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APRIL 2005 I. LEGISLATIVE/REGULATORY
UPDATE The 2005 California legislative session is well underway. With the passing of the February deadline to introduce new legislation, there are currently 2,800 new bills in front of the Legislature. Below are a few that, if signed, would most dramatically impact California’s employers and employees.
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DLSE Releases Modified Meal Period Regulations The Division of Labor Standards Enforcement (“DLSE”) recently released modified regulations concerning meal periods. Initially proposed as emergency regulations, the DLSE withdrew these regulations in December 2004 and opted instead to introduce permanent regulations. As part of this process, the DLSE held three hearings throughout February and March 2005 and collected comments on the proposed regulations. The modified regulations alter the three conditions under which an employer is deemed to have provided a meal period as follows: (1) the employer informs the employee of his or her right to take a meal period and provides that he or she will suffer no retaliation for exercising this right; (2) the employer affords the employee the opportunity to take the meal period; and (3) the employer maintains accurate time records for covered employees or otherwise establishes by a preponderance of the evidence that the meal period was in fact actually provided to the employee. The new regulations differ from the previously proposed regulations which focused on the employer’s posting of the applicable wage order and noted that employers could give employees written notice of the circumstances under which they are entitled to a meal period as a “further precaution.” The modified regulations also state that an employee who works more than six hours, but less than 10 must be provided a meal period “before the work period exceeds six hours.” The regulations make clear that the duty to provide a meal period is not triggered until an employee works in excess of five hours in a work period. Employees working more than five hours
must be provided a meal period of at least thirty minutes, although this
meal period may be waived by the mutual consent of the employer and employee
in the event that an employee does not work in excess of six hours during
the work period. Employers must provide employees with an additional meal
period of at least thirty minutes prior to the employee working in excess
of ten hours in a work period (although this meal period may be waived
by the mutual consent of the employer and the employee if the employee
does not work in excess of twelve hours in the work period and the employee
did not waive his or her first meal period.) Should the regulations pass, they will be sent for approval to the Office of Administrative Law. Any comments regarding the modified regulations must be submitted by 5:00 p.m. on April 22, 2005 to: Allen Perlof, Senior Deputy Labor Commissioner |
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II. JUDICIAL UPDATE Age Bias Need Not Be Deliberate The U.S. Supreme Court has ruled that the federal Age Discrimination in Employment Act (“ADEA”) prohibits age discrimination in a manner comparable to prohibitions against sex and race discrimination. Smith v. City of Jackson brings federal law into alignment with current California law, which established this principle in 2000. The California Legislature expressly adopted the disparate impact theory in age discrimination cases when Governor Gray Davis signed SB 26 (codified at Government Code section 12941) which states, in pertinent part that, “[t]he Legislature declares its intent that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group, and further declares its intent that the disparate impact theory of proof may be used in claims of age discrimination.” In a disparate impact case, the plaintiff need only show that an employer’s apparently neutral policy has a disproportionate adverse effect on a protected class of employees. This contrasts with a disparate treatment case, where the plaintiff must establish that he or she was treated differently from others based upon a protected class. In Smith, the city raised the pay of its police officers, giving officers with less than five years of service proportionately larger raises than officers with more seniority. The more senior officers tended to be 40 years of age and older, the age at which ADEA protection begins. The older officers sued the city, claiming they were adversely affected by the plan because of their age. The lower courts rejected their claims, holding that unlike suits brought under Title VII of the Civil Rights Act of 1964, the ADEA did not permit disparate impact claims. The Supreme Court found that the language of the ADEA, like that of Title VII, creates a broad prohibition of discrimination based on a protected characteristic. Thus disparate impact claims are now available under the ADEA and are to be treated the same as those brought under Title VII. Although the U.S. Supreme Court held that the disparate impact theory is applicable to ADEA claims, it found that the city’s policy was not discriminatory because the employees failed to identify any specific test, requirement, or practice within the plan that adversely impacted older workers, other than showing that the plan was less generous to them. Further, the Court found that the city’s stated reasons for the pay plan were reasonably based on some factor other than age. |
