Lynberg & Wakins Lynberg & Wakins
Volume II, Issue 3      

Newsletter April 2009

Employment 

The Lilly Ledbetter Fair Pay Act

In January 2009, the  President signed into law the Lilly Ledbetter Fair Pay Act ("FPA"), which overturned the Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co.  In that case, Ledbetter claimed that discrimination and bias against her because of her sex was the reason for poor performance evaluations and, consequently, lower pay than her male co-workers. The Supreme Court ruled that her claims were untimely despite her assertion that each subsequent paycheck was continuing evidence of the bias against her.  In essence, the statute of limitation clock did not start ticking anew after each paycheck.  The  FPA amends provisions of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, portions of the Americans with Disabilities Act of 1980, and the Rehabilitations Act of 1973.  Under the new law, an unlawful employment practice occurs with each new allegedly discriminatory paycheck, which serves to continually extend the statute of limitations.  The law is retroactive to May 28, 2007.

PRACTICAL TIP:  Employers should review existing pay administration policies to determine if pay is consistent among workers with equivalent levels of education and experience in roughly equivalent positions; that there are clearly described procedures for determining salary and benefits at entry and at the time raises are considered; and that bonus practice is consistent among men, women and minority employees.

Do you Know What Types of Unpaid and Short Term Leave California Employers Must Provide?

Employers with 25 or more employees must provide: 40 hours per year (8 hours per month) of unpaid time off to attend school activities; reasonable unpaid time off to victims of domestic violence or sexual assault to seek counseling, medical, and other related services; and reasonable unpaid time off to seek treatment for drug or alcohol rehabilitation.  [Note: this is considered a "reasonable accommodation" for purposes of the ADA and the FEHA.]

All employers must provide unpaid time off to address a child's school suspension issues; unpaid time off to victims of domestic violence to seek legal relief such as protective or restraining orders; unpaid time off to attend judicial proceedings concerning crimes against the employee or immediate family members; unpaid time off for jury duty for as long as the court requires; and a minimum two hours off to vote in elections.

PRACTICAL TIP:  Insure that your supervisory and management personnel are fully aware of all leave provisions available to employees under the law.  It is also important to understand, preferably before you find yourself in a sticky situation, how the various state and federal leave provisions interrelate.  Lynberg & Watkins provides free of charge consultations on this, and other employment-related issues.  If you are interested, please send an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Don't Get Tripped Up By Reference Checks

California Labor Code, Section 1050 makes it a misdemeanor for any person to make misleading statements or factual misrepresentations that prevent a former employee from obtaining subsequent employment.  Moreover, the individual who made the statement and his or her employer can be compelled to pay treble damages for the lost job opportunity.  Employers are of course permitted to make truthful statements regarding the circumstances under which an employee quit or was terminated.  The problem is that former employees rarely agree that their performance was substandard or they were guilty of misconduct.  It is therefore important that a clear policy and protocol be set up.  Here are some suggestions:

1.  Advise the departing employee of a reference contact either by name or title.  Don't make this person a supervisor with whom the employee may have had a conflict.
2.  Adopt a neutral reference policy wherein only dates of employment, job titles, and (perhaps) final salary are disclosed.
3.  Clearly document the reason for the separation in the employee's personnel file, but be sure to avoid statements about the employee's character or other subjective assessments.
4.  Make sure all your managerial and supervisory personnel know the policy and protocol.

PRACTICAL TIP:  The key here is to, as much as possible, have all reference requests go through the same person or office.  By documenting the reasons for the separation in the personnel file, you can insure that only accurate information is conveyed even if the persons who worked with the former employee are themselves gone.

Well Intentioned Letters of Reference Could Result in Liability.

The flip side of the coin described immediately above is the fact that providing a positive reference, when it is known that the employee had engaged in inappropriate conduct, can be deemed a misrepresentation to the new employer.

The California Supreme Court, in Randi W. v. Muroc Joint Unified School District, held the defendant liable for fraud and misrepresentation where it unqualifiedly recommended a teacher to another school with the knowledge that the teacher had been involved in sexual misconduct with students.  The teacher went on to sexually molest a student at the new school.  The Court reasoned that, although the defendant did not have a duty to disclose the misconduct, where it provided a letter of recommendation that addressed the teacher's character in a positive manner, it was obligated to disclose the teacher's full character, including any known investigations or misconduct. 

PRACTICAL TIP:  Please note that there was no duty to disclose the misconduct, but only to not misrepresent the employee's character to a potential new employer.  The Supreme Court pointed out that liability may have been avoided by: (1) writing a full disclosure letter revealing all relevant facts regarding the teacher's background, (2) writing a no comment letter omitting any affirmative representations regarding the teacher's qualifications, or (3) merely verifying basic employment dates and details.  This is a perfect example of why, when it comes to references, a specific policy and protocol is essential.

Disabled Persons May Seek Money Damages For Public Entity's Violation of Title II of the Americans With Disabilities Act (ADA).

Title II of the ADA provides that "[n]o qualified individual with disability shall, by a reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."  The Ninth Circuit Court of Appeals, which has jurisdiction over California, held that intentional discrimination exists where (1) the public entity has notice that an accommodation is required to ensure access to a federally protected right, and (2) it deliberately fails to act.  Duvall v. County of Kitsap.  In that case, the plaintiff alleged that defendants failed to accommodate his hearing impairment by refusing his request for a videotext display during the court proceedings involving the dissolution of his marriage.  The Court found that the defendant intentionally discriminated against plaintiff where it failed to investigate into whether it could provide plaintiff with the requested videotext display and held the hearings in a particular courtroom despite being informed by plaintiff that the audio system in that courtroom was insufficient.      

The Ninth Circuit noted that upon receipt of a request for accommodation, a public entity is required to undertake a fact-specific investigation to determine what constitutes a reasonable accommodation. The public entity must then provide accommodation with consideration for the particular individual's needs.

PRACTICAL TIP:  No surprise here.  This is a reminder that the obligation to reasonably accommodate extends beyond the employer-employee relationship and is not limited to simply "access" issues. 
Learn more about Lynberg & Watkins, APC at http://www.lynberg.com
Disclaimer:The content of this newsletter is for informational purposes only and is not intended to serve as a source for legal advice. Lynberg & Watkins, APC expressly disclaims all liability with respect to actions taken or not taken based upon such information or with respect to any errors or omissions in such information. As we are not providing legal advice through this newsletter, information contained herein should not be relied upon for any purpose without seeking legal advice from a duly licensed attorney competent to practice law in your jurisdiction. To contact Lynberg & Watkins, APC please e-mail This e-mail address is being protected from spambots. You need JavaScript enabled to view it .