Safeway Grocery Settles Claim of Employee With Disability

On November 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) reported a settlement regarding a food services employee on disability leave for a job injury at Safeway Grocery.

Initially Safeway followed the law, Americans with Disabilities (ADA), which requires employers to reasonably accommodate employees with a disability; as such Safeway allowed the employee to work in a different position that did not require heavy lifting as she did in her previous assignment. However, Safeway unilaterally decided to place the employee on unpaid leave indefinitely, making the argument that the employee had exceeded what they deemed an allowable time lime and, therefore, could no longer enjoy the position with modified duty.

The Federal Disability Lawsuit was settled by Safeway because of a legal discrimination claim brought against it. The requirement of reasonable accommodation includes, but is not limited to, the employer reassigning an employee with a disability to another position, unless it can be established this would cause a significant expense to the employer and/or substantial difficulties associated with the same. There is no time limit provided the employee has a qualifying disability.

For additional information on employee related issues, you are invited to view our web site at www.spitalaw.com

CALIFORNIA SUPREME COURT RULES EMPLOYER MUST PROVIDE SEATS FOR EMPLOYEES

In a unanimous opinion, NYKEYA KILBY vs. CVS PHARMACY, INC., Case # S215614, on April 4, 2016, the Supreme Court of California held an employer must provide suitable seating for its employees as long as it is reasonable to do so in the particular work environment. In other words, the employer must provide seats for their employees:

  1. When the tasks being performed at the location the employee works (physical layout of work place) reasonably permit individuals to be seated;
  2. Utilizing a seat does not interfere with him/her performing any of the tasks that may require standing;
  3. And, it is the burden of the employer to establish the unavailability of suitable seats, rather than the obligation of an employee.

The underlying case arose when an employee at CVS was advised she had to stand while performing her duties and functions, which included operating a cash register, organizing and stocking shelves with products, as well as in front of and behind the sales counter, and cleaning the register. It is not questioned that certain functions, such as gathering shopping baskets, vacuuming, and removing trash are active duty tasks that cannot reasonably be performed while seated. In a companion case, a bank teller performing duties at his/her station, such as cashing checks, accepting deposits,  and processing withdrawals should be contrasted with the duties away from his/her window-counter, the latter including such tasks as escorting customers to the safe deposit boxes in the bank vault or assisting customers at an ATM machine.

The defense tried unsuccessfully to distinguish “standing” from “seated” tasks. However, the court stated:

“There is no principled reason for denying an employee a seat when he spends a substantial part of his work day at a single location performing tasks that could reasonably be done while seated merely because his job duties include other tasks that must be done standing.”

……

“Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.”

The reasonableness standard allows for more flexibility; hence, an employee would be entitled to a seat if the duration and frequency of the seated task is not negligible (those tasks that are performed briefly or infrequently). Even when employees are not engaged in the active duties of their work but are required to stand at a specific location, an adequate number of suitable seats must be available in reasonable proximity to the work area for employees to use as long as it does not interfere with the performance of their tasks and duties.

Rather than utilizing an employer’s business judgment as to whether the work must be performed while standing, the Court concluded it is rather an objective inquiry that takes into consideration, but is not based solely upon, an employer’s reasonable expectations regarding customer service and the employer’s role in setting job duties. As such, however, it does not allow employers to arbitrarily define which are “standing” tasks.

Do you or someone you know work at a designated location with a suitable seat? If not, the next question is why not?

 

Is a University Liable for Violence on the Campus?

The California Court of Appeals was scheduled  to hear oral argument on Friday, August 7, 2015 in a case filed in 2010 by Katherine Rosen against her attacker and UCLA, which is governed by the Regents of the University of California; at the time she was a UCLA student who was stabbed and had her neck slashed during a class in an unprovoked attack by a fellow student. In the criminal case against the defendant, he was found not guilty by reason of insanity and placed in a psychiatric hospital, Patton State Hospital, for an indefinite period of time.

In the civil action the plaintiff argued the university failed to properly respond to warnings about the potentially violent behavior of the defendant. This was in contrast to the defense arguments that it was a random act of violence. Proponents of civil liability contend a university owes a duty to provide a safe environment to and protect its students from others on the campus, particularly those who get treatment from the college for mental health conditions. It is a sad reality that acts of cruelty that are plainly brutal and  inhumane have become a national scourge.

Intoxicated Passenger Unable to Collect from Taxi Service

A taxi company and its driver were sued for wrongful death (negligence) when a passenger who was intoxicated exited the cab, and then within a half an hour walked into heavy traffic and was killed by a drunk driver.

On March 11, 2015, a Santa Barbara Court jury concluded the decedent’s mother could not collect even though the municipal law required a taxi driver to  allow a passenger to exit only at a curb.

The Plaintiff’s lawyer argued the taxi cab was a common carrier and owed a higher standard (duty) of care to ensure the safety of its customers. The outcome was not based upon a lack of negligence by the defendants, and/or any one of them, however, but their neglect was deemed not the proximate cause of the death of the passenger. In other words, the conduct was not a substantial factor causing the death of the passenger in both time and location.

