 |
|
|
Lynberg
& Watkins
ATTORNEYS AT LAW
A PROFESSIONAL
CORPORATION
|
| Los
Angeles - Orange County
|
http://www.lynberg.com
|
|
| Volume
II, Issue 1 |
Monthly
Newsletter
February
2009 |
Employment
Law
Lynberg
& Watkins Successfully Defends Orange County District
Attorney in Retaliation Lawsuit.
Norman J. Watkins,
with the assistance of Associate, Pancy Lin, obtained a defense
verdict on behalf of the County of Orange and Orange County
District Attorney, Tony Rackauckas. The case involved
a former deputy district attorney who alleged First Amendment
Civil Rights violations and California Labor Code claims for
whistleblowing retaliation. Plaintiff, who was
a senior deputy district attorney, claimed he was transferred
to less desirable positions within the Orange County District
Attorney’s Office in violation of his free speech rights
and in retaliation for disclosing to the California Attorney
General information which Plaintiff believed constituted violations
of law by Mr. Rackauckas.
After listening to seven days of testimony, the jury, by unanimous
verdict, found that Plaintiff did not have reasonable cause
to believe that Mr. Rackauckas had violated any laws, and
that the District Attorney’s decision to transfer Plaintiff
was not an adverse employment action. The jury awarded no
damages. The two-week trial took place in the United States
District Court for the Central District of California before
the Honorable Cormac J. Carney.
Read
the Orange County Register's report here.
|
|
Congratulations
to our
New Partners
Lynberg
& Watkins continues to grow and we would like
to extend our congratulations to the following who
recently were named parter at the firm:
Matthew P. Harrison
(Los Angeles)
Courtney L. Hylton (Orange
County)
Christine Magarian
(Los Angeles)
Michael S. Moss
(Los Angeles)
Russel W. Schatz, Jr. (Los
Angeles)
|
|
More
Concerning the ADA Amendments Act of 2008.
In our November 2008
newsletter we reported concerning the broadened protections
afforded to disabled individuals in the work place as the
result of passage of the ADA Amendments Act of 2008 (ADAAA).
This legislation went into effect on January 1, 2009.
As we had advised in November, it in fact appears that the
California Fair Employment and Housing Act (FEHA) continues
to provide a broader range of protections to employees than
the ADAAA. However, employers and counsel should nevertheless
be aware of the changes to the federal law.
The ADAAA was a response to a series of United States Supreme
Court cases that had ruled in favor of employers by narrowing
the definition of “disability” and doing the same
regarding the scope of individuals covered by the Americans
with Disabilities Act (ADA).
Thus, despite these federal court decisions that have denied
or limited protection for various conditions such as heart
disease, epilepsy, diabetes and cancer, the ADAAA has now
broadened the definition of “disability.”
How and to what extent remains to be seen. Congress
has authorized the Equal Employment Opportunity Commission
(EEOC) to issue regulations further defining the term “disability”
and to define the term “substantially limits”
in the context of determining whether a specific impairment
would substantially limit a major life activity. Thus,
until these regulations are issued, we will not know how the
provisions of the ADAAA will compare with the provisions of
the FEHA. It is quite possible that ultimately the ADA
may afford even more protection to employees than is available
under California law. If that is the case, the FEHA
by its own terms requires that the more expansive and broader
protections to employees apply.
PRACTICAL TIP: Until
further regulations are promulgated pursuant to the ADAAA,
the FEHA continues to provide broader protection to disabled
employees. Thus, California employers should make sure their
policies are in strict compliance with the Fair Employment
and Housing Act as well as to always promptly engage in the
interactive process with employees who have claimed disabilities.
School
Law
Only
Licensed Nurses Can Administer Insulin Shots.
A
California Superior Court (Sacramento) has recently ruled
that only licensed nurses are legally authorized to administer
insulin shots to diabetic students. Prior to this ruling,
the California Department of Education had issued a legal
advisory that trained, but unlicensed, school staff members
could administer injections if a nurse or parent was unavailable.
The California Department of Education’s directive followed
a class action lawsuit filed by parents who claimed they often had
to keep their children out of school or leave their jobs in
order to ensure that their children received the necessary
insulin shots.
PRACTICAL TIP: The
California Department of Education has since rescinded the
legal advisory authorizing unlicensed staff members to administer
insulin to students while its legal team revises the guidelines.
Thus, until a new directive is issued by the Department,
school districts are advised to ensure that only licensed
nurses are authorized to administer insulin, or any other
forms of injections, to students. Extra
Precautions Must be Taken to Prevent Potential Harm to Students
with Disabilities.
In a case pending
against the Los Angeles Unified School District (Jennifer
See v. Los Angeles Unified School District), the California
Court of Appeal has concluded that a middle school student
suffering from mental and physical impairments can proceed
with a negligent supervision claim. The student was
sexually assaulted by a classmate in an area beneath a stairway
during lunch recess. The District argued that, because
there were no prior similar occurrences, the incident was
not foreseeable.
The Court disagreed finding that such an event is foreseeable
when a “hiding place” is allowed to exist where
a student with a disability can be assaulted.
PRACTICAL TIP: It
is important to note that the Court in this case focused
upon the fact that students with disabilities are uniquely
and peculiarly vulnerable to sexual assaults. This,
coupled with the fact that special education students would
not necessarily understand that certain areas were either
off limits or could provide cover for inappropriate activities,
therefore required greater vigilance on the part of the District.
Thus, for all practical purposes there is a higher standard
of care when dealing with special education students in all
contexts, but especially where personal safety is involved.
Negligent
Supervision by School District Results in $18 Million Settlement.
A Los Angeles County school district has paid $18,400,000.00
to settle a claim involving a 9th grade student who was rendered
a quadriplegic the result of an injury suffered during horseplay.
The incident occurred during a track team practice.
Two coaches and one substitute teacher were all in the vicinity
where the incident occurred but failed to intervene.
PRACTICAL TIP: This
case is a reminder that all school district personnel are
charged with the responsibility of supervising students while
on campus, and this is something that should be made an explicit
part of training and instruction. The substitute teacher
who happens to be walking through the gym, or the clerical
staff member who may be on his or her way to the parking lot
are both nevertheless responsible for supervision and must
be prepared to take appropriate steps if they witness or become
aware of an incident. “It wasn’t my job”
is not a defense.
|
| |
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.
|
|
|
|
|
