• New Laws Require Additional Training and Prohibit Harassment of Unpaid Interns

    Governor Brown signed AB 1443 and AB 2053 amending California’s Fair Employment and Housing Act.  AB 1443 expands FEHA’s anti-harassment protection to unpaid interns.  AB 2053 requires employers to add an anti-bullying module to their sexual harassment prevention training.  Employers and employees (and now volunteers) need to be mindful of the new protections and requirements.

    Protection for Unpaid Interns and Volunteers

    Existing law protects employees and applicants from unlawful discrimination and harassment in the workplace on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sexgender, gender identity, gender expression, age, sexual orientation, or military and veteran status.   AB 1443 expands FEHA’s protections to persons in unpaid internships or other volunteer positions.  The law does not make it lawful to employ unpaid interns, and the Labor Commissioner and the Department of Labor have taken strong positions that make it very difficult to use unpaid interns.  Regardless of whether the intern or volunteer is required to be paid as an employee, effective January 1, 2015, employers and employees may not discriminate or harass unpaid interns and volunteers in violation of FEHA.

    Employers should communicate to its employees that unpaid interns and volunteers are afforded the same rights to a harassment-free workplace as other employees.

    Anti-Bullying Training

    Employers with 50 or more employees are required to provide sexual harassment prevention training to supervisory employees every two years.  AB 2053 requires the training include a module regarding “prevention of abusive conduct.”  The law does not actually prohibit abusive conduct, unless such conduct otherwise violates FEHA, but it does require employers to train supervisory employees regarding conduct “that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”

    AB 2053 instructs, “Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

    While abusive conduct unrelated to a protected category may not be illegal (yet), an employer could theoretically be cited for failing to train supervisors regarding such abusive conduct.  There is no indication that an employee could sue an employer for a failure to provide the requisite training, but the failure to provide the training, or a violation of a company’s anti-bullying policy, may certainly be evidence of a hostile work environment in the right case.

    Employers should ensure their next sexual harassment prevention training includes an anti-bullying module.  Employers may also want to consider updating their handbooks to ensure they have a policy prohibiting “abusive conduct.”

    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.

  • Top Mistakes Employers Make Presentation on March 28, 2013

    I will present the Top Mistakes Employers Make presentation on March 28, 2013, for the Gavilan Employers Advisory Council.  The Gavilan EAC provides local employers with relevant Information on human resource issues and other topics of interest, opportunities to network professionally, and a greater understanding of the resources available through the Employment Development Department (EDD) and the California Employer Advisory Council (CEAC). Its membership represents a cross-section of the businesses and industries in the region, and strives to build a partnership between local employers and the EDD.

    The presentation will cover new laws for employers doing business in California as well as the biggest mistakes employers make that lead to costly litigation.

    If you are interested in attending, you can register for the event on the GEAC’s website.

    Top Mistakes Presentation Gavilan_3-28-13 Flyer.

    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.

  • Inexpensive Sexual Harassment Training By The DFEH?

    The DFEH has been conducting no-cost sexual harassment prevention for state employers for the past year. It has now decided to offer the same training to private employers, purportedly at a low cost. The DFEH hasn’t specified what it means by “low-cost,” but it did indicate that the training will be available online.

    You can visit the DFEH’s website for more information. The press release should be available online in the next couple of days.

    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.

  • New Laws Regarding California Employers and Employees

    There are several new laws and amendments currently under consideration by the Governor of California, as well as the legislature.

    The Recorder reports that three bills, AB 267, AB 325, and AB 559, are currently sitting before the Governor Brown.

    • AB 267 prohibits “choice of law” or “forum selection” clauses in employment contracts if those clauses require the use of non-California law or litigation outside of California.
    • AB 325 would allow up to 3 days bereavement leave and would prohibit discrimination against employees who take time off for the  death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.  A successful plaintiff could recover back wages and attorneys’ fees.
    • AB 559 would modify a rule denounced by the California Supreme Court (Chavez v. City of Los Angeles, 47 Cal.4th 970) granting courts the authority to limit attorneys’ fees awards when the case could have been brought in limited jurisdiction as opposed to unlimited jurisdiction.

    The California Chamber of Commerce and other pro-employer entities oppose these bills, and in the past have successfully defeated similar bills while Schwarzenegger was in office.

