application of the fmla/cfra medical certification process for · tive working at scotts...

INTRODUCTION

On April 7, 2008, the CaliforniaSupreme Court ruled in Lonicki v. SutterHealth Central,2 the first CaliforniaSupreme Court opinion interpretingCalifornia’s 1991 Family Rights Act(CFRA).3 The holding addresses both(1) CFRA’s second and third opinionprocess for medical certification and (2) the scope of an employee’s right tohold another job while taking CFRAleave.4 This article analyzes the firstholding, emphasizing the fact that,despite the court’s ruling, the medicalcertification process is mandatoryunder more employee-protective provi-sions of the federal Family MedicalLeave Act (FMLA).5 In a companionarticle, Judith Droz Keyes addresses theimplications of the case from the man-agement perspective.

That management may hold inaccu-rate views about the legitimacy of anemployee’s need for medical leaveemphasizes the importance of medicalprofessionals making the final determi-nation about an employee’s request formedical leave.

OVERVIEW OF THE FACTS

Antonina Lonicki worked for SutterHealth Central for ten years, from 1989to August 26, 1999. Her “work perform-ance was good and her attendance wasexcellent.”6 In 1997, when Sutter becamea level II trauma center, Lonicki becameincreasingly overwhelmed by her work-load. She believed her department wasneglecting essential procedures, to thepossible detriment of Sutter’s patients.7

She testified to feeling nervous aboutwork, and sought assistance from a doc-

tor to deal with depression.8 WhenLonicki’s supervisors changed herschedule and cancelled her plannedvacation, on July 26, 1999, she wenthome in tears.9 Her supervisor requiredher to produce a doctor’s note for herabsence.10

Lonicki saw a family nurse practi-tioner the following day, who providedher with a note indicating that she wouldneed a leave of absence for “medical rea-sons” until August 27, 1999, and referredher to a therapist. Lonicki submitted thenote, along with Sutter’s “Leave ofAbsence Form,” to her supervisor. Sutterthen demanded that Lonicki be seen byits occupational health physician, whoconcluded that Lonicki was able toreturn to work without restriction.11

Sutter insisted that Lonicki returnto work on August 9, 1999 but her union

Official Publication of the State Bar of California Labor and Employment Law Section

Volume 22No. 5

September2008

— Inside the Review —1 Application of the FMLA/CFRA Medical Certification Process for an Employee’s Serious Health

Condition After Lonicki v. Sutter Health Central | 3 Lonicki v. Sutter Health Central: A Perspective From the

Management Trenches | 4 MCLE Self-Study: Legal Challenges Raised by Employer-Mandated Wellness Programs

5 Public Sector Case Notes | 6 Employment Law Case Notes | 7 NLRA Case Notes | 8 Wage & Hour Update

9 Cases Pending Before the California Supreme Court | 34 Message From the Chair

continued on page 26

www.calbar.ca.gov/laborlaw

Application of the FMLA/CFRAMedical Certification Process foran Employee’s Serious HealthCondition After Lonicki v. SutterHealth Central

By Elizabeth Kristen1

Elizabeth Kristen is a Staff Attorney at the

Legal Aid Society-Employment Law Center.

She received her J.D. from Boalt Hall School

of Law in 2001 and clerked for the

Honorable James R. Browning of the Ninth

Circuit Court of Appeals from 2001-2002.

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2 California Labor & Employment Law Review Volume 22, No. 5

Volume 22, No. 5 California Labor & Employment Law Review 3

Lonicki v. Sutter Health Central:A Perspective From theManagement Trenches

By Judith Droz Keyes

Absent amendment, two importantaspects of the California Family RightsAct (CFRA)1 are now settled, thanks tothe decision of the California SupremeCourt in Lonicki v. Sutter Health Central.2

The decision was good news and badnews for employers with 50 or moreemployees.3 The good news is that theemployer can still argue that it need notgrant a CFRA leave — even absent athird tie-breaking medical opinion. In acompanion article, Elizabeth Kristenpoints out that this good news isn’t reallyso good because the federal Family andMedical Leave Act (FMLA)4 does requirethis. I’m not so sure this is true, butElizabeth makes a strong argument, andshe may be right.

But the clearly bad news for employ-ers is that just about any time a CFRA-eligible employee (that is, an employeewho has been employed for a year andhas worked 1,250 hours during the previ-ous twelve months) presents medical cer-tification attesting to the employee’smental or physical need for it, theemployer will be obligated to grant aleave of absence for up to twelve weeks.5

Although not an express obligationunder CFRA, the Lonicki opinion willdiscourage risk-adverse employers fromdenying the request.

Reading between the lines of theLonicki opinion, we see a picture that isnot terribly uncommon from the man-agement perspective.6 Employee Lonicki,a certified technician at Sutter Hospital,was unhappy with Sutter’s change indirection and management. Instead ofresigning or searching for a new job, shechose to stay and tough it out — or,maybe, to wait it out. Apparently thiscaused her stress. When she was told hershift had been changed from morning toafternoon, she promptly asked to go onvacation. When that request was denied,Lonicki became “too upset to work.” Shewalked out in tears. She saw her family

nurse practitioner, who said she shouldtake a month off “for medical reasons.”

Knowing that Lonicki had beenresistant to the changes it was imple-menting, and knowing that Lonicki wasworking as a certified technician atanother hospital at the same time she waspurportedly unable to work at Sutter,Sutter obtained a second opinion fromits own physician. Its suspicion was con-firmed: at least according to that doctor,Lonicki could work. Sutter told her sheshould return; Lonicki said she wouldnot.

Sutter went a step further beforeinsisting that Lonicki return: it contact-ed Lonicki’s union. Apparently, theunion saw the situation in much thesame way Sutter did, because the unionrepresentative agreed that Lonickishould be required (or expected) toreturn to work by a date certain. Thisagreement was conveyed to Lonicki. Shedid not return by that date, but instead,two days afterwards, presented a notefrom a psychologist saying she neededanother month off for work-relateddepression.7

Managers in this situation, whichoccurs with remarkable frequency, aretypically frustrated. They are underconstant pressure to maintain appropri-ate staffing levels. They suspect that theemployee on leave, e.g., Lonicki, will notadjust to the restructuring that triggeredthe leave in the first place. They suspectthe clearly disgruntled employee willremain disgruntled, exacerbating analready difficult situation. They see novalue in waiting when the solution seemsobvious: terminate the relationship andfill the position with a new employee.

Although not necessarily vindictive,managers in these circumstances typical-ly do not see why they should have toexalt form over substance, or accept whatappears to be a disingenuous claim of ill-ness. After all, the employer must con-

tinue to pay the absent employee’s healthinsurance, to allow use of accrued sick leave, and to hold a job open – all whenthe prospects for a successful return towork seem negligible.

Management attorneys typicallyadvise patience in this situation. Theypoint out that employees such as Lonickiultimately run out of options. In time,they resign, exhaust their leave rights, orunderperform, triggering a termination.8

Management, in turn, typically findssuch advice impractical. They see theunmet work needs growing by the day,while the threat of litigation is remoteand theoretical.

I’m guessing that’s more or less whathappened in Lonicki. In any case, weknow from the opinion that Sutter stuckto its guns, and with what it thought wasthe agreement of the union on Lonicki’sbehalf. It terminated Lonicki’s employ-ment because she failed to return on thedate that had been conveyed to her as thedeadline. She sued, and although it wonat the court of appeal, Sutter lost at theCalifornia Supreme Court, 4 – 3.

Over a perceptive (to management)dissent by Justices Chin, Baxter andCorrigan, the majority held that anemployee seeking a leave under CFRAneed not prove an inability to performthe generic job duties of his or her posi-tion. The protection is broader. Thecourt held:

We therefore conclude thatunder section 12945.2’s subdivi-sion (c)(3)(C), which entitles anemployee to medical leave whensuffering from a “serious healthcondition” that “makes theemployee unable to perform thefunctions of the position of thatemployee” (italics added), theitalicized phrase refers to the jobassigned to the employee by his orher employer; it does not refer, as

Judith Droz Keyes is a partner at Davis WrightTremaine LLP in San Francisco. She receivedher J.D. from U.C. Berkeley School of Law(Boalt Hall) in 1975, was formerly President ofthe Alameda County Bar Association andChair of the Labor & Employment LawSection of the Bar Association of SanFrancisco, and is a fellow in the College ofLabor and Employment Lawyers.



MCLE Self-StudyLegal Challenges Raised byEmployer-Mandated Wellness ProgramsBy Theodora R. Lee

INTRODUCTION

Joe Pellegrini, who cycles thirty-sixmiles a day to and from work, may havehad a suspicion that someday he wouldbecome renowned in connection with thewellness movement. But he never couldhave imagined why Business Week used hisstory to introduce the topic of workplacewellness in its February 26, 2007 issue.1

Mr. Pellegrini is a supply-chain execu-tive working at Scotts Miracle-Gro’s head-quarters in Maryville, Ohio. The $2.7billion dollar employer gave employees thechoice of taking screening tests and, ifneeded, getting a health coach, or losing asignificant portion of the employer’s con-tribution toward medical insurance.

Mr. Pellegrini’s high protein dietapparently merited him a bad cholesterolscore and a health coach. After severalcalls, a persistent coach persuaded the ath-letic Mr. Pellegrini to undergo a series ofdiagnostic tests. The results were shocking.A 95 percent blockage in two arteries gavehim less than a week to live. Within hoursof the diagnosis, two life-saving stents wereinserted.

The fact that this almost certainlywould not have happened without hisemployer’s wellness program made Mr.Pellegrini a national celebrity. ScottsMiracle-Gro’s program saved the life of atleast one corporate executive, but also ledto a lawsuit, still pending in federal court,by another employee whose employmentwas terminated when he tested positive fornicotine.2

Stories like Mr. Pellegrini’s are beingrepeated in thousands of workplaces asthe decade-old trend of employer sup-port for wellness programs matures. Butthe real question posed by MichelleConlin in her Business Week article is cap-tured by its title, Get Healthy—Or Else:How far can an employer go toward man-dating wellness in the workplace?

Employers are experiencing thedevelopment of a “perfect storm” in the

workplace. Three forces are combining,threatening balance sheets and, in manycases, raising the question of businesssurvival. Medical costs are acceleratingand, with the coming health needs of thebaby boomers, the increases promise tocontinue for at least another decade. Inaddition, employees have more healthcare needs than ever before in light of theobesity epidemic, tobacco-related illness-es and deaths, and sedentary lifestyles.Finally, a significant worker shortage liesahead, especially in skilled positions.These factors mandate that employersoffer competitive benefits as an essentialcomponent of keeping and attracting tal-ent. The force of this perfect stormpromises to be so severe that the “well-ness” of the workforce will become one ofthe most important corporate assets.

There has been at least a decade ofexperience with voluntary workplacewellness programs. While the reportsfrom these programs have been generallypositive, the programs have also raisedmany questions: At what point do theprograms become so intrusive that theyimpact employee rights? What protec-tions are available for employee privacy?Are disabilities accommodated? Are cer-tain protected categories of employeesbeing treated adversely under these plans?Voluntary workplace wellness plans sug-gest the potential for conflict with indi-vidual employee rights, but have alsostarted a serious debate about what hap-pens as the elements of a wellness planmove from strictly voluntary to stronglyencouraged, and finally to required.While it would be easy to legally approvevoluntary plans and prohibit mandatoryones, the economic realities of the perfectstorm make it certain that employers willhave no choice but to move closer to mak-ing workplace wellness a requirement.

This article explores the legal issuesassociated with employer-mandated well-ness plans as they evolve from programsthat offer information and counseling, to

programs that require employees to par-ticipate or face some penalty.

LEGAL CHALLENGES PRESENTED BYMANDATORY WELLNESS PLANS

Employers must carefully draft andimplement any wellness program to avoidliability for violating one or more of themany applicable federal and state laws.Some of the applicable laws are complex,and there are many traps for the unwary.

Compliance With HIPAAThe Health Insurance Portability and

Accounting Act (HIPAA) prohibits grouphealth plans regulated by the EmployeeRetirement Income Security Act (ERISA)3

from discriminating based on a healthfactor, including but not limited to healthstatus, medical condition, claims experi-ence, receipt of health care, and medicalhistory.4 The HIPAA non-discriminationrules consider as health factors both nico-tine addiction and body mass index.5

On December 13, 2006, the U.S.Department of Labor (DOL) and theInternal Revenue Service issued final regu-lations relating to wellness programs thatare applicable to wellness plans with a planyear beginning on or after July 1, 2007.6

On February 14, 2008, the DOLissued Field Assistance Bulletin (FAB) No.2008-02, which includes a WellnessProgram Checklist, in response to ques-tions concerning which types of programsmust comply with the final HIPAA regula-tions. The DOL intended its WellnessProgram Checklist to clarify which well-ness programs offered by a group healthplan must comply with the final regula-tions. This simple, straightforward check-list will assist a plan sponsor indetermining: (1) whether a group healthplan offers a program of health promo-tion or disease prevention that must com-ply with the final regulations; and (2)whether that program complies with thefinal regulations. The checklist consists of


Theodora R. Lee is a Shareholder at LittlerMendelson, P.C. in San Francisco. Ms. Leespecializes in representing employers in allaspects of employment and labor relationslaw, including class action litigation. Ms. Leehas presented several seminars and writtennumerous articles on a wide variety ofemployment issues. She can be reached [email protected].


LABOR RELATIONS

California’s First District Court ofAppeal — Contrary to the Sixth District— Holds That the PERB Does Not HaveExclusive Jurisdiction Over Strikes Not

Involving Unfair Practices

County of Contra Costa v. PublicEmployees Union Local One, previouslypublished at 163 Cal. App. 4th 139 (2008);reviewed granted by the CaliforniaSupreme Court

Contra Costa County filed a com-plaint in the superior court against sever-al public employee unions, seeking toenjoin certain essential employees fromparticipating in a threatened one-daystrike. Specifically, the county sought toenjoin approximately 270 employees —including airport operations specialists,animal services workers, probation coun-selors, and hospital workers — fromstriking because their striking would cre-ate a substantial and imminent threat topublic health and safety.

The Public Employment RelationsBoard (PERB) intervened in the trialcourt, arguing that it has exclusive juris-diction over the issue because the unions’proposed strike is protected or prohibitedby the Meyers-Milias-Brown Act(MMBA). In a decision at odds with thatof the recent decision of the Sixth DistrictCalifornia Court of Appeal in City of SanJose v. Operating Engineers Local Union No.3, previously published at 160 Cal. App.4th 951 (2008), the First District Court ofAppeal found that the PERB does not haveinitial exclusive jurisdiction over all strikesby essential employees that pose an immi-nent threat to public health and safety.

Under the MMBA, the PERB hasexclusive jurisdiction over the initialdetermination as to whether a charge ofan unfair practice is justified, and, if so,the appropriate remedy necessary toeffectuate the purposes of the MMBA.The California Supreme Court previously

held that public employee strikes are notper se illegal. But the supreme court alsogave public entities the right to go tocourt to request an injunction based on ashowing that the strike by certain essen-tial employees would threaten publichealth and safety.

The court in this case acknowledgedthat strikes by essential public employeescan potentially involve unfair labor prac-tices. But because there was no allegationor indication of an unfair practice, theMMBA was not implicated and the PERBhad no jurisdiction over the complaint.

Note: The California Supreme Courtagreed to review the contradicting City ofSan Jose v. Operating Engineers LocalUnion No. 3 decision to determinewhether the PERB has the exclusive initialjurisdiction to determine whether certain“essential” public employees covered bythe MMBA have the right to strike, orwhether that jurisdiction rests with thesuperior court.

Public Employer Does Not Have toPay Union Member’s Salary for Time

Spent Conducting Union NegotiationsWhile on Full-Time Leave of Absence

to Conduct Union Business

Berkeley Council of Classified Employees v.Berkeley Unified Sch. Dist., PERB Dec. No.1954-E [32 PERC ¶ 73] (2008)

Tim Donnelly, President of theBerkeley Council of Classified Employees,was on a full-time leave of absence fromhis position with the Berkeley UnifiedSchool District (District) to work onunion business. For many years, theunion president has been on full-timeleave of absence, and the union has reim-bursed the District for the full amount ofsalary and benefits provided to the presi-dent. During the next round of negotia-tions, the union argued that it was notrequired to reimburse the District for thetime Donnelly spent meeting and negoti-ating. The parties went to impasse.

The union filed an unfair practicecharge with the Public EmploymentRelations Board (PERB), alleging that theDistrict engaged in surface bargaining.The PERB agent dismissed the charge,finding that the union failed to offer anyfacts demonstrating that the District bar-gained in bad faith. The PERB upheld thedismissal.

The Educational EmploymentRelations Act prohibits an employer fromengaging in bad faith or surface bargain-ing. Although a party may not merely gothrough the motions of negotiations, itmay lawfully maintain an adamant posi-tion on any issue. Adamant insistence ona bargaining position is not necessarilyrefusal to bargain in good faith.

Education Code section 45210 man-dates that classified school districtemployees be granted leaves of absence, atthe union’s expense, to serve as electedofficers of local, national, or statewideschool district employee organizations.

The Education Code also requires aschool district to give a reasonable num-ber of representatives release time with-out loss of compensation when meetingand negotiating and for the processing ofgrievances. Release time is time duringan employee’s workday during which theemployee is excused from work. Theunion argued that Donnelly is entitled toboth a leave of absence and release time.The PERB disagreed.

The leave of absence is allowed sothat the employee may carry out his orher duties as a union officer while onleave from his or her normal work duties.The union directs the employee’s duties.In contrast, release time is for employeeswho continue to carry out their normalwork duties for the school district, butwho are afforded reasonable paid time offto participate in negotiations and griev-ance processing. While a union officer


Public Sector Case NotesBy Bruce A. Barsook and

Connie M. Chuang

Bruce A. Barsook, a partner in Liebert Cassidy Whitmore’s Los Angeles office, is experienced inthe defense of public entities in all aspects of labor and employment law, including negotiationsand unfair labor practice charges. Mr. Barsook is an advisor to the State Bar Labor &Employment Law Executive Committee and a member ofthe Editorial Board of this publication. Connie Chuangprovides representation and legal counsel to LiebertCassidy Whitmore clients out of its Los Angeles office inmatters pertaining to education, employment and laborlaw, including discrimination, harassment, employee dis-cipline, labor negotiations, audits of personnel policies,and conducting workplace investigations.


