Lynberg & Watkins

Lynberg & Watkins ATTORNEYS AT LAW A PROFESSIONAL CORPORATION
Los Angeles - Orange County	http://www.lynberg.com

Volume I, Issue 4

Monthly Newsletter
December 2008 - January 2009

Employment Law

Text Messaging While Driving Prohibited As of January 1, 2009.

Provisions augmenting the July 1, 2008 law prohibiting the use of cell phones while driving will go into effect on January 1, 2009. This new law will bar text messaging, e-mailing and instant messaging while cruising the freeways and byways of California. (For your information, Alaska, Louisiana, Minnesota, New Jersey and Washington have already enacted similar bans).

If you are an employer who requires employees to drive as part of their job, it is important to insure that they are aware of this new prohibition. As usual, we recommend that employers have a written policy spelling out when cell phones and other electronic wireless communication devices can and cannot be used. Depending on your specific circumstances, this policy could apply to situations when the employee is on the work premises, but at minimum should address the prohibitions that apply when an employee is driving as part of his or her job. It is also a good idea to include that any penalties or fines incurred for violating these laws will be the employee’s responsibility.

Happy Holidays
and
Best Wishes
for a
Safe and Prosperous New Year

Employers Could be Liable for Off-Duty Sports-Related Injuries.

In the case of Tomlin v. Workers’ Compensation Appeals Board, the California Court of Appeal held that a member of the Beverly Hills Police Department’s SWAT team qualified for workers’ compensation benefits for an injury sustained while on vacation. The plaintiff was a police officer who broke his ankle during a three-mile run. The officer stated that he was preparing for an upcoming mandatory fitness test and believed he was expected to continue training while on vacation. The court explained that workers’ compensation is applicable where an employee reasonably believed the off-duty activities were a work requirement.

PRACTICAL TIP: An employer should be conscious of the following when sponsoring or allowing recreational activities during work hours: (1) If the recreational activity could be connected to work, even if you are not the sponsor, inform employees that you are not involved and that participation is not required; (2) Limit recreation to off-duty hours; and (3) Train managers to avoid making comments that could be construed as exerting pressure on employees to participate in such activities.

EEOC Fines California Employer Over Hip Hop Music.

The Equal Employment Opportunity Commission (EEOC) successful pursued a claim against a private employer on the basis that an employee was regularly subjected to racial harassment. The employer was ordered to pay the employee $168,000.00. What was the basis of the complaint? The employee complained that he was forced to listen to rap music played by another employee, which contained racial epithets and other inappropriate language. The employer failed to take steps to prevent the offensive music from being played despite the fact that the employee complained on various occasions about the songs' lyrics.

PRACTICAL TIP: This case serves as a reminder that harassment is not just about a perpetrator targeting a specific victim. It can occur whenever inappropriate or offensive conduct is allowed to occur in the work place even if that conduct is not directed against anyone in particular.

You May Need to Update Your Electronic Monitoring Policies.

The Ninth Circuit Court of Appeals (which has jurisdiction over California) recently found that an employee had privacy rights in his text message communications over a wireless pager/text messaging service provided by the employer. Quon v. Arch Wireless Operating Co., Inc. In that case, the employer decided to audit text messages sent by employees and found that one employee in particular had sent and received messages with sexually explicit content.

The employer had a fairly standard computer/internet/email policy in place which stated that the systems were for business use only, that the employer could monitor email and internet activity, and that employees had no expectation of privacy or confidentiality when using the services. All employees were required to sign an acknowledgment that they had read and understood the policy.

The problem was that the policy did not specifically address the pager/text messaging technology.

PRACTICAL TIP: Make sure your electronic system policy is broad enough to cover all of the technologies you use, including text messaging, and be sure to regularly update your signed employee acknowledgments.

Know Your Obligations as an Employer.

