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VLOG: Disclosing a Disability Does Not Pardon Past Bad Conduct

Read the full article here: http://www.wilkefleury.com/blog/disclosing-disability-not-pardon-past-bad-conduct/

Disclosing a Disability Does Not Pardon Past Bad Conduct

California employers can establish workplace conduct policies and discipline employees who fail to comply with them.  Employers also have to engage in an interactive process with employees who have a disability to explore reasonable accommodations, if any, to address work limitations from the disability.  However, an employer’s duty to reasonably accommodate an employee’s disability is prospective, meaning that employees are not excused for their past bad conduct just because a disability may have contributed to it when the employer was unaware of the disability at the time the transgressions occurred.  A recent case is instructive.

In Alamillo v. BNSF Railway Company (9th Cir., Aug. 25, 2017), 2017 WL 3648514, an employee sued his employer under California law for wrongful termination based on disability, failure to accommodate his disability, and failure to engage in the interactive process.  The employee had ten unexcused absences during the year.  While the discipline process for the most recent unexcused absences was ongoing, the employee was diagnosed with obstructive sleep apnea (OSA).  The company accommodated the OSA prospectively, but did not excuse the employee for the unexcused absences before it learned about the OSA. As to them, the discipline process continued and the employee was ultimately terminated when the discipline process finished because of the past attendance violations.  The court of appeal upheld the employee’s termination because there could be no failure to engage in the interactive process after the violations had already taken place and because no reasonable accommodation could fix the past absenteeism since reasonable accommodations are prospective.

As this case reminds us, employers do not have to change or excuse employee transgressions that occur before the employer knows about a disability.   Rather, once an employer learns that an employee has a disability, the employer should work with the employee to prospectively address any limitations from it, but past transgressions remain and may subject the employee to discipline notwithstanding the disability.

  By Samson R. Elsbernd

VLOG: Employers May Implement Vacation Accrual Waiting Periods

Employers may lawfully defer an employee’s paid vacation accrual until after their first year of employment. On July 28, 2017, the California Court of Appeal in Minnick v. Automotive Creations, Inc., No. D070555 (Cal.App. 4 Dist. 2017) affirmed that California law does not prohibit employers from imposing a waiting period before paid vacation time accrues.

For more information, click on the link: http://www.wilkefleury.com/blog/employers-may-implement-vacation-accrual-waiting-periods/

Wilke Fleury Secures $4,000,000 Judgment Against the United States

On August 31, 2017, Senior Judge Lynn J. Bush of the United States Court of Federal Claims issued a $4,000,000 judgment against the United States in favor of Magnus Pacific Corporation, a Wilke Fleury client and one of the leading geotechnical contractors in the country.

Magnus Pacific’s claims arose out of levee restoration work performed for the United States Section of the International Boundary and Water Commission (USIBWC) along the Rio Grande River near Presidio, Texas.

Magnus Pacific’s work took place from approximately April of 2011 through May of 2012, and was performed pursuant to a contract entered into with the USIBWC.  During the course of the project, Magnus Pacific encountered site conditions that differed significantly from those depicted in the project plans and specifications.  Those differing conditions led to significant additional work, and associated cost overruns.  Magnus Pacific requested the USIBWC’s voluntary payment of those additional costs, but those requests were rejected.

Upon completion of the project, and successful construction of the levee under extraordinarily difficult conditions, Magnus Pacific submitted “certified claims” to the USIBWC, again requesting payment of the additional costs incurred.  Once again, those claims were rejected.  Therefore, on October 31, 2013, Wilke Fleury partner Dan Baxter filed a lawsuit in the Court of Federal Claims, advancing three claims on Magnus Pacific’s behalf, and seeking approximately $4,000,000 in damages.  After the completion of significant written discovery, and over a dozen depositions occurring in California, Texas, Mississippi, Arizona, and Massachusetts, a three-week trial took place in August and September of 2016.  At trial, Magnus Pacific was represented by Dan Baxter, assisted by Wilke Fleury paralegal Sharon Brazell.  The United States was represented by three lawyers and two paralegals from the Department of Justice.  After trial, the parties engaged in extensive post-trial briefing, and the case was submitted for decision on January 17, 2017.

