Employee’s drug-induced mentally altered state doesn’t nullify voluntary resignation

Authored by Anjuli Cargain. Ms. Cargain is an Associate in Sedgwick’s San Francisco office. Click here to contact Ms. Cargain.

Originally published by Ms. Cargain in the California Employment Law Letter (Vol. 27, No. 15.)

In Featherstone v. Southern California Permanente Medical Group (California Court of Appeal, 2nd Appellate District, 4/19/17), a former employee sued her employer under the California Fair Employment and Housing Act (FEHA) for violations of public policy after her request to rescind her resignation— made while her mental state was altered—was declined. Even if the former employee suffered a disability under the FEHA, the employer’s decision didn’t constitute an adverse employment action because it occurred after her employment had ended, and her resignation was free of employer coercion or misconduct. Furthermore, the former employee failed to place her employer on notice of her disability or request any accommodation before she resigned.

Background
Ruth Featherstone began working for Southern California Permanente Medical Group (SCPMG) in 2009. Before she started her job at SCPMG, she was diagnosed with an “inverted papilloma tumor,” and from 1995 to 2008, she underwent five surgeries for the condition. Throughout her employment at SCPMG, she suffered from chronic sinusitis.

In October 2013, Featherstone requested, and SCPMG granted, a leave of absence for a surgery she needed because of changes in her sinus tumor. None of the work status reports submitted to SCPMG during her medical leave of absence disclosed any information about her medical condition or any medications she was taking. On December 16, 2013, she returned to work without any work restrictions.

On December 23, at 8:30 in the morning, Featherstone telephoned her supervisor, Vicky Sheppard, and said that she was resigning, effective immediately. Sheppard recalled that Featherstone stated that “God had told [her] to do something else.” Sheppard wasn’t aware that Featherstone was suffering from any type of altered mental state. She did ask Featherstone during the call to “slow down” but didn’t otherwise notice any “odd” behavior. Later that day, Sheppard saw a Facebook post in which Featherstone stated that she had resigned in order to “do God’s work.” However, she didn’t think that it was out of the ordinary “because the reference to God was not inconsistent with Featherstone’s character.” After the telephone conversation, Sheppard sent an e-mail message to Featherstone asking her to confirm the resignation in writing. Sheppard also notified her supervisor and SCPMG’s HR department of the resignation. SCPMG immediately processed Featherstone’s final paycheck and termination paperwork, which provided that she was “eligible for rehire.” Featherstone responded to Sheppard’s e-mail three days later, confirming her resignation effective December 23, 2013.

Request for reinstatement and notice of purported disability
On December 21, Featherstone’s behavior at home became erratic. For example, she “took off her clothes and walked around naked in front of others, repeatedly and uncharacteristically swore at family and friends, and took showers for no reason.” On December 24 (one day after her resignation), she was hospitalized. That same day, one of Featherstone’s coworkers spoke with Featherstone’s sister and learned of the hospitalization. The coworker told her manager about Featherstone’s situation and also contacted SCPMG’s HR department. However, she was told that HR couldn’t discuss the situation because she wasn’t a relative of Featherstone.

On December 26, the day that she confirmed her resignation via e-mail, Featherstone was transferred to a mental health facility. She was released later that same day. On December 31, Featherstone informed SCPMG—for the first time—that she was suffering from an “adverse drug reaction” and, as a result, requested that her resignation be rescinded. In response, SCPMG asked for supporting documentation of her condition. Featherstone submitted a physician’s note confirming that she had been hospitalized “due to a behavioral change that resulted from an adverse reaction from medication Phenergan with codeine.” Nevertheless, SCPMG concluded that there was nothing improper about accepting her resignation and there were no facts justifying a reversal of it.

Featherstone didn’t reapply for her job with SCPMG. She alleged that she suffered discrimination based on a “temporary disability” stemming from the side effects of medication she was taking to treat her chronic sinusitis and SCPMG failed to prevent unlawful discrimination, failed to accommodate her disability, failed to engage in the interactive process, and wrongfully terminated her in violation of public policy. The court of appeal held the lower court properly granted SCPMG on all claims for two principal reasons.

First, SCPMG’s refusal to allow Featherstone to rescind her resignation wasn’t an adverse employment
action.

Second, she failed to raise a triable issue of fact about whether the SCPMG employees who accepted and promptly processed her resignation knew of her alleged temporary disability at the time they took those actions.

Disparate treatment discrimination
To establish a prima facie case of disparate treatment discrimination, an employee must show that (1) she suffers from a disability, (2) she is otherwise qualified to do her job, (3) she suffered an adverse employment action, and (4) the employer harbored discriminatory intent. The issue of whether an employer’s refusal to allow a former employee to rescind a resignation constitutes an adverse employment action isn’t clearly defined in the wording of the FEHA, and there are no California court decisions addressing the issue. Therefore, the court of appeal—in considering the issue for the first time—looked to federal court decisions in employment discrimination cases.

Based on federal case law, an employer’s refusal to rescind an employee’s resignation isn’t an adverse employment action, primarily because the employment relationship has already ended. The court of appeal reasoned that assuming, for the sake of argument, that Featherstone’s mental condition constituted a disability, her claim failed under the FEHA for similar reasons. In short, an adverse employment action must have an impact on an employee, not a former employee, to be actionable.

Additionally, there was no evidence that SCPMG coerced or otherwise improperly pressured Featherstone to resign or that SCPMG was contractually obligated to permit her to rescind the resignation. Featherstone was an “at-will” employee, and her resignation had been accepted by SCPMG’s processing of the termination paperwork. Because she couldn’t prevail on her discrimination claim, her derivative claim for failure to prevent discrimination also failed. SCPMG had insufficient knowledge
of her ‘temporary’ disability.

Under the FEHA, an employer must provide a reasonable accommodation for an employee’s known physical or mental disability, and it is generally the employee’s burden to give the employer notice of the disability. It is a separate violation of the law for an employer to fail “to engage in a timely, good[-]faith . . . interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee . . . with a known physical or mental disability or known medical condition.” An employer will be deemed to have knowledge of an employee’s disability if information is provided directly by the employee or if the fact of a disability is the only reasonable interpretation of the clear, known facts. Although both the employer and the employee participate in the interactive process, the employee must specifically identify her disability and the resulting limitations and suggest reasonable accommodations unless that information is obvious to the employer. The employee can’t expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it.

