Expensive Disability Accommodation Lesson

Caltrans in Nevada County learned the hard way that you cannot ignore an employee disability accommodation requests. More importantly, you can’t retaliate against an employee for requesting an accommodation. An article in the Sacramento Bee provides many of the details. I’ve written several articles regarding the importance of proper accommodation policies and procedures in the workplace.

Employee Awarded $3million in Disability Accommodation Lawsuit

John Barrie claimed his supervisors harassed him and ignored his requests for accommodations related to his allergies. Mr. Barrie has severe reactions to certain smells, such as chemical cleaners and perfumes. Although Nevada County Caltrans accommodated Mr. Barrie for years, Barrie alleged supervisors started harassing him and denying the disability accommodations in 2010. Barrie allegedly sought help internally through various channels, but the harassment continued. The jury believed Mr. Barrie, and awarded him $3million for the retaliation and harassment related to his allergies.

Allergies Can Constitute a Disability

State and federal laws broadly define “disability.” In short, a disability is any medical condition–psychological or physiological–that impairs one or more major life functions. Severe allergies can impair major life functions such as breathing. Some people experience severe skin rashes, headaches, nausea and vertigo from allergic reactions.

Disability discrimination laws require employers to provide reasonable accommodations for persons with disabilities. Failing to provide reasonable accommodations, and in some instances failing to engage in the interactive process of determining what disability accommodations are appropriate, is a violation of the law.

From the pleadings, it appears Caltrans HR department tried to accommodate Mr. Barrie. A regional administrator affirmed his allergies in 2011, and wrote an order compelling workplace accommodations. Barrie alleged his supervisors ignored the order, and retaliated against Barrie by giving him job duties outside his normal scope and moving him to less convenient job sites.

Every Disability Accommodation Request is Serious

Supervisors oftentimes fail to recognize they must treat every disability accommodation request seriously. While HR may know the requirements, ensuring supervisors comply with the law can be difficult. In Barrie’s case, an HR note revealed that Barrie’s supervisors wanted to discipline Barrie for going to HR because he went outside the “chain of command.” I suspect this factored heavily in the juries $3million award. Employers cannot retaliate against employees for requesting accommodations or raising complaints in the workplace.

If you require a workplace accommodation, or if your employee requests an accommodation, talk with an attorney familiar with disability accommodation and discrimination issues.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Rest Break Reminder

A few months ago I wrote about Augustus v. ABM Security Services, where the court said employer must relieve employees of all duties in order for a rest break to be valid. ABM required the security guards to carry pagers, radios or cell phones during breaks. The court concluded on-call rest breaks are the same as no rest breaks.

Revision to Rest Break Decision

The California Supreme Court revised the opinion slightly, but the holding still stands.  The court changed final sentence in the Conclusion and so that the complete Conclusion now reads as follows:

California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods.  The trial court’s summary adjudication and summary judgment orders were premised on this understanding of the law.  Rightly so: Wage Order 4, subdivision 12(A) and section 226.7 prohibit on-duty rest periods. What they require instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties—including the obligation that an employee remain on call.  A rest period, in short, must be a period of rest.  We accordingly reverse the Court of Appeal’s judgment on this issue.  The matter is remanded to the Court of Appeal for further proceedings consistent with this opinion.

This is not a big shocker, but it is language to remember. Employees must receive duty-free rest breaks. Employers cannot exercise any control over the employee during the rest break. Companies should review their rest break policies to ensure they are relieving employees of all duties during the rest breaks.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

EEOC Sues Over Employee Post on Glassdoor.com

EEOC Sues IXL Learning Inc. for Retaliating Against Employee Who Posted Negative Comments on Glassdoor.com

The EEOC announced that it filed a lawsuit against IXL Learning Inc. for allegedly violating federal law. According to the EEOC, IXL retaliated against an employee for accusing the company of discriminatory practices on Glassdoor.com.  The employer allegedly fired an employee within minutes of confronting the employee about a negative review he posted on Glassdoor.com.

According to the EEOC’s press release, “the 32-year-old transgender man, fueled by a belief that IXL was discriminating against him, had written, “If you’re not a family-oriented white or Asian straight or mainstream gay person with 1.7 kids who really likes softball – then you’re likely to find yourself on the outside … Most management do not know what the word ‘discrimination’ means, nor do they seem to think it matters.”’  The employee also felt IXL treated his request to telecommute (due to post-operative recovery after gender confirmation surgery) differently from similar requests by two coworkers (due to situations related to their opposite-sex spouses). “Given these experiences, Duane posted on Glassdoor.com in opposition to what he regarded as discrimination, and was fired for doing so.”

Retaliation for Posting on Glassdoor.com

Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), prohibit firing an employee for opposing discrimination. This includes posting criticisms online. The EEOC’s lawsuit seeks lost wages, compensatory and punitive damages and injunctive relief designed to prevent discrimination in the future. There is no mention whether the company will seek damages against the employee for potentially defamatory statements.

William Tamay, the EEOC’s San Francisco District Office director, reports “Retaliation is the No. 1 basis for charges filed with the EEOC, comprising over 45% filings nation­wide … Under the EEOC’s Strategic Enforcement Plan, it is a priority to defend employees’ rights to speak out and challenge practices that they believe to be illegal discrimination.”

EEOC Trial Attorney Ami Sanghvi added, “While the platforms for employees to speak out against discrimination are evolving with technology, the laws against retaliation remain constant. If an employee reasonably believes that illegal discrimination occurred, the EEOC will vigorously defend that worker’s right to raise the issue, whether they do so by filing a charge with our agency, notifying company management or posting in a public arena such as Glassdoor.com.”

 

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice about wage and hour or other employment law issues, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.