Last week, in Santillan v. USA Waste of California, the Ninth Circuit Court of Appeals reversed a lower court’s dismissal of this age discrimination case, finding that the employer had not offered a legitimate non-discriminatory reason for terminating the Plaintiff, a 53 year old garbage truck driver with 32 years of service with the Defendant employer.  In the last couple years of his employment, Plaintiff – and a few other more experienced drivers – had been written up for various infractions and terminated by a new supervisor. Homeowners in his service area “came out in droves” to support the Plaintiff, who they believed was a first class garbage truck driver and a credit to their community. Plaintiff retained counsel and filed a grievance against the Defendant.

Defendant settled the grievance by offering to reinstate Plaintiff on the condition that he pass a Department of Transportation (DOT) drug test, a physical exam, a criminal background check, and E-Verify. Plaintiff successfully completed the first three, and Defendant’s Human Resources (HR) representative informed Plaintiff he could return to work and then complete his I-9 for E-Verify.

Last week, the Department of Industrial Relations (“DIR”) released an update to their Frequently Asked Questions (“FAQs”) concerning Paid Sick Leave (“PSL”). The full FAQs can be found here.

One interesting FAQ addresses PSL and attendance policies that employers should be aware of. In general, an employer may not discipline an employee for using accrued and/or available PSL. That means if an employee has PSL available to them to use, an employer may not deny the employee the right to use accrued and/or available PSL or discipline an employee for doing so. This right includes the right to use PSL for a partial day (e.g., to attend a doctor’s appointment).
 But, wait, there’s more! And it is employer friendly! If an employee does not have any accrued or available PSL (e.g., the employee has used all of their available PSL) and has an unscheduled absence that would otherwise violate the employer’s attendance policy, the employer can discipline the employee for being absent, regardless of whether the employee was actually sick. The PSL law only protects an employee’s accrued and available paid sick leave as provided by law.

Last week, President Trump’s nominee for Labor Secretary, R. Alexander “Alex” Acosta, testified before the Senate Health, Education, Labor and Pensions (“HELP”) Committee, which oversees his nomination. Acosta’s nomination comes after President Trump’s initial choice, Andrew Puzder, withdrew from his nomination following strong opposition from both Republicans and Democrats.

While most onlookers consider Acosta’s hearing fairly uneventful, with some suggesting many of his answers were evasive, there are some interesting takeaways from his answers. When asked about the Obama Administration’s proposed rule to raise the salary threshold of $23,660 for white collar workers to be exempt from overtime to $47,476, Acosta did not fully condemn the proposal as would be consistent with the Republican Party line. You can read more about the proposed changes to the federal overtime rule here.

Welcome to the Friday Flurry, our attempt to catch up at the end of the week on any legal news that we may have missed during the flurry of stories that came out during the week.

Supreme Court Confirmation

On April 7, 2017, the Senate voted to confirm Tenth Circuit Judge Neil Gorsuch to the U.S. Supreme Court, following his nomination by President Trump. Gorsuch will fill the vacancy left by Justice Scalia. Gorsuch’s confirmation marks the end to the 4-4 deadlocks that we have seen following Justice Scalia’s passing. Judge Gorsuch will be sworn in and participate in this month’s oral arguments starting April 17. You can read more about Judge Gorsuch here in our previous e-blast.

Crafty plaintiff attorneys continue to attack companies for their use of pre-employment background checks.  As previously discussed here, the Ninth Circuit Court of Appeals permitted a prospective employee to bring a class action lawsuit because the employer’s form used for background checks contained a waiver of claims, in violation of the Fair Credit Report Act (“FCRA”), without showing they were harmed by the waiver.  

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