On August 31, Judge Bush issued a 110-page reported decision and associated judgment.  Judge Bush found in Magnus Pacific’s favor on all three claims, and awarded Magnus Pacific the principal amount of $3,879,919, plus interest on approximately 3/4ths of that amount.  With such interest, the amount awarded exceeds $4,000,000.

Wilke Fleury is proud of its association with Magnus Pacific (now Great Lakes Environmental and Infrastructure), and pleased at the opportunity to secure a successful outcome for its longstanding client.

See the final reported decision here: Magnus Pacific v. US–Final Reported Decision

  Dan Baxter

Employers May Implement Vacation Accrual Waiting Periods

Employers may lawfully defer an employee’s paid vacation accrual until after their first year of employment. On July 28, 2017, the California Court of Appeal in Minnick v. Automotive Creations, Inc., No. D070555 (Cal.App. 4 Dist. 2017) affirmed that California law does not prohibit employers from imposing a waiting period before paid vacation time accrues.

In Minnick, the defendants-employers’ vacation policy provided that an employee’s vacation benefits began to accrue after the end of the employee’s first year. The policy also expressly provided that “[t]his does not mean that you earn 1/12th of one week’s vacation accrual each month during your first year. You must complete one year of service with the company to be entitled to one week vacation.”

Minnick worked for defendants for six months. Consistent with employers’ policy, Minnick was not paid any vacation wages in his final paycheck. Minnick sued to recover vacation wages, arguing that the policy violated the law against forfeiture of earned vacation and that the policy did not clearly provide for a waiting period. The Court of Appeal disagreed, holding that employers may lawfully impose a waiting period before providing paid vacation time. The court determined that an employer does not “contract around” the forfeiture prohibition by providing that an employee does not begin to earn vacation pay until a certain date. Finally, the Court of Appeal found no merit in Minnick’s argument that the policy was ambiguous. By contrast, the court found that the policy statement that employees “must complete one year of service with the company to be entitled to one week vacation” made it clear that employees were not entitled to any pro rata vacation pay during their first year of employment.

This case illustrates the importance of maintaining current and clear employee handbooks and policies. Any policy requiring a waiting period before paid vacation accrues should be explicit and straightforward. However, always keep in mind that once an employee becomes eligible to earn paid vacation time, the employer must pay the employee for any unused vacation time and such time cannot be forfeited.

DID YOU KNOW…

Earlier this year we told you about a new law requiring employers to provide written notice to employees about the rights of victims of domestic violence, sexual assault, and stalking. Employers with 25 or more employees are required to provide the notice to all new employees at the time of hire and to current employees upon request, and had been waiting for the Labor Commissioner to create a notice for them to use. The notice is available now. You can follow this link to get a copy: Victims of Domestic Violence Leave Notice

  By Bianca Samuel 

 

Litigation: Protecting your Minor

Has your business ever encountered an unsatisfied customer? It’s likely the answer is – yes!

When a health care provider faces this situation, they often find themselves weighing a number of variables before taking a course of action that fits their situation best.  Pediatric health care providers often face an additional factor that other business don’t encounter.  When you are determining the best course of action, consider – cost of settlement, attorneys’ fees, litigation costs, and public opinion.  Where the merits of the matter justify it, the cost of settling the dispute may be less than the risks and expenses of a prolonged legal battle.

Health care providers typically negotiate disputes with the allegedly harmed individual themselves (pro per) or through their attorney.  However, this is a little different with pediatric health care providers.  They may find themselves in an unusual situation where they are not negotiating with the party that allegedly sustained harm – the patient who is a minor.  Often the parent or parents of the minor will negotiate on their minor child’s behalf with the health care provider, provided that the minor’s parents have not retained counsel or are attorneys themselves.  The problem with this is that while the parents could represent themselves without an attorney, they cannot represent their children.  Moreover, if a minor signed a waiver and release of his or her own rights it would not be enforceable.  Once the minor reached the age of 18, they could affirm the release at that time, but it is unlikely that would happen.