Featherstone never identified her temporary disability or requested any accommodation before she resigned. Even though her supervisor noticed that her speech was rushed while she was giving her resignation, the reason for her resignation was to “do God’s work,” and she posted an “erratic” Facebook message about her resignation, those facts were insufficient to demonstrate that SCPMG knew or should have known that she was suffering a temporary disability caused by an adverse drug reaction. Facts learned after an employer has decided to take an adverse employment action are not probative of whether the decision maker was aware of the disability when he made the decision. Accordingly, the fact that Featherstone’s friend and coworker notified SCPMG’s HR department that Featherstone had been hospitalized the day after her resignation or that Featherstone notified SCPMG of her purported disability when she requested reinstatement wasn’t compelling.

Bottom line
Employers can defend FEHA disability discrimination claims involving a refusal to rescind a voluntary resignation based on the argument that post-employment decisions aren’t adverse employment actions. This case also highlights the importance of promptly responding to an employee’s resignation by obtaining written confirmation of the resignation, timely processing the paperwork, and accurately recording your communications with the employee.

With regard to having notice of an employee’s disability, you need not be a mind reader, but actual notice will continue to be a question of fact that must be reviewed in each case

New York City Council Passes “Freelance Isn’t Free” Act

Authored by Michael Yim and Danya Ahmed. Mr. Yim is a Partner, and Ms. Ahmed is an Associate, in Sedgwick’s New York office. Click here to contact Mr. Yim and here to contact Ms. Ahmed.

On October 27, 2016, the New York City Council passed the Freelance Isn’t Free Act (the Act). The Act’s stated purpose is to enhance protections for freelance workers, and to provide them “the right to written contract, the right to be paid timely and in full and the right to be free of retaliation.” The Act contains extensive damages provisions for both non-payment but also, noncompliance with the Act’s terms.

The Act serves as a powerful tool to cover “freelancers” where usual employment laws may have been unavailable. In some situations, an employer may face greater liabilities for its “freelance” workforce than it would for its regular employees due to noncompliance.

Important Provisions

A “freelance worker” is defined in the Act as one person (or an organization consisting of one person) hired or retained as an independent contractor to provide services in exchange for compensation. § 20-927. The definition specifically excludes salespeople, medical professionals and lawyers.

Section 20-928 sets forth the requirement that a written contract is required “[w]henever a hiring party retains the services of a freelance worker and the contract between them has a value of $800 or more[.]” § 20-928.a. The $800 value may be aggregated to include the value of all contracts between the same parties for services “during the immediately preceding 120 days.” Id. This written contract must contain the following information at a minimum:

  • Name and mailing address of hiring party and freelance worker
  • Itemization of all services the freelance worker is to provide, the value of the services and the rate and method of compensation
  • The date on which the hiring party must pay the compensation, or the manner by which that date will be determined. § 20-928.b.1-3

The hiring party must compensate the freelance worker either on or before the compensation is due pursuant to the contract, or, should the contract not specify a due date, no later than 30 days after the freelance worker’s completion of the contracted-for services. § 20-929.a.1-2. Section 20-929 also prohibits a hiring party from reducing compensation in exchange for timely compensation once the freelancer has commenced work. The Act also prohibits retaliation in any way against the freelance worker. § 20-930.

Enforcement

The Act sets up a few methods of enforcement.

First, is a complaint procedure. A freelance worker who believes the Act has been violated may file a complaint with the Office of Labor Standards (OLS) within a two-year period of the acts alleged to have violated the Act. After the complaint is made, and if the freelancer has not initiated a civil suit, the OLS shall send, within 20 days of receipt of the complaint, a notice of the complaint to the hiring party. The hiring party thereafter has 20 days to respond to the complaint with a position statement showing either that the worker has been paid in full, or the reasons why the worker has not been paid in full. § 20-931.d-e. 20 days thereafter, the OLS shall send the freelancer the response, as well as information informing the freelance worker that she may bring a civil lawsuit. Id.

The second — and most significant — enforcement mechanism the Act provides is the right to bring a civil action to recover unpaid fees. The Act sets a two-year statute of limitations for violation of Section 20-928’s written contract requirement, and a six-year statute of limitations for unlawful payment practices and retaliation, respectively. § 20-933.

Finally, Section 20-934 creates a cause of action for a “pattern or practice of violations,” brought by the New York City Corporation Counsel on behalf of the City. Such a suit does not prevent an individual from bringing her own cause of action. § 20-934.a.3.

Damages

The Act contains fairly robust damages provisions to remedy violations:

  • A plaintiff who prevails on any violation will receive, in addition to whatever damages specified, reasonable attorneys’ fees and costs. § 20-933.b.1.
  • A hiring party’s violation of the written contract requirement shall result in statutory damages of $250. Id. at b.2.a. Further, a violation of this requirement and any additional violations of the Act will also result in statutory damages equal to the value of the underlying contract in addition to other remedies as warranted. These damages are in addition to whatever damages result from violations of those other provisions. Id. at b.2.b.
  • A finding of unlawful payment practices entitles the freelance worker to double damages, injunctive relief and other appropriate remedies. Id. at b.3.
  • Violation of the retaliation provision will result in damages equal to the value of the underlying contract for each violation. Id. at b.4.
  • In pattern or practice cases, the court may impose a penalty of up to $25,000. § 20-934.b.

Other Provisions

Key for employers is the Act’s statement that it acts as a “supplement, and do[es] not diminish or replace, any other basis of liability or requirement established by statute or common law. § 20-935.b.” The Act also prevents the parties from waiving the Act’s provisions contractually. § 20-935.a. Foreseeably, this may permit employees asserting claims under other wage & hour laws to also assert the Act where the distinction between employee and freelancer is muddled.

The Act also provides for a “navigation program” to provide information and assistance to the freelance worker, which includes information about how to file a lawsuit, model contracts and information about employee/independent contractor classification. § 20-932.

Effective Date

The Act will take effect 180 days after it becomes law, and only applies to contracts entered into as of that date — it will not have a retroactive effect. The Act has been sent to the mayor of New York City for signature after a 51-0 vote-in favor.

Impact

The Act will certainly affect all work done on a project or contract basis in New York City, likely affecting a variety of industries ranging from fashion to retail to media, and could potentially extend to on-demand services in the gig economy.

