California Workplace Law Blog : California Employment Law Attorney & Lawyer: Jackson Lewis

California employers should be prepared to welcome support dogs and other animals into the workplace as a reasonable accommodation for disabled workers requiring support under new disability regulations issued by the California Fair Employment and Housing Commission. The new regulations significantly expand protections for disabled workers and outline new requirements regarding reasonable accommodations, the interactive process, and proof of discrimination. For information on the key provisions, please see New California Disability Regs Allow Support Animals in Workplace, Mandate Broad Protections for Disabled Workers

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The Ninth Circuit Court of Appeals recently affirmed summary judgment in favor of an employer in an age discrimination case. However, not all news is good news regarding the Court’s decision in Schechner v. KPIX-TV, No. 11-15294 (9th Cir. May 29,2012). The Court “clarified” that the employees could use statistical evidence to establish a prima facie case of age discrimination even if the statistical evidence does not address the employer’s stated reasons for the adverse action. The Court stated:

Consistent with our precedents, we conclude that a plaintiff who submits statistical evidence that shows a stark pattern of age discrimination establishes a prima facie at step one of the McDonnell Douglas framework. We hold that statistical evidence does not necessarily fail to establish a prima facie case because it does not address the employer’s proffered non discriminatory reasons for the discharge. We do not hold that any statistical evidence of disparate treatment, regardless of its strength, will be sufficient to establish a prima facie case.

In a positive development for employers, the Court used the "same actor inference" when analyzing whether the employer’s reason for the discharge was a pretext for discrimination. The Count found that the employer was entitled to the favorable inference. The Court ruled against the employee finding:

“[W]here the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir. 1996).The same-actor inference is “a ‘strong inference’ that a court must take into account on a summary judgment motion.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1098 (9th Cir.2005) (quoting Bradley, 104 F.3d at 271). The inference applies to favorable employment actions other than hiring,such as promotion. Id. at 1097. It also may arise when the favorable action and termination are as much as a few years apart. Id.

Based on this inference and other factors, the Court found the employees failed to establish that the employer's reason for their lay-off was a pretext for discrimination. The case provides several lessons for employers when conducting layoffs and we suggest seeking advice from employment counsel to review potential issues.

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California courts continue to build on the Ninth Circuit's recent decision regarding the California Learned Professional Exemption.  A California appellate court found a law clerk as exempt from state and federal overtime provisions who had not passed the California Bar Exam but graduated from law school.  Zelasko-Barrett v. Brayton-Purcell, LLP, 2011 Cal. App. LEXIS 1080 (Cal. App. 1st Dist. Aug. 17, 2011). 

On June 15, 2011, the Ninth Circuit breathed new life into the California Learned Professional Exemption when it decided Campbell v. PricewaterhouseCoopers LLP, 9th Cir., No. 09-16370, 6/15/11. See blog entry, "The Ninth Circuit Has Revitalized The California Learned Professional Overtime Exemption and Remanded To A Jury Key Issues Under The Administrative Exemption"

Historically, overtime disputes regarding the use of the Learned Professional Exemption have centered in particular fields, such as engineering or, more recently, accounting . On August 17, 2011, the Court of Appeal for the First Appellate District considered and rejected a challenge to the application of the California Labor Code’s Learned Professional Exemption in the legal field. Zelasko-Barrett v. Brayton-Purcell, LLP, 2011 Cal. App. LEXIS 1080 (Cal. App. 1st Dist. Aug. 17, 2011).

In Zelasko, the Defendant firm utilized law students and law school graduates who had not yet passed the bar in the positions of Law Clerk I and Law Clerk II, respectively. Plaintiff held the Law Clerk II position prior to his admission to the bar for approximately 2 years, then moved on to the position of Associate Attorney. The Marin County Superior Court held that the plaintiff was properly classified as exempt when he held the position of Law Clerk II. 

Observing that the “federal regulations after which [the California learned professional exemption] was explicitly patterned . . . condition the learned professions exemption under federal law upon completion of an advanced course of education, not upon licensure,” the appellate Court ruled that possession of the degree, along with Defendant’s undisputed evidence that a Law Clerk II was required to perform all the same duties as a junior attorney, satisfied the exemption’s requirements.

Zelasko is an encouraging result for all employers since more California courts are now applying the principals set forth in the Ninth Circuit's decision in Campbell v. PricewaterhouseCoopers LLP. Employers should always ensure that employees classified as exempt are properly classified under federal and state law.

Written by Noel Tripp

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The Ninth Circuit rules that an employer has the burden of proving it had a legitimate reason for not reinstating an employee to her former position after taking a leave pursuant to the federal Family and Medical Leave Act (“FMLA”). The Court also found that the employee need not demonstrate her employer lacked a reasonable basis for its refusal.  Sanders v. City of Newport, No. 08-35996 (9th Cir. Mar. 17, 2011).
 
While an employee normally should be reinstated “to her original (or an equivalent) position” within the 12 week leave period under FMLA, the right of reinstatement is not absolute.  The U.S. Department of Labor (“DOL”) regulations provide that     “[i]f the employee is unable to perform an essential function of the position because of a physical or mental condition . . . the employee has no right to restoration to another position under the FMLA.”  29 C.F.R. § 825.214(b). The regulations do not specify which party bears the burden of proof, and the Court had not previously addressed this issue.  In the case, the Ninth Circuit found the burden of proof is on the employer to show it had a legitimate reason to deny reinstatement. 

The Sanders decision illustrates that, while the right to reinstatement from FMLA leave is not absolute, an employer who denies reinstatement to an employee must be prepared to prove the employee had no such right. For more information, please see Employers Must Prove Reasons for Denying Reinstatement after FMLA Leave, Ninth Circuit Rules 

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Governor Brown announced that Julie Su has been appointed as head of the California Division of Labor Standards Enforcement. 

Here is the text of the announcement from the Governor’s website: “Julie Su, 41, of Cerritos, has been appointed Chief of the Division of Labor Standards and Enforcement. Su has worked at the Asian Pacific Legal Center in Los Angeles since 1994, where she currently serves as Director of Litigation. Su has devoted her career to serving the public interest as a civil rights attorney, specializing in representing low-wage workers. Su earned a Bachelor of Arts degree from Stanford University and a Juris Doctor degree from Harvard University. This position requires Senate confirmation, and the compensation is $138,546. Su is a Democrat.” See link to announcement

 What does this mean for California employers and how will it affect, if at all, the California Division of Labor Standards Enforcement's administrative enforcement position on hot button wage and hour issues? At least one person Jackson Lewis spoken with at the DLSE speculated they would not be surprised if the DLSE’s meal-period enforcement position changed. It will be important to closely monitor the DLSE web site and any upcoming speeches Ms. Su may deliver for any developments. 

Jonathan Siegel

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