Being Cantankerous And Having Trouble Getting Along With Co-Workers Not An ADA Disability, Even In California

In Weaving v. City of Hillsboro, the U.S. Court of Appeals for the Ninth Circuit found that an employer’s termination of an employee who had recurring interpersonal problems with his co-workers, that were purportedly attributable to attention deficit hyperactivity disorder (“ADHD”), did not violate the Americans with Disabilities Act (“ADA”).

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Hey Employers!—Reimburse That Phone Bill

California Labor Code § 2802 requires employers to indemnify its employees for all necessary expenses incurred in direct consequences of the discharge of their duties.  In recent times, this statute and some employers’ decisions to not reimburse certain employee expenses has become a hotbed for class action litigation in California.  Now, the California Court of Appeal, in Cochran v. Schwan’s Home Service, Inc. (Cal. Ct. App., Aug. 12, 2014, B247160) 2014 WL 3965240, *4, confirmed California’s strong stance on this matter, at least as to cell phone use:

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New Jersey Passes Law Restricting Employers’ Ability to Request Applicants’ Criminal History Information

On August 11, 2014, New Jersey Governor Chris Christie signed the Opportunity to Compete Act, New Jersey’s “ban the box” law prohibiting certain employers from excluding applicants based on their criminal records during the initial application process.

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San Diego is Next to Enact Paid Sick Leave Ordinance

On July 14, 2014, the San Diego City Council approved an ordinance requiring employers to grant up to 40 hours of paid sick leave per year to each San Diego employee beginning in 2015.

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Employer Cannot Attribute Commission Wages Paid in One Pay Period to Cure Shortfalls in Other Pay Periods

On July 14, 2014, in Peabody v. Time Warner Cable, Inc. (Cal., July 14, 2014) —-P.3d—-, 2014 WL 3397770, the California Supreme Court held that an employer cannot attribute commission wages paid in one pay period to cure shortfalls in other pay periods.  In that case, Time Warner paid its account executive on a biweekly basis, which included hourly wages in every pay period and commission wages approximately every other pay period.  The employee was paid $769.23 in hourly wages, the equivalent of $9.61 per hour.  About every other pay period, Time Warner paid her commission wages.

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NLRB Changes Scope Of Unit In Retail Setting

In a recent decision, the National Labor Relations Board (“NLRB”) found that a department within a retail store could be considered a single collective bargaining unit.  In a Board-level review, the National Labor Relations Board considered an appeal of an administrative judge’s ruling that the fragrances and cosmetics department within the Saugus, Massachusetts Macy’s could be considered a bargaining unit for collective bargaining purposes without requiring the assent of the remaining store employees.

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July 2014 EEOC Verdicts and Settlements

Here is our monthly summary of recent EEOC verdicts and settlements.

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EPA Proposed Wage Garnishing Rule Meets Heavy Resistance

On July 2, 2014, the EPA published a Federal Register notice titled “Administrative Wage Garnishment” claiming it has the authority to bypass the courts and unilaterally garnish wages of individuals owing debts to the Agency.  We mentioned it here.

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California Supreme Court Finds an Employee’s Misrepresentation About His Immigration Status May Limit His Recovery in Lawsuit Against Employer

In Salas v. Sierra Chemical, the California Supreme Court recently held that federal immigration law and the affirmative defenses of unclean hands and after-acquired evidence may limit the lost wage claim of an employee to the extent the lost wage claim arises after the employer’s discovery that the employee misrepresented his status as authorized to work in the United States.

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5th Circuit Says Franchisor’s Advice Does Not Create An Employment Relationship

In a recent decision, the U.S. Court of Appeals for the Fifth Circuit provided franchisors with some ammunition in employment suits raised by a franchisee’s employees.  In a Fair Labor Standards Act claim raised by a franchisee’s employee in Texas, the Fifth Circuit reversed a jury verdict finding that the franchisor was liable for the franchisee’s FLSA violations.

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Obama Signs Executive Order Creating Protections for LGBT Employees of Federal Contractors

Today, President Obama signed an Executive Order barring the federal government and its contractors from discriminating against gay, lesbian, bisexual, and transgender employees.

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EPA Seeks Power to Garnish Wages

On July 2, 2014, the EPA published a Federal Register notice titled “Administrative Wage Garnishment” claiming it has the authority to bypass the courts and unilaterally garnish wages of individuals with debts to the Agency.

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EEOC Provides Guidelines, Q&A and Fact Sheet Regarding Pregnancy Discrimination

The U.S. Equal Employment Opportunity Commission (“EEOC”) decided not to wait for the U.S. Supreme Court to issue a decision regarding pregnancy discrimination and on July 4, 2014, it published the following three documents:

On course with recent trends in employment law, the EEOC’s position is no shock that it sides with providing reasonable accommodations to pregnant employees as an employer would provide to any other disabled employee.

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Supreme Court Will Consider Whether EEOC’s Mandate To Conciliate Is Really Mandatory

On June 30, 2014, the Supreme Court granted cert in Mach Mining LLC v. EEOC, and will consider a dispute over the EEOC’s duty to conciliate charges of job discrimination before filing lawsuits against employers.  The Court will hear an appeal from Mach Mining, an Illinois mining company, that was sued by the EEOC for allegedly failing to hire qualified female job applicants.  The government alleges that Mach Mining has never hired any female miners since it began operations in 2006 despite getting applications from many qualified women.  Mach Mining asserts that the lawsuit is barred because the EEOC did not adequately enter into conciliation efforts before filing the suit.  The EEOC argues that it is up to the Commission —- not the courts —- to decide whether terms of a settlement are acceptable.

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DOL Proposes Rule to Extend FMLA Benefits to Same-Sex Marriages

Federal agencies continue to institute progressive social reforms while Congress remains divided.  On June 20, 2014, the U.S. Department of Labor issued a press release heralding a proposed rule that would extend FMLA rights to all federal employees in valid, same-sex marriages.  In United States v. Windsor, the U.S. Supreme Court struck down sections of the Defense of Marriage Act interpreting “marriage” as only between members of the opposite sex.  The Court did not change the portion of the act that permitted individual states to define marriage under their own laws.

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