HARD WORK HONESTY DEDICATION Managing Performance Discipline Retaliation

HARD WORK, HONESTY, & DEDICATION

Managing Performance, Discipline, Retaliation and Termination Decisions ____________________________ JERRY PEARSON, ESQ. THE LAW OFFICES OF YOUNG WOOLDRIDGE, LLP 1800 30 th STREET, FOURTH FLOOR BAKERSFIELD, CA 93301 (661) 327 -9661 www. youngwooldridge. com

EMPLOYMENT IN CALIFORNIA – AT WILL q Labor Code Section 2922 § Employment, having no specified term, may be terminated at the will of either party on notice to the other

EMPLOYMENT IN CALIFORNIA – AT WILL q Employment that can be ended without notice can also be ended for any reason. Dore v. Worldwide Inc. , 39 Cal. 4 th 384 (August 3, 2006)

EMPLOYMENT IN CALIFORNIA – AT WILL q BUT – CONTRACTUAL, STATUTORY AND COURT- MADE EXCEPTIONS!!

PROHIBITED REASONS FOR ENDING EMPLOYMENT RELATIONSHIP q Contractual Restraints § Express or implied terms that limit employer’s right to terminate § Termination was intended to deprive employee of a benefit that was already earned (e. g. , vested bonus)

PROHIBITED REASONS FOR ENDING EMPLOYMENT RELATIONSHIP q Statutory Restraints § EEO Laws q No discrimination based on “protected status” § Disability or medical condition § Race, color, national origin or ancestry § Sex, gender § Sexual orientation § Age § Religion § Marital status § and more…

PROHIBITED REASONS FOR ENDING EMPLOYMENT RELATIONSHIP q Court-made Restraints (tethered to statute) § Termination cannot violate public policy q Cannot terminate employee for engaging in statutorily or constitutionally protected conduct (i. e. Tameny claims) q Examples § Anti-discrimination laws § Family leave laws

RECENT TREND q Disability – related discrimination claims where termination based on inability to perform essential job functions q Published cases § Wiliams v. Genentech Inc. § Gelfo v. Lockheed Martin Corporation

RECENT TREND – DISCRIMINATION CLAIMS INVOLVING DISABLED EMPLOYEES q Disability – related discrimination claims (cont’d) q Examples § Dark v. Curry County § Raine v. City of Burbank § Joseph v. Pacific Bell

RETALIATION California Government Code § 12940(h): • It shall be an unlawful employment practice… for any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part. SIX LEGAL ELEMENTS OF RETALIATION • Protected activity • Employer's retaliatory animus • Adverse action • Causal link between 2 and 3 • Damages • Causation Scott v. Solano County Health and Social Services Department (2006)

EMPLOYER'S RETALIATORY ANIMUS A necessary element in proving a claim of retaliation is for the employee to establish that the employer took the adverse action with a "retaliatory animus", i. e. for retaliatory purposes. Once such an assertion is made, it will be the employer's burden to establish that the reason they took adverse action (such as termination, suspension, etc. ) was not for a retaliatory purpose, but for a legitimate business reason. This is established by the employer with written documentation setting forth legitimate and verifiable reasons for the adverse action (such as performance evaluations, written warnings, etc. ).

ADVERSE ACTION • "Adverse action" is not limited to "ultimate acts" of hiring, firing, demotion, or failure to promote, but includes the entire spectrum of employment actions that are reasonably likely to adversely and materially affect job performance or opportunity for career advancement. (Yanowitz) • One offensive utterance or several social slights are insufficient. • Court considers the employer's acts collectively.

ADVERSE ACTION Examples of adverse actions include: • Termination • Discipline • Transfer • Change in shift or assignments • “Freezing out” Held: "minor or relatively trivial adverse actions" do not suffice, but "action that is reasonably likely to impair a reasonable employee's job performance or prospect for advancement or promotion" does.

CAUSAL CONNECTION: TIMING • After his EEOC complaints, Manager was treated coldly and ignored, not invited to apply for management transfers, not invited to participate in management committees, and given poor evaluations. Two years later, manager was denied a promotion. Wysinger v. Automobile Club of Southern California (2007) 157 Cal. App. 4 th 413 • "Temporal proximity" between the employee's activities and the employer's adverse action often indicates a causal connection/retaliatory intent.

Examples of "traditional cases" • Employees fired 59 and 42 days after signing EEOC settlement agreements Miller v. Fairchild Industries Inc. (9 th. Cir 1989) 885 F 2 d 498 • Employee fired three weeks after employer learned of her discrimination complaint. Brandon v. Rite Aid Corp. Inc. (2006) 408 F. Supp. 2 d 964 • BUT, in Wysinger, promotion was denied two years after manager's EEOC filing. Held: A long period between employer' s adverse action and employee' s earlier protected activity may not indicate causation; BUT, if the employer engages in "a pattern of conduct consistent with retaliatory intent, " that may establish causation.

INDIVIDUAL LIABILITY FOR RETALIATION Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. th 1158. 4 -3 decision Held: individual supervisors are not personally liable under FEHA for retaliatory employment decisions. • California Supreme Court reasoned that 12940(h)’s use of "person" was ambiguous, and the Legislature did not intend for the use of "person" to create individual liability. • Shielding supervisors/managers from liability protects their independent judgment; without that immunity, supervisors or managers might be afraid to make necessary personnel decisions for fear of possible personal liability. Personnel Management Decisions

INDIVIDUAL LIABILITY FOR RETALIATION The Supreme Court did not decide: • Would a supervisor who is found personally liable for harassment also be personally liable for retaliation against someone who opposed but reported that same harassment?