While the Act on its face appears to sidestep the battles regarding employee status by specifically stating that “[n]o provision of this chapter shall be construed as providing a determination about the legal classification of any individual as an employee or independent contractor[,]” § 20-935.d, Section 20-935.b’s provision stating that the Act is a supplement to other laws begs the question of how the Act will be enforced both on its own and in conjunction with other employment laws.

Employers should be prepared to set up a written contract and payment procedure, which could help avoid the Act’s troublesome damages requirements. Companies that employ freelance workers, whether regularly or otherwise, should familiarize themselves with the Act, and think about other potential steps to prepare for its implementation. Because of the novelty of the Act — the first of its kind in the country (and indeed, whether other cities jump on the bandwagon and pass something akin to the Act could be another issue for another day) — it remains to be seen exactly how the Act will be enforced and the law developed.

Franchisors as Joint Employers in New York? It’s Looking More and More Possible

Authored by Danya Ahmed. Ms. Ahmed is an Associate in Sedgwick’s New York office. Click here to contact Ms. Ahmed.

The Southern District of New York recently faced the question of the liability of a franchisor for its franchisees’ alleged wage and hour violations under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”).  Ocampo v. 455 Hospitality LLC, 14-cv-9614 (S.D.N.Y. Sept. 14, 2016).  While the Court only ruled that Plaintiffs stated a plausible claims that a joint employer relationship existed between franchisee 455 Hospitality LLC (“Hotel”) and franchisor Doubletree Franchise LLC/Doubletree Hotel Systems (collectively, “Doubletree”), the case signals a troubling march toward possible liability for franchisors.

The Case

Doubletree, as a franchisor, granted licenses to various franchisees, including the Hotel, to operate Doubletree by Hilton Hotels in New York under the Doubletree “system.”Plaintiffs in this action, employees of the Hotel, sued them and Doubletree for FLSA and NYLL violations, alleging claims for, among other things, unpaid minimum wages, overtime, gratuities, and tips.  Doubletree filed a motion to dismiss the action as to them, claiming that Plaintiffs were not their employees, and so they were not properly parties to the action.In short, Judge Kenneth Karas disagreed.  While the Court did not hold that Doubletree is definitively Plaintiffs’ employer, it found that Plaintiffs pled sufficient facts such that Doubletree could not be dismissed at this stage in the litigation.
The Court’s Analysis

What kept Doubletree in the action is the possibility that Doubletree, as a franchisor, could be considered a “joint employer” with the Hotel.  Thus, the question faced by the Court was whether Doubletree was a joint employer with the Hotel, and thus also Plaintiffs’ employer.  The Court applied the “functional control” test to determine whether an employer-employee relationship exists under the FLSA.[1]  The key is whether the “economic reality” demonstrates that the employer controls the workers.  The functional control test requires analysis of the following non-exhaustive factors:

  • Alleged employers’ premises and equipment were used for plaintiffs’ work;
  • The subcontractors had a business that could or did shift as a unit from one putative joint employer to another;
  • The extent to which plaintiffs performed a discrete line job that was integral to the alleged employers’ process of production;
  • Responsibility under the contracts could pass from one subcontractor to another without material changes;
  • The degree to which the alleged employers or agents supervised plaintiffs’ work; and
  • Whether plaintiffs worked exclusively or predominantly for the alleged employers.

The Court found that Doubletree could functionally control Plaintiffs because they did the following:

  • Imposed mandatory training programs for Hotel employees;
  • Maintained right to inspect the Hotel at any time;
  • Imposed mandatory record keeping requirements on the Hotel;
  • Established standards and controls that covered Hotel operations, appearance, and the like;
  • Required the Hotel to use a particular business software system;
  • Retained unlimited right to make changes to Hotel operation;
  • Regularly performed audits and inspections of the Hotel;
  • Maintained the right to terminate the franchise if quality assurance requirements were not met; and
  • Were aware that plaintiffs were not paid gratuities owed to them, but did not stop unlawful wage practices.

The Court found these instances mirrored other cases where a joint employer relationship was found to exist.  What the Court did not find significant was the fact that the parties’ Franchise Agreement called the Hotel an “independent contractor”—it is the economic reality that is significant, not the parties’ labels.  While again, the Court only ruled that questions of fact existed as to whether Doubletree was indeed a joint employer, their functional control over the Hotel and its employees has put all defendants squarely in the headlights of Plaintiffs’ discovery mechanisms.

What This Means for Employers

Franchisors and franchisees are understood to be separate businesses.  However, a possible stumbling block is the franchisor’s need to ensure uniformity among their franchisees.  That often manifests itself through the franchisor’s decision to provide varying levels of assistance to the franchisee—whether it be in the form of a computer system, training programs, distribution of employee policies, or the right to inspect to ensure franchisor standards are being met.  In context of a joint employer analysis, this, as evidenced most recently by Ocampo, may possibly be fatal to the independence of the franchisee, opening both up to liability.

Ocampo is the latest in a series of district court cases where a finding of joint employer relationship chips away at the separation between franchisors and franchisees, as well as the previously-settled definition of an “employee.”  The facts that Ocampo found probative of a joint employer relationship are the very facts typically at the heart of the franchisor-franchisee relationship.  While the Second Circuit has not yet decided the issue of whether a franchisor can be held liable as a joint employer in the FLSA context for its franchisees’ alleged misdeeds, that time may be fast approaching.

What creates further cause for concern is the reaction of the courts to the potentially-groundbreaking case currently ongoing before the National Labor Relations Board (“NLRB”).  The NLRB is embroiled in a lengthy trial with McDonald’s to determine whether McDonald’s, as franchisor, can be considered a joint employer of the millions of employees of its franchisees.[2]  One key issue there is whether McDonald’s exercises “operational control” over its franchisees, which is a test to determine whether a franchisor’s decisions will directly affect the employees’ terms and conditions of employment.  Use of that test, because it analyzes at the whole of the franchisor’s operations rather than the franchisee’s ground-level control of employment, directly implicates the franchisor.  That case, ongoing for quite some time, coupled with the NLRB’s willingness to push the envelope, could decisively explode the franchisor-franchisee relationship as it has existed.  The NLRB’s decision will apply to all businesses, but also has the potential to influence the manner in which the courts address the joint employer relationship, particularly if the operational control test takes root.