Employment LawCase NotesBy Anthony J. Oncidi

Employer Bears Burden of ShowingReasonableness Of Layoff Criteria in

Age Discrimination CaseMeacham v. Knolls Atomic Power Lab., 554U.S. ___, 128 S. Ct. 2395 (2008)

When the United States governmentordered Knolls (one of the contractorsthat maintains the nation’s fleet ofnuclear-powered warships) to reduce itsworkforce, the company conducted aninvoluntary reduction in force, resultingin the layoff of thirty-one employees,thirty of whom were age 40 or older.Twenty-eight of the laid-off employeesfiled suit asserting a disparate impactclaim under the Age Discrimination inEmployment Act. At trial, the employeesprevailed by showing that Knolls’ layoffcriteria failed the “business necessity”test and because there existed alternativecriteria that could have achieved thesame results without disadvantaging aprotected group of employees. After anearlier review by the Supreme Court, theSecond Circuit Court of Appealsreversed the judgment, holding that theburden remained with the employeeswho were required to prove (and didnot) that Knolls’ reasons for the layoffwere unreasonable. In a 7-to-1 ruling,the Supreme Court reversed the SecondCircuit and held that when an employerdefends against a disparate-impact claimon the basis of “reasonable factors otherthan age,” the employer must not onlyproduce evidence raising the defense,but also must persuade the factfinder ofits merit. See also Ky Ret. Systems v.EEOC, 554 U.S. ___, 128 S. Ct. 2361(2008) (disability benefits formula didnot discriminate against older workerswho became disabled after retirementage); cf. Hearns v. San Bernardino PoliceDep’t, 530 F.3d 1124 (9th Cir. 2008) (dis-crimination complaint containing exces-sively detailed factual allegations wasimproperly dismissed under F.R.C.P. 8).

Employer That Provides Unlimited SickLeave Is Subject to Requirements of

“Kin Care” StatuteMcCarther v. Pacific Telesis Group, 163Cal. App. 4th 176 (2008)

Kimberly McCarther alleged that heremployer, SBC Services, violated Cal.Labor Code § 233 (the “kin care” leavestatute) when it failed to pay her for herabsence for seven consecutive workdays in2004 to care for two of her children whowere ill. McCarther and another employeesued on behalf of themselves and all simi-larly situated employees. Section 233 statesthat an employee may use in any calendaryear the amount of sick leave accrued bythe employee during a six-month period“to attend to an illness of a child, parent,spouse, or domestic partner of theemployee.” The collective bargainingagreement between plaintiffs’ union andthe employer provided that “there is no capor limit on the number of days thatemployees may be absent from work andreceive full sickness absence payments….”In interpreting the statute, the court ofappeal held that Section 233 plainly appliesto the “sickness absence” policy at issue inthis case even though that policy providedemployees with an unlimited number ofdays of paid sick leave. Cf. Farrell v. Tri-County Metro. Transp. Dist., 530 F.3d 1023(9th Cir. 2008) (employee was properlyawarded lost wages for absences from workthat were caused by emotional conditionthat resulted from employer’s wrongfuldenial of FMLA leave).

Court Affirms Judgment andAttorney’s Fees Award

To Employee Who Suffered RetaliationSteele v. Youthful Offender Parole Bd., 162Cal. App. 4th 1241 (2008)

Lisa Steele worked as an office assis-tant/receptionist for the Youth OffenderParole Board (YOPB). In her spare time,Steele competed in several bikini conteststhat were sponsored by a local radio sta-

tion. On the day of the final contest, RaulGalindo, chairman of the YOPB, askedSteele if she was going to participate in anyother bikini contests, and Steele toldGalindo that there was one scheduled forthat night. Galindo attended the contestand, after it was over, tried to kiss Steele onthe mouth. Steele told a co-worker aboutthe incident, and the co-worker in turntold another co-worker (Kym Kaslar), wholater filed a complaint with theDepartment of Fair Employment andHousing (DFEH), claiming she was retali-ated against for reporting the incident.Although Steele told the YOPB that she wasnot offended by Galindo’s behavior,Galindo was reprimanded for fraternizingwith the staff and for being involved in a“social situation of questionable taste.”Steele was subsequently reprimanded forvarious performance deficiencies and mis-conduct. Eventually, Steele resigned fromher employment but before she left, shewas asked to and did sign statements deny-ing the kissing incident and any inappro-priate conduct on Galindo’s part. In hersubsequent lawsuit, Steele alleged she hadbeen constructively terminated because shewas a potential witness in Kaslar’s retalia-tion case and because the YOPB wanted theDFEH investigators to rely exclusively onthe (false) statements Steele had been askedto sign before she quit. The jury awardedSteele $9,046 in lost wages and $146,705 inattorney’s fees. The court of appealaffirmed the judgment, finding substantialevidence of constructive termination ofSteele’s employment that was causallylinked to her potential participation as awitness in Kaslar’s DFEH proceeding. Cf.CBOCS West, Inc. v. Humphries, 553 U.S.___, 128 S. Ct. 1951 (2008) (retaliationclaim may be asserted under 42 U.S.C. §1981); Gómez-Pérez v. Potter, 553 U.S. ___,128 S. Ct. 1931 (2008) (federal employeemay sue for retaliation under AgeDiscrimination in Employment Act).

Anthony J. Oncidi is a partner in and the Chair of

the Labor and Employment Department of

Proskauer Rose LLP in Los Angeles, where he

exclusively represents employers and manage-

ment in all areas of employment and labor law.

His telephone number is (310) 284-5690 and his

email address is [email protected].


United States Supreme CourtInvalidates California Statute

Prohibiting Use of State Funds forOrganizing-Related Activities

Chamber of Commerce of the UnitedStates v. Brown, 554 U.S. ___, 128 S. Ct.2408 (2008)

In a 7-2 decision, the United StatesSupreme Court held that the NationalLabor Relations Act (NLRA) preemptsCalifornia Assembly Bill 1889 (AB 1889),a statute prohibiting certain employersthat receive state funds from using thosefunds “to assist, promote, or deter unionorganizing.” Reversing the Ninth Circuit,Justice Stevens’ majority opinion found it“beyond dispute” that the provisions of

the California statute sought to regulate“a zone protected and reserved for mar-ket freedom.”

The Court applied the preemptiondoctrine set forth in Machinists v.Wisconsin Employment RelationsCommission, 427 U.S. 132, 140 (1976),which is based on the premise that“Congress struck a balance of protection,prohibition, and laissez-faire in respectto union organization, collective bar-gaining, and labor disputes.” TheMachinists preemption prevents statesfrom regulating non-coercive speech inorder to fulfill Congress’s intention ofencouraging free debate on issues divid-ing labor and management.

The Court rejected arguments thatthe Machinists preemption should notapply because the state was acting as amarket-participant or proprietor ratherthan a regulator, and that the statuterestricts only the use, rather than receipt,of state funds. It found that instead ofimposing a neutral affirmative require-ment that state funds be used for theirintended purpose, the statute “imposeda targeted negative restriction onemployer speech about unionization”

while exempting certain expenses thatpromote unionization, including thenegotiation and carrying out of volun-tary recognition agreements. The Courtnoted that the statute’s enforcementscheme created compliance costs and lit-igation risks that made organizing-relat-ed advocacy prohibitively expensive foremployers that receive state funds. Theseaspects of the statute represent the statelegislature’s attempts to inhibit employ-ers from engaging in partisan, non-coer-cive speech, a policy judgmentrenounced by Congress when it amendedthe NLRA in 1947.

The Court also rejected an argumentthat similar language in three federalstatutes supports enforcement of AB1889. The Ninth Circuit reasoned thatthe Workforce Investment Act, the HeadStart Programs Act, and the NationalCommunity Service Act, which containprovisions forbidding the use of grantand program funds for organizing-relat-ed activity, limit the preemptive scope ofthe Act. The Supreme Court disagreed,stressing that, unlike the states, Congresshas the authority to create tailored excep-tions to otherwise broad federal policies“in a manner that preserves national uni-formity without opening the door to a50-state patchwork of inconsistent laborpractices.”

Justice Breyer, in his dissent, agreedwith the majority that congressional pol-icy favors “free debate” between laborand management; however, he arguedthat AB 1889 did not amount to animpermissible regulation that interfereswith that policy. Rather, AB 1889 simplyprohibits the use of state funds on con-tested labor-related activity. JusticeBreyer stressed that the law typicallygives legislatures “broad authority todecide how to spend the People’smoney.”

Ninth Circuit Affirms Arbitrator’sAward Reinstating Employees

Terminated Based on No-MatchLetter

Aramark Facility Servs. v. Serv. EmployeesInt’l Union Local 1877, 530 F.3d 817 (9thCir. 2008)

Reversing the district court, theNinth Circuit reinstated an arbitrationaward in favor of thirty-three janitorswhose employer fired them after receiv-ing notification from the Social SecurityAdministration (SSA) that it could notmatch the workers to information in itsdatabase. The Ninth Circuit held that theemployer lacked constructive knowledgethat the workers were undocumented.

After receiving the no-match letters,the employer gave the workers three daysto submit proof that they had begun theprocess of applying for new SocialSecurity cards. It terminated the employ-ment of those who had failed to complywithin ten days, citing the prohibition onemploying workers with knowledge oftheir undocumented status, as set forth inthe Immigration Reform and Control Actof1986 (IRCA). The employer offered torehire any individual who subsequentlyobtained proper documentation.

The Service Employees InternationalUnion filed a grievance, arguing that theterminations lacked just cause and vio-lated the parties’ collective bargainingagreement. The employer argued thatthe no-match letter, considered with theemployees’ failure to resolve the mis-match, provided constructive notice thatthe employees were undocumented.

The arbitrator held that there was no“convincing information” that the work-ers were undocumented, and orderedback pay and reinstatement. The districtcourt vacated the arbitration award onpublic policy grounds, finding that the


NLRA Case NotesBy Jeff Bosley


Jeffrey S. Bosley is a partner in the Labor

and Employment Department of Winston

& Strawn LLP, and represents employers

and management in labor and employ-

ment law matters. He can be reached by

email at [email protected].


Court of Appeal Clarifies Meal andRest Period Issues

Brinker Rest. Corp. v. Super. Ct., ____ Cal.App. 4th ____, 2008 WL 2806613 (July22, 2008)

The California Court of Appeal forthe Fourth District issued its eagerlyawaited opinion in the matter of BrinkerRestaurant Corporation v. Superior Court(Case No. D049331). This case addressedthe administration of meal breaks, restbreaks and off-the-clock work, and con-sidered whether violations are amenableto class certification.

The court concluded that class cer-tification was inappropriate, and pro-vided much needed guidance on issuessuch as whether an employer mustensure meal periods have been takenand whether a meal period must be pro-vided every five hours.

Relying on recent federal case lawand distinguishing unclear Californiaauthority in similar meal and rest peri-od cases, the court made the followingkey rulings:

● Employers need only provide, notensure, rest periods are taken.

● Where it is not practicable to doso, rest periods need not occur inthe middle of each four-hour workperiod.

● Employers cannot “impede, dis-courage, or dissuade” employeesfrom taking meal periods, butneed not force employees to takemeal breaks, and need not“ensure” the meal breaks aretaken. Like rest breaks, an employ-er need only provide an employeewith the opportunity to take ameal period.

● Employers are not required to pro-vide a meal period for each fivehours an employee works (the“rolling five hour” requirement).Instead, Labor Code section 512only requires an employer to pro-

vide a meal period if an employee’sshift is more than five hours in aday. The court thus endorsedBrinker’s policy of “early lunch-ing” – that is, having Brinker’sservers and wait staff take mealperiods shortly after the start oftheir shifts, then working a fullshift without a meal break. (Mealperiods may still be waived if thework period does not exceed sixhours.)

● Employers cannot “coerce, require,or compel” employees to work offthe clock, but are only liable for anemployee’s decision to work offthe clock if the employer “knew orshould have known” the employeewas doing so.

Based on these holdings, the courtconcluded that class certification wasinappropriate in meal and rest breakcases where an employer’s policy permitsemployees to take breaks. It further heldthat off-the-clock claims are not general-ly amenable to class certification becauseindividual issues will likely predominatewith respect to the reasons individualshave worked off the clock and whetherthe employer had knowledge.

The case was brought on behalf ofservers and other hourly employees ofBrinker’s 137 California restaurants. Theproposed class was estimated to consistof more than 59,000 employees.

On July 25, 2008 California LaborCommissioner Angela Bradstreet issueda memo to the Division of LaborStandards Enforcement staff informingthem that the decision in Brinker is bind-ing on the agency, that all staff must fol-low the rulings in the Brinker decision“effective immediately,” and the decisionis to be applied to pending matters. Acopy of the memo may be obtained athttp://www.dir.ca.gov/DLSE/Brinker_memo_to_staff-7-25-08.pdf.

Proposed Meal Break LegislationReactivated by California Senate

After sitting dormant for ninemonths, Assembly Bill 1711, meant toclarify the rules on administration ofmeal periods, was significantly amendedin June 2008. The California State SenateCommittee on Industrial Relations hadscheduled hearings for June 25, 2008, butthey were cancelled and had not beenrescheduled at the time this publicationwent to press.

While employers had hoped that leg-islation would provide more flexibility inadministering meal periods, under thecurrent wording, it looks like the legisla-tion will actually provide less flexibility.

The current wording of the bill saysthat meal periods have to be completedbefore the sixth hour of work, but cannotcommence before the beginning of the thirdhour. (The issue of so-called “earlylunching” is addressed by the FourthAppellate District in Brinker RestaurantCorp. v. Superior Court.) Under thewording of the proposed legislation, ameal would have to be taken basicallywithin a two and a half hour period oftime, which would seem to present achallenging scenario for many business-es, especially restaurants. It also wouldnot allow an employee to choose to takean early lunch to run a personal errandor go to an appointment. The meal peri-od requirements would not apply tounion employees if the collective bar-gaining agreement expressly provides formeal periods.

The proposed legislation wouldallow second meal periods to be waivedonly in writing, and such waivers must berevocable. On-duty meal periods will beallowed only where mutually agreed toby the employer and employee, in writ-ing, and where the nature of the workprevents an employee from being


Wage and HourUpdateBy Lois M. Kosch

Lois M. Kosch is a partner at Wilson Petty

Kosmo & Turner in San Diego. She special-

izes in counseling and representation of

employers on all aspects of em ployment

law and litigation. Ms. Kosch is a member

of the Labor and Employment Law

Section's Executive Committee.

Phyllis W. Cheng is the Director of

the California Department of Fair

Employment and Housing.

ATTORNEYS’ FEES

Vasquez v. State of Cal., 154 Cal. App. 4th406 (2007), review granted, 68 Cal. Rptr.3d 529 (2007). S156793/D048371.Petition for review after order affirmingaward of attorneys’ fees. Briefingdeferred pending decision in Vasquez v.State of California (S143710), which pres-ents the following issue: Does the rulethat, in order to receive attorney feesunder Cal. Code Civ. Proc. § 1021.5, theplaintiff must first reasonably attempt tosettle the matter short of litigation, applyto this case? Holding for lead case.

Chavez v. City of Los Angeles, 160Cal.App.4th 410 (2008), review granted,76 Cal. Rptr. 3d 681 (2008). S162313/B192375. Petition for review after rever-sal of order denying attorneys’ fees. DoesCode of Civil Procedure section 1033permit a trial court to deny GovernmentCode section 12965 attorney fees to theprevailing plaintiff in an action under theFair Employment and Housing Act(Gov’t Code § 12900 et seq.) if the judg-ment obtained in a court with jurisdic-tion over “unlimited” civil cases (see Cal.Code Civ. Proc. § 88) could have beenrendered in a court with jurisdiction over“limited” civil cases (see Cal. Code Civ.

Proc. § 85(a))? Answer brief due.

CLASS ACTION

Arias v. Super. Ct., 153 Cal. App. 4th 777(2007), review granted, 67 Cal. Rptr. 3d460 (2007). S155965/C054185. Petitionfor review after issuance of peremptorywrit of mandate. (1) Must an employeewho is suing an employer for labor lawviolations on behalf of himself and othersunder the Unfair Competition Law (Cal.Bus. & Prof. Code § 17203) bring his rep-resentative claims as a class action? (2)Must an employee who is pursuing suchclaims under the Private AttorneysGeneral Act (Cal. Lab. Code § 2699) bringthem as a class action? Fully briefed.

COMPENSATION

Schachter v. Citigroup, Inc., 159Cal.App.4th 10 (2008), review granted, 76Cal. Rptr. 3d 681 (2008). S161385/B193713. Petition for review after rever-sal and remand of summary judgment.Does the forfeiture provision of a volun-tary incentive compensation plan, whichgives employees the option of using aportion of their earnings to purchaseshares in the company’s stock below mar-ket price but provides that employees for-feit both the stock and the money used topurchase it if they resign or are terminat-ed for cause within a two-year period,violate Cal. Lab. Code § 201 or 202?Review granted/brief due.

EMPLOYMENT DISCRIMINATION

McDonald v. Antelope Valley Cmty. Coll.Dist., 151 Cal. App. 4th 961 (2007), reviewgranted, 65 Cal. Rptr. 3d 144 (2007).S153964/B188077. Petition for reviewafter part affirmance and part reversal ofsummary judgment. In an employmentdiscrimination action, is the one-yearstatute of limitations for filing an admin-istrative complaint with the Departmentof Fair Employment and Housing setforth in Cal. Gov’t Code § 12960 subjectto equitable tolling while the employeepursues an internal administrative reme-dy, such as a complaint with the commu-nity college chancellor filed pursuant toCal. Code Regs. tit. 5, § 59300 et seq.?Fully briefed.

GOVERNMENT EMPLOYMENT

City of San Jose v. Operating Eng’rs LocalUnion No. 3, 160 Cal. App. 4th 951 (2008),review granted, 2008 Cal. LEXIS 7421(2008). S162647/H030272. Petition forreview after the Court of Appeal affirmeda judgment of dismissal of a civil action.This case presents the following issue:Does the Public Employment RelationsBoard have the exclusive initial jurisdic-tion to determine whether certain “essen-

tial” public employees covered by Meyers-Milias-Brown Act (Cal. Gov’t Code §§3500, 3511) have the right to strike, ordoes that jurisdiction rest with the superi-or court? Review granted/brief due.