    Governor Brown has already signed into law the following bills affecting employers and employees in California:

    • AB 240 Compensation recovery actions: liquidated damages.
    • AB 587 Public works: volunteers.
    • SB 117 Public contracts: prohibitions: discrimination based on gender or sexual orientation.
    • SB 374 Gambling control: key employee licenses.
    • SB 559  Discrimination: genetic information.
    • SB 609 Public Employment Relations Board: final orders.

    Of course we can’t forget about AB 889 regarding domestic workers, which I’ve discussed before.

    If you work or do business in California, especially if you do business on any public works projects, you should familiarize yourself with any new requirements applicable to your industry.

    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.

  • DFEH Announces Biggest Administrative Award Ever

    On September 12, 2011, the DFEH issued the following press release:

    State Department of Fair Employment and Housing Achieves Historic Victory
    Electrical Supply Company Ordered to Pay $846,300 for Firing Cancer Survivor

    ELK GROVE, CA – The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer.  Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries.

    “This historic administrative victory underscores the Department’s commitment to vindicating the rights of Californians victimized by workplace discrimination,” said DFEH Director Phyllis Cheng.

    Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007.  Mr.  Wideman’s cancers required two surgeries and numerous cancer-related outpatient appointments.  The company immediately granted his two requests for time off for surgery and recuperative leave.  However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Acme Electric refused to grant or even acknowledge these accommodation requests.  Instead, in December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel.  On February 28, 2008, ignoring Mr.  Wideman’s need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext.

    “California’s Fair Employment and Housing Act (FEHA) provides that persons with disabilities, such as cancer, must be reasonably accommodated, so that they can continue to work productively,” added Director Cheng.

    After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring.  To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered.  In addition, the Commission ordered Acme to pay $25,000 to the State’s General Fund as an administrative fine.  Acme must further comply with posting, policy changes, and training requirements ordered by the Commission.

    Medical leaves are among the most complicated issues for employers and employees.  Several laws can impact the leave, the employer’s obligations and the employee’s rights.  Knowing how those laws interact will help you make informed decisions about leaves of absences, and hopefully avoid costly litigation.

    If you, or someone you know, has a question about a medical leave of absence, contact an attorney familiar with leave of absence laws.

    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.

    idual member of the firm does not establish an attorney-client relationship.

  • Leave Entitlements

    I was looking for some information regarding the various leave laws that employers must consider, and came across a guide from the Department of Fair Employment and Housing.  It is a fairly good summary of most of the various leave laws impacting companies doing business in California.  I noticed it does not discuss leaves of absence under USERRA and other available leaves under California’s Military and Veterans Code, but it is still a good summary.

    California employers and employees should ensure they are familiar with the various rights and obligations imposed by the leave laws impacting their work and should review their handbooks to ensure they are up to date.

    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.

  • Fair Employment and Housing Commission Is Being Eliminated

    Governor Jerry Brown issued the 2011/12 May Budget Revision (May Revise) in an attempt to reduce the  multi-billion dollar deficit.  As part of the revised budget the Governor eliminates and/or consolidatse many governmental programs.  Under the revised budget, the Fair Employment and Housing Commission (FEHC)—the civil rights agency with administrative adjudication and regulatory responsibility—will be eliminated effective January 1, 2012.  The Department of Fair Employment and Housing (DFEH)—the remaining civil rights agency with intake, conciliation, mediation and prosecutorial responsibility—will continue to operate.

    What does this mean for employers and employees? While the DFEH can still receive, investigate and even prosecute claims of discrimination, the parties will no longer be able to pursue claims before the Fair Employment and Housing Commission.  Those that have litigated in both forums realize that the FEHC is oftentimes a lower-cost alternative to litigating discrimination cases.  While some feel that the FEHC was too employee-friendly, a review of published decisions indicate that the amounts awarded to successful claimants before the FEHC were oftentimes significantly lower than similar cases decided by a jury.

    Other actions put in place by the revised budget include:

