“Honest Belief” Defense Remains Unresolved In California

The California Supreme Court refused to decide whether the “honest belief” defense to discrimination and retaliation claims is valid under California law.  Instead, in Richey v. Autonation, Inc., the Court punted on the decision and found that an arbitrator’s underlying decision was based on “overwhelming” evidence of an employee’s misconduct and that the arbitrator’s application of the “honest belief” defense was “not prejudicial,” if error at all.  While underscoring the importance of well-crafted arbitration agreements, the decision leaves the lower courts free to reach inconsistent holdings on that important issue. Continue reading

FAQ About California’s New Sick Leave Law

In what is potentially the biggest change to California’s employment laws, beginning July 1, 2015, all California employers will be required to provide paid sick leave to all employees who have completed 90 days of work.  With enactment of the “Healthy Workplaces, Healthy Families Act of 2014,” California joins Connecticut as the only two states to require paid sick leave for employees. Continue reading

50 For 50: Five Decades Of The Most Important Employment Discrimination Decisions

Number 42: Military Veterans And Their Families Gain Employment Rights

Veterans’ rights have always been a hot-button political issue, but it took several military conflicts for Congress to confront the employment rights of private sector military veterans.  In the wake of Vietnam War, two wars in Iraq and the so-called War against Terrorism, Congress has enacted a variety of employment-related laws dealing with the rights of individuals called up for military service.  Still, many question the efficacy of those laws and whether we as a country do enough to protect the rights of those who sacrifice themselves for our country.   Continue reading

50 for 50: Five Decades of the Most Important Discrimination Law Developments

Number 36: “Family Status” Is Not a Protected Class (…or is it?) 

Family status discrimination (“FSD”) is an increasingly recognized term that refers to discrimination against employees on the basis of their caregiving responsibilities, including those that actively participate in providing care for their children, aging parents, or ill or disabled family members.  Despite an increase in the number of FSD cases, as reported by the Center for WorkLife Law at UC Hastings, no federal statute—and very few states, for that matter—expressly prohibit discrimination based on family status. Continue reading

San Francisco Employers Should Prepare For January 1, 2014 Changes To Family Leave Laws

Last week, the San Francisco Board of Supervisors approved an ordinance that requires employers to consider workers’ requests for flexible work arrangements and predictable work schedules due to caregiving responsibilities.  The ordinance also prohibits discrimination based on an employee’s status as a caretaker or parent.  Edwin M. Lee, the City’s Mayor, has stated his intention to sign the measure into law, which is set to take effect January 1, 2014.

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California Expands Paid Family Leave Law

Yesterday, Governor Brown signed Senate Bill 770, which permits workers to take paid family leave to care for an expanded set of seriously ill relatives.  Existing law, under the California Family Rights Act (“CFRA”), permitted eligible California workers to receive temporary disability benefits for up to six weeks of leave per year to care spouses, domestic partners, children and parents with serious health conditions.  The new law extends eligibility for paid family leave to employees caring for grandparents, grandchildren, siblings and parent-in-laws.

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California Supreme Court Will Decide The Scope Of The “Honest Belief” Defense Under The CFRA

The California Supreme Court has agreed to review a lower court’s decision which prohibited the so-called “honest belief” defense used by California employers in response to claims under the California Family Rights Act (CFRA).  The high court’s review is notable because California courts have permitted employers to assert the “honest belief” defense in discrimination cases under the Fair Employment and Housing Act (FEHA).

In Richey v. AutoNation, Inc., the California Court of Appeals rejected an employer’s defense that it terminated an employee on CFRA leave based on an “honest belief” that he had lied about a back injury. In particular, while the plaintiff was on an approved leave, the employer dispatched another employee to conduct surveillance, and in the process the plaintiff was observed working in a restaurant and doing all sorts of physical activities may have gone beyond the restrictions imposed by his doctor.  The employer did not, however, do any further investigation of the incident or make any effort to speak to the employee or his doctor before firing him.   

The issues in the litigation of the matter was whether the employer’s “honest belief” that the employee had exceeded his doctor’s restrictions was enough to satisfy its burden of proof under the CFRA.  Although the CFRA allows an employer to assert a defense that reinstatement was denied because the employee lied about the need for leave, the Court of Appeal found that an “honest belief” as to that reason was not sufficient. 

This has proven to be a tricky issue for the courts.  Under the FEHA, an employer’s burden is merely to offer a “legitimate business reason” for terminating an employee and the employee must offer proof of “pretext,” namely that the employer’s offered reason is a cover up for unlawful discrimination.  In applying that so-called burden shifting analysis, the Court of Appeals has adopted the honest belief test, finding that “it is the employer’s honest belief in the stated reasons for firing an employee and not the objective truth or falsity of the underlying facts that is at issue in a discrimination case.”  On the other hand, federal courts have been split as to whether the federal Family and Medical Leave Act (on which the CFRA is premised) allows for such a defense – the Seventh Circuit allows such a defense, but the Ninth Circuit does not. 