California Probate Code § 3500 provides a solution to this problem by allowing the parents of the minor to “compromise, or to execute a covenant not to sue on or a covenant not to enforce judgment on, the claim…only after it has been approved, upon the filing of a petition, by the superior court.”  This means that the parents of the minor may enter a waiver and release of the child’s rights to their claim, provided that they file the required petition with the court and the petition is approved.  After judicial approval of the petition, a health care provider would be assured that the parents of the minor have the authority to enter into a final settlement on their child’s behalf. Once the waiver is executed, the minor would be barred from bringing an action against the provider, based on the same alleged injury, at a later date.

However, the filing of a petition pursuant to California Probate Code § 3500 will undoubtedly increase the cost of any proposed settlement and may require that the minor’s parents retain counsel in order to assist with the drafting and filing of the petition.  This additional expense represents the cost of finality of the dispute.  Pediatric health care providers should be aware and cognizant of this provision in the California Probate Code and its use should be weighed in any settlement negotiation decision involving a minor.

By Aaron R. Claxton

The Power of Positivity in the Workplace

Most advice from lawyers to employers tends to focus on compliance with legal obligations imposed by statute or regulation, conformity with requirements contained in policy manuals, employee training in the area of sexual harassment prevention and like subjects, and similar “law-based” duties. What sometimes gets lost in the miasma of legal compliance is a more basic truth: The number one thing any employer can do to cultivate a vibrant work environment, and minimize employee complaints (both formal and informal), is simply to…be positive and accessible.

It is basic human nature that people are more likely to overlook grievances when the subject of the grievance —   either individually or institutionally —    is otherwise viewed positively. Taking a moment during the course of the day to say “hello” to your employees, or to ask about a weekend, or simply to look your employees in the eye while they tell you about something, can pay untold dividends that you may never know exist. Not only does such interaction make your employees feel valued and validated, but you may learn something useful about their interests or skill sets that you didn’t previously know. Moreover, unless you are the consummate introvert, you yourself will feel good about the interaction, and be more fulfilled from having at least a basic sense of who your employees are, and what makes them tick.

By contrast, if your sole interactions with your employees are work-centered (“John/Jane, please take the following memo….”), your employees are likely to see themselves as nothing more than cogs in a machine, with no independent reason for enthusiasm or loyalty beyond the paycheck they draw. Such an approach also needlessly divests you of an opportunity for your employees to see you as a human being, rather than just a larger/more senior cog. If you are viewed only as “the management,” employees are less likely to pump their own brakes on the lodging of a complaint for something that they see as offensive or actionable.

So, the next time you are tempted to power walk to your office and close the door, devote ten seconds to thinking about whether you have yet had a positive interaction with one or more employees that day. If not, take a minute or two to do so, even if it’s just to say “how are you today, Sydney”? The worst that can happen is that you find something out that you didn’t already know. And hey, is that so bad?

By Daniel L. Baxter

Shannon Smith-Crowley Co-Authors “Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment”

The article, “Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment,” features Shannon Smith-Crowley and co-author Catherine Gordon, MD and was originally published on the ACOG (The American Congress of Obstetricians and Gynecologists) members only website.

Check out the full article at the link below!

Debunking the Myth Behind Insurance Coverage for Oncofertility Treatment

Twenty-Five Wilke Fleury Attorneys Selected as Sacramento’s 2017 Top Lawyers!

Congratulations to Wilke Fleury’s Top Lawyers by Sacramento Magazine!

