It is fairly common for training programs to focus on sexual harassment and ignore, or at least grossly de-emphasize, the fact that California law prohibits harassment when the harassment is based upon any protected category. The section of the California Fair Employment and Housing Act that prohibits workplace harassment specifically references race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition [cancer and genetic characteristics], marital status, sex, age and sexual orientation as protected categories.

While it is not a problem to utilize sexual harassment as the example form of unlawful harassment in training exercises and materials, it is a mistake to exclude examples of other forms of unlawful harassment. A training program that fails to identify and educate on the many protected categories is defective. Such a program cannot be used in the defense of a race harassment lawsuit, an age harassment lawsuit or any other suit not based upon sex or sexual conduct. Worse yet, plaintiffs’ lawyers can use the defective program to help make their cases.

Prohibiting Nothing More than Unlawful Harassment

Upon close examination, most policies prohibiting harassment prohibit precisely what the law prohibits—unlawful harassment. This creates a very real and common practical problem. Very often a complaint of harassment and the resulting investigation reveal that the alleged harasser did in fact engage in behavior that the employer considers inappropriate. But, the behavior was not sufficiently “severe or pervasive” to rise to the level of unlawful harassment and/or there is a question about whether the behavior was unwelcome. The employer wants to (and should) discipline the alleged harasser for the inappropriate behavior, but for obvious reasons, does not want to conclude that the alleged harasser engaged in unlawful harassment. If the company’s policy on harassment prohibits exactly what the law prohibits, the employer cannot conclude that the alleged harasser violated the company’s policy on harassment without at the same time concluding that the individual violated California law! It is not in the employer’s interest to give such a gift to plaintiffs’ lawyers.

Accordingly, it is critical for the company policy to prohibit a broader range of conduct than that which the law prohibits. In other words, the policy should prohibit conduct that even gets close to the line of unlawful harassment. That way appropriate discipline can be carried out for operational purposes without creating problems in potential litigation. Consultants and training programs often fail to account for these critical distinctions because they lack sufficient perspective of the training program's impact on potential litigation.

Glorifying or Encouraging Harassment Claims

While it is unlikely that any consultant or trainer would purposefully glorify or encourage harassment claims, it is clearly a result from some training programs. Programs that are concerned about the issue described above (getting too close to the line of unlawful harassment) have a tendency to describe all forms of inappropriate behavior as “harassment.” While this approach may be “safe” in some respects, it is unsafe in others.

It is important for the training program to clearly distinguish between “harassment” and “unlawful harassment.” Otherwise, employees are left with the impression that any time they are “harassed” (subjected to unpleasant conduct), they have a claim for unlawful harassment. Many employee claims of harassment and lawsuits arise out of this perception that any “harassment” is against the law. Training programs do more harm than good if they help this perception grow. All harassment is not unlawful, and employees should be so trained. Obviously, a careful balance and sensitivity on the part of the trainer is critical. In distinguishing between “harassment” (which may be unpleasant) and “unlawful harassment,” the trainer does not want to unintentionally discourage employees from reporting incidents of harassment or give employees the idea that harassment is allowed as long as it is not unlawful.

A similar problem results from training programs that attempt to scare employees into behaving appropriately by giving the impression that all inappropriate behavior is unlawful. Often, they also cite million dollar awards obtained by employees subjected to harassment. Many times the information provided, while dramatic, is not even accurate. Telling employees that alleged “harassment” victims obtained millions of dollars may work to discourage some employees from engaging in inappropriate behavior. The more likely result, however, is to encourage lazy or marginal employees to file claims in hopes of hitting the jackpot.

Instead of emphasizing verdicts, judgments and big dollar awards, more effective training programs emphasize the “costs” of harassment in the workplace. Such costs include court costs, attorneys’ fees and expert fees. Employers do not want to spend money on such things, and neither do employees. Such costs also include the human costs of lost time, emotional distress and the like. Litigation is not fun for employers, and it is not fun for employees. Effective training programs should give employees a realistic view of what happens during harassment investigations and harassment litigation. Here again, a careful balance and sensitivity on the part of the trainer is critical. It is simply impossible for such balance and sensitivity to be presented by someone who does not intimately understand the impact of the training on litigation.

These are just some of the considerations that go into designing an effective training program. Other considerations are numerous and varied, but include such considerations as whether or not the trainer will make a good witness in a subsequent harassment lawsuit. In short, properly structured and presented harassment training programs are extremely valuable. Not only do they satisfy the base requirements of the law, they have the effect of minimizing an employer’s exposure to harassment claims. Defective training programs and policies can have the opposite effect. Do train. Do not waste money on defective training.

For more information about the topic above, contact Larry Kazanjian at lkazanjian@pkh-law.com or (916) 442.3552. To read Mr. Kazanjian's professional profile on the Palmer Kazanjian website, click here . Return to Top

Drug Testing Pays Dividends

Every year substance abuse by employees cost businesses in the United States billions of dollars in direct and indirect cost. A study by the National Mental Health Association found that drug and alcohol related problems cost companies more than 100 billion dollars each year in lost productivity, accidents, employee turnover absenteeism, increased healthcare costs and workers’ compensation claims. Recently a report by the State of Florida Division of Workers’ Compensation revealed that alcoholism alone causes more than 500 million lost workdays each year and drug and alcohol-related problems are one of the four top reasons for workplace violence. Other studies indicate clear links between substance abuse and costs to employers. At GM, drug using employees averaged 40 days of sick leave as compared to 4.5 days for non users. Employees testing positive on pre-employment drug tests at Utah Power and Light were 5 times more likely to be involved in a workplace accident then those who tested negative. The State of Wisconsin estimates that expenses and losses related to substance abuse average 25 percent of the salary of each worker affected.

