. On the same day, the first gender-neutral bathroom became available in the White House. The topic of transgender identity may be news to many. However, beyond the spotlight, transgender identity and the struggles surrounding transgender persons are real, particularly in the workplace. 

On March 16, 2015, the United States Commission on Civil Rights held its first ever hearing on workplace discrimination against those in the LGBT community.

According to NPR, the EEOC has helped more than 1,200 lesbian, gay, bisexual and transgender (LGBT) persons bring employment discrimination claims under Title VII since 2013. Some employer defendants have tried to claim Title VII does not protect transgender persons, but both state and federal courts disagreed.

As transgender rights awareness continues to gain momentum, employers need to be prepared to deal with new issues related to gender identity, gender stereotyping, and gender transitioning.

Federal Protections for Transgender Individuals

In 2012, the EEOC issued a landmark decision in Macy v. Holder, which held that discrimination based on transgender status constituted unlawful sex discrimination under Title VII. In December 2014, the Department of Justice issued a memo recognizing that transgender people are protected under Title VII.

In a landmark ruling issued on April 1, 2015, the Equal Employment Opportunity Commission (EEOC) found that the Department of the Army discriminated against a transgender employee who transitioned from male to female, by barring her from using the same restroom as other female employees, and by her supervisors’ continued intentional use of male names and pronouns in referring to the employee after her transition. The EEOC also determined that some of the most common forms of harassment faced by transgender employees constitute unlawful discrimination under Title VII.

The EEOC also recently adopted a strategic enforcement plan for Fiscal Years 2013-16, which specifically addresses "Emerging and Developing Issues," such as protections for LGBT individuals under Title VII of the 1964 Civil Rights Act. One EEOC initiative under the plan includes forming an LGBT work group to advise EEOC litigators, coordinate internal policies and comment on pending legislation. Another initiative has EEOC litigators filing amicus curiae briefs in lawsuits around the country – briefs filed by someone not a party to the litigation, but who have an interest (usually a social concern) in the outcome. 

Gender Discrimination Law

California Protections for Transgender Individuals

The California Fair Employment and Housing Act (FEHA) makes it unlawful for an employer to refuse to hire or employ a person or to discharge a person from employment or to discriminate in compensation or in terms, conditions, or privileges of employment because of the person’s gender identity. California Government Code sections 12940(a) and 12926(p).

Last year, the California Department of Fair Employment and Housing (“DFEH”), brought a lawsuit against a California employer alleging it was sex, gender, gender identity and gender expression discrimination to require a transgender employee to use the female locker room and restroom facilities until the employee’s gender transition to male was “complete” after sex reassignment surgery.

The FEHA broadly protects not only gender identity, but also gender expression (regardless of whether an employee self-identifies as a transgender individual). The expanding gender-identity protections safeguard employees who wish to dress like, act like and use the restroom of the gender they identify with, even if they never undergo surgery to alter their appearance. Employees’ gender identity and gender expression (including presenting in a way that does not comport with traditional gender roles) should not be a basis to treat employees differently.

Employer Takeaway

Failing to properly deal with issues of gender identity and gender expression may lead to employee claims. To help ensure a workplace free from discrimination and harassment for all employees:  

  1. Make tolerance part of the workplace culture by having strong anti-discrimination provisions in personnel policies and awareness of gender identity in proactive diversity training.

  2. Ensure employees know harassment and discrimination will not be tolerated based on sex, gender, sexual orientation, gender identity and/or gender expression.

  3. Employees should be addressed by their names or preferred title by all persons in the workplace.

  4. Implement reasonable workplace appearance, grooming, and dress standards that allow employees to appear or dress consistently with their gender identity.

  5. Consider assigning a gender-neutral restroom or locker room to accommodate ALL employees, whether male, female or transitioning.

  6. Ensure the privacy of gender-transitioning employees.

  7. If an employee requests help as he or she undergoes a gender transition, engage in a dialogue and ask the employee to share any concerns. Then, figure what accommodations are best and/or possible. A change in wardrobe could occur overnight, but a transition involving hormones and surgery might take several years to complete. 

Although employers and HR staff may be aware employees are protected against discrimination based on gender, gender identity and gender expression under California and Federal law, transgender discrimination or harassment claims may arise from others employed in the workplace. 

To help prevent such claims, employers should educate their workforce not only through policies and procedures, but also through training. If this means having employees participate in diversity training, then employers should consider making that investment.

 

Hannah Sweiss is an Employer Defense Attorney at our firm. Contact her via email: hsweiss@lewitthackman.com or by phone: 818.907.3260.

 

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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