The statute itself offers little guidance; notably, the honest belief defense is not mentioned anywhere in the statute.  But, by the same token, it is not codified anywhere in the FEHA and the courts have been allowing employers to assert the defense for many years.  

Ultimately, the decision may turn on the unique nature of the rights afforded by the CFRA and the FMLA.  In particular, the CFRA affirmatively requires employers to provide qualified employees with up to 12 weeks of leave and makes it so that an employer, not an employee, bears the burden of justifying the decision to terminate an employee who is on an otherwise approved leave.  By contrast, cases dating back nearly 40 years make it clear that under discrimination statutes, an employee always bears the burden of proving that he was the victim of unlawful discrimination. 

This is a scenario which we see all the time: one employee observes another employee on leave for a supposedly debilitating condition playing softball, repairing his car, doing housework or something else which appears to exceed what his doctor has allowed.  Don’t end your investigation there – conduct a full investigation and especially make an effort to talk to the employee so you can confirm if the employee really was exceeding his doctor’s limitations, whether those limitations have changed and if based on those changed circumstances, he is ready to return to work.  The more fully developed your investigatory record, the more likely a court will be to uphold it – regardless of what the ultimate decision in Richey (which we may not see for at least a year). 

- Dan Handman

Just When You Thought The FMLA Could Not Get Any More Complicated . . .

On March 8, 2013, the Wage and Hour Division of the U.S. Department of Labor’s Final Rule implementing the 2010 amendments to the federal Family and Medical Leave Act (“FMLA”) takes effect.  Keep in mind that Final Rules do not change the law, they simply explain it better and, as we all agree, the FMLA could definitely use greater explanation.  With the roll out of this Final Rule, the DOL had an opportunity to clean up some issues with its 2008 regulations and to update the Final Rule it issued in 2008 to track the 2010 amendments to the FMLA.

The biggest changes of which you should be aware are that:

  1. Employees who request qualifying exigency leave to spend time with military members on Rest and Recuperation may now take up to a maximum of 15 calendar days, which is up from the previous five days of leave in the 2008 regulations.
  2. The DOL has replaced the term “covered military member” with “military member” as members of the National Guard, Reserves, and Regular Armed Forces are all now covered by the amended FMLA.
  3. Protections for veterans are also laid out in the Final Rule.
  4. “Active duty” now requires the military member’s deployment to a foreign country.
  5. The seven categories of care that qualify for exigency leave have been expanded to include parental care leave, so that employees can now take leave to care for parents in the military.
  6. Pre-existing conditions aggravated by service are now included as qualifying serious injuries or illnesses.

If you updated your handbook to incorporate the 2010 FMLA amendments, you should not need to do anything further at this point, but if you are the cautious type, resting easy at night might be worth a little time with your favorite HK lawyer.

For those who want their information straight from the horse’s mouth (or the DOL, in this case), you can visit the DOL’s website on the Final Rule that contains additional links to helpful information about the Final Rule such as a summary of major provisions, a FAQ list, and fact sheets.

- Kirstin Muller

DOL Issues Guidance On FMLA Leave Needed To Care For An Adult Child

The U.S. Department of Labor (DOL) recently clarified an issue concerning an employer’s obligation to provide leave to an employee to care for his adult son or daughter.  The FMLA regulations require an employer to provide leave to an employee to care for (1) a son or daughter who is under the age of 18; or (2) a son or daughter over the age of 18 who is “incapable of self-care because of a mental or physical disability.” 

This seemingly straightforward regulation has caused a surprising amount of confusion.  A few years ago, the DOL issued a guidance explaining that no legal relationship was required between the parent and the “son or daughter” but rather that any person acting in loco parentis (in the role of a parent) would suffice, such that caretakers, foster parents and the like were protected. 

The DOL issued this new guidance to clarify that it was irrelevant for purposes of the FMLA whether the “mental or physical disability” of a son or daughter over the age of 18 arose before or after the child reached that age.  The DOL has stressed this precise point twice before in a 1994 Opinion Letter and in the Final Rule which amended the FMLA regulations issued in 2009. 

This recent guidance also clarified that the definition of a “mental and physical disability” includes the broader definition of a “disability” recognized in the Americans With Disabilities Act Amendments Act of 2008 (ADAAA).  Under the ADAAA, Congress significantly broadened that term to, among other things, clarify that mitigating measures to ameliorate the effects of an impairment are not taken into account when determining whether someone has a disability. 

These issues always seemed self-evident to me, especially since passage of the ADAAA, so it seems puzzling that the DOL would issue a guidance on them, but presumably the Department had received a number of questions on those issues and felt compelled to do so.   Nonetheless, employers would be well-advised to review their handbooks to ensure that their FMLA and leave policies are consistent with this guidance.

- Dan Handman (Los Angeles)