Yearly Archives

Wilke Fleury Welcomes New Associate Bianca Watts

Wilke Fleury is delighted to welcome Bianca Watts as the firm’s newest associate. Ms. Watts joins Wilke Fleury in a full-time capacity after a successful clerkship with the firm during the summer of 2010. Ms. Watts is an alumnus of Pacific McGeorge School of Law, graduating with distinction in May 2011. While at Pacific McGeorge, Ms. Watts participated in the Sacramento County Bar Association Diversity Fellowship Program. She also served as Vice President of the Black Law Students Association and was a Staff Writer for the Pacific McGeorge Global Business and Development Law Journal (“the Globe”). Her article titled “Better Than a Thousand Hollow Words is One Word That Brings Peace: Enforcing Article 49(6) of the Fourth Geneva Convention Against Israeli Settlements in the Occupied Palestinian Territory” will be published this month in the Globe’s Volume 24. Welcome aboard, Bianca!

Six Firm Lawyers Named “Super Lawyers”

Six of Wilke Fleury’s attorneys have recently been named either “Super Lawyers” or “Rising Stars” by the 2011 Northern California Super Lawyers Magazine. Phil Birney, Tom Redmon, Ron Lamb,  and Dan Egan were named “Super Lawyers.” It was Mr. Birney’s fifth year to receive this honor, Mr. Redmon’s fourth year, and the second year for Mr. Lamb and Mr. Egan. Dan Baxter and Megan Lewis were named “Rising Stars” for the third year in a row. The list of honorees is compiled through a multi-phase process of peer nominations and evaluations, as well as third party research. Just five percent of the lawyers in California are selected for the “Super Lawyers” designation, and no more than 2.5 percent are named “Rising Stars.” Wilke Fleury congratulates these seven outstanding lawyers on their achievement.

Firm Welcomes Diversity Fellow Neha Mac

Wilke Fleury is again participating in the Sacramento County Bar Association’s Diversity Fellowship program and welcomes Neha Mac for the summer. Ms. Mac received her bachelors degree from University of San Francisco and is currently an evening student at University of the Pacific, McGeorge School of Law, where she recently finished her second year. She is involved with the South Asian Bar Association of Sacramento and the McGeorge Orientation and Mentorship committees and looks forward to gaining invaluable experience over the summer.

California Rejects the “Stray Remarks Doctrine”

In investigations of alleged discrimination under California’s Fair Employment and Housing Act, workplace investigators frequently rely on standards enunciated by federal courts interpreting Title VII, as such standards often apply equally to cases brought under California’s Fair Employment and Housing Act. California courts have expressly recognized the overlap between the two statutory schemes and the appropriateness of relying on federal Title VII cases when considering FEHA claims. In some cases, however, California has considered and rejected the federal stray remarks doctrine. As a result, workplace investigators must be more wary of relying on federal authorities when determining whether discrimination has occurred.

The “Stray Remarks Doctrine”
The stray remarks doctrine was first coined by the U.S. Supreme Court in 1989 and has since been adopted and notably expanded by federal circuit courts. Under this doctrine, federal courts deem irrelevant any remarks made by non-decisionmaking coworkers and remarks made by decisionmaking supervisors outside of the decisional process of adverse employment decisions, and evidence of such stray remarks are insufficient to defeat summary judgment. Further, federal courts treat ambiguous comments as stray remarks because they do not sufficiently indicate discriminatory animus.

In Reid v. Google, the California Supreme Court rejected the “Stray Remarks Doctrine” and held that California courts must consider the totality of the evidence, including any relevant discriminatory remarks, in determining whether discrimination has occurred. This decision represents a significant divergence from the Federal Courts’ acceptance of the “Stray Remarks Doctrine” and creates impetus for California employers to make efforts to eliminate all inappropriate comments from the workplace.