County of Contra Costa v. Pub. EmployeesUnion Local No. 1, 163 Cal. App. 4th 139(2008), review granted, 77 Cal. Rptr. 3d374 (2008). S164640/A115095, A115118.Petition for review after the Court ofAppeal affirmed orders. Further action inthis matter is deferred pending consider-ation and disposition of a related issue inCity of San Jose v. Operating EngineersLocal Union No. 3, S162647, supra (seeCal. Rules of Court, rule 8.512(d)(2)), orpending further order of the court.Submission of additional briefing, pur-suant to California Rules of Court, rule8.520, is deferred pending further orderof the court.

HARASSMENT AND DAMAGES

Roby v. McKesson HBOC, 146 Cal. App.4th 63 (2006), review granted, 57 Cal.Rptr. 3d 541 (2007). S149752/C047617,C048799. Petition for review after rever-sal, modification and affirmance in partof judgment. (1) In an action for employ-ment discrimination and harassment byhostile work environment, does Reno v.Baird, 18 Cal. 4th 640 (1998) require thatthe claim for harassment be establishedentirely by reference to a supervisor’s actsthat have no connection with matters ofbusiness and personnel management, ormay such management-related acts beconsidered as part of the totality of thecircumstances allegedly creating a hostilework environment? (2) May an appellatecourt determine the maximum constitu-tionally permissible award of punitivedamages when it has reduced the accom-panying award of compensatory dam-ages, or should the court remand for anew determination of punitive damagesin light of the reduced award of compen-satory damages? Fully briefed.

Cases Pending Beforethe CaliforniaSupreme CourtBy Phyllis W. Cheng



PENSION

Lexin v. Super. Ct. (People), 154 Cal. App.4th 1425 (2007), review granted, 68 Cal.Rptr. 3d 529 (2007). S157341/D049251.Petition for review after denial of petitionfor writ of prohibition. Did petitioners’service on the board of the San DiegoRetirement System, as it related to anincrease in pension benefits for membersof the system, violate the conflict of inter-est provisions of Cal. Gov’t Code § 1090,and subject them to criminal prosecu-tion, or did the non-interest exemption ofCal. Gov’t Code § 1091.5(a)(9) apply?Reply brief due.

PRIVACY

Hernandez v. Hillsides, Inc., 142 Cal. App.4th 1377 (2006), review granted, 53 Cal.Rptr. 3d 801 (2007). S147552/B183713.Petition for review after reversal andremand on grant of summary judgment.May employees assert a cause of actionfor invasion of privacy when theiremployer installed a hidden surveillancecamera in the office to investigatewhether someone was using an officecomputer for improper purposes, onlyoperated the camera after normal work-ing hours, and did not actually captureany video of the employees who workedin the office? Fully briefed.

PROPOSITION 209

Coral Constr., Inc. v. City & County of SanFrancisco, 149 Cal. App. 4th 1218 (2007),review granted, 65 Cal. Rptr. 3d 761(2007). S152934/A107803. Petition forreview after part affirmance and partreversal of grant of summary judgment.(1) Does article I, section 31 of theCalifornia Constitution, which prohibitsgovernment entities from discriminationor preference on the basis of race, sex, orcolor in public contracting, improperlydisadvantage minority groups and violateequal protection principles by making itmore difficult to enact legislation on theirbehalf? (See Wash. v. Seattle Sch. Dist. No.1, 458 U.S. 457 (1982); Hunter v. Erickson,393 U.S. 385 (1969).) (2) Is section 31preempted by the InternationalConvention on the Elimination of RacialDiscrimination? (3) Does an ordinancethat provides certain advantages tominority- and female-owned businessenterprises with respect to the award ofcity contracts fall within an exception to

section 31 for actions required of a localgovernmental entity to maintain eligibili-ty for federal funds? Fully briefed.

REPRESENTATIVE CLAIMS

Amalgamated Transit Union., Local 1756,AFL-CIO v. Super. Ct. (First Transit, Inc.),148 Cal. App. 4th 39 (2006), review grant-ed, 61 Cal. Rptr. 3d 459 (2007).S151615/B191879. Petition for reviewafter denial of peremptory writ of man-date. (1) Does a worker’s assignment tothe worker’s union of a cause of actionfor meal and rest period violations carrywith it the worker’s right to sue in a repre-sentative capacity under the Labor CodePrivate Attorneys General Act of 2004(Cal. Lab. Code § 2698 et seq.) or theUnfair Competition Law (Cal. Bus. &Prof. Code § 17200 et seq.)? (2) Does Cal.Bus. & Prof. Code § 17203, as amended byProposition 64, which provides that rep-resentative claims may be brought only ifthe injured claimant “complies with sec-tion 382 of the Code of Civil Procedure,”require that private representative claimsmeet the procedural requirements appli-cable to class action lawsuits? Fullybriefed.

San Leandro Teachers Ass’n v. GoverningBd. of the San Leandro Unified Sch. Dist.,154 Cal. App. 4th 866 (2007), reviewgranted, 68 Cal. Rptr. 3d 528 (2007).S156961/A114679, A115686. Petition forreview after reversal of trial court ordergranting petition for peremptory writ ofmandate. (1) Does Cal. Educ. Code §7054 permit a school district to prohibitthe teachers union from using theschool’s mailboxes to distribute a unionnewsletter to its members, if the newslet-ter includes endorsements for schoolboard candidates? (2) Does the guaranteeof liberty of speech in Cal. Const., art. I, §2, assure that an employee organizationmay distribute its message to its membersconcerning electoral politics via schoolmailboxes? Fully briefed.

TERMINATION AND SUSPENSION

Spielbauer v. County of Santa Clara, 146Cal. App. 4th 914 (2007), review granted,59 Cal. Rptr. 3d 437 (2007). S150402/H029345. Petition for review after rever-sal of denial of writ of mandate. If a pub-lic employee exercises his or her FifthAmendment right against self-incrimina-tion in a public employer’s investigation

of the employee’s conduct, must the pub-lic employer offer immunity from prose-cution before it can dismiss the employeefor refusing to answer questions asked inconnection with the investigation? Fullybriefed.

WAGE AND HOUR

Martinez v. Combs, decision without pub-lished opinion (2003), review granted,2004 Cal. LEXIS 1914 (2004).S121552/B161773. Petition for reviewafter partial reversal and partial affir-mance of summary judgment. Briefingoriginally deferred pending decision inReynolds v. Bement, 36 Cal. 4th 1075(2005), which included the followingissue: Can the officers and directors of acorporate employer personally be heldcivilly liable for causing the corporationto violate the statutory duty to pay mini-mum and overtime minimum wages,either on the ground such officers anddirectors fall within the definition of“employer” in Industrial WelfareCommission Wage Order 9 or on anotherbasis? Fully briefed.

Harris v. Super. Ct. (Liberty Mut. Ins.), 154Cal. App. 4th 164 (2007), review granted,68 Cal. Rptr. 3d 528 (2007).S156555/B195121 (lead), B195370.Petition for review after grant of petitionfor writ of mandate. Do claims adjustersemployed by insurance companies fallwithin the administrative exemption(Cal. Code Regs. tit. 8, § 11040) to therequirement that employees are entitledto overtime compensation? Fully briefed.

WHISTLEBLOWER PROTECTION ACT

State Bd. of Chiropractic Exam’rs v.Super. Ct. (Arbuckle), 148 Cal. App. 4th142 (2007), review granted, 2007 Cal.LEXIS 6811(2007). S151705/C052554.Petition for review after grant of peti-tion for peremptory writ of mandate.Whether, under the WhistleblowerProtection Act (Cal. Gov’t Code § 8547et seq.), a state employee may bring acivil action after suffering an adversedecision by the State Personnel Boardwithout successfully seeking a writ ofadministrative mandate to set aside thatdecision. Fully briefed.

Ramirez v. Dep’t of Health Servs., decisionwithout published opinion, review grant-ed, 161 P.3d 1 (2007). S152195/C050718.


Petition for review after affirmance ofjudgment. Briefing deferred pendingdecision in State Board of ChiropracticExaminers v. Superior Court, supra.Holding for lead case.

Brand v. Regents of UC, 159 Cal. App. 4th1349 (2008), review granted, 76 Cal. Rptr.3d 681 (2008). S162019/D049350.Petition for review after affirmance inpart and reversal in part following sus-taining of demurrer. Further action inthis matter is deferred pending consider-ation and disposition of a related issue inState Board of Chiropractic Examiners v.Superior Court (Arbuckle), S151705,supra (see Cal. Rules of Court, rule8.512(d)(2)), or pending further order ofthe court. Submission of additionalbriefing, pursuant to California Rules ofCourt, rule 8.520, is deferred pendingfurther order of the court. Holding forlead case.

PlaceYour Adin the

CALIFORNIA LABOR ANDEMPLOYMENT LAW

ReviewFor more information,

contact Section Coordinator

Susan Orloff at [email protected].

Police Officer Had ReasonableExpectation of Privacy In Text

Messages Sent and Received on PagerQuon v. Arch Wireless Operating Co., 529F.3d 892 (9th Cir. 2008)

Arch Wireless contracted to providewireless text-messaging services for theCity of Ontario, including its policedepartment. Pursuant to the city’s gener-al Computer Usage, Internet and E-mailPolicy (Policy), the use of the city’s com-puters and other electronic equipment,networks, etc., was limited to city-relatedbusiness, access was not confidential and“users should have no expectation of pri-vacy or confidentiality when using theseresources.” Sergeant Jeff Quon, a mem-ber of the city’s SWAT team, signed anemployee acknowledgement of thePolicy; he also attended a meeting inwhich he and others were informed thattext messages were considered to be thesame as e-mail and could be audited bythe department. Quon was later told thatthe content of his text messages wouldnot be audited so long as he paid thedepartment for any charges associatedwith texting more than 25,000 charactersin a billing cycle. When a lieutenant inthe department “grew weary” of being abill collector for officers who exceededthe 25,000 character limit, the depart-ment contacted Arch Wireless andrequested transcripts of the text mes-sages. After the department received thetranscripts from Arch, an investigationwas conducted by internal affairs todetermine “if someone was wasting citytime not doing work when they shouldbe.” The investigation revealed that manyof Quon’s messages were personal innature and were sexually explicit.

Quon (and those with whom he hadtexted) sued Arch for violation of theStored Communications Act (SCA) andthe Ontario Police Department and itschief for violating the FourthAmendment and the privacy protectionprovision of the California Constitution.The Ninth Circuit held that Arch violatedthe SCA by turning over the text tran-scripts to the city, which was only a “sub-

scriber” and not “an addressee or intend-ed recipient of such communication.”The court further determined that Quonand those with whom he texted had a rea-sonable expectation of privacy in the textmessages given the informal policy and“operational reality” of the department.Although the chief of police was shieldedfrom liability by qualified immunity, thecity and department were not. See alsoNelson v. NASA, 530 F.3d 865 (9th Cir.2008) (“low-risk” NASA contractemployees were entitled to injunctionprecluding in-depth background investi-gations).

Employee Who Reported DisabilityDuring Investigation Into His

Alleged Wrongdoing Was NotDiscriminated Against

Arteaga v. Brink’s, Inc., 163 Cal. App. 4th327 (2008)

Brink’s employee Carlos Arteaga wasthe subject of an internal investigationinto various shortages totaling $7,668that occurred while he was acting in hiscapacity as an ATM messenger. Theinvestigation was conducted after one ofArteaga’s managers noticed there hadbeen sixteen shortages in five months onruns in which Arteaga had been the mes-senger. Shortly after he learned of theinvestigation, Arteaga informed Brink’sfor the first time that he was feeling acombination of “pain” and “numbness”in his arms, fingers, shoulders and feetand that he was feeling “stress” after being“accused over and over of stealingmoney.” Arteaga filed a workers’ com-pensation claim. Following the investiga-tion, Arteaga’s employment wasterminated as a result of the multipleshortages. Arteaga then sued Brink’s fordisability discrimination and for failureto engage in a good-faith interactiveprocess with him in order to determineeffective reasonable accommodations forhis alleged disability. The trial courtgranted summary judgment to Brink’s,and the court of appeal affirmed, holdingthat (1) Arteaga was not disabled becausehis symptoms (pain and numbness) didnot make it difficult for him to achievethe life activity of working and (2) Brink’sterminated him for a legitimate, nondis-criminatory reason – “the closeness intime between Arteaga’s disclosure of hissymptoms and his subsequent termina-tion does not create a triable issue as to

Employment LawCase Notescontinued from page 6


pretext, especially since his performancehad been questioned before he disclosedhis symptoms, and he was eventually ter-minated for those performance issues.”Compare Gribben v. United Parcel Serv.,528 F.3d 1166 (9th Cir. 2008) (employeewith congestive heart failure and car-diomyopathy may have been disabledunder the Americans with DisabilitiesAct, but was not retaliated against).

Injuries Sustained by ProfessionalStuntman Were Covered by Workers’

CompensationCaso v. Nimrod Prods., Inc., 163 Cal. App.4th 881 (2008)

Christopher Caso, a professionalstuntman, suffered severe head injurieswhile performing a stunt during the pro-duction of a television show. Caso andhis wife (who sought damages for loss ofconsortium) sued defendants (the direc-tor and the stunt coordinators and theirrespective loan-out corporations) fornegligence. The trial court granteddefendants’ motion for summary judg-ment on the ground that the individualdefendants were special employees ofTouchstone Television Productions whohad been acting within the scope of thatemployment at the time of the accident.Accordingly, the Casos’ lawsuit wasbarred by the California Workers’Compensation Act, California LaborCode section 3601. Further, the trialcourt concluded the loan-out corpora-tions had relinquished all control overtheir employees and could not be heldvicariously liable for the employees’ acts.The court of appeal affirmed summaryjudgment in favor of defendants. See alsoAntelope Valley Press v. Poizner, 162 CalApp. 4th 839 (2008) (newspaper deliver-ers were employees and not independent

contractors for purposes of workers’compensation coverage); Tomlin v.Workers’ Comp. Appeals Bd., 162 Cal. App.4th 1423 (2008) (police officer who wasinjured while training during his vacationfor an upcoming department physical fit-ness test was eligible for workers’ com-pensation benefits); Golden v. CH2M HillHanford Group, Inc., 528 F.3d 681 (9thCir. 2008) (Price-Anderson Act preempt-ed Hanford Nuclear Reservation employ-ee’s claim for injuries arising fromexposure to radioactive materials but hisclaim for emotional distress associatedwith exposure to non-radioactive heavymetals would not be preempted); cf.Ericson v. Fed. Express Corp., 162 Cal. App.4th 1291 (2008) (property owner was notliable for injuries sustained by employeeof independent contractor who wasinjured during assault on the premises).

Employer Waived InsuranceCoverage By Failing to Timely

Notify Carrier of ClaimWestrec Marina Mgmt., Inc. v. ArrowoodIndem. Co., 163 Cal. App. 4th 1387 (2008)

Westrec sued its insurance carrier,Arrowood, after the carrier refused to pro-vide a defense to an employment discrim-ination lawsuit on the ground thatWestrec had failed to timely report thethird-party claim as required under theterms of two successive directors and offi-cers liability insurance policies issued byArrowood. Bette Clark filed a complaintwith the California Department of FairEmployment and Housing (DFEH) onApril 14, 2003, alleging gender bias byWestrec and requesting a right-to-sue let-ter. On June 23, 2003, Clark’s attorneysent a letter to Westrec “alleging discrimi-natory and demeaning treatment by maleemployees based upon sex.” Westrec

failed to notify Arrowood of the DFEH fil-ing or the attorney’s letter within thirtydays after the expiration of the policy.Clark filed her lawsuit on December 19,2003, and Westrec notified Arrowood ofthe action on January 30, 2004, tenderedits defense and requested indemnity.Arrowood declined to defend or indemni-fy on the ground that Westrec had nottimely notified it of the “claim,” which itdeemed to be the DFEH filing and/or theattorney’s letter. Arrowood prevailed fol-lowing a nonjury trial on Westrec’s breachof contract claim. The court of appealaffirmed, holding that Westrec had failedto timely report the claim to its insurancecarrier and thereby waived coverage.

Statute of Limitations for Trade Secrets Claim Dates From Time of

Owner’s KnowledgeCypressSemiconductor Corp. v. Super. Ct.,163 Cal. App. 4th 575 (2008)

Trade secret owner Silvaco DataSystems develops and licenses electronicdesign automation software. In late 1998,a former Silvaco employee, working forCircuit Systems, Inc. (CSI), incorporatedSilvaco’s “SmartSpice” trade secrets intoCSI’s product, “DynaSpice.” Silvaco suedthe employee as well as CSI, and in 2003entered into a settlement agreement andstipulated judgment. Silvaco contactedCypressSemiconductor (Cypress) (one ofCSI’s customers who had purchasedDynaSpice) in September 2003 anddemanded that Cypress cease its use ofSilvaco’s trade secrets (as incorporated inthe DynaSpice software). When Cypresscontinued to use the product after receiv-ing notice from Silvaco, the latter compa-ny sued the former for trade secretmisappropriation under the CaliforniaUniform Trade Secrets Act (CUTSA).

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Cypress defended in part based onCUTSA’s three-year statute of limita-tions. Silvaco, however, argued thatbecause Cypress did not know of CSI’smisappropriation until August of 2003,the statute of limitations did not com-mence running until that date becauseone of the elements of a trade secret mis-appropriation claim is the defendant’sknowledge of the wrongfulness of itsconduct. The court of appeal held that aplaintiff may have more than one claimfor misappropriation, each with its ownstatute of limitations, when more thanone defendant is involved. However, thecourt further held that the statute com-mences running when the plaintiffknows or has reason to know the thirdparty has knowingly acquired, used ordisclosed its trade secrets. The court heldthat Cypress was entitled to a jury trial todetermine when Silvaco first had reasonto know that a CSI customer such asCypress had obtained or used DynaSpiceknowing, or with reason to know, thatthe software contained Silvaco’s tradesecrets.

California Law Limiting Use of StateFunds To Deter Union Organizing Is

UnconstitutionalChamber of Commerce v. Brown, 554 U.S.___, 128 S. Ct. 2408 (2008)

Assembly Bill 1889, enacted in 2000,prohibited private employers that receivestate funds – whether by reimbursement,grant, contract, use of state property orpursuant to a state program – from usingsuch funds to “assist, promote, or deterunion organizing.” Violators were to beliable to the state for the amount of fundsused for the prohibited purposes plus acivil penalty equal to twice the amount ofthose funds. The Chamber of Commercechallenged the law on the ground that itwas preempted by the National LaborRelations Act (NLRA). The NinthCircuit held the law was not preemptedby the NLRA, but the United StatesSupreme Court reversed, holding by avote of 7 to 2 (Breyer and Ginsburg, JJ.,dissenting) that the state statute was pre-empted by federal labor law. Cf. Adkins v.Mireles, 526 F.3d 531 (9th Cir. 2008)(Labor Management Relations Act pre-empted employees’ claims against theirunion).