It is noteworthy that the 78 year old driver of the vehicle that struck and killed the victim was arrested and charged with felony hit and run. His blood alcohol was three times the legal limit, he entered a guilty plea and was sentenced to one year in the County Jail and three years’ probation. His insurance carrier paid the family who settled for policy limits of $30,000.

The case is:  Quintanar v. Absolute Cab LLC., et al. (Santa Barbara Super. Ct., originally filed May 13, 2014).

 

BULLYING: There Is No Place For It In The Workplace!

From the meek child on the playground tormented by a bully, to the workplace where a co-worker or supervisor targets and harasses an employee, there is no place for bullying. The laws are changing to address this, and so too must the policies in the workplace. Any workplace policies should be geared towards defining, identifying and deterring such “abusive conduct” in order to bring an end to bullying in the workplace.

Recently, California has passed a law requiring training in supervisors to prevent “abusive conduct” in the workplace. While actual anti-bullying laws have yet to be enacted, one who is in a protected category (such as age, gender, race, etc.) does have the law on their side. Bullying or targeted misconduct at a person based upon their protected status IS grounds for action under the law. However, this still leaves unprotected those who are bullied but who do not stand in a special category.

As of January 1, 2015, the new law in California for employers with 50 or more employees require anti-bullying as part of the mandated sexual harassment training. California Government Code 12950.1. Regardless, workplace policies must reflect the new legislation effective January 1, 2015 requiring employers with 50 or more employees to train supervisors regarding prevention of abusive conduct:   For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.

http://leginfo.ca.gov/pub/13-14/bill/asm/ab_2051-2100/ab_2053_bill_20140220_introduced.pdf.

There are now entire organizations, websites and programs dedicated to ending bullying in the workplace such as: http://www.workplacebullying.org/tag/california-healthy-workplace-advocates/, the Workplace Bullying Institute. There are now even many government resources dedicated to ending bullying: http://www.stopbullying.gov/laws/california.html.

Bullying is not limited to the supervisor-employee relationship. Due to poor interpersonal problems, competition, and expected team collaboration, co-workers are just as likely if not more to be a bully. This can take the form of gossiping, making up rumors, taking credit for others’ work, excluding/ignoring, and teasing through sarcasm. These often covert behaviors make it difficult to have quality work experiences and can often keep one excelling in job performance. Work supports are critical for motivation. Tattling to the boss just makes one look like a complainer and not a problem solver. What is needed is more solution focused communication training at all levels of the hierarchy.

 

Additional resources:

PACER’s National Bullying Prevention Center:  http://www.pacer.org/bullying/
National Crime Prevention Council:  http://www.ncpc.org/topics/bullying
Education. com  http://www.education.com/topic/school-bullying-teasing/

For more information related to Employment Law, click the following link: http://www.spitalaw.com/san-diego-employment-law-attorney/

 

The Veteran’s Administration Paid Out over $100 Million Annually in claims since 2004

When  our military men and women fight for our country, they are willing to sacrifice the most cherished aspect of their being, their life and all that it entails including their family, friends, dreams and desires. What do they get in return if they need health care?  The subject of health care to our veterans has become public news, but it is really not a new problem. The ability of the VA to provide health care to our veterans has been a major challenge for decades. What is worse is the huge dollar amount paid out for approximately 3,000 medical malpractice claims. Hence, the level of care and treatment as evidenced by the VA paying out over $100 million each year in the last decade leaves much to be desired. And, that is only part of the equation. We are not talking about money, but actual individuals who gave 150% to fight for our freedom, but receive inadequate care and attention.

The above referenced lawsuits have occurred all over the country rather than concentrated in one region or at one, two or a small handful of particular VA hospitals. Moreover, these cases include all types of substandard care, including the failure to diagnose a medical condition or illness, prescribing the wrong medicine or drugs and simply bad surgeries.It is not a matter of finding someone to blame, it is the hard truth that lives are at stake;while  the medical care should be provided at an optimum level, it is far too frequently deemed below the standard of care.

Certainly, the resignation of VA Secretary Eric Shinseki, offers little in the way of confidence that anyone else will fix the problems that are endemic to the VA as they mirror those found in most forms of government. This is not meant to be a political attack, and it is not about being conservative or liberal, Democrat, Independent, or Republican. but an undeniable and harsh reality. Our government agencies, departments, policies, procedures and operations, whether city, county, state or Federal, are simply not operated for profit,which is the very engine that drives people and business to succeed. Whether one calls it accountability, a burning desire to succeed,extremely high energy, and/or an optimum level of action and responsibility, the motivation of private enterprise is simply lacking in the business of government.This is not an indictment of government as a whole, but an observation that seems to be missing when the subject comes up.  Regardless of your perception or the truth about government and/or the VA, our soldiers and military deserve much better. Let’s fight for them as they fight for us!

Do Older Drivers Have More Accidents?

According to a recent study of the Insurance Institute for Highway Safety, drivers 70 years or older, who make up about 10% of the population, are less likely to be involved in auto accidents and less likely to be seriously injured or killed. It is anticipated that by 2050, the number of people in this age group will rise to 16 % of the population in the United States (over fifty percent higher than the most recent amount).

