Employee Can Work Similar Job For Another Employer and Still Get Medical Leave

Assume your employee comes to you and requests medical leave.  You grant the leave, and then later learn that while on medical leave, the employee has been performing a similar job for another employer.  Does this prevent the employee from continuing on the medical leave that you granted?  Not necessarily, according to the recent California Supreme Court opinion in Lonicki v. Sutter Health Central.  According to this opinion, the employee's work for another employer in a similar job is evidence that the employee could have performed the job for the leave-granting employer.  But it is not conclusive evidence.  The court gave an example of an emergency room employee.  An emergency room that treats a high-volume of life-threatening injuries may be far more stressful than similar work in the emergency room of a hospital that sees relatively few injuries.  In addition, one position might be full-time, while the other might be part time.

This ruling will make it harder for California employers to challenge employee medical leave requests, because almost no two jobs are exactly alike.  So long as some distinction can be found between the positions at issue, the employee will have an argument that work for another employer in a similar position does not prevent the employee from remaining on leave.  Employers can take some solace in the fact that this situation is probably fairly rare, although, given this opinion, that may change.  

Metters v. Ralphs Grocery Co.:  Don't Disguise Your Arbitration Agreement

A recent California Appellate Court case, Metters v. Ralphs Grocery Co., sends a clear message to employers:  don't disguise your arbitration agreement if you want it to be enforced.  In Metters, the plaintiff employee wanted Ralphs to internally investigate his claim of discrimination.  Ralphs, however, wanted the employee to first sign off an an ambiguously titled "Notice of Dispute and Request for Resolution Form."  The form contained an area where the employee could set forth discrimination claims.  It contained language indicating that the employee could voluntarily mediate disputes with the company.  And it indicated that the employee, by submitting the form, was agreeing to mandatory, binding arbitration of any "covered disputes" as defined in a "Policy" of Ralphs' that was referenced but not attached, and according to the employee, never provided.  The employee signed the form and submitted it.   

The employee claimed he made numerous attempts to follow up with Ralphs regarding his complaint, but received no response.  He subsequently tried to sue Ralphs for discrimination, and Ralphs moved to compel arbitration.  The employee opposed the motion, claiming that he had never agreed to arbitrate his case. 

The trial court ruled that the employee was not bound to arbitrate his claims.  The court of appeal upheld the trial court's finding that there had been no "meeting of the minds" between the employee and Ralphs regarding arbitration.  The "ambiguous, nebulous form" might have been something a "transactional attorney sitting in an office somewhere" could have determined to be an arbitration agreement, but the employee could not be expected to figure that out.  

The lesson for employers?  Make sure your arbitration agreement looks, smells, and tastes like an arbitration agreement.  Clearly label your agreement, and spell out the consequences for an employee that signs it (waiver of jury trial, specific claims to be arbitrated, etc.)  Make it a stand alone agreement.  If the agreement says something is attached, make sure it is attached. And do not condition the investigation of claims of discrimination, as Ralphs did, on an employee's willingness to sign the agreement.  

[This post does not constitute legal advice. For advice regarding specific situations, seek legal counsel.]  

Pregnancy discrimination claims were up 14% in 2007, the biggest annual increase in 13 years, and a 40% increase from a decade ago.  According to an EEOC spokesperson, this may only be "the tip of the iceberg."  

Changing demographics indicate that females are becoming more aware of their rights in the workplace, including state and federal laws that prohibit discrimination against pregnant women.  

Discrimination on the basis of pregnancy, childbirth, or related medical conditions is treated as sex discrimination under both federal and California law.  Pregnant women must be treated the same as all other employees.  In addition, under California law, employers must provide reasonable accommodation for employees if a health care provider says that accommodation is required for pregnancy, childbirth, or related medical conditions.  

Thus, employers that fire, layoff, or discipline a pregnant employee must have ample evidence to demonstrate that the action taken was based on legitimate business reasons, and had nothing to do with the employee's pregnancy. 

In addition, California employers must be aware of the state's Pregnancy Disability Leave law, which provides up to four months of leave for women disabled as a result of pregnancy.  

Employers should review their policies and employee handbooks to ensure that they clearly prohibit pregnancy-based discrimination.  Employers should also train their managers on the risks that attach to decisions affecting pregnant employees, and on how to respond to inquires regarding leaves of absence.  

Note: this is general information, not legal advice.  Contact a lawyer for advice regarding a particular situation.  

Starbucks Tip Pool Ruling

A San Diego Superior Court Judge has issued a $100 million-plus judgment against Starbucks for its practice of allowing supervisors to share in barista tips.  Under California Labor Code Section 351, it's illegal for supervisors to share in tips left for employees.  This statute has been on the books since 1937, and I suspect that it was motivated by the New Deal-Era mentality that workers shouldn't be exploited by their capitalist employers.  The Starbucks ruling, however, shows how ridiculous this approach can be when applied to specific factual situations. Far from being members of the capitalist ruling classes, the Starbucks managers typically work the counter and make coffee for customers.  These customers naturally want to tip the person making their coffee.  Under this ruling, they can't do that.  For example, one of the managers affected by the ruling, shift supervisor Robert Velasquez, 18 years old, is often the only employee working at the crowded Starbucks at La Brea and San Vicente.  "When there are no baristas here, supervisors are the ones who make the drinks.  And we should be able to get the tips," said Velasquez.  Velasquez said he used his $2.50 an hour for tips for gas money, and that he would lose about $100.00 a week because of the ruling.  A harsh way to learn that he's a member of the ruling classes under California labor law.  

Welcome to the Blog

Welcome to the Hamer Legal blog.  I will be posting updates regarding labor and employment law under federal and California law.  If you have any questions about anything posted on the blog, please contact Hamer Legal at (310) 806-9213, or contact@hamerlegal.com.