The Labor & Employment Law

Review is published by the Labor

and Employment Law Section of

the State Bar of California

Co-Editors-in-ChiefEmily Prescott and Julia Lapis Blakeslee

Associate EditorRene Judkiewicz

Editorial BoardBruce BarsookPhyllis W. ChengKaren CloptonBarbara A. CotterJohn CummingDorothy Bacskai EgelCarol KoenigLois M. KoschAnthony OncidiTyler M. PaetkauPatti RobertsMary TopliffKatherine ThomsonTimothy G. Yeung

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Labor and Employment Law Section

Case Law AlertsThe Labor and Employment Law Section is offering members a FREE “electronic alert service”that will allow Section members to receive brief notices as soon as the courts issue new deci-sions on labor and employment law cases or grant reviews. These alerts are offered virtuallycontemporaneously with publication or announcement of these new decisions and reviews.

Members who subscribe to this service will alsoreceive immediate alerts on legislation andmore. On a within-the-hour basis and asthey are published, members will accessnew California Supreme and Court ofAppeal, Ninth Circuit and U.S. SupremeCourt decisions, as well as new statutes.Section member and attorney PhyllisCheng will provide you with a flash head-line subject alert, a very brief excerpt andrelevant links on matters that could affectyour practice.

In order to receive these alerts you willneed to subscribe to an electronic distri-bution list, which you can easily do viayour State Bar Online Member Profile. Goto www.calbar.ca.gov (the State Barhome page) and log on to your Profileby entering your State Bar member #and password in the white boxes in theleft margin. Once in your Profile, click onthe link entitled “Change My Email ListPreferences” and scroll down to theLabor and Employment Law Section where you willsee an option to check a box marked “Labor and Employment LawCase Law Alerts.” Check the box to subscribe to the list.

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M E M B E R B E N E F I T

M E M B E R B E N E F I T

Labor and Employment Law Section of the State Bar of California

Labor & Employment Case Law Alert

Womack v. SF Community College Dist. (CA 1/2 A112564 2-15-07)

Appellant appeals from the trial court’s denial of his petition for a writ of mandate

brought pursuant to Code of Civil Procedure section 1085. By that petition, he

sought to compel respondents to reinstate him as a regular employee in the

respondent District’s (hereafter District) English as a Second Language (ESL)

Department on the basis that the prior level of his work in that department had

altered his status from that of a “temporary employee” to one of a “contract

employee” who could not be terminated in the manner or time frame he was in

2001. The trial court denied the motion on two grounds: (1) under the applicable

statutes, appellant’s status had not, in fact, changed and he was thus still a

temporary employee as of the date of his termination; and (2) laches. We agree

with the trial court on both grounds and hence affirm.

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This update is being provided by

Phyllis W. ChengSenior Appellate Court Attorney

California Court of Appeal

Second Appellate District,

Division Seven

300 S. Spring St., 3rd Floor

Los Angeles, CA 90013-1230

213-830-7411FAX 213-897-2429

[email protected]

www.courtinfo.ca.gov

Wendy P. RouderChair

Arbitration-Mediation-

FactfindingMcLaren Station

PO Box 347372

San Francisco, CA 94134

415-563-6205FAX 415-563-6205

[email protected]

Phil HorowitzLaw Offices of Phil Horowitz

One Market Plaza

Steuart Tower, Suite 2630


415-391-0111FAX 415- 391-0123

[email protected]


Labor & Employment Case Law Alert

Womack v. SF Community College Dist. (CA 1/2 A112564 2-15-07)












http://www.courtinfo.ca.gov/opinions/documents/A112564.DOC

For more information about the Labor and Employment Law Section, please






This update is being provided by Phyllis W. Cheng

Senior Appellate Court Attorney

California Court of Appeal

Second Appellate District,

Division Seven 300 S. Spring St., 3rd Floor


213-830-7411FAX 213-897-2429

[email protected]

www.courtinfo.ca.gov

Wendy P. RouderChair

Arbitration-Mediation-

FactfindingMcLaren StationPO Box 347372


415-563-6205FAX 415-563-6205

[email protected] HorowitzLaw Offices of Phil Horowitz

One Market Plaza Steuart Tower, Suite 2630


415-391-0111FAX 415- 391-0123

[email protected]


Labor & Employment Case Law AlertWomack v. SF Community College Dist. (CA 1/2 A112564 2-15-07)












http://www.courtinfo.ca.gov/opinions/documents/A112564.DOC

For more information about the Labor and Employment Law Section, please






This update is being provided by Phyllis W. ChengSenior Appellate Court Attorney

California Court of Appeal Second Appellate District, Division Seven 300 S. Spring St., 3rd Floor


213-830-7411FAX 213-897-2429 [email protected]

Wendy P. RouderChairArbitration-Mediation-FactfindingMcLaren StationPO Box 347372San Francisco, CA 94134

415-563-6205FAX 415-563-6205 [email protected]

Phil HorowitzLaw Offices of Phil Horowitz

One Market Plaza Steuart Tower, Suite 2630 San Francisco, CA 94105 415-391-0111FAX 415- 391-0123 [email protected]


Labor & Employment Case Law AlertThis update is being provided by Phyllis W. Cheng Department of Fair Employment and Housing 2218 Kausen Drive, Suite 100Elk Grove, CA 95857 916-478-7250

FAX 916-478-7329 [email protected] www.dfeh.ca.gov

Phil Horowitz, Chair Law Offices of Phil Horowitz One Market Plaza Steuart Tower, Suite 2630 San Francisco, CA 94105 415-391-0111 FAX 415-391-0123 [email protected] www.lawyers.com/philhorowitz/

Karen V. Clopton, Vice Chair California Department of Corporations 71 Stevenson Street Suite 2100 San Francisco, CA 94105 415-972-8559 FAX 415-972-8571 [email protected] www.corp.ca.gov/

Jones v. Lodge at Torrey Pines (SC S151022 /3/08) FEHA Liability/Non-

Employers

In Reno v. Baird (1998) 18 Cal.4th 640 (Reno), we held that, although an

employer may be held liable for discrimination under the California Fair

Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.),

nonemployer individuals are not personally liable for that discrimination. In this

case, we must decide whether the FEHA makes individuals personally liable for

retaliation. We conclude that the same rule applies to actions for retaliation that

applies to actions for discrimination: The employer, but not nonemployer

individuals, may be held liable.

http://www.courtinfo.ca.gov/opinions/documents/S151022.DOC




distributions list, please contact Susan Orloff, Section Coordinator of the Labor & Employment Law Section.


ten “yes” or “no” questions, along withexamples and tips that serve to clarify theintent and purpose of those questions.

The first five checklist questionsestablish the period used as the plan year,whether there is a wellness program inplace, whether it is part of a group healthplan and whether the program discrimi-nates on the basis of a health factor:

1. Is the first day of the currentplan year after July 1, 2007?

2. Does the plan have a wellnessprogram?

3. Is the wellness program part of agroup health plan?

4. Does the program discriminatebased on a health factor?

5. If the program discriminatesbased on a health factor, is theprogram saved by the benigndiscrimination provisions?

If the employer answers “no” to anyof the first four questions, it need notcontinue with the checklist because thefinal regulations do not cover the plan. Ifthe employer answers “yes” to all fivequestions, it need not continue with thechecklist because the final regulationscover the plan and it complies. A “no”response to the fifth question requirescompletion of the next section of thechecklist regarding compliance criteria:

6. Is the amount of the rewardoffered under the plan limited to20 percent of the applicable costof coverage?

7. Is the plan reasonably designedto promote health or preventdisease?

8. Are individuals who are eligibleto participate given a chance toqualify at least once per year?

9. Is the reward available to all sim-ilarly situated individuals? Doesthe program offer a reasonablealternative standard?

10. Does the plan disclose the avail-ability of a reasonable alterna-tive in all plan materialsdescribing the program?

Although the final HIPAA regula-

tions address discrimination, the FABmakes it clear to employers that the cov-ered programs must meet either a benigndiscrimination exception or offer a rea-sonable alternative standard in order tocomply with the final rules. Permissiblebenign discrimination may occur under a“participation-based” wellness programthat offers a reward based solely on par-ticipation in the program and does notcondition the reward on achievement of aspecific health-related outcome.Therefore, although the wellness programmay “discriminate” in mandating thatonly certain employees will be required toparticipate in a particular program (i.e.,you must be a smoker to participate in asmoking cessation program), there is nogoal that must be met to procure thereward. The FAB offers, for example, aplan that grants participants with dia-betes a waiver of the annual deductible ifthey enroll in a disease management pro-gram that consists of attending educa-tional classes and following their doctors’recommendations regarding exercise andmedication, concluding that this isbenign discrimination because the pro-gram is offering a reward to individualsbased on an adverse health factor.

The FAB also clarifies how a reason-able “alternative standard” may berequired under a program that requiresthat a particular goal be met in order for areward to be given. This means thatalthough a reward may only be availableto those who meet a certain standard(e.g., the attainment of cholesterol tar-get), there must be an alternative stan-dard (e.g., nutrition counseling sessions)that are made available to those for whomsatisfying the otherwise applicable stan-dard is: (1) unreasonably difficult due toa medical condition; or (2) medicallyinadvisable. The FAB notes that it is per-missible for the plan or issuer to seek ver-ification, such as a certificate from theindividual’s health care provider, that ahealth factor makes it unreasonably diffi-cult or medically inadvisable for the indi-vidual to satisfy or attempt to satisfy theotherwise applicable standard.

Discrimination Against Personswith DisabilitiesUnder the Americans With

Disabilities Act (ADA), an employer maynot discriminate against a qualified indi-vidual with a disability with regard to,

among other things, employee compensa-tion and benefits available by virtue ofemployment.7 ADA issues arise in manda-tory wellness programs for three reasons.First, the ADA limits the circumstancesunder which an employer may ask ques-tions about an employee’s health or requirethe employee to have a medical examina-tion. Second, the ADA imposes strict con-fidentiality requirements on the disclosureof medical information. Third, the ADAwill certainly apply if an employee is able toperform the essential functions of his orher job but, because of a disability, isunable to achieve a health factor require-ment under a mandatory wellness plan.

Medical inquiries or examinations ofcurrent employees regarding the existence,nature or severity of a disability are gener-ally prohibited unless job-related and con-sistent with business necessity.8 Allemployees are entitled to this ADA protec-tion (i.e., they do not have to be a qualifiedindividual with a disability).9 To avoid thefirst and second ADA obstacles, mostemployers that adopt wellness plans retainan independent third party to administerthe program. The third-party administra-tor collects and analyzes all medical infor-mation and does not disclose individualhealth data to the employer.

The Equal Employment OpportunityCommission (EEOC) has taken the posi-tion that it is permissible to ask medicalinformation as part of a voluntary wellnessprogram that focuses on early detection,screening, and management of disease.10 Awellness program is considered voluntaryso long as an employer neither requiresparticipation nor penalizes employeeswho do not participate.11 Information col-lected during the permissible inquiries orexaminations must be maintained in sepa-rate medical files and treated as confiden-tial medical information.12 The EEOC’sposition implicitly suggests that it wouldnot reach the same conclusion withrespect to a mandatory wellness program.However, when the program only requiresthe employee to participate in a healthassessment and does not require theemployee to achieve any specific healthstandard, and only the third-party admin-istrator has the individual’s medical data,the same conclusion should be reached.

But what if the wellness plan man-dates that employees achieve some meas-urable health standard as a condition of

Wellness Programscontinued from page 4


employment? While at the riskier edge ofthe wellness continuum, the concept of areasonable accommodation, both underthe ADA and the HIPAA regulations, sug-gests that even the third obstacle can beovercome. The employee may be able tomeet a less stringent health factor or begiven the alternative of participating in aprogram designed to manage or mitigatethe medical condition. If a physical ormental disability prevents an employeefrom participating in such an alternative,and the employee is able to perform theessential functions of the job, a waivermay be necessary. Obviously, an employ-er that learns of a mandatory healthassessment will need to take extra precau-tions to assure that the knowledgeobtained in the health assessment truly isnot used as the basis for an adverseemployment action.

Employers should also be mindfulthat not all at-risk health conditions aretied to a disability. An employee’s excessweight may be tied to poor diet and exer-cise habits, not an endocrine imbalance.Smoking, excessive drinking (short ofalcoholism), and recreational drug use(short of addiction) are poor health habitsthat are not per se protected by the ADA.

An employer might also argue that awellness program does not discriminate onthe basis of disability because its terms applyequally to the disabled and nondisabled. Ahandful of cases have discussed this defensewith respect to employee benefits plans.13

The employer might also defend anADA claim by arguing that it implementedthe wellness program for underwriting,classifying, or administering risks.14

However, an employer may not use risk-assessment activities as a subterfuge toevade the ADA’s nondiscriminationrequirements (e.g., refusing to hire dis-abled persons solely because their disabili-ties may increase the employer’s futurehealth care costs; or denying disabledemployees equal access to health insurancebased on disability alone, if the disabilitydoes not pose increased insurance risks).15

Age Discrimination inEmployment Act Employers can craft a mandatory

wellness program to correspond to thereasonable expectations of the olderworker. Wellness programs do notdemand that employees become superathletes or achieve perfect health. If a

mandatory program requires an employ-ee to achieve a certain health standard,that standard should take into account,and, if necessary, be adjusted for, the ageof the employee. Programs can mandateparticipation in an exercise or fitness planwithout requiring, for example, thateveryone be able to run a certain distanceat a certain speed.

Potential Title VII and FEHA ClaimsIn addition to age, a mandatory well-

ness program may implicate other pro-tected classes under Title VII of the CivilRights Act16 and the Fair Employmentand Housing Act (FEHA),17 such as gen-der and religion.18 Reasonable accommo-dation should lessen the risk of litigation.

If an employer sets specific healthstandards, it must be able to objectivelydemonstrate with reliable expert datathat the standards do not discriminateagainst women. In the early 1980s, manyairlines’ weight limitations for flightattendants were challenged because theywere overly restrictive when it came towomen, allowing more tolerance forexcess weight in male flight attendants.Wellness programs should set goals basedon what is a healthy weight, even if afemale employee might look more attrac-tive if she were thinner. There are gener-ally accepted Body Mass Index (BMI)standards based on age and gender thatcould be incorporated into a wellnessprogram. Women carry a greater per-centage of body fat than do men, and thatis factored into the BMI.

Religion could be a challenge if, inorder to manage a health risk, an employeeshould be on medication but, for religiousreasons, the employee does not take med-ication. If medication were the only waythe employee could achieve a stated healthstandard, a reasonable accommodationwould have to be offered. For example, anemployee with high blood pressure maynot be able to get his or her blood pressureinto a normal range without medication,but may be able to reduce it somewhatwith diet and exercise, even though itremains higher than desired levels.

Collective Bargaining StatutesEmployers in a unionized environ-

ment may also face significant challengesin implementing a wellness program.Under the National Labor Relations Act(NLRA) and the Meyers-Milias-Brown

Act, employers must bargain in goodfaith over mandatory subjects of bargain-ing, defined to include wages, hours, andother terms and conditions of employ-ment. Given that many wellness pro-grams are likely to impact an employee’swages (via reduced health premiums) andmandatory programs certainly willimpact the terms and conditions ofemployment, an employer in a unionenvironment most likely will not be ableto unilaterally implement a wellness pro-gram. Rather, such an employer likelywill be required to propose its wellnessprogram to the union and engage in bar-gaining over the terms of the program.

Employee benefits such as healthinsurance plans are mandatory subjectsof bargaining.19 Thus, should an employ-er’s wellness program change the struc-ture of employee contributions, co-pays,and deductibles, or offer new programson topics such as smoking cessation andweight loss, the employer will likely berequired to bargain over such changes.

In addition, the National LaborRelations Board (Board) has held thathealth and safety issues are mandatorysubjects of bargaining. For example, theBoard has held that an employer mustbargain over its implementation of anon-smoking policy.20 Thus, should anemployer’s wellness program seek torestrict on-site use of tobacco products,the employer will likely need to bargainwith the union over such a decision.

Some wellness programs might alsorequire that employees submit to physicalexaminations. Unionized employers mustalso bargain with the union over theseaspects of the program.21 Accordingly,cholesterol, blood pressure, and othertypes of physical examination programsare likely mandatory subjects of bargain-ing. Even an employer’s decision to signif-icantly change dining alternatives in itscafeteria may trigger its duty to bargainwith the union, particularly where servicesare altered or prices affected.22

Privacy and Other StatutesCalifornia has enacted laws that

employers must consider when designinga mandatory wellness program.

1. State Health InformationPrivacy Statutes

The California Confidentiality ofMedical Information Act requiresemployers to establish procedures to pro-


tect the confidentiality of an employee’smedical information and limits howemployee health information may be usedand disclosed without the employee’sauthorization.23 The latter requirementwould bar the disclosure to managers ofhealth information generated by amandatory wellness program. Moreover,employers are barred from retaliatingagainst an employee who refuses to signan authorization for disclosure, althoughan employer may take actions necessitatedby the lack of information resulting fromthe employee’s refusal. The statute alsoimposes requirements on the form andcontent of an authorization.

2. State Laws ProhibitingAdverse Action on the Basisof Lawful Off-Duty Conduct

California law also prohibits employ-ers from taking adverse employmentaction for lawful off-duty conduct.24

Although using tobacco or drinking toomuch is unhealthy, it is not illegal. Thus,in California, employers must be carefulnot to implement mandatory wellnessprograms, or even target goals withinthose programs, that permit adverseemployment action, for example, basedon an employee’s failure to abstain fromsmoking. The scope of California lawregarding lawful off-duty conduct shouldbe examined carefully before a mandatorywellness program is put in place so that anemployer can determine the types of “car-rots and sticks” that would be permissible.