BEST PRACTICES - WHAT IS AN EMPLOYER TO DO? Adopt Appropriate Employment Policies • Anti-discrimination, harassment and retaliation • Reporting procedures for employees to complain • Investigation procedures • Disciplinary procedures • Evaluation procedures

Tips on Approaching the Employment Decision • Document all performance issues as they arise • Timing: take corrective action in a timely manner. If recent "protected activity, " determine whether to delay employment decision-- do not give the employee the opportunity to take a preemptive strike. • Consistency with employer policies/practices: make sure employment action is consistent with employer's policies and past practices. • If adverse employment action is due to misconduct (i. e. , violations of policies on conduct): conduct an investigation into the alleged misconduct to confirm misconduct and document the findings.

PROTECTING THE EMPLOYMENT DECISION • DOCUMENT EVERYTHING! • Keep all documentation including all electronic data relating to employment decision.

ANALYZING THE TERMINATION DECISION

Know the Facts From The Decision Maker q Start with the obvious – find out the exact reason for the termination

Nexus q Is nexus between protected status and termination? § Inconsistencies § Timing of decision § Statements made by decision maker § Other reasons why the stated reason appears false?

Breaking the nexus to protected status q Follow company policy/practice in effecting termination § If inconsistent, document reason why there is a deviation

Breaking the nexus to protected status q Consistency with prior decisions

Breaking the nexus to protected status q Stated reasons given for termination consistent at all levels § Ask for documentation from decision maker regarding the employment decision § Emails?

Breaking the nexus to protected status q If appropriate, use another supervisor/manager to make decision

Retaliation/Whistleblower Claims – Other Considerations q Change timing of the decision if necessary

Retaliation/Whistleblower Claims – Other Considerations q Wall off decision maker from information about employee’s protected conduct

Disabled Employees: Other Considerations q Termination because employee unable to perform essential job functions due to limitations from “disability”

Disabled Employees: Other Considerations q IF TERMINATION BASED ON DISABILITY: 1) Was the interactive process followed? 2) If job modification not possible, were other positions explored?

Disabled Employees: Other Considerations q IF TERMAINATION BASED ON DISABILITY (CONT’D) 3) If no vacant position available, was leave or an extension of leave considered? § Are employee’s job limitations likely to change soon (permanent & stationary) § Modest extension of leave?

Disabled Employees: Other Considerations q IF TERMINATION BASED ON DISABILITY (CONT’D) 4) If termination based on employee’s inability to return to work from leave, check to make sure employee is not currently on designated CFRA/FMLA leave

ADA/FEHA Basics • Individual with a disability • Essential functions • Interactive process • Reasonable v. Undue hardship • Time Frames • During WC Leave and prior to P&S designation • After P&S designation • After exhaustion of statutory leaves (FMLA, PDL, etc. ) • Document, document

Remarks That Can Lead Directly to Litigation…. • “Our company has a policy that modified work is not offered after 90 days…” • “Our company has a policy that we do not offer permanent modified work” • “Our company has a policy that an EE must be released to return to full duty before he/she can be reinstated. ” • “Our company has a policy that the EE must be 100% before returning to work. ” • “The injured employee has been declared permanent & stationary and still cannot perform his former job. ”

• What is the “Test” for Returning a Disabled “EE” to Work Under the ADA/FEHA? • Test: An EE that is “disabled” as a result of an industrial injury has the right to be reinstated to an: • Existing job, Modified job, or Alternative job • If the EE can perform the “essential functions” of the position with or without a “reasonable accommodation. ”

When Can “Return to Work” be Denied? If an injured EE is not returned to work, ER must demonstrate either: • The EE cannot perform the “essential” functions of the job with or without “reasonable accommodation”, or • The EE poses a direct threat to himself/herself or co-workers that cannot be reasonably accommodated.

Understand How the “Interactive Process” Works and When it is Triggered • ERs need to understand their obligations under the ADA/FEHA – workers’ compensation is only one statutory scheme. • Workers’ Compensation is relevant because EEs sometimes become “disabled” as a result of industrial injuries • Despite company policies, the law requires the ER and EE to engage in the “interactive process” to determine: • Whether the EE can perform the “essential functions” of his/her job with or without a reasonable accommodation.

SUMMING IT UP

Checklist for Making Termination Decision q Identify reasons for terminating employee ü Poor Performance? ü Misconduct? ü Layoff? ü Unable to perform job because of “disability” ü Other reasons?

Checklist for Making Termination Decision q If Related to Disability ü Interactive Process Followed? ü Modifications to Job Explored? ü Vacant Positions Explored? ü Leave/Extension of Leave Explored? ü Documented at Each Step?

Checklist for Making Termination Decision q Measure the risks ü Prior complaint by the employee? ü If so, when? ü Timing of termination suspicious?

Checklist for Making Termination Decision q Measure the risks ü Who is the decision maker?

Checklist for Making Termination Decision q. Check for Consistency ü How to determine consistency? ü Employer policies (have steps been followed? If not, why not? ) ü Check with decision maker about prior decisions

Checklist for Making Termination Decision q Confirm the Misconduct ü Conduct an Internal Investigation

Checklist for Making Termination Decision (Overview of Steps) ü Identify reasons(s) for terminating employee ü Measure the risks (and take steps to address) ü Check for consistency ü Confirm the reason for taking action

Protect the Decision q Make sure reason for termination is correctly communicated § Address inconsistencies § All layers of company are consistent with reasons for termination § Document all steps taken!!

HARD WORK, HONESTY, & DEDICATION

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