It is important to note that because the joint employer analysis requires a close look at the facts of the case, Ocampo does not signify that all franchisors and franchisees will be found to be joint employers in every circumstance.  Nevertheless, Ocampo, McDonald’s, and the expansion of the joint employer test have the potential to entirely reshape the landscape of—and consequently the appeal of—franchise arrangements.  Employers with any questions are encouraged to consult with a Sedgwick employment lawyer.

[1] NYLL utilizes a similar analysis.

[2] The Board last year issued a decision in Browning Ferris Industries, which changed the joint employer standard generally.  That decision currently is on appeal to the D.C. Circuit.

Who is the Employer? The Devil is in the Documents

Authored by Katharine Essick. Ms. Essick is a partner in Sedgwick’s San Francisco office. Click here to contact Ms. Essick.

Originally published by Ms. Essick in the California Employment Law Letter (Vol. 26, No. 21.)

The recent disability discrimination decision in Morgan v. AT&T Communications of California, Inc. (No. H039904, 2016 WL 3944668 (Cal. Ct. App. July 19, 2016)) underscores the need to clearly identify the legal employer of your workers, which may not be limited to the company identified on their W-2s. All documents issued to employees, including handbooks, benefits documents, and disciplinary communications, should clearly and consistently identify the proper employer, as a pair of alleged employers learned when they attempted to dismiss a lawsuit under the Fair Employment and Housing Act (FEHA).

Apparently straightforward case for dismissal
Adolphus Morgan sued two companies in the AT&T corporate family under the FEHA. Morgan, an engineer, took a leave of absence because of work-related stress. When he returned to work, he requested a transfer to a different department in a different location, but his request was denied. He claimed that he was placed on a performance improvement plan (PIP) under a new supervisor, who continued the same pattern of conduct that had caused his work-related stress in the first place.

Morgan took a second leave of absence and filed a workers’ compensation claim. He continued to request a transfer as a reasonable accommodation and submitted a physician’s note supporting his ability to perform the essential functions of his job if he was given a transfer. Instead, he was terminated for failing to return to work after he was cleared by a doctor.

In an action filed in state court, Morgan claimed that AT&T discriminated against him based on his disability (work-related stress). He argued that when he requested reasonable accommodations (a transfer after he returned from disability leave and a continuation of his second disability leave), AT&T failed to engage with him in the required “interactive process” to identify an accommodation, and instead fired him in retaliation for his complaints and accommodation requests.

The AT&T companies asked the trial court to dismiss Morgan’s lawsuit. Among other evidence, they presented documents to show that his job performance was unsatisfactory and he was fired because he failed to return to work from a nine-month discretionary leave even though his physician certified that he had no work restrictions. But the AT&T companies also asserted that neither of them was Morgan’s employer, and neither was therefore a proper defendant to his lawsuit.

The companies claimed that Morgan’s true employer was Pacific Bell. In support of their request for dismissal, each AT&T company submitted a declaration from a current employee who stated that his or her employer was a separate corporate entity from Pacific Bell, was never a parent company of Pacific Bell, never employed Morgan, and “played no role in any employment decisions regarding” him. The AT&T companies presented other evidence in an attempt to establish that Pacific Bell was Morgan’s true employer and the only proper defendant. For instance, Morgan testified at his deposition that he understood when he was hired in 1996 that he would be working for Pacific Bell when he saw his employment application, which had a Pacific Bell logo above the words “A Pacific Telesis Company.” When he accessed his employer’s intranet and printed a description of an available manager position in support of his request for a transfer, the notice stated the opening was with “Company: Pacific Bell Telephone.” Finally, the companies pointed to Morgan’s W-2 forms, which identified “Pacific Bell Telephone Company” as his employer.

The trial court dismissed Morgan’s lawsuit against AT&T, finding he was unable to establish that he had been an employee of either AT&T company he sued. In making its ruling, the trial court relied on the W-2s that identified Pacific Bell as the employer as well as letters indicating that Pacific Bell was merely doing business as “AT&T California,” which Morgan hadn’t named as a defendant. The trial court found that the use of a fictitious name (“AT&T California”) didn’t create a separate legal entity, and even if Morgan had evidence that the defendants were corporate parents of Pacific Bell, he hadn’t submitted any evidence that they had enough control over Pacific Bell to allow them to be sued in its stead. Morgan appealed.

Confusion in the documents
Because the trial court determined that Morgan was unable to present a single fact that might persuade a jury that AT&T was his employer, the court of appeal engaged in the usual process of reviewing the entire record to see if there was any evidence that could, if believed, prove that either AT&T company was Morgan’s employer and therefore a proper defendant.

Since many documents were submitted to establish Morgan’s poor performance and detail the communications with him about his leave of absence, the record was rife with corporate documents that suggested an “AT&T” company was his employer. Six letters written by a member of the employee relations department that dealt with his disability leave and eventual termination identified his employer as “AT&T California (Pacific Bell Telephone Company).” AT&T also submitted his performance reviews, which identified different “AT&T” companies throughout the documents. Moreover, the PIPs that AT&T applied to Morgan when he returned from his first disability leave were titled “AT&T Performance Plans.” A final performance review that incorporated the PIPs was titled “AT&T Achievement and Development (2008)” and contained an AT&T logo.

For his part, Morgan didn’t dispute that he was initially hired by Pacific Bell, but he claimed that he worked for AT&T as well as “SBC.” He submitted to the trial court 41 documents that he received from the AT&T companies or their attorneys during the course of his employment. Among them were performance reviews with “AT&T” captions, documents that referred to “AT&T” goals, and forms acknowledging review of “AT&T” courses and training materials. After he filed a workers’ comp claim based on his work-related stress, an area manager who completed the “Employer” section of the claim form identified Morgan’s employer as “AT&T.” Correspondence about the claim came from the “AT&T Integrated Disability Service Center.” A letter explained that he might be entitled to benefits under either the Pacific Telesis disability benefits plan or the AT&T disability income plan. At his deposition, Morgan testified: “At the time I left AT&T, they wasn’t sure who was really in charge of the company. It was a longstanding joke between people who work there. We started out SBC, went to AT&T. . . . [It] all depends [on] who you talk to on what day.”

