Steinbeck GSA Ag Conf 5.11.16

While most employers understand that there is no need to accommodate current illegal drug use, many do not realize that they are, in fact, required to accommodate alcoholism. The Americans with Disabilities Act (“ADA”) treats alcoholism as a disability, and therefore employers may not take adverse action against that employee simply by virtue of being an alcoholic. While an employer can still enforce its performance and attendance standards and discipline the employee if their conduct is unacceptable, employers should be particularly sensitive to requests for accommodation. The employer may also have a duty to engage in the interactive process if they suspect that an employee may have a problem with alcoholism.

Accommodation does not mean that if an employee shows up to work three sheets to the wind the employer cannot send the employee home. Allowing an employee to operate a vehicle or heavy equipment while under the influence of alcohol could obviously subject the employer to huge liability. In Renaud v. Wyoming Department of Family Services, the Court noted that alcoholism (as a disability) can be distinguished from “alcoholism-related misconduct.” In that case, a school superintendent was lawfully terminated for coming to work drunk.  However, the interaction between health and safety requirements and the ADA is nuanced and complicated. For example, employers can enforce Federal safety standards without having to prove that the standard is job-related and consistent with business necessity. On the other hand, if a state or local safety law conflicts with the ADA, an employer will not be able to rely on that law as a defense to a charge of discrimination. This interplay between the law is a complicated and fact-intensive inquiry that is often difficult even for trained attorneys.

We are pleased and very proud to announce that we are continuing to grow and are taking on new space for our main office in Roseville. We are moving on Friday March 11, 2016 to 1410 Rocky Ridge Drive, Ste. 330, Roseville, CA 95661. We will be sending reminders quite often just to make sure nothing slips through the cracks.  Our commitment remains:  As the industry’s needs  and challenges grow…we promise to grow to meet the needs and challenges.

Near the end of 2015, Governor Jerry Brown signed into law AB-621 which established the Motor Carrier Employer Amnesty Program. Under this program, employers engaged in drayage services, defined as the transportation of goods over a short distance, at any sea or river port will be forgiven for any penalties associated with misclassifying its commercial drivers as independent contractors.

For the purposes of the bill, a commercial driver is defined as a person who holds a valid commercial driver’s license and is hired or contracted to provide drayage services at a sea or river port. Under this bill, eligible employers can avoid penalties for misclassifying drivers as independent contractors if they execute a settlement agreement with the Labor Commissioner before January 1, 2017, whereby the employer, among other things, properly classifies all of its commercial drivers as employees. To be eligible, the employer must not have: (1) a civil lawsuit pending against it filed on or before December 31, 2015, in state or federal court that alleges or involves a misclassification of a commercial driver; or (2) a pending penalty assessed for committing fraud under the Unemployment Insurance Code.

In Green v. Brennan, a case currently under consideration, the United States Supreme Court will determine the legitimacy of setting the accrual date of a constructive discharge claim at the last alleged discriminatory act by the employer rather than at the worker’s day of resignation. Plaintiff Marvin Green (“Green”) began working for the U.S. Postal Service in 1973. In 2009, Green brought an informal EEOC charge and alleged his supervisor had been retaliating against him for filing a prior EEOC charge. On December 16, 2009, the parties reached a deal that allowed Green to use his accrued leave to receive his current salary for 3 months so that he could take time to decide between accepting a demotion or retirement. On February 9, 2010, Green submitted his resignation.

Green filed a lawsuit against the U.S. Postal Service in federal court in September 2010, alleging he was constructively discharged. The district court held that Green’s constructive discharge claim was barred because he did not file his charge with the EEOC within the applicable 45-day filing period for federal employees, even though at the time of signing of the settlement, Green still had the choice to either retire or accept the demotion. The Tenth Circuit affirmed the district court ruling.

Arbitration agreements are an increasingly effective tool employers can use to deter and defend against individual and class action employment litigation. The widespread use of arbitration agreements, the high stakes involved (particularly in a class action) and the variety of terms and language that are subject to dispute have, however, created a backlog of appeals. While the “wheels of justice” grind away, employers are faced with endless uncertainty about the language in their arbitration agreements.

One such agonizingly slow play is demonstrated by an important decision taken under review by the California Supreme Court on November 12, 2014. California’s highest Court agreed to consider the following issue: “Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement is silent on this issue?” As of the date of this publication, oral arguments before the Court have not even been scheduled for this case, leaving this decision months off.

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