(1) Lynberg & Watkins provides the 2-hour state mandated sexual harassment prevention seminars. These are presented by partner Ric C. Ottaiano, who has specialized in the defense of harassment, discrimination, civil rights and employment matters for approximately 15 years. The program is delivered live along with a multi-part power point presentation, which includes video scenarios that serve as the starting point for what is usually detailed and spirited discussion. Also provided is a comprehensive booklet which can be used for future reference. Please feel free to visit the following link to view recent recommendations and testimonials concerning this program:http://www.lynberg.com/practice/training_ab1825.html

(2) Inasmuch as both state and federal law provides employees with the right to various leaves of absence, Lynberg and Watkins also presents in-house seminars explaining how to properly administer these leaves pursuant to the Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), and instruction on the manner in which these mandated benefits interact with standard maternity and other leaves of absence.

(3) Disability discrimination claims brought by employees under the Americans with Disabilities Act (ADA), or the similar California state law provisions of the Fair Employment and Housing Act (FEHA), for failure to accommodate typically will focus upon the alleged failure of the employer to engage in good faith in the interactive process. It is therefore extremely important, when it becomes known that an employee suffers from a disability which may prevent him or her from performing the essential job functions of the position, that the interactive process begin in a timely fashion and avoid getting off on the wrong foot. To assist HR departments (or their equivalents) in navigating this sometimes complicated area of the law, we provide in-house consultation to the appropriate personnel to explain the manner in which these claims should be handled from start to finish. We also provide a generic written questionnaire that can be used as an "intake" form during the initial discussions with the disabled employee. [If you are interested in receiving a copy of this form, please send an e-mail with your request to: rottaiano@lynberg.com]

School Law

School Trip Chaperones Face Personal Liability.

There have been a number of recent cases in various jurisdictions which have found chaperones of students on school functions personally liable for failing to adequately perform their chaperoning duties. For instance, a chaperone of a New Jersey high school cheerleading team was ordered to pay $690,000.00 to the estate of a cheerleader who died after falling from her room balcony at a hotel in Maui. The team was there to perform at half time of a football game.

This exposure to personal liability arises when the chaperones are not school employees and, consequently, may not be covered by the school's liability insurance. It is therefore prudent for parents who will act as chaperones, or the sponsoring associations for the school trips, to obtain liability insurance coverage.

PRACTICAL TIP: We suggest that districts insure that comprehensive liability waivers are signed on behalf of all students attending field trips and other off campus events, and that these waivers specifically extend to chaperones who are not school employees. We can provide you with a sample waiver form if you send an e-mail with your request to: rottaiano@lynberg.com.

Failure to Deal with Peer vs. Peer Harassment Results in Liability.

In a recent case, a trial court awarded a student $175,000.00 in compensatory damages after finding that the school district failed to protect him from persistent sexual orientation harassment. A California Court of Appeal affirmed that award. Donovan v. Poway Unified School District.

In that case, the student complained to his principal of death threats, vandalism, gay epithets, and other inappropriate conduct directed against him. Although the principal promised to investigate, neither the principal nor any other school official followed up on the situation. The court found that the District violated California Education Code section 220, which prohibits a school district from discriminating against students based upon their sexual orientation.

PRACTICAL TIP: It bears repeating that school districts should view claims of sexual orientation harassment no less seriously than claims of racial, religious, or other forms of harassment. Whatever form the harassment may take, for all practical purposes the victims have the same protections and school districts have the same obligations.

Police Liability Law

Video Evidence May Prove Dispositive at Trial.

Cell phones with video features are increasingly common -- thereby increasing the chances that a video record of police arrest incidents will be available in litigation. A video filmed by local college students recently proved dispositive in federal litigation brought against multiple Hermosa Beach police officers. Briley v. City of Hermosa Beach.

The two plaintiffs in Briley alleged that they were brutalized by Hermosa Beach police officers during an arrest. However, the federal court judge discounted sworn testimony submitted by plaintiffs, in favor of what was actually shown on the students' videotape of the incident. The court then dismissed the Briley plaintiffs' federal civil rights claims. The Hermosa Beach officers were represented by S. Frank Harrell of Lynberg & Watkins' Orange County office.

PRACTICAL TIP: The credibility of witnesses is pivotal in police liability cases. This case demonstrates that video evidence of an event is often indisputable and could serve to discount even the most otherwise credible witness testimony. Thus, whenever possible, law enforcement should try to create a video record.

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 rottaiano@lynberg.com.