LABOR AND EMPLOYMENT LAW UPDATE

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1 LABOR AND EMPLOYMENT LAW UPDATE John A. Ontiveros, Esq. League of Cities Conference May 6, 2011

2

3 TOPICS WE RE COVERING TODAY The Cat s Paw Case Third-party retaliation Accommodation under the FMLA (burden of proof standard) One-Strike Drug Testing Labor Relations

4 THE CAT S PAW Bertrand and Ratto in company sat, One was a monkey, the other a cat, Co-servants and lodgers: and mischievous codgers Never messed from a platter, since platters were flat.... Said Bertrand to Ratto, "My brother, today Exhibit your powers in a masterly way, And take from the fire these chestnuts, I pray. -The Monkey & the Cat, Jean de la Fontaine

5 USERRA (Uniformed Services Employment and Reemployment Rights Act) Staub v. Proctor Hospital (2011) 131 S. Ct Employer s HR director terminated Plaintiff based in part on recommendations of Plaintiff s supervisors who allegedly were motivated by hostility towards Plaintiff s military responsibilities Key Holding: Supreme Court endorsed Cat s Paw Theory ; held that if a supervisor performs an act motivated by anti-military animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, the employer is liable under USERRA

6 BOTTOM LINE Independent investigation by decision-maker will not shield employer from liability Requires decision-maker to question merit of prior disciplinary actions Other laws implicated Title VII, ADA, and all other federal laws where discrimination is a motivating factor

7 B.F.F.: B est F riends who get you F ired

8 THIRD-PARTY RETALIATION Thompson v. North American Stainless, LP (2011) 130 S. Ct Employer fired Plaintiff after his fiancée filed a sex discrimination charge against it with the EEOC District Court granted Employer summary judgment on the ground that third-party retaliation claims were not permitted under Title VII Key Holding: Supreme Court held that Employer s firing of Plaintiff was retaliatory and he could properly sue under Title VII

9 COURT ANALYSIS Retaliation has broad range and can include any employer conduct involving third party reprisals that deters someone from filing a claim of discrimination Close family members qualify Mere acquaintances do not Everyone else:??? However, a person aggrieved has narrow definition to someone within the zone of interest Must be an actual employee who terms and conditions of employment are directly affected

10 BOTTOM LINE Adverse actions to third-parties (i.e., close family members) can both be retaliation and give rise to a separate cause of action Again, other laws may be implicated that have retaliation standards

11 Munder Difflin

12 CASE SCENARIO Scott Michael is the head manager of Munder Difflin, which produces and sells paper products. In a move to increase profits, Michael switched to lower grade paper. Dwight Fruit, head paper salesman who has made several prior complaints regarding Michael s improper conduct became ill due to his chemical sensitivity to the cheaper paper and went on Family Medical Leave. Fruit asked Michael to come back to work but requested not to sell the the cheap stuff. Michael refused and did not reinstate Fruit, who then sued under the FMLA. During trial, the judge instructed the jury to determine whether Munder Difflin had reasonable cause to not hire Fruit back. Fruit lost. He then appealed on the grounds that the judge gave improper jury instructions.

13 HOW SHOULD THE APPEALS COURT RULE?

14 ACCOMMODATION Sanders v. City of Newport (9th Cir. 2011) Case No Plaintiff sued the City under the FMLA when it refused to reinstate her after she took an approved medical leave City argued it could not provide a safe workplace for Plaintiff because she suffered from multiple chemical sensitivity Key Holding: Ninth Circuit held employers have burden of proof for denying reinstatement after FMLA leave

15 BOTTOM LINE Employee can establish a prima facie by simply establishing they were entitled to FMLA benefits and the employer denied her those benefits Burden of proof then falls on the employer to establish it has a legitimate reason to deny the employee reinstatement

16 BREAKING BAD FEHA LAW

17 SCENARIO Jesse, a meth addict, applied for employment with the school district as a chemistry teacher but failed the drug test. After spending time doing extensive community service, he sobered up. He reapplied with the school district but was denied employment in accordance with the district s one-strike policy. The school was completely unaware of Jesse s earlier addiction. Jesse filed suit under the FEHA claiming the school district discriminated against him for being a rehabilitated drug addict.

18 Should the court uphold the district s motion to dismiss and send Jesse packing?

19 ONE-STRIKE POLICIES Lopez v. Pacific Maritime Association (9th Cir. 2011) Case No Employer did not offer Plaintiff, a drug addict, employment after he failed its pre-employment drug test Plaintiff filed suit against Employer claiming it violated the FEHA by discriminating against him for being a rehabilitated drug addict Key Holding: Ninth Circuit held Employer s one-strike rule for pre-employment drug testing did not discriminate against rehabilitated drug addicts

20 BOTTOM LINE Employers may implement one-strike rules to either refuse to hire or rehire employees Such a rule does not have a disparate impact on recovering drug addicts FEHA protects individuals who are recovering or who have recovered from a drug addiction; it does not protect people who are using illegal drugs when they apply for a job.

21 HAPPY DAYS ARE HERE AGAIN (LABOR RELATIONS)

22 LABOR RELATIONS (Layoffs) International Ass n of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259. City unilaterally laid off 18 of its 90 firefighters without bargaining with the Union Union filed an unfair practice charge with the PERB alleging the City violated the MMBA by failing to negotiate over the layoff decision Key Holding: California Supreme Court held that under the MMBA, a local public entity faced with a decline in revenues or other financial adversity may unilaterally decide to lay off employees to reduce its labor costs

23 LABOR RELATIONS (Furloughs) Los Angeles v. Superior Court of Los Angeles County (2011) Case No. BS City imposed furloughs on Union employees during a fiscal emergency City refused to arbitrate grievances over the furloughs, and the Union filed a petition seeking to compel arbitration Key Holding: California Court of Appeal held that even if the MOU between the City and the Union allowed the arbitration of furloughs, permitting arbitration would be an improper delegation of discretionary authority

24 LABOR RELATIONS (Privacy) County of Los Angeles v. Los Angeles County Employee Relations Commission (2010) 192 Cal. App. 4 th 1409 Union was exclusive representative of over 14,000 County employees of which approximately 11,000 were dues paying non-members During negotiations, the Union proposed a change to the MOU requesting that the County furnish it with the names, addresses, and telephone numbers of the bargaining unit Key Holding: California Court of Appeal held nonmember employees had a protected privacy interest and were entitled to notice and an opportunity to optout where union seeks such information

25 LABOR RELATIONS (Discrimination) Fallbrook Union Elementary School District (2011) PERB Dec. No E Plaintiff teacher alleged School District decided not to reemploy her because of her union activities Plaintiff teacher alleged Principal failed to follow the MOU by requiring a conference after classroom observation and that he told her, I believe that your Union activities have gotten in the way of your teaching objectives this year Key Holding: PERB held that the Union failed to establish the required nexus between the adverse action and the protected activity

26 SUMMARY (Discrimination) Independent investigation does not shield employer from prior supervisor s discriminatory intent (Discrimination) One-strike rules are permissible under the FEHA (Retaliation) Adverse employment action against close family member constitutes actionable third-party retaliation (Accommodation) Employer has burden of proof to establish it had legitimate cause to not return employee on FMLA leave (Labor Relations) Employers may unilaterally implement layoff and furloughs without bargaining with the union Union not entitled to non-member employees phone numbers, and addresses without notice Violation of MOU does not establish anti-union animus

27 THANK YOU! ENJOY YOSEMITE AND DON T FEED THE BEARS!

28

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