Case Background
In 2002, Google hired Brian Reid, age 52, to be Google’s director of operations and director of engineering. Reid alleged that during his employment at Google, an executive to whom Reid occasionally reported, as well as other co-workers, made derogatory age-related remarks to him. According to Reid, the executive told him his opinions and ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic,” and that he did not “display a sense of urgency” and “lack[ed] energy.” Other coworkers called Reid an “old man” and an “old fuddy-duddy,” and joked that Reid’s compact disc jewel case office placard should be an “LP” instead of a “CD.” Less than two years later, Google terminated Reid’s employment, stating that he was not a “cultural fit.” Reid then sued Google, alleging age discrimination and offering as evidence the comments that had been made to him. Google moved for summary judgment, arguing that the comments were stray remarks and thus insufficient to defeat the motion. The trial court granted Google’s motion, finding Plaintiff’s evidence insufficient to raise a triable issue. The Court of Appeal reversed, rejecting Google’s argument that the alleged ageist comments were stray remarks and finding them sufficient to create an inference of illegal discrimination.

The Supreme Court’s Decision
The California Supreme Court affirmed the decision of the Court of Appeal, holding that the comments made by Reid’s supervisors and coworkers should not be viewed in isolation as stray remarks, but instead should be considered with all the evidence in the record. The Court rejected the stray remarks doctrine for a number of reasons. First, the Court explained that strict application of the stray remarks doctrine would result in a court’s categorical exclusion of evidence even if the evidence was relevant. The Court noted that remarks not made directly in the context of an employment decision and remarks uttered by a non-decisionmaker may still be relevant circumstantial evidence of discrimination, particularly where a non-decisionmaker influences a decisionmaker. Second, strict application of the stray remarks doctrine would be contrary to the procedural rules codified by statute and adopted in California cases. Specifically, California law directs that at the summary judgment stage, courts “shall consider all of the evidence set forth in the papers and all inferences reasonably deducible from the evidence.” Third, while a stray remark alone may not create a triable issue of discrimination, when combined with other evidence of pretext, an otherwise stray remark may create evidence that is sufficient to defeat summary judgment. Fourth, because there is no precise definition of who is a decision maker or what constitutes a remark made “outside of the decisional process” in the employment context, federal courts have treated identical remarks inconsistently. Thus, the Court concluded, in a California employment discrimination case, the stray remarks doctrine is not to be applied and the court is to consider all alleged discriminatory comments.

What This Means for You
In California, even casual comments made by non-decisionmaking employees or ambiguous remarks made by decisionmakers outside of the decisionmaking process may be used as evidence of discrimination. Employers must take care to ensure that all employees are trained regarding proper conduct in the work place. This includes making sure that employees do not make improper and potentially discriminatory comments about another employee’s race, ethnicity, sex, gender, age, sexual orientation and the like. Even comments as seemingly innocuous as “lethargic” and “quick study” may be found to constitute evidence of age discrimination. Finally, you should ensure that all employment decisions are made based on objective qualifications that cannot be misinterpreted as potentially discriminatory.

New Military-Related Categories Expand Scope of FMLA Leave

FMLA Leave
The Family and Medical Leave Act (FMLA) is a federal law that has long provided for up to 12 weeks per year of protected family and medical leave from work for qualifying employees. Typically, employees take FMLA leave to receive medical treatment for the employee’s own illness or injury, or to care for an ailing spouse or family member.
Recently, in response to the country’s prolonged involvement in military operations in Iraq and Afghanistan, Congress created two new categories of FMLA leave: (1) military caregiver leave, and (2) military qualifying exigency leave. These new categories are in addition to the family and medical leave already provided for under the FMLA.

Military Caregiver Leave
Military Caregiver Leave provides up to 26 weeks of time off per year for an employee to care for a child, parent, spouse, or next of kin who is a “covered military member” – i.e., a current member of the Armed Forces (including the National Guard and Reserves), or a member of the Armed Forces, the National Guard, or Reserves on the temporary disability retired list – and who has a serious injury or illness sustained while in the line of duty. “Next of kin” is defined as anyone other than a child, parent, or spouse who is the nearest blood relative of the covered member. Typically, covered members designate their “next of kin” for military caregiver purposes, but if none is selected, the following level of priority applies: blood relatives granted legal custody of the servicemember; brothers and sisters; grandparents; aunts and uncles; and first cousins. Under military caregiver leave, “children” and “parents” include step-children and step-parents and foster or adopted children and parents.