Daniel L. Baxter, Business Litigation; Adriana C. Cervantes, Medical Malpractice; Christine M. Collins, Health Care; Anthony R. Eaton, Business Litigation; Daniel L. Egan, Bankruptcy; Samson R. Elsbernd, Employment & Labor; Daniel J. Foster, Business Litigation;  David A. Frenznick, Business Litigation; Scott L. Gassaway, Medical Malpractice; George A. Guthrie, Real Estate; N. Aaron Johnson, Tax, Estate Planning & Probate; Ernest J. Krtil, Estate Planning & Probate; Ronald R. Lamb, Medical Malpractice; Neal C. Lutterman, Health Care; Stephen K. Marmaduke, Employment & Labor; Robert R. Mirkin, Real Estate; Gene E. Pendergast Jr., Estate Planning & Probate; Michael G. Polis, Health Care; Matthew W. Powell, Business Litigation; Thomas G. Redmon, Real Estate; Bianca S. Samuel, Employment & Labor; Shannon Smith-Crowley, Legislative & Governmental Affairs; Trevor L. Stapleton, Estate Planning & Probate; John R. Valencia, Legislative & Governmental Affairs; Steven J. Williamson, Bankruptcy and Creditor/Debtor

The voting for Professional Research Services’ survey to determine the top attorneys in 2017 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. ~ Sacramento Magazine

Wilke Fleury Helps Client License New Vision Plan

EyeMax Vision Plan, Inc. To Provide Comprehensive Vision Care To Individuals And Groups In California Sacramento

Sacramento, CA., July 26, 2017 – Wilke Fleury’s health care law team, led by Michael G. Polis, has assisted its client, EyeMax Vision Plan, Inc., in obtaining a Knox-Keene license, making the plan the State of California’s first new full-service vision plan in the state in 20 years.

EyeMax Vision Plan’s founder, president and CEO D.K. Kim previously founded one of the nation’s top 20 optical labs, CSC Labs, in 1967. The company grew to become the 2nd largest independently owned optical lab in the nation, servicing over 3,000 customers nationally and internationally.

Kim’s new company, EyeMax Vision Plan, has contracted with more than 1,000 board-certified optometrists and ophthalmologists, and prescription lens manufacturers to provide affordable, comprehensive prepaid vision care to individuals, employer groups, government agencies, and labor organizations.

“We are proud to support Mr. Kim’s desire for providing high-quality, affordable vision care options for Californians,” said Michael G. Polis. “Obtaining a Knox-Keene license requires satisfying very rigorous regulatory and financial requirements. Mr. Kim’s experience and professionalism made this exciting transaction possible.”

The U.S. eye care market is growing, according to Vision Watch. The industry generated nearly $40 billion in revenue in 2015, an increase of 5.8% over the previous year.

“EyeMax recognizes that the vision care market is shifting, with private pay patients declining and group plan patients becoming a larger share of market,” said D.K. Kim. “We are focused on tailoring flexible plans to meet the unique needs of employer groups, large and small.”

Wilke Fleury is a thriving mid-sized general practice law firm located in California’s business and political epicenter, Sacramento. Celebrating our 95th year, our attorneys offer broad expertise, creativity, and strong ties to local businesses, families and individuals, making Wilke Fleury one of the region’s most respected and long-standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.

Wilke Fleury Attorney Daniel L. Baxter Lends Expertise on Dealing with Bad Reviews

Maybe a friend sends you a link to it.

Maybe it’s a Facebook post.

Maybe it’s a Yelp review.

But it makes your blood boil as you read each vicious word that a client has written.

Words that publicly smear you as a business person and as a professional.

Words that aren’t fair.

What do you do? Daniel Baxter thinks you should take a deep breath and walk away from your screen.

“Just as often as not, the response to a Yelp review or a social media post can have more negative ramifications than the review itself,” said the partner at Sacramento law firm Wilke, Fleury, Hoffelt, Gould & Birney, LLP.

The digital age has brought many tools to make the lives of vets easier.

It also brings its share of challenges.

And a bad online review or an angry social media rant by a client is a challenge most vets will face over the course of their career.

Baxter, who specializes in complex business litigation and trial work, has represented the California Veterinary Medical Association in various matters over the years. He also recently presented at the Pacific Veterinary Conference, which ran June 29-July 2 in Long Beach, California, on how to be a veterinarian in the digital age.

