• Don’t Erase That File!

    Deleting Information from a Computer Can Have Serious Consequences

    Last week’s decision by the Ninth Circuit in Leon v. IDX Systems Corporation is interesting for several reasons. After an employee made a complaint about a violation of the Sarbanes-Oxley Act, the employer placed the employee on an unpaid leave. The employer then brought an action for declaratory relief, seeking to establish that it could terminate the employee without violating the law. This is an interesting move because most employers wait to be sued, and then defend the action on the merits. Instead, IDX took the initiative and sought a court ruling regarding the legality of terminating the employee.

    Leon v. IDX Systems Corporation is most notable for the severe sanctions imposed against the employee because the employee deleted information from a company-provided laptop and created a program to erase any trace of the deleted information. While on leave, IDX asked Leon to return the company-owned laptop. Leon asked to retain the laptop pending the investigation into Leon’s Sarbanes-Oxley complaint. IDX allowed Leon to retain the laptop, but warned him to “ensure no data on the laptop is lost or corrupted so as to avoid any possible depsoliation of evidence.” After receiving permission to retain the laptop, Leon initiated a whistleblower and discrimination suit against IDX.

    When IDX finally received the laptop, a forensic analysis revealed that more than 2,200 files had been deleted. IDX moved for dismissal of Leon’s claims based on his spoliation of evidence and sought sanctions for the destruction of evidence. In an evidentiary hearing, Leon admitted he deleted “personal” files and created a software program that prevented recovery of the deleted files.

    The court deemed Leon’s conduct “very egregious” and dismissed Leon’s action. Relying on the court’s inherent powers, it sanctioned Leon $65,000.00: the cost of pursuing the spoliation claim. The Ninth Circuit upheld the lower court’s decision stating “A party’s destruction of evidence qualifies as willful spoliation if the party has ‘some notice that the documents were potentially relevant ot the litigation before they were destroyed.’”

    Leon stands as a warning to employees and employers: Do not destroy or delete files when there is a potential for litigation. More than ever, employers should establish and follow a proper document retention policy.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Navigating the Interactive Process

    Accommodating Employees with Disabilities – A Primer

    State and Federal law require employers to make “reasonable accommodations” that will enable employees or applicants known to have disabilities to be able to perform the essential functions of the job. Requests for accommodation must be evaluated on a case-by-case basis. What works for one employee with a disability, may not work for another employee with the same disability.

    What is a “Reasonable Accommodation?” The American’s with Disabilities Act and the Fair Employment and Housing Act do not define “reasonable accommodation,” but the cases and regulations interpreting and implementing those laws provide some guidance. Simply put, a reasonable accommodation is a modification to a job or the work environment that will enable disabled individual to perform the essential function of the job.

    An accommodation is presumed reasonable unless the employer can demonstrate that the accommodation would impose an undue hardship. For example, the costs of making the accommodation are excessive in relation to the accommodation’s benefits. Generally speaking, the economic concerns must be very significant (i.e., threaten financial survival or unreasonable under circumstances).

    Determining what accommodations are appropriate requires looking at the employee’s limitations and essential job functions. Essential job functions determined by actual work performed. Written job descriptions are relevant to determine essential functions, but only if the job descriptions accurately reflect the employee’s work and preferably were created before the accommodation became necessary. Courts also consider the consequences of not requiring the individual to perform the function and look at any applicable Collective Bargaining Agreements.

    Employer can be liable for failing to engage in the interactive process of determining which accommodations will enable the employee to perform the essential functions of the job. If an employee fails to engage in the interactive process, the employee will not be able to prevail in a disability discrimination claim.

    Although no magic words are necessary to trigger the duty to engage in the interactive process, the employee usually must start the process by requesting an accommodation. There is an exception where employer knows the employee’s disability interferes with the employee’s ability to request the accommodation.

    The employer is not required to give the employee what s/he requests, but the employer is obligated to make some accommodation that will enable the employee to perform the essential functions of the job.

    The interactive process works best when it involves the employee, the employer and to some extent the employee’s medical care providers. Employers must be careful, however, when asking for medical information. It is usually better to ask the employee to obtain the requisite information from the doctor instead of contacting the doctor director.

    Accommodating employee disabilities can be difficult and we recommend contacting a professional familiar with accommodation issues at the beginning of the process. Through proper implementation of an accommodation process, employers can limit their exposure to costly litigation and help ensure disabled persons are disenfranchised.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • California Minimum Wage Increase

    As expected, Governor Schwarzenegger signed AB 1835 raising minimum wage to $7.50 effective January 1, 2007, and then to $8.00 effective January 1, 2008.

    The new law effects not only minimum wage earners, but also exempt employees. To be exempt from the overtime laws under the Professional, Administrative or Executive exemptions, the employee must receive a monthly salary equivalent to two-times minimum wage. The salary is based on a 40-hour workweek.

    Beginning January 1, 2007, Professional, Administrative or Executive employees must receive no less than $600.00 per week or $31,200.00 per year. Beginning January 1, 2008, they must receive no less than $640.00 per week or $33,280.00.

    Individual and class-action lawsuits based on improper classifications result in millions of dollars in losses every year to business in California. Employers should review their position descriptions and payroll to ensure employees are properly classified.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.