Military Qualifying Exigency Leave
Military Qualifying Exigency (QE) Leave provides 12 weeks of leave per year for an employee whose child, parent, or spouse is a “covered military member” – meaning in this case that he or she is either a member of the reserve components (Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve) or a retired member of the Regular Armed Forces or Reserve – that is on active duty or notified of impending active duty status in support of a “contingency operation.” “Contingency operations” are those that either (1) are designated by the Defense Secretary as one in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force, or (2) result in active duty of members of the uniformed services during a war or national emergency declared by the President or Congress. (The military member’s active duty orders should specify if the call is for a “contingency operation,” and employers may require that the employee certify the need for leave by providing either those orders or a signed statement from the employee describing the facts supporting the request for QE leave.) Note that QE leave does not apply to family members of the Regular Armed Forces or Reserve on active duty or call to active duty status – only reserves and retired members.

The Department of Labor has identified eight categories of QE leave – key to each of these is that the need for leave must arise out of the fact that the employee is a parent, child, or spouse of a covered military member:

  1. Short-notice deployment. The eligible employee may take up to seven days of leave if his or her spouse, parent, or child is given seven days’ notice or less of deployment.
  2. Military events and related activities. The eligible employee may take leave for any official, military-sponsored ceremony, program, or event related to the active duty or call to active duty status of a covered military member. Leave may also be taken to attend family support or assistance programs sponsored or supported by the military or the American Red Cross that relate to the active duty or call to active duty status of a covered military member.
  3. Childcare and school activities. Eligible employees may take leave to make child care arrangements or to attend certain school functions for the child of a covered military member.
  4. Financial and legal arrangements. Eligible employees may take leave to make or update financial and legal arrangements for when the covered military member is on active duty or call to active duty.
  5. Counseling. Leave is available for the employee, the covered military member, or the covered military member’s child to attend counseling by a non-health care provider, as long as the counseling arises from active duty service or call to active duty.
  6. Rest and recuperation. As much as five days of QE leave is available to an eligible employee to spend time with a covered military family member on rest and recuperation leave during his or her deployment.
  7. Postdeployment activities. For 90 days following the termination of active duty status, eligible employees may take leave to attend ceremonies incident to the return of the covered military family member, such as ceremonies and reintegration briefings, or to address issues related to the death of a covered military family member, such as recovering the body and making funeral arrangements.
  8. Other additional activities. The employer and employee may agree that other events arising out of a covered military member’s active duty or call to active duty status qualify as exigency. In such instances, the employer and employee must agree on the QE coverage, timing, and duration.

As with traditional FMLA leave, eligible employees may take leave under either the QE or military caregiver provisions on an intermittent or reduced schedule basis. Also as with traditional FMLA leave, employees must make a reasonable effort to schedule any leave for medical treatment so as to disrupt the employer’s operations as little as possible, and employees must give as much notice as practicable in advance of their leave.

The same approaches that employers have used in the past to manage their FMLA leave policies apply to these new categories, as well. For instance, employers would be wise to:

  • Require written notice of leave in advance;
  • Track all periods of leave, and keep all records regarding leave eligibility, determinations and notifications on file, ideally with one dedicated person;
  • Avoid inflexible leave policies that will interfere with the obligation to make decisions on a case-by-case basis;
  • Get specific information regarding the need for the leave up front to avoid later problems and miscommunication; and
  • Provide notice to the employee that FMLA leave time is being counted, and notify the employee before his or her leave time is exhausted.

These common-sense precautions will minimize the problems with and abuse of FMLA leave that many employers confront.

Wilke Fleury Partner Becomes Chair of Non-Profit

Wilke Fleury partner Dan Baxter was recently elected to serve as Chairman of the Board of Directors for Teaching Everyone Animals Matter ("TEAM"), a non-profit organization formed to assist Sacramento County Animal Care and Regulation in caring for the lost, abandoned, abused, and neglected animals in Sacramento County. Dan has been involved with TEAM for several years, and Wilke Fleury itself has also sponsored TEAM through Wilke Fleury’s "Jeans Friday" program, in which employees contribute $5 to selected non-profit organizations for the privilege of wearing jeans on Fridays.

Dan’s duties as TEAM’s Chairman will consist of, among other things, overseeing Board meetings, writing letters on behalf of the organization, appearing at events, and ensuring that TEAM’s mission continues to be fulfilled.

