Recently, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its informal guidance on how the Americans with Disabilities Act (“ADA”) applies to job applicants or employees with cancer, diabetes, epilepsy, and intellectual disabilities. Since Congress passed the ADA Amendments Act (“ADAAA”) in 2008, the EEOC has received frequent questions from employers regarding how the ADA applies to these conditions. As discussed in our 2013 Emerging Employment Law Seminar, while the ADAAA did not change the definition of disability, it expanded how the definition should be interpreted to make it easier for an individual to establish that he or she has a disability. To clarify the implications of this broadened definition, the EEOC revised its question and answer guidance to indicate that employees with cancer, diabetes, epilepsy, and intellectual disabilities “should easily be found to have a disability.”
As anticipated, Senate Bill 1193 went into effect on April 1, 2013, requiring a broad range of businesses in the transportation, hospitality, and health care sectors to post public notices regarding slavery and human trafficking. The Bill is an effort to combat the $32 billion human trafficking industry.
The following businesses are required to post the notice: general alcohol retailers, adult/sexually oriented businesses, primary airports, intercity passenger rail or light rail stations, bus stations, truck stops, emergency rooms with acute care hospitals, urgent care centers, farm labor contractors, privately operated job recruitment centers, roadside rest areas, and massage/bodywork businesses.
The 8.5” x 11” notice is required to provide important information on how to report suspected human trafficking and where victims of human trafficking may obtain help.
We provided an overview of Senate Bill 1193, along with other regulatory changes, in our 2013 Employment Issues Seminar. A copy of the presentation is available here.
For more information and a “model notice,” visit the Attorney General of California’s website.
As we reported in August 27, 2012, in Banner Health System* the National Labor Relations Board (NLRB) ruled that an employer violates Section 7 of the National Labor Relations Act (NLRA) when it maintains a blanket policy that prohibits employees from discussing workplace investigations.
On April 16, 2013, the NLRB’s Division of Advice released a memorandum of advise providing further guidance to employers regarding the confidentiality of investigations. The Division found the following policy from Verso Paper’s Code of Conduct in violation of Section 7 of the NLRA:
Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
However, the Division also stated that the policy would be lawful if the last two sentences were deleted and replaced with:
Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
Accordingly, to be compliant with the NLRB’s current position, employers must establish in each investigation that there are case specific reasons/facts that justify maintaining an investigation as confidential.
*Banner Health System is currently on appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Stay tuned for updates on this issue.
In Comcast v. Behrend, a class action case involving how much Comcast charged cable TV subscribers, the United States Supreme Court held that as a prerequisite for certification of a class action, a plaintiff must introduce admissible evidence to show that the case is susceptible to awarding damages on a class-wide basis. Justice Antonin Scalia wrote for the majority that Comcast’s subscribers fell “far short of establishing that damages are capable of measurement on a class wide basis,” he continued. “There is no question that the model failed to measure damages resulting from the particular antitrust injury on which (Comcast’s) liability in this action is premised.”
Comcast requires that plaintiffs not only show they could prove their claims through common evidence, but also puts an affirmative burden on plaintiffs to establish, prior to certification, that there is reliable and admissible evidence of common injury and damages on a class-wide basis. Thus, in holding that a plaintiff seeking certification of a damages class under Rule 23(b)(3) must establish, through evidentiary proof, that damages can be measured on a class wide (and not individual) basis, Comcast raises the bar for class-action plaintiffs to obtain class action certification. Comcast also makes it clear that the trial court must probe the merits of the claim at the certification stage to ensure that the method for measuring damages fits the underlying substantive legal theories remaining in the case and is not arbitrary.
Although this decision related to consumers, it can be applied to and will significantly impact the future of employment-related class action lawsuits.
As we recently reported to you at our 2013 Emerging Employment Law Seminar, the California Fair Employment and Housing Commission (FEHC) implemented new and amended regulations governing disability discrimination, reasonable accommodation, and the interactive process under the California Fair Employment and Housing Act (FEHA) (2 Cal. Code Reg. Sections 7293.5 et seq.). The regulations emphasize that employers must engage in a prompt, good faith interactive process in order to reduce the risk of liability. Key provisions of FEHC’s new disability regulations include:
- The regulations assume that individuals have a disability
- Dogs will join the workforce
- Employers must keep job descriptions up to date
- Performance reviews can help establish essential job functions
- Employees must show that leaves likely will be effective in allowing the employee to return to work within a reasonable time period
- Making a light duty position permanent is not a reasonable accommodation
- Lowering quality or quantity standards is not a reasonable accommodation
- Employers must exclude leave time for productivity and bonus purposes
- The employee must establish the effectiveness of the accommodation sought
- The employer can assert safety and health defenses only if the employer has engaged in the interactive process
- Employers may not ask about the specific underlying medical condition
- Medical marijuana use is not protected
- Employers must implement an interactive process
- Notice to engage in interactive process
- The employer need not implement the employee’s preferred accommodation
- The employer must separate and keep confidential interactive process medical information
B sure to update your employee handbook and policies and procedures to reflect these recent changes.