Some have opined this is because automobiles are safer than earlier makes and models. While there are increased numbers of baby boomers who are now seniors and, therefore, an increased number of this group driving on the streets and highways, they actually account for much lower rates of accidents and fatalities. Interestingly, the study revealed the greatest decline was in the group of drivers 80 years and older; this group had nearly a 50% larger decline than either middle age drivers or those between the age of 70 and 74.

Also and somewhat unexpected are statistics revealing those of retirement age are driving more than they did in the past, whether commuting to work (even if part time), shopping, vacation or visiting family and friends.  In the age group of 75 years and older, their annual average miles driven increased 50%. Some commentaries believe this portion of the population take better care of themselves, live a much more healthy life and are leading more productive lifestyles than the same age group 15 years ago.

Clearly, senior drivers are more comfortable driving than their predecessors, and they take extra precautions such as driving less during the rush hours during the day, in inclement weather &/or at night. Nonetheless, eye examinations are a must, and there are classes available that test reaction times (perhaps helpful for many drivers). The next time we see an older driver we should be reminded of and think about emulating their wisdom and good habits, and not focus on any negativity that might otherwise come to mind.

Update on the Right to Carry a Concealed Weapon

In the recent case of Edward Peruta vs. County of San Diego, 10-56971, (February, 2014), the U.S. 9th Circuit Court of Appeals held a private citizen may carry a firearm in public for self-defense pursuant to the Second Amendment of the U.S. Constitution.  

 As a general rule, one previously could not carry a concealed weapon in California unless an application was first submitted to the County Sheriff’s Department and the right to do so was granted. One had to show good moral character and establish good cause after completion of a gun training class. In San Diego County, however, good cause has been strictly construed. In fact, establishing that one is concerned about their own personal safety would not suffice. The Sheriff has required one to prove a sufficiently pressing need for self-protection different than the mainstream population.  In order to obtain a concealed carry weapon permit (CCW) in San Diego, one heretofore had to prove a unique risk of harm

 The 9th Circuit Court of Appeals concluded the right to bear arms within the Second Amendment affords one the right to carry a concealed weapon outside of their home for self-defense. In doing so, the Court determined the interpretation of good cause by the Sheriff in San Diego County infringed that right. This is a significant victory for gun owners. Nonetheless, the current policy and procedures will, likely not change due to an appeal to the U.S. Supreme Court that will no doubt be filed by officials of San Diego County.

Former BP Engineer Convicted of Obstructing Justice

In New Orleans today, there was a jury verdict after the U.S. Department of Justice charged Kurt Mix, a former BP engineer, of deleting hundreds of text messages from his iPhone, thereby thwarting the investigation of the 2010 BP oil spill in the Gulf of Mexico.

Although none of the top executives of BP have been charged with crimes, this corporate entity acknowledged its responsibility earlier this year by pleading guilty to manslaughter charges for the deaths of 11 workers; and thereafter, BP agreed to pay $4 billion in penalties.

Mix was part of the team of experts involved in the efforts by BP to stop oil from gushing out of their blown-out well using a technique called “top kill.” He had access to internal data about how much oil was actually flowing from the blown-out well. It was reported that Mix received 10 individual BP notices that he was obligated to preserve all of his spill-related records. One of the texts messages was an exchange with his supervisor in which Mix estimated there were about 630,000 gallons of oil spilling per day; this amount was actually about three times greater than the estimate BP disclosed to the public at the time. By deleting text messages, the BP engineer was destroying inculpatory evidence, which would be critical proof that would tend to establish guilt of BP and its agents and employees.

 The sentencing hearing is set for March 26, 2014, and Mix faces up to 20 years in prison for this conviction.

Did San Diego Sheriffs Use Excessive Force When They Killed a Suicidal Suspect?

On December 2, 2013, the 9th Circuit Court of Appeals in the case of CHELSEY HAYES V. COUNTY OF SAN DIEGO, Case #09-55644 , heard this civil rights Complaint brought under the Federal statute 42 U.S.C. § 1983 and California law wherein a minor daughter alleged violations of her 14th and 4th Amendment rights and her deceased father’s 4th Amendment rights when San Diego County Sheriff’s deputies acted negligently in shooting and killing her father who allegedly was suicidal and wielding a knife during a response to a domestic violence call.

 In the underlying case, the Court said there was no evidence the sheriff’s fired their guns for any other purpose than self-defense and, therefore affirmed the District Court’s Decision by declaring there was no violation of plaintiff’s rights under the 14th Amendment. On the other hand, the Court reversed the lower Court after it determined a jury could conclude the use of deadly force by the sheriffs was not objectively reasonable and that under California law supported a basis for a wrongful death claim.

A compelling argument was made on behalf of Hayes that the sheriffs could have avoided the incident by obtaining more information about the suspect or requesting a psychiatric emergency response team (“PERT”) when the first deputy responded to a domestic violence call at a neighbor’s house and learned there had been no physical altercation, and before the second deputy arrived and they both entered the home. At that point it became a matter of whether the officers used excessive force.

The above reported Decision can be found at the following link: http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/02/09-55644.pdf