Wilke Fleury congratulates Dan on his new position!

Jim Krtil Awarded Lifetime Membership in The Sacramento Estate Planning Council

Wilke Fleury Partner Jim Krtil was recently awarded lifetime membership in the Sacramento Estate Planning Council. The Sacramento Estate Planning Council is a non-profit, professional association which serves as an educational and networking resource for over 140 regional members in matters of estate planning. The Sacramento Estate Planning Council provides a forum where trust officers, private fiduciaries, attorneys, certified public accountants, chartered life underwriters, chartered financial consultants, certified financial planners, chartered financial analysts, educators, planned giving professionals, and accredited valuation experts in the Sacramento Valley can meet and share information about new developments in the estate planning, a constantly changing field. Mr. Krtil joined the Sacramento Estate Planning Council in 1980 and was president in 2000-2001.

Wilke Fleury Partner Named a “40 Under 40” Finalist

Wilke Fleury’s own Dan Baxter has been named as a finalist for the Sacramento Business Journal’s “40 Under 40” awards, which honors Sacramento’s up-and-coming professionals for their business success and community contributions. Dan is one of 100 finalists selected from a group of nominees spanning Sacramento’s business spectrum, including physicians, accountants, developers, lawyers, entrepreneurs, and public employees. Dan’s notable successes over the last year include a multi-million dollar jury verdict against the California Correctional Peace Officers’ Association, and a successful arbitration regarding the value of the Downtown Railyards property sold to the City of Sacramento, which Dan handled with colleague Tom Redmon. Dan and his fellow “40 Under 40” finalists are listed in the March 18 edition of the Business Journal. Congratulations, Dan!

U.S. Supreme Court Expands Employers’ Liability for Retaliation Under Title VII

In a unanimous decision, the United States Supreme Court recently held that an employee who has not engaged in protected activity may still have a valid cause of action for retaliation, if the employer took adverse action against the employee due to the employee’s connection to another employee who engaged in protected activity. This holding dramatically expands the scope of retaliation liability for employers under Title VII of the Federal Civil Rights Act of 1964.

Case Background
Mariam Regalado and her fiancé, Eric Thompson, were both employees of North American Stainless (NAS). In 2003, Ms. Regalado filed a sex discrimination charge against the company with the EEOC. The EEOC notified NAS that Ms. Regalado had filed the charge. Three weeks later, NAS terminated Thompson’s employment. Thompson then sued NAS, alleging his discharge was in retaliation for his fiancé’s EEOC charge. The trial court and the Court of Appeals dismissed the lawsuit, finding that Title VII’s protections did not apply to Thompson because he had not personally engaged in the protected activity. The United States Supreme Court disagreed.

The Court looked at two issues: (1) whether Thompson’s firing constituted unlawful retaliation under Title VII, and (2) if it did, whether Title VII provided Thompson with a cause of action.

As to the first issue, the Court concluded that, assuming the facts alleged by Thompson were true, it was difficult not to conclude that NAS’s termination of Thompson had violated Title VII. In its analysis, the Court noted that Title VII’s anti-retaliation provisions must be construed to cover a broad range of employer conduct. Specifically, Title VII’s anti-retaliation provision prohibits any employer action that may dissuade a reasonable worker from making or supporting a charge of discrimination. The Court found that it was “obvious that a reasonable worker might be dissuaded form engaging in protected activity if she knew that her fiancé would be fired.”

As to the second question, the Court set forth the “zone of interest” test. The Court determined that a plaintiff could not sue unless he falls within the zone of interest sought to be protected by the statutory provision whose violation forms the legal basis of his complaints. In other words, as an employee of NAS, Title VII was intended to protect Thompson from the unlawful actions of his employer. The Court reasoned that, if the facts alleged by Thompson were true, then Thompson’s termination was the intended means of punishing Ms. Regaldo for filing a charge against her employer. Therefore, Thompson was a “person aggrieved with standing to sue under the statutory regime of Title VII.” Even though Thompson did not engage in any protected activity under Title VII, he was within the “zone of interest” sought to be protected by Title VII, which allows a person aggrieved by an alleged employment practice to bring a civil action.