Read the full article here: https://dragonveterinary.com/vet-blog//dealing-with-bad-reviews 

By Daniel L. Baxter

Wilke Fleury Expands With Addition Of New Associate

Sacramento, Calif., July 21, 2017 – Aaron R. Claxton has joined Wilke Fleury as an Associate, expanding the firm’s capacity to serve the needs of clients in the areas of healthcare and corporate law. Previously, Mr. Claxton worked closely with clients at a local insurance brokerage and was a member of the Elder and Health Law Clinic where he participated in the successful appeal of a denied Medicare claim that resulted in a reimbursement in excess of $100,000 to the estate of a client.

Mr. Claxton graduated from University of the Pacific, McGeorge School of Law, Juris Doctor with Distinction, and St. Mary’s College, where he earned a Bachelor of Science in Business Finance with Honors. He lives in Natomas with his wife and son, and enjoys traveling, cycling, hiking and soccer. “The practice of law provides a unique opportunity to develop effective and creative solutions to advance the interests of clients,” Claxton states.

Check out Aaron R. Claxton’s full bio here: Aaron R. Claxton

VLOG: Disclosures for Background Checks: A Cautionary Tale

Read the full article here: http://www.wilkefleury.com/blog/disclosures-background-checks-cautionary-tale/

2017 Super Lawyers and Rising Stars!

Wilke Fleury is thrilled to announce our 2017 Super Lawyers and Rising Stars! Twelve of our talented attorneys have been honored with the Super Lawyers distinction and an additional four attorneys were honored with the Rising Stars distinction.

Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. The Super Lawyers list represents only five percent of lawyers in California and Rising Stars reflects 2.5% of the state’s up-and-coming lawyers.

Congratulations to Wilke Fleury’s 2017 Super Lawyers and Rising Stars!

2017 Super Lawyers

Dan Baxter, Business Litigation; Philip Birney, Healthcare; Anthony Eaton, Business Litigation; Daniel Egan, Bankruptcy: Business; David Frenznick, Construction Litigation; Jim Krtil, Estate and Probate; Ronald Lamb, Medical Malpractice: Defense; Stephen Marmaduke, Business/Corporate; Michael Polis, Healthcare; Thomas Redmon, Business Litigation; Robert Tyler, Medical Malpractice: Defense.

2017 Rising Stars

Adriana Cervantes, Medical Malpractice: Defense; Christine Collins, Healthcare; Samson Elsbernd, Civil Litigation: Defense; Bianca Samuel, Employment Litigation: Defense

Disclosures for Background Checks: A Cautionary Tale

Background checks are oftentimes a condition of employment.  Employers who seek to perform background checks must comply with applicable state and federal law before they can obtain such information.  This generally includes statutory disclosures and obtaining authorization from the applicant.  Employers who fail to comply with the letter of the law can be sued for violation of the statutory requirements, even when the employee has not suffered any actual damages from noncompliance.

Syed v. M-I, LLC (2017) 853 F.3d 492 is instructive.  The employer was sued under the federal Fair Credit Reporting Act (“FCRA”) because its disclosure document for seeking a background check on applicants did not comply with the FCRA.  The FCRA requires a clear and conspicuous written disclosure before a background check can be performed for employment purposes.  The statute also requires a written authorization for the background check, and permits the authorization to appear in the same document as the disclosure.  The problem in this case was that the disclosure document contained too much information.  Besides the disclosure and the authorization, the employer also included a release of liability.  The court of appeal determined that the FCRA was not ambiguous in its requirement of a document consisting “solely” of the disclosure.  The only exception was for the authorization to be included as part of the disclosure document, so by including the release despite the statute’s unambiguous language, the employer willfully violated the FCRA.

Notably, the employee did not claim that he suffered any actual damages in his lawsuit.  Afterall, he was hired.  He subsequently learned of the error when he reviewed his personnel file and saw the release that he signed when he was as an applicant.   Nevertheless, he was still able to sue his employer for statutory and punitive damages, and could seek to recover his attorney fees.  This case is a lesson to employers of the importance of getting it right, particularly in an area so heavily regulated by statute as are background checks.  Errors in records can stick around for quite some time, and employers may face lawsuits for seemingly harmless errors.  Employees may even have help in looking for and finding problems because the FCRA, like numerous employment statutes, allow employees to recoup their attorney fees when they prevail on their statutory claims.

 By Samson R. Elsbernd