Closing the door to an early exit
The FEHA doesn’t define “employer.” The courts will examine whether the company that is alleged to be the employer has day-to-day authority over matters such
as hiring, firing, directing, supervising, and disciplining the employee. The courts have identified many other relevant considerations, although the most important factor in identifying the employer is the extent to which it has the right to control the means and manner of the worker’s performance.

Because the identification of the employer is so fact intensive, it’s difficult to secure an early dismissal of a lawsuit rather than being forced to prove a defense at
trial. Under FEHA, any person or entity that is identified as the employer on an employee’s W-2 forms is presumed to be the employer. Pacific Bell, not AT&T, was identified as the employer on the W-2 forms issued to Morgan. Nevertheless, it was possible for him to overcome the presumption that Pacific Bell was his employer by presenting other evidence. The trial court found that multiple documents submitted by both Morgan and AT&T at least raised a question about whether AT&T, not Pacific Bell, was his employer.

The court of appeal also noted that the AT&T companies’ declarations didn’t address the employment status issues in any meaningful way. For example, although
there was evidence that “AT&T California” was another name for Pacific Bell, the companies failed to explain the relationship between them and “AT&T California,” and they didn’t deny that one of them was also known as “AT&T California.” And although the companies denied that they were the same entity as Pacific Bell, they didn’t deny that they were the same as the various “AT&T” entities identified in the documents reviewing Morgan’s work performance. They didn’t explain which manifestation of AT&T reviewed Morgan’s performance, the relationship between them and the AT&T entities identified in the performance review forms, or why his performance for Pacific Bell was reviewed on AT&T forms that made no reference to Pacific Bell.

The companies’ declarations also didn’t discuss any of the factors that identify a true employer—including the right of control. Instead, they merely denied involvement in any employment decisions involving Morgan. The companies didn’t deny that they established the disability leave program under which he was fired or that his work performance was reviewed under their standards. All they offered were legal conclusions from employees who weren’t legal experts that the companies weren’t Morgan’s “employers” under FEHA. That wasn’t enough to entitle them to a dismissal of the case under FEHA, especially since “AT&T” was identified throughout their employment documents. In other words, the court of appeal explained, the corporate documents revealed “unresolved questions about who employed [Morgan] when he was terminated.” The court therefore reversed the judgment in favor of the AT&T companies and sent the case back to the trial court.

Bottom line
A company that isn’t the true employer of an employee under FEHA is entitled to a judgment in its favor in a lawsuit. Many companies operate through a series
of interrelated parents and subsidiaries, often with common management, a single HR department, and identical policies. If the companies don’t clearly identify the specific employer and maintain separate management of the day-to-day activities of employees, then it’s more likely that multiple entities will be named in a lawsuit by a former employee. Employers that operate through multiple entities must be sure to accurately and clearly identify the proper employer in all employee documents, including every form, letter, and handbook.

California Adds Several New Employment Laws to the Books

By Jim Brown. Mr. Brown is a Partner in Sedgwick’s San Francisco office. Click here to contact Mr. Brown.

Originally published by Mr. Brown in the California Employment Law Letter.

In the last two months, California Governor Edmund G. Brown has signed several bills, resulting in laws that will have an impact on various issues facing employers in California. Here is an overview of several of those laws.

Stricter Statewide Prohibitions On Smoking In The Workplace

California Labor Code Section 6404.5 previously restricted smoking in the workplace based on “enclosed space” areas at places of employment. In addition to signage requirements, the existing law provided a list of exceptions or exemptions from the definition of “place of employment.”

Assembly Bill (AB) 7 amends Labor Code Section 6404.5 to, among other things, eliminate the specified exemptions from “place of employment” for hotel lobby and bar areas, taverns, banquet rooms, warehouse facilities, and employee break rooms. Although local jurisdictions could previously enact rules prohibiting smoking in those areas, there was no statewide law requiring such a ban.

In addition, the new law expands the ban on smoking to include certain owner-operated businesses that weren’t previously covered. The bill, which was signed into law on May 4, 2016, and becomes effective January 1, 2017, will provide statewide uniformity for the prohibition on smoking in these areas.

PFL Benefits Increased

Existing California law provides certain paid family leave (PFL) benefits to employees who take time off work to care for family members who have a serious medical condition or to bond with minor children within one year of their birth or placement via foster care or adoption. These wage replacement benefits are available for up to six weeks, and the amount of the benefits is currently based on calculations used for unemployment compensation.

AB 908 will change the formula for determining the amount of PFL benefits after January 1, 2018, provide for a weekly minimum benefit of $50, and increase the percentages for determining the wage replacement rate for the weekly benefit amount. The ceiling for the weekly benefit amount will be tied to the maximum for workers’ compensation temporary disability benefits.

In addition, AB 908 will remove the current seven-day waiting period applicable to employees who are unable to perform their regular or customary work and will allow for payment of disability benefits starting on the first day of their inability to work.

California Minimum Wage Increase

Under existing law, California’s minimum wage increased to $10 per hour on January 1, 2016. Senate Bill (SB) 3, introduced by Senator Mark Leno (D-San Francisco) and signed by Governor Brown on April 4, increases California’s minimum hourly wage to $15 by January 1, 2022, for large employers (with 26 or more employees) and by January 1, 2023, for small employers (with 25 or fewer employees).

The new law contains a stepped increase for large employers raising the hourly rate in 2017 by 50 cents to $10.50, and a $1 per hour increase each year after that until the $15-per-hour rate is reached. The same stepped increase for employers with 25 or fewer employees starts January 1, 2018, and ends at $15 per hour on January 1, 2023.

SB 3 also adds new provisions to California Labor Code Section 1182.12 allowing the governor of California to temporarily suspend a minimum wage increase scheduled for the following year. The governor must consider certain financial indicators before acting to suspend a minimum wage increase. In addition, the governor can use his power to suspend the minimum wage increase only on two occasions. If the power is exercised, the schedule for minimum wage increases is extended for another year after the suspension of the increase.

Paid Sick Leave For In-Home Supportive Services Workers

In addition to increasing the state minimum wage, SB 3 extends the paid sick days provided for under the Healthy Workplaces, Healthy Families Act of 2014 to in-home supportive services workers. Under existing law, this category of workers was excluded from the definition of “employee” for purposes of paid sick leave. SB 3 removes that exception and allows in-home supportive services workers to receive the same paid sick days that were extended to other workers in California in 2015.