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Conditional Offers In Leonel v. American Airlines, Inc., the Ninth Circuit Court of Appeals (which has jurisdiction over California) ruled that a conditional offer of employment may run afoul of the medical examination requirement of the Americans With Disabilities Act (“ADA”). In the case, American Airlines (“the Employer”) made employment offers to Walter Leonel, Richard Branton, and Vincent Fusco (“the Applicants”) that were conditioned upon each passing a background check and medical examination. Rather than wait for background checks, the Employer immediately sent the Applicants to its on-site medical department for medical examinations, where they were required to fill out medical history questionnaires and provide blood samples. In the course of the medical examination, the Applicants decided not to disclose their HIV-positive status. Upon discovering their HIV-positive status (via the complete blood-count test in the medical examination), the Employer rescinded the job offers because the Applicants had “failed to be candid or provide full and correct information.” After their offers were rescinded, the Applicants sued the Employer, alleging that its medical examination had been conducted prematurely in violation of the ADA and the California Fair Employment and Housing Act. A federal trial court dismissed their claims, and they appealed to the Ninth Circuit. According to the ADA, an employer must make an offer of employment before it can collect medical information or conduct any medical examination. In this case, the Ninth Circuit unequivocally held that when an employer makes a job offer conditioned on the applicant passing both medical and non-medical components, the job offer is not bona fide. Moreover, medical inquiries and examinations are unlawfully premature when the offer is contingent upon both medical and non-medical components and the employer collects medical information from an applicant before all of the non-medical conditions are evaluated. The Ninth Circuit did allow for the possibility that an employer may establish that it could not have reasonably completed the non-medical portion of the hiring process before collecting the medical information. The Ninth Circuit did not squarely address the undisputed fact that the Applicants had been intentionally dishonest in their medical examinations. Instead, the court stated that when a medical examination is unlawfully premature, the employer cannot “penalize” an applicant “for failing to disclose” the medical information. The Ninth Circuit has created a clear-cut rule to which employers must adhere when making an offer contingent on both non-medical and medical components. The employer must first fully collect and evaluate all of the applicant’s non-medical information. Then, only after the employer is satisfied that the applicant meets all non-medical conditions to employment, may the employer condition a job offer upon the applicant passing a medical examination. |
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California’s Definition of Retaliation Clarified In McRae v. Department of Corrections, Dr. Margie McRae (“the Employee”) filed a civil lawsuit against her employer, the California Department of Corrections (“the Employer”). The jury awarded the Employee $75,000 on her claim of retaliation. The court of appeals reversed the judgment and opined that the Employee neither suffered a legally cognizable adverse employment action nor was able to rebut the Employer’s evidence that there was a legitimate, nonretaliatory reason for her transfer. After the Employee filed a California
Department of Fair Employment and Housing (“DFEH”) charge
of racial discrimination, she alleged that the Employer engaged in three
acts of retaliation against her by: (1) issuing a letter of instruction;
(2) conducting an internal investigation (which lead to a recommendation
of a 30 day suspension; and (3) transferring her to another facility. First, there was no evidence that the letter of instruction resulted in any loss of pay, status, or job responsibilities. Second, the court opined that while a 30-day suspension would be an adverse employment action, in this case, the suspension never took place. Third, the transfer was not an adverse employment action because it was a transfer to a comparable position not resulting in substantial and tangible harm. The court also concluded that the Employee did not produce competent evidence that the Employer’s reasons for its employment decisions were pretextual for retaliation. For example, the court stated, the Employee made no showing that the Employer routinely, or ever, punishes people for filing a DFEH charge by transferring them to less favorable assignments. She also could not show that the Employer lacked a legitimate reason for her transfer.
If you would like to discuss these or any
other employment law matters, please do not hesitate to contact any member
of Klinedinst's Employment Law
Department.
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