3. State Laws ProhibitingAdverse Action Based onthe Results of GeneticTesting

Employers implementing mandatorywellness programs that include genetictesting must also comply with state lawsthat regulate whether and how employersmay obtain, use, and disclose geneticinformation. For example, the FEHAincludes within the definition of medicalcondition genetic characteristics.25

Therefore, California employers must becareful before implementing an employeemedical screening initiative that evaluatesan employee’s propensity for geneticallylinked medical conditions, such as sickle-cell anemia or certain types of cancer.Accordingly, employers must evaluate theeffect of genetic testing laws before imple-menting a mandatory wellness program.

CONCLUSION

With health costs rising dramatically,and with the continued focus on healthand wellness issues, employers must nownavigate complex legal requirements andrestrictions as they move toward imple-menting mandatory wellness programs.

Employers need to anticipate thefuture as they balance business needswith compliance challenges and risk. Aninitial wellness program should bereviewed semi-annually to measure legalcompliance and the opportunity for newfeatures as case law, regulations, andstatutes develop and change.

ENDNOTES

1. Michelle Conlin, Get Healthy—OrElse, Bus. Week, Feb. 26, 2007, avail-able at http://www.businessweek.com/magazine/content/07_09/b4023001.htm.

2. Rodrigues v. The Scotts Co., L.L.C.,Case No. C.A. 07-10104-GAO (D.Mass 2007).

3. 29 U.S.C. § 1001 et seq.4. Id. at § 1182; 26 U.S.C. § 9801 et seq.5. 29 C.F.R. § 2590.702.6. Id. at § 54.9802 et seq.7. 42 U.S.C. § 12112(a), (b).8. Id. at § 12112(d)(4)(A).9. See, e.g., Conroy v. N.Y. State Dep’t of

Corr. Servs., 333 F.3d 88, 94 (2d Cir.2003); Fredenburg v. Contra CostaCo. Dep’t of Health Servs., 172 F.3d1176, 1182 (9th Cir. 1999).

10. 42 U.S.C. § 12112(d)(4).11. Enforcement Guidance: Disability-

Related Inquiries & Med.Examinations of Employees Underthe Americans With Disabilities Act(ADA), available at www.eeoc.gov/policy/docs/guidance.

12. 42 U.S.C. §§ 12112(d)(3)(B), (4)(C).13. EEOC v. Staten Island Sav. Bank, 207

F.3d 144 (2d Cir. 2000) (in the con-text of a long term disability plan,offering different benefits for men-tal and physical disabilities does notviolate the ADA, because everyemployee was offered the same planregardless of disability status);Krauel v. Iowa Methodist Med. Ctr.,915 F. Supp. 102 (S.D. Iowa 1995)(health plan’s exclusion for infertili-ty treatments was not a distinctionbased on disability, because itapplied to individuals who did anddid not have disabilities).

14. 42 U.S.C. § 12201(c)(2), (3).15. Id. at § 12201(c)(2). See, e.g., Barnes

v. Benham Group, Inc., 22 F. Supp.2d 1013 (D. Minn. 1998) (holding

in favor of the employer on an ADAclaim, where the employer termi-nated an employee who refused tocomplete a health insurance enroll-ment form, because the form wasused by the insurer to classify orunderwrite risk); McLaughlin v.General Am. Life Ins., 1998 U.S. Dist.LEXIS 16994 (E.D. La. Oct. 21,1998) (preexisting condition limita-tion excluding payment of claimsfor which the insured had beentreated during the previous12 months did not violate ADA).

16. 42 U.S.C. § 2000e et seq.17. Cal. Gov’t Code § 12900 et seq.18. Id. at § 12940(a)-(d), (j).19. Hardesty Co., Inc. d/b/a Mid-

Continent Concrete Co., 336 NLRB157, enforced 308 F.3d 859 (8th Cir.2002) (employer violated 8(a)(5) byunilaterally changing the healthinsurance benefit plan); BrookMeade Health Care Acquirers, 330NLRB 775 (2000) (unilateralincrease in employee contributionsto health insurance premiums con-stitutes a violation of the NLRA).

20. See-Tech Corp., 309 NLRB 3 (1992),aff ’d sub nom. NLRB v. High Tech.Cable Corp., 25 F.3d 1044 (5th Cir.1994) (management rights provi-sion relied on by employer not suffi-cient to constitute clear andunequivocal waiver of union’s rightto bargain over specific no-tobaccorule); Allied Signal, Inc., 307 NLRB752 (1992) (union’s agreement to“safety and health” clause wasdeemed conscious waiver of union’sright to bargain prior to employer’simplementation of new policiesaffecting health and safety, such aschange in smoking policy).

21. Colgate-Palmolive Co., 323 NLRB 515(1997); Leroy Mach. Co., 147 NLRB1431 (1964) (management-preroga-tives clause constituted union waiverof right to require employer to bar-gain about physical examinationsduring term of existing agreement).

22. Mercy Hosp. of Buffalo, 311 NLRB869 (1993) (elimination of latenight cafeteria service); O’Land,Inc., 206 NLRB 210 (1973)(employer violated section 8(a)(5)by unilaterally granting free mealsto non-striking employees; theemployer failed to notify employeesthat the free meals were a temporarymeasure for the purpose of protect-ing nonstriking employees).

23. Cal. Civil Code § 56.10 et seq.24. Cal. Labor Code, § 96(k).25. Cal. Gov’t Code § 12926(h)(2).


1) The Health Insurance Portability and Accounting Act (HIPAA)prohibits group health plans regulated by the Employee RetirementIncome Security Act from discriminating based on a health factor.

❏ True ❏ False

2) The HIPAA non-discrimination rules exclude body mass index as ahealth factor, but include nicotine addiction.

❏ True ❏ False

3) In 2006, the U.S. Department of Labor (DOL) promulgated regula-tions concerning wellness plans with plan years beginning on orafter July 1, 2007.

❏ True ❏ False

4) On February 14, 2008, the DOL issued a bulletin setting forth aWellness Program Checklist on which types of wellness programsneed not comply with HIPAA regulations.

❏ True ❏ False

5) The first five questions on the DOL’s Wellness Program Checklistestablish the period used as the group health plan year, whetherthere is a wellness program planned for the future, whether thewellness program will be part of an individual health plan asopposed to a group health plan, and whether the program will dis-criminate based on a health factor.

❏ True ❏ False

6) If an employer filling out the DOL’s Wellness Program Checklistanswers “no” to any of the checklist’s first five questions, theemployer need not continue with the checklist because the HIPAAregulations do not apply.

❏ True ❏ False

7) The DOL’s bulletin issued on February 14, 2008 requires employerswith wellness programs subject to the HIPAA either to have a non-benign discrimination exception to HIPAA compliance or to offeran unreasonable alternative standard.

❏ True ❏ False

8) An employer’s “participation based” wellness program that offers areward based solely on an employee’s participation in the program,and that does not condition the reward on a specific health-relatedoutcome, constitutes permissible benign discrimination.

❏ True ❏ False

9) An example of benign discrimination permissible under theHIPAA is a smoking cessation program required for employeeswho smoke, which mandates that the smokers provide proof thatthey have stopped smoking for a period of at least twelve months.

❏ True ❏ False

10) The Americans With Disabilities Act (ADA) prohibits an employerfrom discriminating against a qualified disabled person as to employeecompensation and benefits available by virtue of employment.

❏ True ❏ False

11) ADA issues arise in employer mandatory wellness programs forthree reasons, including the ADA's allowance for open, unlimitedaccess to employee medical information.

❏ True ❏ False

12) Medical inquiries or examinations of current employees regardingthe existence, nature, or severity of a disability are generally allowed.

❏ True ❏ False

13) The Equal Employment Opportunity Commission (EEOC) hastaken the position that it is impermissible to ask for medical infor-mation as part of a voluntary wellness program that focuses onearly detection, screening, and management of a disease.

❏ True ❏ False

14) The EEOC has expressly taken the position that it is permissible to askfor medical information as part of an involuntary wellness program.

❏ True ❏ False

15) An employer may not use risk-assessment activities to evade theADA’s nondiscrimination requirements.

❏ True ❏ False

16) Where an employer provides for reasonable accommodation ofprotected classes, the employer who has reasonable expectations ofemployees may have a mandatory wellness program.

❏ True ❏ False

17) In addition to implicating the Age Discrimination in EmploymentAct, an employer’s mandatory wellness program may implicateprotected classes under Title VII of the federal Civil Rights Act andthe California Fair Employment and Housing Act.

❏ True ❏ False

18) An employer with union-member employees will likely be requiredto propose a wellness program to the union and engage in collec-tive bargaining over its terms.

❏ True ❏ False

19) The California Confidentiality of Medical Information Act containsrestrictions on the use of employee medical information, includingthe disclosure of such information in the absence of an employee’sauthorization, thereby barring employers from revealing informa-tion generated by a mandatory wellness program to managers.

❏ True ❏ False

20) Since the Fair Employment and Housing Act includes genetic char-acteristics within the definition of the term “medical condition,” anemployer in California must be careful before implementing anemployee medical screening initiative that evaluates an employee’spropensity for genetically-linked medical conditions.

❏ True ❏ False

MCLE CREDITEarn one hour of general MCLE credit by reading “Legal ChallengesRaised by Employer-Mandated Wellness Programs” and answeringthe questions that follow, choosing the one best answer to each ques-tion. Mail your answers and a $25 processing fee ($20 for Labor andEmployment Law Section members) to:

Labor and Employment Law Section • State Bar of California180 Howard StreetSan Francisco, CA 94105

Make checks payable to The State Bar of California. You will receivethe correct answers with explanations and an MCLE certificatewithin six weeks. Please include your bar number and e-mail.

CERTIFICATIONThe State Bar of California certifies that this activity conforms tothe standards for approved education activities prescribed by therules and regulations of the State Bar of California governing mini-mum continuing education. This activity has been approved forminimum education credit in the amount of one hour.

MCLE Self-Assessment Test

Name ____________________________________________ Bar Number __________________________ E-mail __________________________________________


on leave of absence could engage in nego-tiations and grievance processing, thepossible overlap does not change the factthat the employee is on leave from his orher normal work duties to serve as aunion officer. Because the employee isalready on leave, it stands to reason thatrelease time is not possible.

ARBITRATION

School Board Could Not VacateArbitrator’s Decision That Employee’sAlleged Misconduct Was Not Serious

Enough to Warrant Bypassing theContractual Requirement of

Progressive Discipline

California Sch. Employees Ass’n v. BonitaUnified Sch. Dist., 163 Cal. App. 4th 387(2008)

Donald Roberts worked for theBonita Unified School District (District).In June 2004, the District served Robertswith a Notice of Termination andSuspension without Pay for variousalleged acts of misconduct, includingcommunicating regularly with staffmembers in rude, abusive, sexuallyexplicit, and threatening language andfailing to comply with supervisors’ direc-tions. The District’s collective bargainingagreement (CBA) with the union statedthat the District was required to use pro-gressive discipline which could not bebypassed unless the serious nature of theoffense warrants it. The CBA also pro-vides that whether or not the nature ofthe offense was so serious as to warrantbypassing progressive discipline stepsmay be submitted to arbitration.

Roberts requested a traditional hear-ing before a hearing officer appointed bythe District’s board regarding the discipli-nary charges against him, and a grievancearbitration to determine if the nature ofthe offense was adequately serious to callfor bypassing the progressive disciplinesteps. To streamline the process, the par-ties agreed to conduct the arbitration andthe board hearing in a consolidated pro-ceeding before a third-party arbitrator.

The arbitrator would first determine ifthe nature of the offenses was so seriousto require bypassing progressive disci-pline steps. If the conduct were suffi-ciently severe, then the third-party wouldserve as the board’s hearing officer for thedisciplinary appeal. The District board’sability to review the arbitration awardregarding the bypassing of progressivediscipline was limited by statute to viola-tion of the standards imposed by theCalifornia Arbitration Act.

The third-party arbitrator prepared alengthy decision in which he held thatmany of the District’s charges were notfully supported. He determined that thecharges were not sufficiently serious as torequire bypassing progressive disciplinesteps. The acts were not so outrageous andegregious as to either have required noprior warning that severe discipline wouldoccur or some similar outrageous conductthat any employee would reasonably knowwould result in termination of his employ-ment. Because the arbitrator found infavor of the employee in the arbitration,the hearing on the disciplinary charges wasunnecessary. The board reviewed the arbi-tration award and the evidence, and foundthat the arbitrator had exceeded his pow-ers by improperly defining “serious natureof the offense.” Consequently, the boardvacated the arbitration award and upheldthe termination.

Roberts’ union filed a petition in trialcourt to confirm the arbitration awardand to obtain a writ of mandate directingthe District to reverse the board’s deci-sion. The trial court confirmed the arbi-tration award and directed the board toreverse its decision. The California Courtof Appeal affirmed.

Education Code section 45113 per-mits classified employees to submit cer-tain disciplinary disputes to arbitrationpursuant to the terms of a CBA. That isexactly what was done here. The partiesagreed that if the arbitrator determinedthat the nature of the offenses againstRoberts was not so serious as to requirebypassing progressive discipline steps, thetermination decision could not stand.The arbitrator so found. And the arbitra-tion award explained that any lesser disci-pline could not be imposed because thedeadlines for such discipline had expired.

The court held that the arbitrationprovision in the CBA was valid. Section45113 allows these determinations to bemade in final and binding arbitrationswith limited review. As such, the boardwas only allowed to vacate the arbitrationaward if the arbitrator exceeded his pow-ers. Contrary to the board’s determina-tion, the arbitrator did not exceed hisauthority when he defined a seriousoffense as an act that was so outrageous asto either have required no prior warningthat severe discipline would occur orsome similar outrageous conduct that anyemployee would or reasonably shouldknow was not only prohibited, but alsowould likely result in termination.Because the board did not sustain its bur-den of establishing a violation of theCalifornia Arbitration Act, the trial courtproperly confirmed the arbitration award.

EMPLOYEE TRAINING COSTS

Agency Can Require Employee toReimburse for Training Costs, But

Cannot Deduct Amount FromEmployee’s Paycheck

City of Oakland v. Hassey, 163 Cal. App.4th 1477 (2008)

The City of Oakland (City) found thatit lost money when it trained officers wholeft its police department within a few yearsafter receiving training. Consequently, theCity entered into a memorandum ofunderstanding (MOU) with the unionauthorizing the City to require those whowent through training at its academy toreimburse the City for training costs if theperson left the City’s police departmentbefore completing five years of service. TheMOU provided that repayment would bedue and payable at the time of separation,and the City would deduct any amountsowed from the employee’s final paycheck.If the deduction was not sufficient, the bal-ance would be due.

Kenny Hassey signed a conditionaloffer to work as a police officer trainee forthe City. His offer was subject to the con-dition that he repay his $8,000 trainingexpenses if he voluntarily terminatedwith the police department before theend of five years. Hassey also signed areimbursement agreement, which con-tained the same repayment provision.After he completed his training, Hassey

Public SectorCase Notescontinued from page 5

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worked as a City police officer for onlythree months before he voluntarilyresigned. When he resigned, Hasseysigned a repayment agreement, acknowl-edging that he owed the City $8,000 intraining costs, to be paid in twenty-fourmonthly installments. The City withheldHassey’s final paycheck to cover some ofthe money owed. The City sent a series ofcollection notices to Hassey for the bal-ance, but he did not respond.

The City sued Hassey for breach ofcontract, seeking the amount owed underthe repayment agreement, plus collectionfees, interest, attorney fees, and costs.Hassey argued that the contract wasunenforceable because it violated the FairLabor Standards Act (FLSA) and variousstate laws. Hassey filed a cross-complaintfor a variety of claims, including violationof the FLSA and violation of Labor Codesections 221 and 223. The trial court heldthat the City was entitled to the repay-ment costs and that Hassey’s claims werebarred by the statute of limitations. TheCalifornia Court of Appeal reversed inpart and affirmed in part.

The court found that the conditionaloffer, reimbursement agreement, andrepayment agreement were valid and didnot violate the FLSA. But it was unlawfulfor the City to withhold Hassey’s final pay-check in order to satisfy his debt. Underthe FLSA, Hassey was entitled to at leastminimum wage for the final pay period heworked. Similarly, California law prohibitsan employer from withholding an employ-ee’s wages in order to set off a debt owed.Although the MOU authorized deductionsfrom final paychecks to cover reimburse-ment for training costs, under the FLSA,the prohibition against withholdingmoney due under a debt to an employerapplies whether or not the employeeagreed in writing to the withholding.

RETIREMENT LAW

Disabled Retiree’s EffectiveRetirement Date, Which Is the Day

After the Last Day She ReceivesRegular Compensation, Is Based onthe Date the Retiree Exhausts SickLeave and Not When She Actually

Stops Working

Katosh v. Sonoma County Employees’ Ret.Ass’n, 163 Cal. App. 4th 56 (2008)

Donna Katosh was a youth supervisorfor the Sonoma County Department ofHuman Services. She stopped working onJune 26, 2000. Her county health insur-ance lapsed in March 2001. In 2002, sheapplied for disability retirement. Whileher application was pending, she returnedto “in pay status” with the county for atwo-week period ending December 9,2002. She did not actually provide servicesfor the county during that period, but shereceived a payment of approximately fortyhours of sick leave previously accruedwhile she was working.

The Sonoma County Employees’Retirement Association notified Katoshin October 2004 that she had to haveactive county health insurance at thetime of her retirement in order to receiveretiree health insurance benefits.Consequently, the county allowed her toreturn to “in pay status” effectiveOctober 12, 2004, and to run out her sickleave and vacation hours to give her theforty hours needed to reinstate herhealth insurance prior to the county’sretirement board reaching its decisionregarding her disability retirementapplication. The county’s letter advisedher that taking this action would meanher retirement date would be in October2004, and she would not receive retroac-tive retirement benefits if she weregranted a disability retirement. But shewould get health insurance benefits as aretiree. Katosh accepted the offer. Theboard later granted her disability retire-ment application, confirmed its decisionthat sick leave is regular compensation,and set Katosh’s retirement date as theday after her last day on payroll, October28, 2004.

Katosh filed a petition for writ ofmandate arguing that the board abusedits discretion by characterizing the sickleave compensation as “regular compen-sation” under Government Code section31724. The trial court denied the peti-tion. The California Court of Appealaffirmed.

Government Code section 31724provides that when an employee retiresbased on disability, the disability retire-ment allowance will be effective not earli-er than the day following the last day forwhich the employee received “regular

compensation.” The retirement of amember who has been granted or is enti-tled to sick leave shall not become effec-tive until the expiration of such sick leavewith compensation unless the memberconsents to his or her retirement at anearlier date. The court found that “regu-lar compensation,” as set forth in section31724, includes sick leave and vacation.Consequently, Katosh’s last day for whichshe received regular compensation wasOctober 27, 2004.