As we recently reported to you at our 2013 Emerging Employment Law Seminar, the California Fair Employment and Housing Commission (FEHC) implemented new and amended regulations addressing employers’ obligations and employees’ rights and responsibilities regarding pregnancy under the California Fair Employment and Housing Act (FEHA) (Title 2, California Code of Regulations, Sections 7291.2 et seq.). Employers should become familiar with the pregnancy regulations because they make substantial changes in the areas of leave, benefits, and reinstatement. Some of the key changes employers need to know include:
- Definition of “disabled by pregnancy”
- Amount of available leave
- Measuring intermittent/reduced schedule leave
- Right to reinstatement to the same position or comparable position after leave or transfer
- Maintenance of health insurance coverage for up to seven months if an employee takes pregnancy and CFRA leave
- Providing more leave as a reasonable accommodation once PDL is exhausted
- Transfers as a reasonable accommodation
- Other reasonable accommodation in addition to transfers and leave
- Providing advance written notice to employees of rights and responsibilities
- Medical certification
Be sure to update your employee handbook and policies and procedures to reflect these recent changes.
The United States Supreme Court ruled unanimously in Standard Fire Ins. Co. v. Knowles that plaintiffs bringing class actions cannot avoid federal jurisdiction by representing that the class will seek less than $5 million in damages — the threshold beyond which defendants can remove a lawsuit initially filed in state court to federal court pursuant to the Class Action Fairness Act of 2005 (CAFA).
The Court held that a stipulation by the named plaintiff limiting damages “cannot legally bind members of the proposed class before the class is certified,” and therefore cannot defeat the $5 million federal jurisdiction requirement under CAFA.
The ruling clarified that a named plaintiff’s precertification stipulation as to damages “does not bind anyone but himself” and is an “artificial cap” on the class’ recovery. The named plaintiff lacks authority to concede the amount in controversy for absent class members. A federal district court cannot value the amount in controversy on the basis of a stipulation from a named plaintiff, but rather must follow the approach in cases with no stipulation: aggregate the individual class members’ claims without relying on a nonbinding stipulation.
Overall, the decision in Knowles is a victory for class action defendants desiring a federal venue, as the decision makes it harder for plaintiffs to escape federal jurisdiction. The decision also follows CAFA’s goal of ensuring broad federal jurisdiction for high-dollar multistate class actions of national importance. Class plaintiffs with an amount-in-controversy greater than $5 million (provided the other CAFA requirements are met) now will have to litigate in federal court regardless of any damages stipulations.
The Supreme Court decision in Knowles reinforces the court’s recent trend, begun in Wal-Mart v. Dukes, of holding that class actions must be managed based on individualized determinations concerning each class member, not based on facts plaintiffs allege to be characteristic of the class as a whole.
As we recently reported to you at our 2013 Emerging Employment Law Seminar, the Department of Labor’s Wage and Hour Division issued a Final Rule which amends the Family and Medical Leave Act (“FMLA”). The Final Rule primarily impacts leave for military service members and became effective on March 8, 2013. A new poster was published in connection with the FMLA amendments, which employers must display by March 8, 2013. Click here for the optional FMLA forms to reflect the changes made by the new regulations.
Be sure to update your employee handbook and policies and procedures to reflect these recent changes.
The new, revised Form I-9, Employment Eligibility Verification, is now available. Employers should begin using this new form immediately, including when reverifying documents for employees (e.g., updating due to name change, confirming new I-94 or EAD expiration date, etc.). However, the new I-9 does not need to be completed for existing employees who already have a completed Form I-9 on file.
There is a 60-day grace period – thus, employers may continue to use the old I-9 forms for the next 60 days, or until May 7, 2013. Failure to use the correct Form I-9 after May 7, 2013 may result in fines and penalties.
If you use an electronic I-9 system, confirm with your vendor to ensure they are incorporating the new Form I-9 into their system.
In Wang v. Chinese Daily News, the Ninth Circuit reversed the class certification it had previously affirmed and remanded the matter for further consideration of Rule 23(a) commonality and Rule 23(b)(3) predominance. Notably, the Ninth Circuit applied the 2011 United States Supreme Court decision in Dukes v. Wal-Mart and held that Wal-Mart‘s prohibition on “trial by formula” was not intended to apply solely to discrimination cases but also to wage-hour cases: “employers are entitled to individualized determinations of each employee’s eligibility’ for monetary relief.” Consequently, Wang should make it significantly more difficult for plaintiffs in wage-and-hour class actions to establish the ‘predominance’ requirement under Rule 23(b)(3) and obtain class certification.