What this Means for You
While the Court allowed an employee who had not engaged in protected activity to bring a claim, it declined to identify the specific types of relationships that would fall within Title VII’s protections. The Court noted that “firing a close family member will almost always meet the requisite standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.” Accordingly, it is important for employers to realize that Title VII protects more than just the employee who engages in the protected activity. Here are some things to keep in mind in light of Thompson:

  • Promptly investigate employee complaints.
  • Review all personnel decisions involving the complaining employee to ensure that your employment actions are free of any retaliatory motive.
  • Ensure that all employment policies include anti-retaliation provisions.
  • Train managers, supervisors, and human resource staff to refrain from and to identify potential instances of associational discrimination or retaliation.
  • Following a complaint, remind supervisory employees that retaliation is prohibited and taking action of any sort, even against someone associated with an employee who has brought a complaint, may be unlawful.
  • Document performance problems thoroughly and contemporaneously to support any adverse employment actions taken.
  • Always make certain that adverse employment decisions are based on legitimate and non-discriminatory factors.

Because most cases in California are brought under FEHA, rather than Title VII, it is unclear how this holding will impact the majority of retaliation cases in California. However, given that California courts look to federal decisions for guidance and because California courts are usually more liberal than the federal courts, it would not be surprising to see California courts follow the reasoning of this decision.

Seeing Pink Elephants? Alcohol and Drug Testing in the Workplace Raise Privacy Concerns

The transition to or maintenance of a drug-free workplace raises concerns regarding employee privacy of which employers must be cognizant. An employer may choose to implement a workplace alcohol and drug policy for many reasons, including to provide a safe workplace for employees, to avoid adverse health effects on employees with concomitant costs to the employer, and to protect the company’s image. An employer may also choose to implement a workplace alcohol and drug policy in order to contract with the state or federal government, or to be eligible for federal and state aid.

Whatever the motivation for implementing an alcohol and drug policy, the policy should be a written document that addresses the use of, or being under the influence of, alcohol and drugs in the workplace. The policy should be clear and precise, and strictly followed at all times. The policy needs to be disseminated to employees and easily accessible to them (e.g., posted on a bulletin board, included within the employee handbook, additional copies available in the human resources department). The policy should address the reason for the policy, and cover such areas as (a) pre-employment screening, (b) use, sale, or possession of alcohol and drugs on company premises, (c) searches of employees and their personal property, (d) testing for alcohol and drugs, (e) disciplinary action, and (f) employee assistance programs.

One of the primary components of any alcohol and drug policy is testing for alcohol and drugs. There are generally three categories of testing: pre-employment testing, reasonable suspicion testing and random testing. Pre-employment testing is the least risky type of policy the employer can implement. Pre-employment testing refers to the employer testing applicants for employment for drug and alcohol use as part of the employer’s review of the applicant’s qualification for employment. Employers may implement alcohol and drug testing as part of a regular, pre-employment physical examination for all applicants.

On the other hand, an employer may not require alcohol and drug testing for all employees who are eligible for promotion. Instead, employers should only require employees who are eligible for promotion to submit to testing after the employer determines that there is a compelling business need to test the employee, based on the nature and qualifications of the new position for which the employee is being considered. If the employer does not have a compelling business need to test the employee, then the employer could be subject to substantial tort liability for invasion of the employee’s privacy rights.

Current employees who are not being considered for promotion should only be tested based on a reasonable suspicion of alcohol or drug use. Reasonable suspicion may be based on direct observation of drug use or possession, custody or control or the physical symptoms of being under the influence of a drug, a pattern of abnormal conduct, arrest or conviction for a drug related offense, information provided by a reliable source or evidence that the employee has tampered with a previous drug test. Although reasonable suspicion testing does not require certainty, mere “hunches” are not sufficient to warrant a test. A random alcohol and drug test is the most risky test the employer can administer. Random drug tests will generally only be allowed where the employer can demonstrate that the employer’s special interest and the public interest outweigh the employee’s reasonable expectation of privacy. Generally, the employer must show that the employee’s to be tested are in safety sensitive positions. Moreover, the employer must provide advance notice of the random testing program, minimize the degree of intrusion involved, and provide safeguards for protesting the confidentiality of the process. Finally, there should be little or no discretion as to who is chosen for testing. In other words, the testing should be truly random.