California Disability Access Lawsuit Protections For Small Businesses

Existing California law prohibits discrimination on the basis of various personal characteristics, including disability. In addition to establishing standards for making new construction and existing facilities accessible to people with disabilities, the law provides remedies for violations of disability access laws when someone experiences “difficulty, discomfort, or embarrassment” because of the violation. A defendant is liable for actual damages plus minimum statutory damages of up to $4,000 for each violation of the construction-related accessibility standards

SB 269 gives small businesses some protection from the minimum statutory damages by allowing them the opportunity to fix certain types of violations even after they are sued or to preemptively engage an access specialist to inspect their business to identify potential violations. Under the new law, a business that regularly employs 50 or fewer workers that is sued or receives a written notice to fix certain types of violations can avoid the statutory penalties if it corrects the violations within 15 days. The types of violations that are covered by the 15-day “cure” period include violations involving interior and exterior signage, parking space striping, and detectable warning surfaces.

A small business can also hire a certified access specialist (CASp) to inspect its premises and then have up to 120 days to correct any violations discovered during the inspection. Assuming the inspection predates the filing of a lawsuit or the receipt of a demand letter based on the violations, the small business will not be liable for the statutory damages.

Neither of the new small business exceptions precludes someone from proceeding with a claim for actual damages if the claim can be proven. However, the majority of Americans with Disabilities Act (ADA) access suits faced by California businesses are premised on the presumed statutory minimum damages of $4,000 per violation.

Current law requires California’s Division of the State Architect (DSA) to establish and publicize a program for voluntary certification of people who meet the CASp criteria and annually publish a list of CASps. SB 269 now requires the DSA to publish and update lists of businesses that have filed notices of inspection and businesses that have been inspected by a certified CASp on or after January 1, 2017.

In addition, the new law requires the California Commission on Disability Access (CCDA) to provide a link on its website to the CASp certification program and local public agencies to notify all applicants for development permits of the requirements of the ADA or provide similar materials developed by the CCDA. The new law was signed by Governor Brown on May 10 and is effective immediately.

Bottom Line

Compliance with California employment laws requires an awareness of the ever-changing legal landscape. Be sure you keep up with these fast-moving developments.

 

 

 

New Department of Labor Wage and Hour Regulations Regarding Salary Basis Test

The U.S. Department of Labor issued a final rule implementing a new minimum salary for the White Collar Exemptions of $913 per week, equivalent to $47,476 per year (which will be adjusted every three years on a regular basis). The new rule will become effective December 1, 2016.

Based on the current California minimum wage of $10.00 per hour, this means that the federal salary requirement for these exemptions is higher than the California salary requirement which is currently $41,600 per year, which is the equivalent of $800 per week.  This also means that, unless California changes the rules, employers can anticipate a significant increase in California-related FLSA misclassification litigation.  This could significantly impact litigation procedures due to differences between the FLSA and state law, including the need for all settlements to be approved by a Court or the Department of Labor and the fact that collective actions proceed on an opt-in rather than an opt-out basis.

Hold on to Your Seats! – The California Supreme Court (Finally) Weighs in on Suitable Seating Issues

By Marc A. Koonin, an associate in Sedgwick’s San Francisco office. Click here to contact Mr. Koonin.

The California Supreme Court finally issued its long awaited suitable seating decision in the Kilby v. CVS Pharmacy, Inc. case, which presents new challenges to California employers. As set forth in previous alerts, Kilby involved claims made (in two related cases) against employers under the California’s Private Attorneys General Act of 2004 (“PAGA”) for allegedly failing to provide their employees with suitable seating. In considering appeals relating to the California suitable seating law from cases which had been filed in federal district courts, the U.S. Ninth Circuit Court of Appeals certified three questions to the California Supreme Court. The California Supreme Court has now answered those questions.

Specifically, the certified questions, as restated by the California Supreme Court, and the answers, are set forth below:

(1)  “Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?” 

The suitable seating laws provide that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The Supreme Court was therefore called upon to determine what is meant by the phrase “nature of the work.” The employers argued that the nature of the work should be determined on a holistic basis looking at an employee’s work duties throughout his or her workday. The employees argued that the nature of the work should be determined on a per task basis.

The Supreme Court ruled that the nature of the work must be determined based on the tasks performed at the specific location rather than by using a holistic approach. For example, if an employee performs some tasks at a cash register and also stocks merchandise, the employee will likely be entitled to a seat while working the cash register but not while actively engaged in stocking merchandise.

(2) “When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider?  Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?” 

The employers argued that courts should consider factors such as the employer’s business judgment, the physical layout of the workplace, and even physical differences among employees. The employees argued that the only issue should be whether the job in question can be performed while seating.

The Supreme Court ruled that courts should apply an objective “totality of the circumstances” test to determine whether the work reasonably permits the use of seats. In applying that test, an employer’s business judgment and the physical layout of the workplace are both relevant, but not dispositive, factors. The Supreme Court explained, however, that while factors such as customer preference may support business judgment, employers cannot simply assert an unsupported preference that employees stand or intentionally design workspaces to prevent sitting. Finally, the Supreme Court rejected the argument that courts should consider employee characteristics for this purpose, although such an analysis may be relevant to other employer obligations, such as the reasonable accommodation of a disability.

(3) “If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?” 

The employers argued that an employee seeking to enforce the suitable seating law should have to propose a specific suitable seat appropriate for the worksite. The employees argued that since the burden is on the employer to provide seats where reasonably feasible, the burden should be on the employer.

The Supreme Court determined that so long as the nature of the work will reasonably permit the use of seats, employers have the burden of proof to establish that no suitable seat is available.

In answering the three certified questions, the Supreme Court also provided some related guidance. First, the Court clarified that an employer is obligated to provide employees suitable seats during lulls in work time which would otherwise require them to stand. The Court stated that if an employee’s tasks at a particular location make seated work feasible, the employee is entitled to a seat while working there. However, even if the employee performs other job duties at a different location which must be performed while standing, the employee is still entitled to a seat during lulls in operation. Second, the Court repeatedly emphasized that in interpreting the scope of the suitable seating law, the touchstone is reasonableness based on the particular circumstances of a specific worksite. Accordingly, employers (and courts) must adopt a case-by-case analysis to work tasks rather than taking a “one size fits all” approach.