WORKER’S COMPENSATION

SWAT Police Officer Who InjuresHimself While on Vacation and

Running for Mandatory Fitness forDuty Examination Was Entitled toWorker’s Compensation Benefit.

Tomlin v. Workers’ Comp. Appeals Bd., 162Cal. App. 4th 1423 (2008)

Dave Tomlin is a member of the Cityof Beverly Hills Police DepartmentSpecial Weapons and Tactics Unit(SWAT). SWAT assignment is voluntary.Officers are required to pass a physicalfitness test prior to joining SWAT and topass an annual physical fitness testinvolving a half-mile run, climbing awall, and dragging 150 pounds. Thoseofficers not in SWAT do not have to passsuch periodic physical fitness tests.Tomlin testified that a SWAT memberwas recently reprimanded for not beingphysically fit when the officer failed toclimb a wall while on assignment.

The city pays Tomlin to train fourdays each month, and has sent him totrain at Camp Pendleton and out of state.He otherwise maintains his physical fit-ness by running, bicycling, and weight-lifting outside of work.

In November 2005, a supervisorinformed the SWAT members that theannual physical fitness test would beadministered in January 2006. Tomlinbegan training to prepare for the test andexpected to continue training during atwo-week vacation he scheduled fromlate December to early January 2006.Tomlin’s supervisor did not direct himto train during his vacation, and Tomlindid not inform his supervisors that hewould continue training during vaca-tion. However, Tomlin believed that thecity expected him to train while on vaca-



tion. While on vacation in Jackson,Wyoming, Tomlin went for a three-milerun, slipped on a sidewalk, and broke hisankle.

Tomlin applied for workers’ com-pensation benefits arising out of hisinjury, and the city denied his claim. Theworkers’ compensation administrativelaw judge (WCJ) found in favor of thecity. The Workers CompensationAppeals Board (Board) denied reconsid-eration, adopting the WCJ’s decision.The California Court of Appeal annulledthe Board’s decision denying Tomlin’sbenefits.

An employee who sustains an injuryduring voluntary participation in anyoff-duty recreational, social, or athleticactivity not constituting part of theemployee’s work-related duties may beentitled to workers’ compensation bene-fits if the activity is a reasonableexpectancy of, or expressly or impliedlyrequired by, the employment. The testof reasonable expectancy of employ-ment consists of two elements: (1)whether the employee subjectivelybelieves his or her participation in anactivity is expected by the employer, and(2) whether that belief is objectively rea-sonable. Here, Tomlin believed that thecity expected him to train for the SWATphysical fitness test while on vacation.The issue is whether that belief wasobjectively reasonable.

The California Court of Appealfound that it was objectively reasonablefor Tomlin to believe that the city expect-ed him to train during his vacationbecause he was a SWAT member andrequired to pass a physical fitness testeach year. The city paid SWAT membersto engage in paid, on-duty physical fit-ness training each month. In addition,the other SWAT member’s reprimand fornot being physically fit enough to per-form the job-related task of climbing awall demonstrates that physical fitness isa requirement of membership. Tomlinwas injured while training for an immi-nent, mandatory, work-related physicalfitness test. His supervisor had advisedthe SWAT members that they wererequired to pass the fitness test.Consequently, Tomlin’s training activi-ties when he was injured were a reason-able expectancy of his employment.

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employer had constructive notice of theworkers’ undocumented status, so con-tinued employment would violate theIRCA.

Deferring to the arbitrator’s find-ings, the Ninth Circuit held that con-structive knowledge under the IRCAmust be narrowly construed and requires“positive information” of a worker’s

undocumented status. Relying on lan-guage in the no-match letters, the courtheld that the main purpose of these let-ters is to indicate to workers that theirearnings are not being properly creditedby the government, and thus the lettersalone could not constitute constructiveknowledge of a lack of documentation.The court stressed that the three-daywindow to apply for a new card made it

likely that many of the employees con-cluded they could not meet the initialdeadline and stopped trying.

The court also refused to considerpost-termination evidence that none ofthe terminated employees returned withproper documentation. The courtdeferred to the arbitrator’s refusal toconsider the evidence, stressing thatcourts cannot second-guess arbitrators’findings.

Ninth Circuit Refuses to Enforce Board Decision Allowing Ban of “RNs

Demand Safe Staffing” Button

Wash. State Nurses Ass’n v. NLRB, 526F.3d 577 (9th Cir. 2008)

The Ninth Circuit refused to enforcea decision by the National LaborRelations Board (Board) that allowed ahospital to prohibit nurses from wearingunion buttons bearing the message “RNsDemand Safe Staffing.” Rejecting thehospital’s concerns about the disruptiveeffect of the buttons as “speculative at

best,” the court remanded the case withinstructions to reinstate the order of theadministrative law judge (ALJ), whofound that the hospital’s button ban vio-lated the rights of employees under theNLRA.

Sacred Heart, an acute care hospitalin Spokane, Washington, initiated thebutton ban in February 2004, while theWashington State Nurses Associationwas negotiating for a new collective bar-gaining agreement. The ban prohibitednurses from wearing the “Safe Staffing”button in any area where they mayencounter patients or family members.The hospital singled out the “SafeStaffing” button from three other unionbuttons for exclusion, alleging that itsmessage implied that the hospital lackedsafe staffing, and that nurse managerswere concerned about the possibleimpact on patients and their families.

Under existing Board precedentconcerning health care facilities, suchbans are presumptively valid in immedi-

ate patient care areas. Casa San Miguel,320 NLRB 534, 540 (1995). Bansextending beyond immediate patientcare areas, such as the ban in this case,can only be legally enforced upon ashowing of special circumstances.

The ALJ concluded that the employ-er committed an unfair labor practice by“promulgating, maintaining, and enforc-ing” the button ban. The Board reversed,finding that although the button prohi-bition was presumptively invalid, theemployer had demonstrated “special cir-cumstances” in that the button’s messagewould disturb patients.

The Ninth Circuit panel, however,rejected the Board’s determination thatspecial circumstances justified the ban,finding no substantial evidence in therecord to support such a finding. Statingthat the Board’s approach was contraryto the “basic adjudicatory principle thatconjecture is no substitute for evidence,”the court found the employer’s concern

contradicted by the fact that the recordcontained no evidence that any patientsor family members raised concernsregarding the button’s message. Thecourt agreed with dissenting BoardMember Liebman’s observation that anypatient viewing the button would likelyidentify it as a garden-variety union but-ton worn by nurses during the course oflabor negotiations.

Board Has No Jurisdiction OverDispute Which Primarily Involved

Parties and Issues Subject to the RLA

Air Line Pilots Ass’n v. NLRB, 525 F.3d862 (9th Cir. 2008)

The Ninth Circuit held that theBoard improperly asserted jurisdictionunder NLRA over a dispute among theAir Line Pilots Association, DHL, andABX Air, Inc. rather than allowing thedispute to be resolved under the RailwayLabor Act (RLA).

In 2003, DHL, a package deliveryfirm, merged with its competitor

Airborne, Inc. Each firm had its ownflying subsidiary, ASTAR (formerlyDHL Airways) and ABX, respectively.After the merger, each flying subsidiarywas spun off and new agreements weresigned that allowed DHL and Airborneto continue operating their businessesin the same fashion as before the merg-er. The charge arose from a grievancefiled by the union representing ASTARpilots, claiming that the new agreementbetween ABX and Airborne (now a sub-sidiary of DHL), violated a collectivebargaining agreement providing that allflying performed by DHL subsidiarieswould be performed by ASTAR pilots.The union made similar claims as partof a counterclaim in its litigation withDHL Holdings concerning the enforce-ability of the collective bargainingagreement. ABX then filed an unfairlabor practice charge against the union,alleging that the grievance and counter-claim violated the NLRA’s secondaryboycott provisions.

NLRA Case Notescontinued from page 7

“[C]onstructive knowledge under the IRCA must be narrowly construedand requires ‘positive information’ of a worker’s undocumented status.”


In a 2-1 decision, the Board foundthat the union was a labor organizationwithin the meaning of the NLRA andthat it had misused the grievance proce-dure in an attempt to coerce DHL andAirborne to cease doing business withABX, in violation of the NLRA’s second-ary boycott prohibition. The Board hadjurisdiction over the union because itrepresented seventeen employees coveredby the NLRA at an unrelated employer.

Member Liebman, dissenting,sharply criticized the majority’s finding,noting that the seventeen employeescomprised only .027 percent of the62,000 pilots that the union represented.The Board ordered the union to ceaseand desist from violating the NLRA,withdraw its grievance and counterclaim,and reimburse DHL Holdings for rea-sonable expenses and legal fees indefending against the grievance andcounterclaim.

The Ninth Circuit reversed, findingthat the Board misapplied the law ofBrotherhood of R. R. Trainmen v.Jacksonville Terminal Co., 394 U.S. 369(1969), which held that disputes coveredby the RLA remained exempt from theNLRA if the substance of the dispute iscovered by the RLA. In finding RLAjurisdiction to be appropriate, the courtfound that the primary dispute involvedparties and contracts primarily governedby the RLA, and that the parties hadalready begun court proceedings underthe RLA to resolve the dispute.

Letters From Elected OfficialsClaiming To Have Certified a Card-Check Majority Insufficient To Set

Aside Election

Trump Plaza Associates d/b/a TrumpPlaza Hotel and Casino, 352 NLRB No. 76(May 30, 2008)

The Board certified the United AutoWorkers as the bargaining representativefor approximately 530 dealers at theTrump Plaza Hotel and Casino inAtlantic City, despite the employer’s con-tention that the results should have beenset aside because the union engaged inobjectionable campaigning. The Boardconcluded that Trump Plaza failed tomeet its heavy burden of demonstratingthat the union’s conduct reasonablytended to interfere with employees’ freeand uncoerced choice in the election,

especially in light of the 175-vote marginfavoring the union.

Trump Plaza’s objections centeredon a union press conference, held sixdays prior to the election, during whichthree elected officials signed a postertitled “Certification of Majority Status.”The document stated that, pursuant to aconfidential card-check conducted by thesigners, a majority of the dealers hadalready authorized the union to repre-sent them for collective bargaining pur-poses. Although the poster was kept inthe union’s office for five days prior tothe election, only two employees attend-ed the event and no evidence was offeredthat any employee saw television news-casts covering the conference.

Trump Plaza also objected to theunion’s use of letters and resolutionsfrom elected officials that expressed sup-port for the union’s campaign to organ-ize dealers in Atlantic City. The unionposted these materials on its web site andmailed them to many of the dealers.

Relying on Chipman Union, Inc., 316NLRB 107 (1995), the Board held thatthe letters and resolutions by govern-ment officials were recognizable by theemployees as expressions of the authors’individual opinions. The Board refusedto find, without evidence to the contrary,that the employees here were susceptibleto confusion about the Board’s neutralityas a result of the letters.

Further, the Board found that thecard-check “Certification” did not war-rant setting aside the election. Given theunion’s wide margin of victory, and theevidence that no more than a few voterswere aware of the “Certification,” theBoard could not infer that the documentinfluenced enough employees to affectelection results.

D.C. Circuit Finds Employer Could NotUnilaterally Modify Future Retirement

Benefits Without Union Waiver

Southern Nuclear Operating Co. v. NLRB,524 F.3d 1350 (D.C. Cir. 2008)

The D.C. Circuit held that sub-sidiaries of an electric utility could notmodify the non-vested retirement bene-fits of union-represented employeeswithout first giving the unions an oppor-tunity to bargain collectively, absent anenforceable waiver by the applicableunions. The court then found that three

of the collective bargaining agreementsat issue contained a waiver of some of theunions’ bargaining rights.

The action arose when several sub-sidiaries of Southern Nuclear OperatingCo. attempted to make changes thatwould have reduced the premiums ofcurrent employees’ non-vested benefits.The benefits at issue consisted of a pack-age referred to as Other Post-RetirementBenefits, which vested only if and whenan employee actually retires from hisemployer. Further, some of the benefit-plan guides contained a “reservation-of-rights clause” that granted the employerthe right to terminate or amend the ben-efits at any time. After the employerdenied their requests to bargain, theunions filed unfair labor practicecharges, and the Board determined thatthe failure to bargain violated the NLRA.

The D.C. Circuit partially enforcedthe Board’s order. The court agreed withthe Board that current employees’ non-vested future retirement benefits are amandatory subject of bargaining, citingto the U.S. Supreme Court’s opinion inAllied Chemical & Alkali Workers ofAmerica, Local Union No.1 v. PittsburghPlate Glass Co., 404 U.S. 157 (1971).Dismissing the subsidiaries’ distinctionbetween vested and non-vested benefits,the court noted that non-vested benefitsaffect current workers by, for example,inducing them to remain with theemployer or accept lower compensation.The court also deferred to the Board’sopinion, as the classification of bargain-ing subjects is a matter in which theBoard has special expertise.

The court next held that the unionshad not waived their bargaining rights byfailing to object to earlier modificationsto the benefits, or challenge the wordingof the reservation-of-rights clauses in thebenefit-plan guides. Finally, contrary tothe Board, the court found that theunions had contractually surrenderedtheir bargaining rights with respect tothe health-care retirement benefits ofthree of the subsidiaries, as the agree-ments incorporated reservation-of-rights clauses by express reference. Thesesubsidiaries could unilaterally modifythe health-care benefits, but not the life-insurance benefits.


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representative negotiated an extensionuntil August 23, 1999. On August 17,1999, Lonicki advised Sutter that shewould return to work on August 27,1999. Instead of requesting additionalverification of her serious health condi-tion or stating its concerns about thevalidity of her leave of absence, Sutterdemanded that Lonicki return to workon August 23, 1999.12

During her leave of absence Lonickiunderwent weekly treatment for majordepression, which her psychiatrist diag-nosed as “work related.” He extendedher medical leave to September 26, 1999;however, on August 27, 1999, Sutterinformed Lonicki that her employmenthad been terminated for failing to return

to work on August 23 and 24, 1999.13

During the relevant time period,Lonicki was employed part time, sixteenhours per week, at Kaiser Hospital.14

Lonicki’s health care providers allowedher to work there while on leave fromSutter because they believed that thework environments at the two hospitalswere significantly different.15 Sutter wasaware of Lonicki’s job at Kaiser, andLonicki’s supervisor also worked parttime at Kaiser.16

When Sutter terminated her, Lonickifiled suit asserting CFRA violations.Sutter moved for summary judgment,primarily asserting that because Lonickiwas employed at Kaiser in a position withsimilar job duties during the relevanttime period, she was not eligible forCFRA leave from Sutter. The trial courtgranted summary judgment on thisbasis, and in a split decision over a strongdissent, the Third District Court ofAppeal affirmed.17 The court of appeal

rejected Lonicki’s argument that Sutterwas precluded from contesting the valid-ity of her medical certification because itfailed to follow the statutorily-prescribedprocedure for verifying her serioushealth condition.18 The CaliforniaSupreme Court granted review.

OVERVIEW OF THE MEDICALCERTIFICATION PROCESS

A qualifying employee19 invokesFMLA/CFRA when she asks for leave forher own serious health condition or thatof a family member,20 and need not men-tion CFRA or FMLA by name in order tobe entitled to leave.21 The employer maygrant the leave without ever requestingmedical certification.22 However, if theemployer requires medical certification,it should do so either at the time that theemployee gives notice of her need forleave or within two business days there-after (or if the leave is unforeseeable,within two business days after the leavestarts).23 When the employer requests

certification, it must warn the employeeof any consequences for failing to pro-vide adequate certification and give heran opportunity to cure any deficiencies.24

Under CFRA, the medical certifica-tion is deemed legally sufficient if itincludes the dates on which the condi-tion commenced, the likely duration ofthe condition, and the estimated timethe employee will require the leave.25

Importantly, CFRA requires less infor-mation than does FMLA to support amedical certification.26 Thus, medicalcertifications under CFRA are legallysufficient even when they contain lessinformation than FMLA certifications.The California Constitution protectsthe right to medical privacy and forbidsdisclosures commonly required underthe FMLA, such as diagnoses, methodsof treatment and protocol as well asmedication.27

Yet another protective cloak ofCFRA limits the right of an employer to

challenge the medical certification of afamily member for whom the employeeseeks leave to provide psychological careand comfort. If the medical certificationmeets the statutory requirements, theemployer must accept it and may notseek a second or third opinion.28

Once an employee provides ade-quate certification of her serious healthcondition, the employer must grant theleave, unless it has “reason to doubt thevalidity of the certification.”29 Lonicki’sholding is not to the contrary. Indeed,Lonicki makes plain that leave must begranted if the certification is completeand there is no reason to doubt its valid-ity. It is only when an employer has rea-son to doubt the validity of thecertification that the Lonicki holding haseffect. Even then, an employer who,doubting the validity of a certification,chooses not to use the second and thirdopinion process but rather denies leaveand discharges the employee, “risks alawsuit by the employee.”30

In his concurrence and dissent,Justice Moreno provided examples ofwhat types of reasons would constitute“reason to doubt the validity.”31 TheFMLA regulations use the same term.32

FMLA case law explains that “reason todoubt the validity” of a medical certifica-tion exists where an employee does nothave the condition claimed or theemployee is misusing a previouslyacquired medical certification.33

If an employee fails to include infor-mation in the medical certification formthat is not statutorily required, anemployer does not, by virtue of thatinadequacy alone, have sufficient “reasonto doubt the validity” of the certification,and therefore may not invoke the secondand third opinion process. Moreover, ifan employee’s medical certification formis missing required information, theemployer must give the employee anopportunity to cure the incomplete cer-tification.34 Thus, reaching the thresholdfor a second and third opinion could be a

Application ofthe FMLA/CFRAcontinued from page 1

“Regardless of the forum, an employer’s doubts about the validity of a medical certification, even where such doubts are in good faith and based upon reliable information, do not serve as a defense to a claim for wrongful denial of leave.”


steep one for employers, and continuesto be so even after Lonicki.