    • Accelerate End of American Recovery and Reinvestment Act Task Force
    • Eliminate    the    California    Privacy    Security    Advisory    Board
    • Eliminate the Health Care Quality Improvement and Cost Containment Commission
    • Eliminate    the    Colorado    River    Board
    • Eliminate    the    Salton    Sea    Council
    • Eliminate    the    State    Mining    and    Geology    Board
    • Eliminate Nine Advisory Committees and Review Panels at the Department of Fish and Game
    • Eliminate    the    Commission    on    Emergency    Medical    Services
    • Eliminate the California Health Policy and Data Advisory Commission (CHPDAC)
    • Eliminate    the    Healthcare    Workforce    Policy    Commission
    • Eliminate    the    Rural    Health    Policy    Council
    • Eliminate    the    Public    Health    Advisory    Committee    (PHAC)
    • Eliminate the California Medical Assistance Commission (CMAC)
    • Eliminate    the    Rehabilitation    Appeals    Board    (RAB)
    • Eliminate    the    Continuing    Care    Advisory    Committee    (CCAC)
    • Eliminate the Office of the Insurance Advisor (OIA) within the State and Consumer Services Agency
    • Eliminate the Office of Gang and Youth Violence Prevention
    • Eliminate    California    Emergency    Council    (CEC)
    • Eliminate    the    California    Law    Revision    Commission
    • Eliminate    the    Commission    on    Uniform    State    Laws
    • Eliminate the Office of Privacy Protection within the State and Consumer Services Agency
    • Eliminate    the    Unemployment    Insurance    Appeals    Board
    • Eliminate the Occupational Safety and Health (OSH) Standards Board
    • Reduce the Labor and Workforce Development Agency
    • Eliminate    Child    Care    Monitoring    Support
    • Transfer Support of the Governor’s Commission on Employment of People with Disabilities to the Department of Rehabilitation
    •  The    Office    of    Secretary    of    Education    has been eliminated
    • The    Inspector    General    for    the    American    Recovery    and Reinvestment Act has been eliminated
    • No travel by state employees is permitted unless mission critical

    In total, the proposals in the revised budget are supposed to save $82.7 million ($41.5 million General Fund).

    You can download a copy of the state agencies that are slated to be eliminated or reduced

    You can also download the entire Revised Budget Plan.

    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.

  • ADAAA Recap

    More than two years ago President Bush signed into law the ADA Amendments Act of 2008 (ADAAA), which took effect in 2010.  The purpose of the law was to overturn a series of decisions by the U.S. Supreme Court under the Americans With Disabilities Act (ADA) and effectively expanded the scope of what constitutes a “disability” under Federal law.  Many believed the amendments overly broadened the statute, while others argued the amendments merely clarified the original intent of the law that the courts had neglected.

    The law did not significantly change the requirements for California employers because California’s Fair Employment and Housing Act (FEHA) already defined “disability” more broadly than the ADA.

    Some of the major changes added by the ADAAA include:

    • Clarifying that the ADA should be interpreted in favor of “broad coverage of individuals . . . to the maximum extent permitted” by the statute.
    • The addition of other examples of “major life activities” such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
    • Clarifying that employees who are “regarded as” disabled, but are not actually disabled, are not entitled to reasonable accommodations.
    • Modifying the “regarded as” prong of the definition of disability to not apply to conditions that are “transitory” (actual or expected duration of less than 6 months) or “minor.”
    • Requiring the determination of whether an impairment substantially limits a major life activity to be made without regard to the use of mitigating measures (in other words, if the person did not take his/her medication would the individual’s medical condition substantially impair one or more life functions.

    Despite the concerns expressed when the bill was passed, I have not seen a significant increase in the number of ADA cases brought to court.  I don’t know if it is just too early to tell, or I just don’t see the difference because the requirements on California employees and employers have not drastically changed.  Although I have not seen a significant rise in disability discrimination cases, it is still a frequently misapplied area.  I probably receive more phone calls about appropriate accommodations than any other area of law, with the possible exception of wage and hour questions.  If you have a question about disability discrimination or reasonable accommodations, speak with a lawyer familiar with the employment laws before the issue becomes a problem.

    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.

  • Ageist Comments Lead to Litigation

    In a recent case from the 4th appellate district, the California Court of Appeals reversed a lower court’s granting of a motion for summary judgment finding there were triable issues of fact.  According to the evidence presented in the motion and opposition, 60 year-old Robert Sundell was terminated from his V.P. of Sales position at Taylor-Listug.  Four years earlier Mr. Sundell suffered a stroke, and thereafter began using a cane.  Up to that time, and even the following year, Mr. Sundell received mostly positive performance reviews.

    Sundell’s 2006 performance review marked him as “needing improvement” in three out of eight areas.  Around the same time Sundell began hearing comments from the company owners leading him to believe they wanted to hire younger, less expensive employees.  According to Sandell, a few days after he returned to work full-time in December 2004, “[Listug] came in my office . . . and closed the door and said that if I didn’t make a full recovery, that the company had the right to fire me or demote me and reduce my salary.”