The Kilby decision offers important guidance in a developing area of law. Consistent with employment safety obligations, employers should perform a site specific analysis of each work station to determine their obligations under the suitable seating law. Employers with questions about conducting an internal analysis or other aspect of California’s suitable seating law are encouraged to consult with a Sedgwick LLP employment lawyer to help them in this process.

California Supreme Court Holds Plaintiffs Entitled to Costs as of Right After Settlement

By Kirk Jenkins. Mr. Jenkins is a Partner in Sedgwick’s Chicago office, specializing in Appellate, Antitrust, and Unfair Competition Law. Click here to contact Mr. Jenkins.

On March 10, 2016 a divided California Supreme Court handed down its decision in DeSaulles v. Community Hospital of the Monterey Peninsula, holding that as long as a settlement agreement involves a payment of money from defendants to plaintiff – no matter how small in relation to the plaintiff’s demand – the plaintiff is a “prevailing party” under Section 1032(a)(4) of the Code of Civil Procedure and entitled to an award of costs as a matter of law.

The Court emphasized that its conclusion was a default rule only, and the parties were free to provide in their settlement agreement for a different allocation of costs.  But in the wake of DeSaulles, parties who neglect to make such an express allocation may be in for an unfortunate surprise – a cost bill, which in some kinds of litigation can be substantial.

Plaintiff in DeSaulles worked for defendant for a little over a year as a patient business services registrar.  In 2007, the plaintiff filed suit, purporting to allege claims for (1) failure to accommodate her physical disability; (2) retaliation under FEHA; (3) breach of implicit conditions of employment contract; (4) breach of the covenant of good faith and fair dealing; (5) & (6) negligent and intentional infliction of emotional distress; and (7) wrongful termination.  Following the defendant’s motions for summary judgment or adjudication and motion in limine, the trial court held that the plaintiff would be barred from offering any evidence on any claim other than the third and fourth causes of action.  Subsequently, the parties placed a settlement on the record, pursuant to which the defendant paid the plaintiff $23,500 in connection with the third and fourth claims, and the remaining claims were dismissed with prejudice.  The court subsequently entered a judgment providing that the “plaintiff recover nothing from defendant.”  The judgment was affirmed on appeal.

Following remand, both parties filed cost bills, claiming to be the prevailing party (the parties’ settlement agreement said nothing about costs).  The trial court granted the defendant’s request for costs and denied the plaintiff’s.  The Court of Appeal reversed, holding that the plaintiff was the prevailing party as a matter of law, since the litigation had ended with a payment – albeit a small one – from defendant to plaintiff.

In an opinion by Justice Goodwin Liu, the Supreme Court affirmed the Court of Appeal.  The majority began by assessing whether a defendant could be considered the prevailing party following a settlement due to Section 1032’s reference to a “prevailing party” including “a defendant in whose favor a dismissal is entered.”  The majority held it could not.  The rationale for allowing a defendant costs, according to the Court, is to compensate the defendant for preparing for a trial on unmeritious claims when the plaintiff dismisses on the courthouse steps.  That rationale did not apply when the plaintiff receives a cash payment (even a nuisance one).  In contrast, the Court concluded that a settling plaintiff was a “prevailing party” on the grounds that a settlement payment constituted a “net monetary recovery” under the statute.  This was so, the Court held, in part in order to prevent defendants from avoiding a cost award by settling on the eve of trial.

The majority conceded that “defendants may settle cases with little merit in order to be spared the expense of trial.  However, the rule is that a partial recovery, as long as it is a net monetary recovery, entitles a plaintiff to costs.”  The Court not only encouraged parties to specifically make an express provision for costs, but noted that courts are free to exercise their discretion to adjust a cost award under Section 664.6 of the Code where “parties . . . overlook the issue of costs in their settlement agreements.”  But of course, the corollary of the trial courts having such discretion is always the risk that the court will refuse to make such adjustments.

Justice Kruger dissented, joined by Justice Werdegar.  The dissenters agreed that a settling plaintiff was a “prevailing party” under Section 1032, but concluded that settling defendants were too, given the statutory reference to a “defendant in whose favor a dismissal is entered.”  Since both sides in a settlement couldn’t be entitled to an award of costs as of right, it necessarily followed that trial judges were free to allocate costs as they see fit when the parties failed to expressly allocate them in the settlement agreement.

Bottom Line: 

In the wake of DeSaulles, it is important that all settlement agreements governed by California state law include express language providing for the allocation of costs.  Otherwise, defendants will be vulnerable to a post-settlement costs award.

2016 Employment Law Update

By Delia Isvoranu. Ms. Isvoranu is a Partner in Sedgwick’s San Francisco office. Click here to contact Ms. Isvoranu.

2015 was a busy legislative year with the passage of several labor and employment laws and amendments expanding employers’ obligations. Below are the most significant developments:

  • Minimum Wage (Labor Code §1182.12): Increases the minimum wage to $10 per hour. Local Ordinances further increase the minimum wage. Employers should check minimum wage requirements in the cities in which they operate.
  • Equal Pay (Labor Code §1197.5): Prohibits pay secrecy, i.e. employees may not be prohibited from disclosing or discussing their or others’ wages. The Act also reduces an employee’s burden in proving an equal pay violation. The comparable employee need not be engaged in “equal work,” but may merely be performing “substantially similar” work.
  • Discrimination (Civil Code §51): Prohibits discrimination based on citizenship, primary language, and immigration status.
  • Retaliation (Labor Code §§98.6, 1102.5, & 6310): An employer may not retaliate against an employee because the employee is a family member of an individual who is, or is perceived to be, engaging in protected activity.
  • Disability & Religious Accommodation (Gov’t Code §12940): Prohibits retaliation against an employee for merely requesting an accommodation for a disability or religious belief, regardless of whether the accommodation is actually granted. A request for reasonable accommodation on the basis of religion or disability is a “protected activity.”
  • E-Verify (Labor Code §2814): Prohibits use of federal employment E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency. Also requires certain notices.
  • Protections for Military Members (Military & Veterans Code §395.06): National Guard members of all other states, who work for a private employer in California, are entitled to the following protections while/upon returning from duty: (1) they are considered to be on a leave of absence, (2) they must be restored to their former position of a position of similar seniority, pay, & status, without loss of retirement or other benefits, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; and (3) they may not be discharged without cause within one year after being restored to the position.
  • Sick Leave (Labor Code §245.5, 246,247.5): Clarifies accrual, notice requirements, and limitations. Records must also be kept for at least three years.
  • Family Care Leave (Labor Code §§230.8 and 233): Expands permissible reasons for leave related to school activities. The changes make “kin care” rights consistent with the new paid sick leave law and expands the reasons for which, and for whom, kin care can be used.