Claims that may be asserted by employees who have been tested under a policy found to be unlawful include invasion of privacy, intentional infliction of emotional distress, defamation, discrimination and wrongful termination if the employee is discharge as a result of the test.

Any testing that is performed should be conducted by an independent contractor. With experience conducting tests. This will provide additional protection to the employer against a lawsuit by an employee alleging flawed testing because the torts of an independent contractor are generally not be attributable to the employer. Furthermore, employers should only receive a simple pass or fail result, not a detailed reporting of the employee’s private test results.

After the results are received by the employer, the employer should ensure that access to the results is limited. For example, the employer should not store the results in the employee’s personnel file. Moreover, the consequences for an employee who receives adverse test results should be predetermined in the workplace alcohol and drug policy.

Finally, employers should be aware that they may be required to make reasonable accommodations for employees desiring to enter rehabilitation, whether this desire is motivated by an adverse test result or is made by the employee at the employee’s initiative. Apart from the workplace alcohol and drug policy, an employer with twenty-five or more employees must reasonably accommodate any employee wishing to voluntarily enter and participate in an alcohol or drug rehabilitation program as long as the accommodation does not pose an undue hardship on the employer. If the employee receiving an adverse test result is not terminated, the employer may need to make similar accommodations for that employee.

If you are considering implementing a workplace alcohol and drug policy, or are reviewing your current policy, Wilke Fleury can help ensure that it complies with state and federal law, and meets the stringent state and federal contracting and federal aid standards.

Wilke Fleury Partner Elected to Government Relations Association Board

The Institute of Governmental Advocates (IGA), California’s professional association of lobbyists and government relations specialists, has announced the election of Wilke Fleury Partner, John Valencia, to its Board of Directors.

Founded in 1974, IGA’s mission is to protect and defend the First Amendment rights of lobbyists and government relations professionals to advocate on behalf of their clients before California’s Legislature and the Executive Branch of state government. The Institute of Governmental Advocates (IGA) is a voluntary, non-partisan association representing the leading professional lobbyists and lobbying firms in California’s Capitol.

IGA members subscribe to a voluntary code of conduct and professional ethics that go beyond what is required under the Fair Political Practices Act. IGA also works instill core values of integrity, honesty, and professionalism among the members of the “Third House” and pass along those values to the next generation of lobbyists.

Wilke Fleury Raises $2,890 for TEAM

In 2010, Wilke Fleury raised $2,890 for Teaching Everyone Animals Matter (TEAM) through its “Jeans Friday” program. Jeans Friday is an initiative that allows Wilke Fleury employees to wear jeans on Friday if they contribute $5 toward a charity that has been selected by employee vote. The charity selected for 2010 was TEAM, a non-profit organization that works with Sacramento County Department of Animal Care and Regulation to help provide for the care and treatment of the animals at the Sacramento County Animal Shelter. Dan Baxter, a Wilke Fleury partner, is a member of the Board and Secretary of TEAM. Wilke Fleury is proud to support TEAM’s efforts in our community.

GINA Regulations: What Employers Need to Do to Comply

The final regulations for the Genetic Information Nondiscrimination Act of 2008 (‘GINA”) became effective January 10, 2011. Employers must be careful to comply with these regulations, as the consequences of non-compliance may be severe.

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) was signed into law on May 21, 2008. GINA prohibits employers from discriminating on the basis of genetic information in hiring, termination, personnel actions and compensation decisions. Title II of GINA, which applies to private employers who employ 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, became effective on November 21, 2009. The regulations implementing Title II became effective on January 10, 2011. In addition to prohibiting discrimination on the basis of genetic information, employers are barred from requesting, requiring, purchasing or disclosing genetic information, subject to a few limited exceptions. If an employer does acquire any genetic information about its employees, the information must be maintained in a confidential medical record file separate from the employee’s personnel file.

Genetic Information Defined
Genetic information under GINA includes any genetic tests of applicants, employees or family members, an employees’ family medical history, requests for or receipt of genetic services and the genetic information of a fetus being carried by an individual or family member. Genetic information does not include sex or age, nor does it include information on race or ethnicity that does not come from a genetic test.