If, and only if, an employer has “rea-son to doubt the validity” of the medicalcertification may the employer requestthat the employee submit to a secondmedical examination, at the employer’sexpense.35 If the second medical opinioncontradicts the employee’s certification,the employer may grant the leave orrequest that the employee submit to athird medical examination, the results ofwhich would be binding on bothparties.36

IMPACT OF LONICKI

In Lonicki, the California SupremeCourt held that, under CFRA, when anemployer doubts the validity of anemployee’s certification for her serioushealth condition, it may deny her leave(or discharge her if she neverthelesstakes her leave) without requiring her toobtain the opinion of a second doctor.37

The court appeared to view the secondand third opinion process as an optional– rather than mandatory – means ofresolving a dispute about medical certi-fication.38 However, an employer whochooses to terminate an employee ordeny her leave without invoking the sec-ond and third opinion process continuesto potentially face serious liability forviolating CFRA (and FMLA).

Moreover, despite Lonicki, employ-ers are still required to obtain the opin-ions of a second and third doctor beforedenying leave or terminating anemployee because of doubts about thevalidity of her certification underCFRA’s federal counterpart, FMLA.FMLA’s mandates apply to all employerssubject to CFRA, and it provides a floorof protect ion below which Californialaw may not fall.39

In 1998, the Northern District ofCalifornia held in Sims v. Alameda-Contra Costa Transit District that underFMLA, if there is reason to doubt thevalidity of the certification, employershave the option either to accept the cer-tification as adequate or to go throughthe second and third opinion process.40

Sims held that FMLA does “not allow anemployer to deny a leave request withoutusing the statutory procedures, and thenargue in court after engaging in civil dis-

covery that the certification presented bythe employee did not accurately repre-sent the employee’s medical condition.”41

Since 1998, the Sims holding has beencited in the Ninth Circuit and followedin numerous courts around the coun-try.42 No court in California has failed tofollow Sims in interpreting FMLA.Therefore, although Lonicki consideredand rejected the Sims holding,43 plaintiff-side practitioners who face the problemof an employer not using the second andthird opinion process may still assertthat the process is mandatory by filing infederal court, asserting FMLA claims,and citing Sims and its progeny.

The purpose of the second and thirdopinion process is to ensure that medicalprofessionals are making determinationsabout medical issues. As theDepartment of Labor (DOL) observed inconnection with its adoption of the final

regulations implementing FMLA: If the health condition meetsthe definition in the regulationsat §825.114 and, as provided in§§825.305- 825.307, an employ-ee furnishes a completed DOL-prescribed medical certificationfrom the health care provider,the only recourse available to anemployer that doubts the validi-ty of the certification is torequest a second medical opin-ion at the employer’s expense.Employers may not substitutetheir personal judgments forthe test in the regulations or themedical opinions of the healthcare providers of employees ortheir family members to deter-mine whether an employee isentitled to FMLA leave for aserious health condition.44


Regardless of the forum, an employ-er’s doubts about the validity of a med-ical certification, even where such doubtsare in good faith and based upon reliableinformation, do not serve as a defense toa claim for wrongful denial of leave. Theliability framework for CFRA and FMLAis quite different than that of other civilrights statutes because they are leaveentitlement statutes. Once a violation isshown, the employer has virtually nodefense.45

CONCLUSION

California employers should contin-ue to utilize the second and third opin-ion process if they intend to deny leaveor otherwise prevent employees fromtaking advantage of their FMLA/CFRArights because of doubts about the valid-ity of a medical certification. Becauseevery employee covered by CFRA for hisown serious health condition is also cov-ered by FMLA, employers remain boundby the requirement that they utilize thesecond and third opinion process.

The medical certification process isbeneficial for both employees andemployers. It allows medical profession-als to make the determination aboutmedical issues. It provides a structurefor employers to specifically challenge anemployee’s need for leave for a serioushealth condition if there is reason todoubt the validity of a certification, andallows resolution of disputes withoutcostly litigation. Moreover, it properlyallows employees to take much-neededleave for a serious health condition whena doctor decides that it is necessary.Failing to allow an employee to takemedical leave, or terminating a seriouslyill employee, cannot be fully cured evenif the employee later prevails in litigationand is awarded monetary damages orinjunctive and declaratory relief.

ENDNOTES

1. The author would like to thank PatriciaA. Shiu, Christine Clarke and EmilyMaglio for significant assistance withthis article. However, any errors are theresponsibility of the author.

2. 43 Cal. 4th 201 (2008).3. CAL. GOV’T CODE § 12945.2.4. The supreme court found that the mat-

ter should not have been decided onsummary judgment and rejected a per

se rule that an employee cannot everhold another job while on FMLA/CFRAleave. Lonicki, 43 Cal. 4th at 216-17.Importantly, Lonicki recognizes thatenvironmental factors such as stress andwork hours should be considered whencomparing jobs with similar duties. Id.at 215, 217 n. 4.

5. 29 U.S.C. §§ 2611-2654.6. Lonicki, 43 Cal. 4th at 206.7. See LAS-ELC amicus brief at page 3,

filed April 6, 2006 (on file with author).8. See LAS-ELC amicus brief at page 4.9. See LAS-ELC amicus brief at page 4.10. Lonicki, 43 Cal. 4th at 206-07.11. Id.12. Id.13. Id.14. LAS-ELC amicus brief at 6-7.15. LAS-ELC amicus brief at 6-7.16. LAS-ELC amicus brief at 6-7.17. Lonicki v. Sutter Health Cent., previously

published at 124 Cal. App. 4th 1139(2004).

18. Id. at 1156.19. A qualifying employee has worked for 1

year and 1250 hours for a company with50 employees within a 75-mile radius ofthe worksite. 29 U.S.C § 2611(2); 29C.F.R. §§ 825.104, 825.110; CAL. GOV’TCODE § 12945.2(a); CAL. CODE REGS. tit.2, §§ 7297.0(d), (e).

20. CAL. GOV’T CODE § 12945.2(c)(3).21. CAL. CODE REGS. tit. 2, § 7297.4 (a)(1);

29 C.F.R. § 825.302(c). 22. CAL. GOV’T CODE § 12945.2 (j), (k); 29

C.F.R. § 825.302(c); CAL. CODE REGS. tit.2, § 7297.4(b)(2).

23. 29 C.F.R. § 825.305(c).24. Id. at § 825.305(d).25. CAL. GOV’T CODE §§ 12945.2 (j)(1),

(k)(1); CAL. CODE REGS. tit. 2, §7297.0(a).

26. Compare 29 C.F.R. § 825.306 with 2 CAL.CODE REGS. tit. 2, §§ 7297.0(a)(2),7297.11; and CAL. GOV’T CODE §12945.2 (j), (k) with 29 U.S.C. §2613(b).

27. California Const., article 1, section 1.28. CAL. CODE REGS. tit. 2, § 7297.4 (b)(1).29. CAL. GOV’T CODE § 12945.2 (k)(3)(A); 2

CAL. CODE REGS. tit. 2, § 7297.4(b)(2)(A); 29 U.S.C. § 2613(c); 29 C.F.R.§ 825.307(a)(2). Justice Moreno’s dis-sent explains that “an employer mayhave all sorts of reasons to doubt thevalidity of a medical certification — theemployee may have a history of poorcredibility, or may have been seen per-forming activities that indicate his orher ability to perform the employmenttasks, or may have been rumored to have

told another employee that the certifica-tion was fraudulent.” Lonicki, 43 Cal.4th at 225.

30. 43 Cal. 4th at 213.31. Id. at 225.32. 29 C.F.R. § 825.307(a)(2).33. See, e.g., Diaz v. Fort Wayne Foundry

Corp., 131 F.3d 711 (7th Cir. 1997)(employee claiming to have bronchitissubmitted a doctor’s note stating he hadirritable bowel syndrome), Whitworth v.Consol. Biscuit Co., Civil Action No. 6:06-112-DCR, 2007 WL 1075774 (E.D.Ky. April 6, 2007) (employer claimingemployee used fraudulent FMLA claimto spend time with ex-boyfriend), Porterv. New York Univ. Sch. of Law, No. 99 Civ.4693 (TPG), 2003 WL 22004841(S.D.N.Y. Aug. 25, 2003) (employeemedical certification stated incapacityto work began months before employeerequested leave).

34. Cf. Albert v. Runyon, 6 F. Supp. 2d 57, 64(D. Mass. 1998) (defendant claiminginsufficient medical information givenon FMLA medical certification held tonot have “reason to doubt the validity”of the certification).

35. CAL. GOV’T CODE § 12945.2 (k)(3)(A);CAL. CODE REGS. tit. 2, § 7297.4(b)(2)(A); 29 U.S.C. § 2613(c); 29 C.F.R.§ 825.307(a)(2).

36. CAL. GOV’T CODE § 12945.2 (k)(3)(C),(D); CAL. CODE REGS. tit. 2, §§7297.4(b)(2)(B), (C).

37. Lonicki, 43 Cal. 4th at 211-12.38. Id. at 210.39. 29 C.F.R. § 825.701(a) (“nothing in

FMLA supersedes any provision of Stateor local law that provides greater familyor medical leave rights than those pro-vided by FMLA”) (emphasis added);CAL. CODE REGS. tit. 2, § 7297.10.

40. Sims v. Alameda-Contra Costa TransitDist., 2 F. Supp. 2d 1253, 1263 (N.D. Cal.1998).

41. Id. at 1263.42. See Marchisheck v. San Mateo County,

199 F.3d 1068, 1077 (9th Cir. 1999) (cit-ing the Sims analysis that an employer isestopped from challenging the first cer-tification if it foregoes the second opin-ion process, but declining to apply it asthe certification at issue was faciallydeficient); see also Regan v. Natural Res.Group, Inc., 345 F. Supp. 2d 1000, 1018(D. Minn 2004) (“[Defendant] neverrequested that [plaintiff] get a secondopinion, and thereby waived its right tochallenge the validity of [plaintiff ’s]request for a leave.”); Wheeler v. PioneerDevelopmental Servs., Inc., 349 F. Supp.


2d 158, 167 (D. Mass. 2004) (“Anemployer who disagrees with theemployee’s medical certification butdoes not require the employee to obtaina second or third opinion, cannot chal-lenge the validity of the certification insubsequent civil proceedings”);Williams v. Rubicon, Inc., 754 So.2d1081, 1086 (La. Ct. App. 1999) (“Thestructure and internal logic of the Actalso suggests that the certification pro-cedures of [29 U.S.C. § ] 2613 are theexclusive means for an employer tochallenge the medical facts underlyingthe employee’s certification. Althoughthe regulations explicitly permit anemployer to deny leave to an employeewho fails to produce ‘a requested med-ical certification,’ 29 C.F.R. §825.312(b), there is no explicit authori-ty for an employer to deny leave to anemployee who does produce medicalcertification. To the contrary, Congressstated that if an employee’s medical cer-tification meets certain requirements, it‘shall be sufficient.’ 29 U.S.C. § 2613(b).If an employer has the choice of skip-ping the certification process andengaging instead in additional discov-ery of medical facts, the term ‘sufficient’is rendered meaningless.”).

43. Lonicki, 43 Cal. 4th at 212-13 (statingrather summarily that the court was“not persuaded” by Sims and that line ofcases, and instead relying on a FourthCircuit case, Rhoads v. FDIC, 257 F.3d373 (4th Cir. 2001), and cases from theSixth and Eighth Circuits, Novak v.MetroHealth Med. Ctr., 503 F.3d 572,579 (6th Cir. 2007) and Stekloff v. St.John’s Mercy Health Sys., 218 F.3d 858,860 (8th Cir. 2000). These decisionsprovide no meaningful analysis of thesecond and third opinion procedure.Stekloff treats the question in two para-graphs, and Rhoads simply cites Stekloff.Novak’s analysis also is cursory.

44. 60 Fed. Reg. 2180, 2235 (1995).45. See Faust v. Cal. Portland Cement Co.,

150 Cal. App. 4th 864, 879 (2007)(explaining that “An interference claimunder the FMLA (and thus the CFRA)does not involve the [McDonnellDouglas] burden-shifting analysis . . . .A violation simply requires that theemployer deny the employee’s entitle-ment to FMLA leave.”) (citation andinternal quotation omitted); see alsoBachelder v. Am. W. Airline, Inc., 259F.3d 1112, 1131 (9th Cir. 2001).

the Court of Appeal here held,to “an inability to perform theessential functions generally,rather than for a specificemployer.”9

So there you have it. The practicalimplications of Lonicki for managers?Listen to your lawyer! The practicalimplications for management lawyers?When advising a client-employer about aCFRA-eligible employee who seeks timeoff and presents a doctor’s note attestingto the employee having a physical ormental condition that renders theemployee unable to perform his or hercurrent job for the client-employer,explain that the employer denies theleave at its peril. As a real world, practi-cal matter, unless the employer has hardevidence that the employee is lying (forexample, that the medical certification isa forgery), or the employer has a secondand third opinion attesting to theemployee’s ability to work at his or herparticular job at his or her particularplace of employment, the employee like-ly will be able to prove a “serious healthcondition” and thus entitlement to atwelve-week leave with job protectionand benefits. In a post-Lonicki world,this will be true regardless of whether theemployee is gainfully employed perform-ing the same job for a different employer– unless, perhaps, the defendant-employer can prove that there isabsolutely no difference between it andthe other employer, and no differencebetween the two jobs.

And while Lonicki doesn’t go quitethis far, this may be true even if theemployee could perform the identicaljob for the client-employer on a part-time basis, or the employee could per-form the identical job for theclient-employer if she had a differentsupervisor or was on a different shift.10 Itmay be possible for the employer toprove otherwise, but in the absence oftwo opinions from qualified medicalpractitioners in support of its position,the employer will have a difficult burden.

Many manager clients are going tohave a tough time believing this is reallythe law. Nonetheless, the CaliforniaSupreme Court has made clear that anemployer’s belief about an employee’smedical condition – even where suchbelief is in good faith and well-reasoned,is largely irrelevant when determining anemployee’s leave rights.

ENDNOTES1. Gov’t Code 12945.1 et seq.2. 43 Cal. 4th 201 (2008).3. While employers with fewer than fifty

employees have a duty to make reason-able accommodation under the disabili-ty provisions of the California FairEmployment and Housing Act (Gov’tCode §§ 12940(m) and (n)), and a dutyto provide time off under certain cir-cumstances under the Labor Code (see,e.g., Lab. Code § 230 (jury duty)) andunder city ordinances (see, e.g., SanFrancisco Paid Sick Leave Ordinance,Administrative Code Chapter 12W),they are not covered by CFRA.

4. 29 U.S.C. §§ 2611-2654.5. Employees who have been employed by

the employer for less than a year, or whohave worked fewer than 1,250 hoursduring the twelve months preceding thedate the leave would begin, are not eligi-ble for a CFRA leave.

6. I have no inside information. I am spec-ulating about what was going on in thebackground based only on the factsrecited in the court’s opinion and apply-ing my own experience in advisingemployers. I may be way off base.

7. The decision neither addresses Lonicki’srights under workers’ compensation law,nor addresses her seeking a leave underLabor Code section 132a – which in ourrecitation of real-world realities wouldcertainly have complicated the matter.

8. Of course, Lonicki has now engaged inprotected activity in taking (or seekingto take) a CFRA leave, so any termina-tion after she returned from leave wouldbe examined under the microscope of aretaliation claim.

9. Lonicki, 43 Cal. 4th at 216.10. Lonicki does not address the situation of

a request for intermittent leave (imagineif Lonicki had sought to work part timeat Sutter based on an assertion of a med-ical need to intermittent CFRA leave,while working part time at Kaiser), orthe need for an accommodation underthe disability laws (such as, maybe,working the morning shift or workingfor a different supervisor). Sutter man-agement would have loved that!

ManagementTrenchescontinued from page 3


relieved of all duty based on one of thefollowing conditions: (1) where theemployee is the only employee in his orher job classification who is on duty atthe worksite and the essential functionsof the job cannot be performed unlessthe employee remains on duty; or (2) where state or federal law imposes arequirement that the employee not berelieved of all duties. Prior versions ofthe legislation had allowed for on-dutymeal periods where an employee worksalone, where the employee works in anisolated location, or where the person isthe only employee in the job classifica-tion and there are no other employeeswho can reasonably relieve him or her ofall job duties, but these allowable cir-cumstances for on-duty meal periodshave, at least for now, been stricken fromthe proposed amendment.

The current version of the legisla-tion also allows a prevailing party in awage case to recover expert witness fees,and litigation expenses in addition to thealready-provided-for attorney’s fees.Finally, it requires an extra hour of com-pensation to anyone who works a splitshift.

For up to date information on thestatus of AB1711, see www.leginfo.ca.gov/bilinfo.html.

Premium Holiday Pay Not Considered “Regular Rate”

Advanced-Tech Sec. Servs., Inc. v. Super.Ct., 163 Cal. App. 4th 700 (2008)

Ester Roman worked as a securityguard for Advanced-Tech SecurityServices, Inc. (Advanced Tech). Thecompany had six paid holidays (NewYear’s Day, Memorial Day, IndependenceDay, Labor Day, Thanksgiving andChristmas). If an employee worked oneof these days, the employee would bepaid a premium rate of one and one-halftimes the regular rate of pay for thatday’s work. Roman disputed the calcula-tion of overtime in weeks where sheworked a holiday, plus overtime. Forexample, during one week Romanworked twelve hours on Monday, which

was Labor Day, twelve hours on bothTuesday and Wednesday, and eight hourseach on Thursday, Friday and Saturdayfor a total of sixty hours. Her paycheckreflected one and one-half times her reg-ular rate for the four overtime hoursworked on Tuesday and Wednesday andthe premium rate of pay of one and one-half times for the twelve hours sheworked on Labor Day. As such, she waspaid for forty hours at her regular rate ofpay and twenty hours at time and one-half. Roman argued that the time andone-half pay provision for holidays pro-vided by the company should be part ofher regular rate of pay and thus arguedshe was entitled to additional overtimepayments. In other words, she wanted tobe paid time and one-half on top of thepremium pay she already received for theholiday work.

The court of appeal ruled that shewas not entitled to this “premium on topof a premium” and that Advanced-Tech’sovertime payments complied with sec-tion 510(a) of the California LaborCode. Nothing in section 510 suggeststhat the Legislature intended to deempremium holiday pay, voluntarily offeredby the employer, as regular pay. Theemployer’s position was further support-ed by Fair Labor Standards Act (FLSA)regulations and case law. In particular,under the FLSA, the “regular rate” doesnot include “extra compensation provid-ed by a premium rate paid for work bythe employee on Saturdays, Sundays,holidays, or regular days of rest, or onthe sixth or seventh day of the work weekwhere such premium rate is not less thanone and one-half times the rate estab-lished in good faith for like work per-formed in non-overtime hours on otherdays.” (29 U.S.C. §§ 207(e)(1),207(e)(6).) Thus, premium holiday payis not considered as a “regular rate” ofpay an employee receives for a normalworkday.