Employers should review their practices and policies to ensure compliance. Management employees should also be promptly trained to respond to and handle personnel matters consistent with these legal developments.

New Laws Affecting California Employers

By Delia Isvoranu. Ms. Isvoranu is a Partner in Sedgwick’s San Francisco office. Click here to contact Ms. Isvoranu. Originally published by Ms. Isvoranu in the California Employment Law Letter.

August was a busy legislative month, with the enactment of several employment-related bills that create new laws and impose additional requirements upon employers.

Gender Violence Includes Acts Based on “Gender Expression” and “Gender Identity”

Employees filing sexual harassment and discrimination actions are increasingly alleging related claims of gender violence pursuant to Civil Code Section 52.4, where the alleged conduct was of a physical or threatening nature (i.e., inappropriate touching, threatening behavior).

Civil Code Section 52.4 provides that any person who has been subjected to gender violence may bring a civil action for damages against any responsible party. The plaintiff may seek actual damages, compensatory damages, punitive damages, injunctive relief, and any other appropriate relief. A prevailing plaintiff may also be awarded attorneys’ fees and costs.

The term “gender violence” is defined as a form of sex discrimination and means either of the following:

  • One or more acts that would constitute a criminal offense under state law involving the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts result in criminal complaints, charges, prosecution, or conviction.
  • A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts result in criminal complaints, charges, prosecution, or conviction.

To date, courts have held that “gender,” as used in Civil Code section 52.4, refers only to biological gender. This was inconsistent with other laws prohibiting discrimination and harassment on the basis of gender—such as the Fair Employment and Housing Act (“FEHA”) and the Unruh Civil Rights Act—which define “gender” to include gender identity and gender expression, not merely one’s actual, biological gender. “Gender expression” refers to the ways in which individuals express their masculinity or femininity. It is usually an extension of “gender identity.” For many individuals, especially in the LGBT community, gender expression or gender identity may not match their biological gender/sex.

Therefore, legal protections under Civil Code section 52.4 needed to extend beyond merely biological gender and to be consistent with other discrimination laws that broadly define gender/sex. Assembly Bill 830 amends Civil Code section 52.4 so that “gender” now has the same meaning as in FEHA and the Unruh Act and includes “gender expression” and “gender identity.”

The amendment also extends protections to acts of violence, or threatened violence, based on the sexual orientation of the victim.

Job Protection for Grocery Workers

The merger and acquisition of grocery stores often results in the closure of grocery locations and the elimination of grocery workers’ jobs. Assembly Bill 359 created Labor Code Section 2500-2522 which protects grocery employees (working in stores of at least 15,000 square feet) from being terminated during a 90-day transition period if the grocery store is undergoing a change of ownership. The stated purpose of the new law is to ensure that the most experienced, best prepared workers remain employed, which in turn protects the welfare of communities. The Bill argued that “experienced grocery retail workers have knowledge of proper sanitation procedures, health regulations and laws, and an experience-based understanding of the clientele and communities in which the retailer is located….”

Labor Code sections 2500-2522 require an incumbent grocery employer (i.e. the current owner or operator of the store)—upon a change of ownership, control, or operation of a grocery establishment—to prepare a list of eligible grocery workers for a successor grocery employer. An “eligible” employee is one who has worked for the incumbent employer for at least six months and excludes managerial and supervisory employees.

Subject to limited exceptions, the new owner must hire and retain employees from this list during a 90-day retention period, and may not discharge those workers without cause during that period. The new employer must then provide each retained employee a written performance evaluation at the end of the 90 days. If the eligible grocery worker’s performance during the 90-day transition period is satisfactory, the new employer must consider offering the eligible grocery worker continued employment under the new employer’s terms and conditions. The new employer must also retain a record of the written performance evaluation and any job offer for at least three years.

A collective bargaining agreement may supersede these requirements and these Labor Code sections do not preempt any local ordinance that may provide equal or greater protection to eligible grocery workers.

The cities of San Francisco, Santa Monica, Alameda, Gardena and Los Angeles previously adopted similar local ordinances protecting grocery store employees. California, however, is the first state in the nation to create a statewide worker-retention law for grocery store employees.

Employment Protections for Military Members

The vast majority of California National Guard members are the traditional part-time citizen-soldiers. When necessary, the federal government mobilizes them onto operational active duty tours (including combat).When any state’s National Guard units are not under such federal control, the Governor serves as the commander-in-chief of the state’s Guard units and can deploy National Guard forces in response to natural disasters, man-made emergencies (such as riots and civil unrest), or terrorist attacks.

Assembly Bill 583 amends Section 395.06 of the Military and Veterans Code, relating to the employment rights of service members. Existing law provides employment protections for members of the California National Guard and reservists ordered into active service by the Governor of California or the President of the United States for emergency purposes. Upon a California National Guard member’s return from service, a California employer must:

  • Consider the employee as having been on a leave of absence during the period of the employee’s active service;
  • For full time positions, restore the employee to the former position or to a position of similar seniority, status, and pay without loss of retirement or other benefits, unless the employer’s circumstances have so changed as to make it impossible or unreasonable to do so; and
  • Not discharge the employee from his or her position without cause within one year after being restored to the position.

Section 395.06 is now amended to extend these protections to members of the National Guard of all other states, who work for a private employer in California, when they are called to military service by their respective Governors or by the President of the United States. Additionally, the district attorney of the county in which an employer maintains a place of business is authorized to act as an attorney on behalf of a service member in any action against a California employer who fails or refuses to comply with these provisions, if the district attorney is reasonably satisfied that the employee is entitled to these benefits.

Bottom Line:

The above laws were enacted in response to societal and economic changes that require more inclusive legal protections for employees. Employers should review their employment policies and practices to ensure compliance with these broadened legal requirements. It is also critical to train and counsel supervisors, hiring managers, and potential decision makers to be aware of the additional protected classes to which these protections apply.

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