There are six exceptions to the general prohibition on requesting, requiring or purchasing genetic information. These include (1) inadvertent acquisition, (2) employer offered health or genetic services, (3) request for family medical history under family leave laws, (4) commercially and publicly available genetic information, (5) genetic monitoring of the effects of workplace toxins, and (6) law enforcement purposes. In applying these exceptions, employers must comply with specific guidelines pertaining to the management and acquisition of genetic information. The key concepts to keep in mind if an employer obtains any genetic information about an employee is that the information is confidential and must be maintained and treated as such. Genetic information in the possession of the employer must not be disclosed to third parties.

An employer does not violate GINA if it inadvertently requests or acquires genetic information. In order to avoid inadvertently acquiring genetic information when making a lawful request for medical information, an employer should provide an affirmative warning in their request indicating that the provider should not include any genetic information in response to the request. The employer should also avoid making inquiries of the employee in a way that is likely to solicit genetic information. One example of this type of inquiry would be if, in response to an employee’s request to take FMLA leave due to cancer, the employer were to ask “Is there a history of cancer in your family?”

The second exception applies to employer offered health or genetic services. If an employer offers services through which they may acquire genetic information, the employer must obtain a knowing, voluntary and written authorization from the employee which provides a description of the type of genetic information requested and its purpose. Additionally, the authorization must describe the restrictions on further disclosure of the genetic information. Moreover, individually identifiable information may only be provided to the health care professionals involved in providing the services, and not to the employer or others in the workplace.

The third exception to GINA’s prohibition on requesting genetic information pertains to requests for family medical history in order to comply with the certification requirements under the FMLA or other state family leave laws. Such laws permit the use of leave to care for a sick family member and require employees to provide information about the health condition of the family member to support the need for leave.

It is also not a violation of GINA for an employer to obtain genetic information from documents that are commercially and publicly available, via hard copy or on the internet. However, an employer cannot actively search for such information, especially from sources with limited access such as social networking sites or medical databases.

Should an employer need to monitor the effects of workplace toxins, genetic information acquired to monitor those effects will not violate GINA so long as the employer complies with certain requirements. The employee must receive written notice of the monitoring and be informed of his/her individual monitoring results. If the monitoring is required by state or federal law, the employer must have obtained a prior knowing, voluntary and written authorization from the employee and the monitoring must comply with the law.

Finally, if an employer conducts DNA analysis for law enforcement purposes as a forensics laboratory or to identify human remains, the employer is permitted to require genetic information only to the extent needed to detect sample contamination.

Every employer needs to be aware of and comply with the requirements of GINA. The remedies available to an employee whose genetic information has been misused can be substantial and include compensatory and punitive damages, attorney’s fees, injunctive relief, back pay and other equitable remedies.

2011 Legislative Update

The following is a synopsis of the notable changes in California and federal employment laws that were enacted or modified in 2010.

California LawSB 1340 – Mandatory Organ Donation Leave
Requires private employers to allow employees to take paid leaves of absence for organ and bone marrow donation. Employees who have exhausted all other sick leave are entitled to take up to 30 days of paid leave for organ donation and up to 5 days of paid leave for bone marrow donation. Additionally, employers must restore an employee returning from organ or bone marrow donation leave to the same or an equivalent position as he or she had prior to taking the leave. An employer may not interfere with an employee who desires to take such leave and cannot later retaliate against an employee for doing so.

AB 569 – Meal Period Exemptions for Certain Unionized Industries
Labor Code section 512 requires employers to provide thirty-minute meal periods to employees working more than five hours per work day, unless waived by mutual consent. AB 569 amends section 512 to exempt employees in construction occupations, commercial drivers, security officers, and employees of electrical and gas corporations or local publicly owned electrical utilities from the meal period requirement. This exemption only applies if: 1) the employee is covered by a valid collective bargaining agreement; and 2) the agreement contains specified terms including meal period provisions.

AB 2364 – Unemployment Benefits for Domestic Violence Victims
California law provides unemployment insurance benefits to eligible employees who are unemployed through no fault of their own. Previously, employees were eligible if they left employment to protect their children from domestic violence abuse. AB 2364 amends those provisions to allow employee unemployment eligibility if they leave to protect their family from domestic violence abuse.