    Listug also allegedly questioned Sandell’s use of a cane, suggesting that Sandell was using the cane to create sympathy or to get attention. According to Sandell, “[Listug] called me to his office after one of our regular or routine sales meetings, and he asked me when I was going to get rid of the cane and when I was going to drop the dramatization.”

    According to Sandell, Taylor also announced several times in management meetings that “he would rather fire old people and replace them with newer, younger people because it was cheaper.” Sandell heard Taylor say that “he would rather get rid of an older, tenured employee and hire a younger employee because they were . . . less expensive.”

    The company fired Sandell a A few days after Sandell turned 60.  Sandell filed a claim with the DFEH then filed suit.  The lower court thought Sandell failed to establish a prima facie case of age or disability discrimination, and that even if he did, the company established a legitimate business reasons for its action which Sandell could not rebut.  The appellate court reversed.

    According to the appellate court, Sandell showed both that he was disabled for purposes of FEHA and that his co-workers and managers were aware of his disability. Sandell also presented sufficient evidence to support his claim for discrimination in response to Taylor-Listug’s proffer of non-discriminatory reasons for terminating his employment. Sandell offered evidence that Taylor-Listug’s proffered reasons for terminating his employment were untrue, from which a fact finder could infer that those reasons were a pretext for disability discrimination.

    The court found that Sandell’s performance reviews refuted Taylor-Listug’s claim that it terminated Sandell  for performance related issues.  In particular, the court found that the fact that the parties argued extensively about a number of factual issues, including the meaning of various sales numbers and whether or not there were leadership issues, demonstrated why the case was not an appropriate one for summary judgment and should instead have been heard by a jury.

    Comments regarding Sandell’s disability constituted evidence of discriminatory intent and could not be dismissed as mere “stray” remarks. As the California Supreme Court recently observed, the “categorical exclusion of evidence” which could result from application of the stray remarks doctrine could lead to unfair results.

    The court also clarified the burden under the prima facie case. According to the appellate court, an employee is required to show only that he or performed competently according to objective criteria. Consideration of the employer’s subjective criteria does not become not relevant until later. The prima facie burden exists only to weed out patently unmeritorious claims.

    Of significant import is the timing of the company’s hiring of Sandell’s replacement.  Even though Listug, who was only a few years younger than Sandell, temporarily took over the duties of vice-president of sales after Sandell was fired, Taylor-Listug ultimately replaced Sandell with a person in his “mid-forties.” The replacement, however, was not hired for another 18 months.  Even if an inference could be drawn in Taylor-Listug’s favor from the 18-month delay before the younger man took over, such inference was not determinative. A contrary inference could be drawn just as easily.

    So, what can we draw from this case?  Telling employees that you want to hire younger, less-expensive workers is not a good idea.  Also, replacing an older worker with a younger worker can sometimes be a risky proposition, even if you wait a year and a half before replacing the person.  I suspect Taylor-Listug did not consult with their employment counsel on this one, or at least did not tell counsel that they made ageist remarks to the plaintiff before deciding to fire him.

    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.

  • DOL Assists Employers in Understanding Disability Laws

    The United States Department of Labor announced a new “Advisor” on their website that helps employers determine which federal disability nondiscrimination laws apply to their business or organization as well as the various responsibilities faced by companies that receive financial assistance from the federal government.

    According to the DOL, “The Advisor will provide you with a customized list of federal disability nondiscrimination laws that may apply and links to detailed information that will help you understand your requirements under these laws.”  The Advisor may also be useful to job applicants and employees who are interested in learning about which laws might apply.

    The Advisor addresses the following laws:

    • Title I of the Americans with Disabilities Act of 1990 (ADA)
    • Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA)
    • Section 188 of the Workforce Investment Act of 1998
    • Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance)
    • Section 503 of the Rehabilitation Act of 1973, as amended
    • The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended

    It does not tackle Section 501 of the Rehabilitation Act, Title III of the ADA, Workers’ Compensation Laws or any state or local disability nondiscrimination laws.

    The Advisor can be accessed at http://webapps.dol.gov/elaws/odep/q1.aspx.

    The Advisor appears to be a good start for employers who want to know which disability laws apply to them, but don’t forget that State or local disability nondiscrimination laws may have stricter requirements or greater applicability.  Employers and employees should consult with counsel familiar with disability discrimination and accommodation issues to ensure they are complying with all applicable laws.

    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.
     

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