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Lynberg
& Watkins
ATTORNEYS AT LAW
A PROFESSIONAL
CORPORATION
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| Los
Angeles - Orange County
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http://www.lynberg.com
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| Volume
II, Issue 3 |
Monthly
Newsletter
April
2009 |
Employment
Law
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.
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Know
Your Obligations as an Employer
Sexual
Harassment Seminars:
We
provide training in compliance with AB 1825's requirement
that employers with 50 or more employees provide
sexual harassment prevention training for its supervisory
employees.
Family
and Medical Leave:
Lynberg
& Watkins also provides seminars on how to properly
administer leaves of absence pursuant to FMLA and
CFRA and how these leaves interact with maternity
and other leaves of absences.
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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 rottaiano@lynberg.com.
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.
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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.
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