AB 1814 – FEHA Does Not Prohibit Adjustments to Retiree Health Benefits
Generally, California’s Fair Employment and Housing Act (FEHA) prohibits discrimination in the terms, conditions and privileges of employment based on age. AB 1814 creates a narrow exception to this rule, specifying that FEHA does not prohibit employers from providing health care reimbursement plans to retired persons that are altered, reduced or eliminated when the retiree becomes eligible for Medicare benefits. This exception only applies to health benefits offered to “retired persons.” AB 1814 essentially conforms California state law to the federal Age Discrimination in Employment Act and is intended to encourage employers to continue to offer modest “bridge” retiree health benefits to retirees before they become eligible for Medicare. AB 1814 applies to all retiree health benefit plans in effect on or after January 1, 2011.

AB 2774 – OSHA “Serious” Violations
Provides that if the California Occupational Safety and Health Administration (Cal/OSHA) can demonstrate that there is a “realistic possibility” that death or serious physical harm could result from an OSHA violation, then a rebuttable presumption that the violation is “serious” will be established. An employer can rebut this presumption by demonstrating that it took reasonable steps prior to the violation and effective action to eliminate employee exposure once the violation occurred. AB 2774 defines “Serious physical harm” as any injury or illness, specific or cumulative, occurring in the place of, or in connection with, employment that results in inpatient hospitalization, the loss of any part of the body, serious permanent disfigurement, or impairment of any part of the body sufficient to cause it to become permanently and significantly reduced in efficiency.

No Increase in Computer Professional Salary for Exemption Purposes
Labor Code section 515.5 provides that if computer software employees perform certain enumerated duties and their hourly pay is not less than the statutorily specified rate, then those employees are exempt from overtime requirements. The Division of Labor Statistics and Research, the agency responsible for determining if adjustments need to be made to this rate, has determined for the second year in a row that the rates will remain unchanged. The minimum hourly rate will remain at $37.94, the minimum monthly salary will remain at $6,587.50, and the minimum annual salary will remain at $79,050.

Federal Law
The Obama Administration primarily focused on contentious issues such as health care, financial reform, and immigration reform; therefore, there were no significant federal labor and employment legislative developments in 2010.

Firm Wins Defense Verdict in Lengthy Medical Malpractice Trial

Robert F. Tyler of the firm’s litigation department recently prevailed in a major complex medical malpractice case brought against one of the firm’s longstanding clients. The case involved a 48 year old man who was brought into the client’s hospital with a severe brain bleed after falling as the result of an apparent loss of consciousness. Various tests done shortly after admission disclosed cardiac abnormalities, which were ultimately felt to have been caused by the injuries resulting from the fall, rather than being the cause of the loss of consciousness and fall itself. Twenty months later, the patient died in his sleep.

At the time of his death, the patient was 50 years old and earning between $150,000 and $350,000 per year. Both before and after his hospital stay, the patient never complained of any significant medical problems and never took any sick leave. On autopsy, it was found that he had suffered a major heart attack at some point in the past, and that all of his cardiac arteries were severely clogged, with the cause of death stated as untreated cardiac problems.

The wife and the two minor daughters of the patient brought a wrongful death claim, contending that the events leading up to the fall were caused by cardiac problems, which they claimed should have been found and worked up by the hospital. The plaintiffs contended that had that taken place, the patient’s severe underlying cardiac disease would have been demonstrated, and steps would have been taken to avert the patient’s untimely death.

The trial itself involved 32 witnesses, with strongly conflicting testimony from experts in cardiology, intensive care, neurology, clinical laboratory operations, and emergency room care. Plaintiffs postulated an earnings loss of $3.9 million, and ultimately requested a total award in excess of $11.7 million. After a six week trial, the jury returned a 9-3 verdict in favor of the defense, finding that the defendant hospital had correctly interpreted the abnormalities shown on the test in question as being due to the injury caused by the fall (rather than causing the fall), and that the hospital’s workup of the patient was correct and complete. While those conclusions were and are medically correct, they were complex and were very vigorously contested by well-credentialed experts on both sides. Therefore, the fact that the jury ultimately came to appreciate the defendant’s position despite their obvious sympathy for the plaintiffs, clearly constituted a very successful result for the client.