Publisher’s Newspaper CarriersFound to Be Employees, Not

Independent Contractors

Antelope Valley Press v. Poizner, 162 Cal.App. 4th 839 (2008)

A trial court found and the appellatecourt affirmed that a publisher’s newspa-per carriers were employees, not inde-pendent contractors, for purposes of the

workers’ compensation law. The pub-lisher controlled the manner and meansof delivery of its publications. The formcontract between the publisher and itscarriers contained manner and meansdirectives regarding the task of deliveringthe publications, as well as financialpenalties for failure to comply withthem. Moreover, a carrier’s remunera-tion in very large part depended on non-negotiated financial terms in thecontract rather than on the carrier’s ini-tiative, judgment or managerial abilities.Many of the carriers had engaged in pro-longed service for the publisher, whichwas at odds with the notion of an inde-pendent contractor as someone hired toachieve a specific result within a finiteperiod of time.

Court of Appeal Upholds OrderStriking Class Allegations in

Store Manager Overtime Exemption Case

In Re BCBG Overtime Cases, 163 Cal.App. 4th 1293 (2008)

In this case the trial court granteddefendant-employer’s motion to strikeclass allegations and rejected plaintiffs’arguments that such a motion presentedan improper attempt to circumvent theclass certification process. The case wasbrought as a class action on behalf of allmanagers and assistant managers inBCBG Maxazria (BCBG)’s thirty-twoCalifornia stores. It alleged failure to payovertime compensation, and otherclaims. Plaintiffs claimed managers andassistant managers were improperly des-ignated as “exempt” to avoid payingthem overtime wages, that managers reg-ularly worked more than forty hours aweek and spent more than 50 percent oftheir work time performing the sameduties as non-exempt employees. BCBGfiled a motion to strike class allegationspursuant to California Rules of Court,rule 1857(a)(3) and/or for judgment onthe pleadings. It argued lack of com-monality due to the wide variety of oper-ating scenarios in its stores from smallboutiques to large destination locationsto outlet/discount locations. It alsointroduced evidence that not all storescarried the same merchandise. BCBGsubmitted twenty-five declarations fromcurrent or former managers and assis-tant managers to support its contention

Wage & Hourcontinued from page 8


that managers are not assigned uniformduties and spend more than 50 percentof their time on exempt work, and toshow the ways in which managers arerequired to exercise discretion in themanagement of the stores. Three plain-tiffs filed a coordinated complaint whichjoined two separately filed actions. Thecoordinated complaint was the subject ofthe motion to strike.

One plaintiff argued that thismotion improperly circumvented theclass certification process, that the trialcourt improperly relied on evidence out-side the pleadings and erred in strikingthe class allegations without affordingher an opportunity to test the evidencethrough discovery.

The trial court found the motion wasproperly before it because “class certifica-tion issues may be determined at any timeduring the litigation.” Moreover, thecourt found that BCBG had met its bur-den to show that the action was not suit-able for class certification by producing“substantial evidence which establishesthat Plaintiffs cannot prove the elementsof typicality or commonality necessaryfor class certification.” The court ofappeal affirmed. It noted that trial courtsare given broad flexibility when dealingwith the certification of class actions andthat any party may file a motion to certifya class. While class certification is gener-ally not decided at the pleading stage of alawsuit, if the defects appear on the faceof the complaint or by matters subject tojudicial notice, the putative class actionmay be defeated by a demurrer or motionto strike. The court noted that BCBG’s“motion to strike” was not a motion tostrike as used during the pleading stage ofa lawsuit. Rather it was “a motion seekingto have the class allegations stricken fromthe complaint by asking the trial court tohold an evidentiary hearing and deter-mine whether Plaintiffs’ proposed classshould be certified.”

The court of appeal found themotion proper given the procedural pos-ture of the case – namely, the motion hadbeen filed twenty-two months after thefiling of plaintiffs’ coordinated com-plaint and four years after the initialcomplaint filed by the first plaintiff. Assuch, the plaintiffs had had an opportu-

nity to conduct discovery on class certifi-cation issues (although some of theplaintiffs’ efforts had apparently beenthwarted by adverse rulings from thetrial court on discovery motions).Plaintiffs requested the opportunity totest the veracity of the declarations sub-mitted by BCBG. The court found thatthis request, made for the first time atoral argument, was raised too late.

City May Establish a Living Wage That Applies to Contractor

Employees Outside of City Limit

Amaral v. Cintas Corp., 163 Cal. App. 4th1157 (2008)

In this case Cintas Corporation(Cintas) challenged the constitutionalityand application of a living wage ordi-nance (LWO) enacted by the City ofHayward (City) and incorporated intoits municipal contracts. Cintas enteredinto such contracts with the City, but didnot provide the minimum wages or ben-efits required by the ordinance toemployees who worked in the company’sstockroom or laundry production facili-ties, located outside of Hayward.Plaintiffs brought a class action for viola-tion of the LWO, Labor Code section 200et seq., Business and Professions Codesection 17200, and breach of contract.

From July 1999 to June 2003 theCity contracted with Cintas for certainuniform and linen services. Items fromthe City were processed at Cintas facili-ties in Union City and San Leandro.Employees at Cintas’ stockroom in SanLeandro provided replacement gar-ments, repaired garments, andapplied/removed customer-requestedlogos. The stock and laundry employeesworked on items for many different cus-tomers each day, not just on items forthe City.

The City adopted the LWO in April1999. It applied to all service contractswith the City on or after July 1, 1999. Itrequired contractors to pay employees aminimum of $8.00 per hour if healthbenefits were provided or $9.25 per hourif no health benefits were provided. Anemployee was defined as “any individualemployed by a service contractor on orunder the authority of any contract forservices with the City or proposal for

such contract.” Cintas never compliedwith the LWO, despite signing agree-ments year after year indicating it would.

From 1999 to 2003, revenue from theCity contract constituted less than 1 per-cent of the total revenue Cintas receivedfrom all customers serviced at the UnionCity and San Leandro facilities.

The trial court rejected Cintas’s chal-lenges to the constitutionality of the ordi-nance and found Cintas violated theordinance, breached its contracts withthe City, and violated several Labor Codesections and the Business and ProfessionsCode, and awarded back wages, unpaidbenefits, penalties, attorney’s fees, andcosts. The court of appeal affirmed.

On appeal, Cintas contendedArticle XI, section 7 of the CaliforniaConstitution prohibits attempts by amunicipality to exercise power outsideits territorial boundaries. The courtfound, however, that this provision doesnot apply to contracting or proprietarypowers. Hayward, a charter city, had thepower to enter contracts to carry out itsnecessary functions and was entitled toplace conditions or specifications on thebidding for such contracts. Essentially,the City was merely specifying the typeof employer with which it wished to dobusiness, which the court found to be apermissible exercise of the county’s con-tracting power. It did not matter, forconstitutional purposes, whether con-tractors may have to perform thisrequired conduct outside the City’sboundaries. The appellate court alsorejected Cintas’s argument that theLWO was unconstitutionally vague andfound the LWO applied to Cintas’ con-tracts with the City. It further found theLWO covered all hours worked byemployees who worked on the con-tracts, not just the limited hours theyworked on the City’s contract. In thecourt’s view, the plain language of theordinance required the contractor topay every individual it employed to per-form work on or under a service con-tract with the City the minimum wagespecified by the LWO. The court ofappeal also allowed Private AttorneyGeneral Act (PAGA) penalties to beapplied retroactively to a timeframebefore the PAGA was enacted.


I write this final column as Chair ofthe Labor and Employment Law Sectionto urge us all to practice labor andemployment law on a more human scaleand with a more human face.

Part of practicing law on a humanscale and with a human face is to keep abalance between practicing law and liv-ing the rest of your life. Most large lawfirms demand a minimum of 1900, 1950or even 2000 billable hours per year fromtheir associates. Including non-billablehours, that translates into 60 to 70 hoursof work per week.

These are merely the minimumrequired billable hours for associates.Associates are encouraged to work manymore hours if they would like to get agood bonus or become partner one day.

Partners at large law firms face simi-lar pressures. Many small law firms alsoexpect their lawyers to work the samedrearily-long work weeks.

What do 70-hour workweeks mean?Mathematically, they mean that everyweek you must work seven 10-hour days.If you would like a day off once a week,you can instead work five 12-hour daysand one 10-hour day. If you are ruthless-ly efficient and can meet the minimumbillable hours requirement in 60 hours aweek, you need work “only” six 10-hourdays every week.

What else do excessive workweeksmean? They mean little time for family.They mean not much time for romance.They mean only brief visits with dwin-dling numbers of get-together friends.They mean few chances to exercise, eatout, hear live music, visit a museum, see aplay or sit down to read a book that is notabout the law. They mean only miserlyamounts of time to wander about, rumi-nate, relax, and dream.

What else do excessive workweeks

mean other than scrunched and con-strained personal lives? They meanlawyers scrambling to find more work,whether or not its benefits outweigh itscosts. They mean work expanding to fillthe time that needs to be filled. Theymean lawyers who are so tired or so frus-trated by their deformed personal livesthat they are too often cranky, irritable,argumentative, testy, disputative, andcontentious.

Lawyers’ workloads further increasewhen they fuel the fires of litigation bybeing cranky and contentious with theiropponents, who often respond in kind.This is not, by the way, usually to theadvantage of the client being represent-ed. These escalated battles usually onlydrain the client of time, energy, andmoney while strengthening the resolve ofthe opponent.

As much as you possibly can, spendmore time with your family and friends,and less time at work. If you work in alaw firm or in a legal department, doyour best to help your coworkers alsorestore a balance between their work andthe rest of their lives. It will benefit youand your coworkers, and it will benefityour clients as well.

Another part of practicing law witha more human face is for law firms andlegal departments to allow lawyers moreautonomy and responsibility. Do threelawyers really need to look at each letterbefore it goes out the door? Must alawyer who has spent hours meeting andconferring about a discovery disputereally be deprived of the authority tonegotiate any compromises? Must newerlawyers spend years before beingassigned anything but the most tedioustasks?

If you work in a law firm or in a legaldepartment, do your best to foster law

practice on a more human scale whereeach lawyer can exercise independentjudgment, alone or for more importanttasks in conjunction with one or twoothers. Allowing lawyers to work thisway as craftsmen and craftswomen willbenefit both the lawyers and their clients.

Yet another part of practicing lawwith a more human face is to treat all ofour coworkers, including people who donot happen to be lawyers, as fellowhuman beings. Too often those furtherup in the hierarchy of a law firm or legaldepartment treat those further down likemachines instead of like human col-leagues. Try to work in smallish teams ofpeople in a collaborative way.

One more part of practicing lawwith a human face is courtesy to ouropponents. No matter how hard wemust fight on the merits to protect ourclients’ interests, there is only good to behad in greeting our opponents goodmorning, having social conversationsabout things other than law, and liberallygranting professional courtesies.

Establishing a human rapport withyour opponents can, at the appropriatemoment, help ease the path toward set-tlement that well over 90% of all civilcases follow. Having human interac-tions with your opponents can also bene-fit clients on both sides by helping tominimize unnecessary disputes causedby misunderstanding or distrust.

Whether your opponents alwaysreciprocate it or not, treating your oppo-nents with a measure of human kindnesswill not only help your clients, but willmake you feel better about yourself.

THE SHAPE OF THINGS TO COME

One way you can help to put morehumanity back into labor and employ-ment law is to come to our Section’s

Message from theChairBy Phil Horowitz

Phil Horowitz is past Chair and current Board

member of the California Employment

Lawyers Association. He volunteer teaches

trial advocacy at the University of San

Francisco and Stanford Law Schools. Mr.

Horowitz has his own San Francisco law firm,

representing employees.


Annual Meeting this year. The theme ofthis year’s Annual Meeting is The Shapeof Things to Come. The meeting will befull of many practical panels with infor-mation you can take back to your officeand use right away. In addition to thesepractical panels, there will be severalpanels examining long-term trends inthe labor and employment field.

There will be many opportunities atour Annual Meeting to mingle andsocialize with practitioners from all sides,and from all parts of the State. We willhave an evening reception to welcomenew attorneys and section members, fol-lowed by a dinner with a keynote addressand live music. There will also be numer-ous opportunities to meet fellow practi-tioners at breakfast roundtables, lunches,and coffee breaks.

Getting to know one another in acomfortable social atmosphere helpsremind us to practice labor and employ-ment law more humanely, fully under-standing that our opponents in litigationare generally decent fellow human beingswho should be treated as colleagues.

In less than two hours Friday morn-ing, we will give you an update on themost important California labor andemployment law cases decided this year.

A breakout panel will also review thisyear’s developments in California publicsector labor and employment law.

Other panel topics will address con-temporary issues such as age discrimina-tion, workplace privacy, suing individualdefendants after Jones v. Torrey Pines,arbitration, sexual harassment, familyresponsibility discrimination, settling atmediation, the future of unions, elec-tronic discovery, disability discrimina-tion, and much more.

Speakers will include preeminentjudges, legal scholars, practitioners, andgovernment representatives, including:California Supreme Court AssociateJustice Ming W. Chin, Professor (andU.C. Irvine School of Law Dean) ErwinChemerinsky, former NLRB ChairWilliam Gould, California Court ofAppeal Justice Judith Haller, San DiegoSuperior Court Judge Frederic L. Link,retired San Diego Superior Court JudgePatricia Cowett, United States MagistrateJudge Leo S. Papas, former Assistant U.S.Attorney General for Civil Rights BillLee, National Jury Project trial consult-ant Karen Jo Koonan, DFEH DirectorPhyllis Cheng, Impact Fund ExecutiveDirector Brad Seligman, San Diego CityAttorney Michael Aguirre, Los Angeles

City Attorney Rocky Delgadillo,California Chamber of CommerceGeneral Counsel Erika Frank, CaliforniaTeachers Association General CounselAlice O’Brien, UCLA Professor RuthMilkman, and prominent litigators suchas Rich Paul, Tony Oncidi, and WilHarris.

We’ll come together for this year’sAnnual Meeting at the very comfortablebut affordable San Diego Mission BayHyatt Regency Marina and Spa onFriday, October 31 (that’s right,Halloween!) and Saturday, November 1.This Halloween weekend is a great timeto forge new paths, scout out new oppor-tunities, and enjoy new experiences atour Annual Meeting.

I hope you can make it to this year’sAnnual Meeting for a fun and education-al Halloween in San Diego. If you haveread this column all this way and docome to the Annual Meeting, pleasecome up and say hi. And please don’tforget to do something each day to try topractice labor and employment law on amore human scale and with a morehuman face.

From the EditorsEDITORIAL POLICYWe would like the Law Review to reflect the diversity of the Section’s membership in the articles andcolumns we publish. We therefore invite members of the Section and others to submit articles andcolumns from the points of view of employees, unions, and management. Our resources are you, thereader, so we count on you to provide us with the variety of viewpoints representative of more than6,000 members. In addition, although articles may be written from a particular viewpoint (i.e., manage-ment or employee/union), whenever possible, submitted articles should at least address the existence ofrelevant issues from the other perspective. Thank you for all of your high quality submissions to date, andplease…keep them coming! Please e-mail your submission to Section Coordinator Susan Orloff [email protected].

The Review reserves the right to edit articles for reasons of space or for other reasons, to decline to printarticles that are submitted, or to invite responses from those with other points of view. We will consult withauthors before any significant editing. Authors are responsible for Shepardizing and proofreading theirsubmissions. Articles should be no more than 2,500 words. Please follow the style in the most current edi-tion of The Bluebook: A Uniform System of Citation and put all citations in endnotes.


Phil Horowitz, Chair

Law Offices of Phil Horowitz

San Francisco

Karen V. Clopton, Vice Chair

California Department

of Corporations

San Francisco

Patricia C. Perez, Secretary

Puente International

Consulting, Inc.

San Diego

Bruce A. Barsook, Treasurer

Liebert Cassidy Whitmore

Los Angeles

Wendy P. Rouder, Immediate

Past Chair

Arbitration & Mediation

San Francisco

MEMBERSSuzanne M. AmbroseState Personnel Board

Sacramento

Lynne S. BassisBassis Mediation Group

Pasadena

Barbara J. ChisholmAltshuler Berzon LLP

San Francisco

David M. de RubertisThe de Rubertis Law Firm

Woodland Hills

Paul C. GlusmanLaw Offices of Paul Glusman

Berkeley

Wilmer J. HarrisSchonbrun DeSimone Seplow

Harris & HoffmanPasadena

Henry J. JosefsbergHenry J. Josefsberg, Esq.

Long Beach

Carol KoenigWylie, McBride, Platten

& RennerSan Jose

Trudy M. LargentLargent & Associates

Alta Loma

Noah LebowitzDuckworth Peters Lebowitz LLP

San Francisco

Theodora LeeLittler Mendelson

San Francisco

Emily PrescottRenne Sloan Holtzman Sakai LLP

San Francisco

Michael WhitakerCalifornia Department of Justice

Los Angeles

Timothy G. YeungRenne Sloan Holtzman Sakai LLP

Sacramento

Leonid ZilbermanWilson Petty Kosmo & Turner LLP

San Diego

ADVISORSArnie R. Braafladt

California School EmployeesAssociation

San Jose

Cara M. Ching-SenahaJackson Lewis LLP

San Francisco

David J. DuchrowLaw Office of David J. Duchrow

Los Angeles

Jo Anne Frankfurt

Mediator and Trainer

San Francisco

Andrew H. Friedman

Helmer & Friedman LLP

Venice

Alan S. Hersh

School and College Legal Services

Santa Rosa

Toni J. Jaramilla

Law Offices of Toni Jaramilla

Los Angeles

Lois M. Kosch

Wilson Petty Kosmo & Turner LLP

San Diego

Tony Skogen

Littler Mendelson

Los Angeles

Rosario M. Tobias

Office of the City Attorney

Los Angeles

Susan Orloff

State Bar Section Coordinator

San Francisco

Pamela Wilson

State Bar Director of Sections

San Francisco

Labor & Employment Law Section Executive Committee 2007-2008

State Bar Education FoundationLabor and Employment Law Section180 Howard StreetSan Francisco, CA 94105-1639


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