However, does mandatory drug testing help? According, to a Cornell study the answer is yes. The study found that large and small companies averaged a 51% reduction in employee injuries within two years of implementing a drug testing plan. This translated to an average 11.4% reduction in the experience modification rating for employees substantially reducing the cost of workers’ compensation insurance. In sum, company officials found an increase in overall safety, a better work environment for employees, a reduction in workers compensation costs and better quality job applicants. In one case study published by the United States Department of Labor, a mandatory drug testing program for a small landscaping company in Arizona resulted in cost savings of $50,000, an outstanding factor given that the Company had annual sales of only $550,000. In that case, the company reported better morale, fewer injuries, less absenteeism and the lower cost of insurance. Moreover, the lower insurance costs was not limited to workers’ compensation but included the company's general liability policy. In sum if done right, a mandatory drug testing policy is a “win win” situation for employers and employees.

For California employers, except perhaps in San Francisco, there is no federal or state statutory authority prohibiting drug testing by employers. To the contrary, federal law imposes drug testing requirements on certain types of employers. For instance, the Omnibus Transportation Employee Testing Act of 1991 requires drug and alcohol testing of safety-sensitive transportation employees in aviation, trucking, railroads, mass transit, pipelines and other transportation industries. The Department of Transportation publishes rules on who must conduct drug and alcohol tests, how to conduct those tests and what procedures to use when testing. Those regulations cover all transportation employers, safety-sensitive transportation employees and service agents. The specific requirements of the Act and regulations are beyond the scope of this article. However, it is advisable to contact legal counsel when considering the implementation of a program consistent with federal law.

Additionally, the Drug-Free Workplace Act of 1988 requires some federal contractors and all federal grantees to agree that they will provide drug-free workplaces as a condition of receiving a contract or grant from a federal agency. Although, covered contractors and grantees must maintain a drug-free workplace, the specific components necessary to meet the requirements of the Act vary based on whether the contractor or grantee is an individual or an organization. The requirements for organizations are more extensive, because organizations have to take comprehensive, programmatic steps to achieve a workplace free of drugs. Similarly, the California Drug Free Workplace Act of 1990 requires that persons or organizations that are awarded a contract or a grant for the procurement of any property or services from any state agency shall certify that it will provide a drug-free workplace. Like the Omnibus Transportation Testing Act of 1991, the specific requirements of the federal Drug Free Workplace Act and the California Drug Free Workplace Act are beyond the scope of this article.

Despite the fact that federal law may in some limited instances require drug testing and the fact that there are no statutory limitations on drug testing in California, case law nevertheless imposes significant restrictions on what an employer can and can not do in the area of drug testing. Those restrictions are based on the individual’s constitutionally protected right to privacy.

The right to privacy in California is embodied in Article I, section I of the California Constitution. The California Supreme Court has recognized that the constitutional right to privacy not only protects individuals against unwarranted invasions by the government but also unwarranted invasions of the right by private entities as well. (Hill v. NCAA (1994) 7 Cal. 4th 1.) In determining whether the right to privacy has been invaded the courts use a balancing test. The employer must demonstrate a legitimate interest which is balanced against the privacy expectation of the employee. So what does this mean for employers? First, the testing of existing employees without some reasonable suspicion of drug use is generally prohibited, unless the employee is in a “safety sensitive position.” An employer with reasonable suspicion that an employee is using drugs or alcohol during working hours, combined with the employer’s interest in maintaining a drug free environment, creates a legitimate interest that outweighs the employee’s expectation of privacy. (See Kraslawsky v. Upper Deck (1997) 56 Cal.App.4th 179.)

Whether or not an employer has a reasonable suspicion of drug or alcohol use is going to depend on the specific facts and circumstances of the incident giving rise to the suspicion. Reasonable suspicion may be based on an employee’s appearance, behavior or other factors. Reasonable suspicion may also be present when an employee is involved in an accident at work or during work hours where there is no reasonable explanation for the accident.

Existing employees in “safety sensitive” positions can be tested on a random basis. Although this point is subject to considerable debate, as such, it is not advisable at this point to implement random drug testing in California.

Applicants for employment can be subject to reasonable drug and alcohol testing. In that regard, applicants for employment have a limited expectation of privacy with regard to drug and alcohol testing. However, because tests for the presence of alcohol is considered a medical examination, if an applicant is going to be tested for the use of alcohol, the American with Disabilities Act requires that an applicant have conditionally been offered employment before any test. This requirement does not apply to tests for illegal drugs.

In any case an employer should not implement any type of drug or alcohol testing until it has formulated a comprehensive written Substance Abuse Control Policy and Procedure. Here are some items that should be considered in putting such a policy together:

1. Treat drug testing program results with same degree of confidentiality as all other confidential medical information obtained from applicants and employees. Specifically, California Civil Code section 56.20 requires that employers establish appropriate procedures to ensure the confidentiality and protection of medical information, including drug test results, from unauthorized use and disclosure.

2. Obtain a written waiver from any applicant or employee that you intend to test. The waiver must conform to the requirements of the California Confidentiality of Medical Information Act. (Cal. Civ. Code § 56 et. seq.) Remember, that the American with Disabilities Act requires that you have provided the applicant with a conditional offer of employment before any testing for alcohol.

3. Articulate legitimate non-discriminatory reasons for drug testing. This can be as simple as desiring to have a workplace free of substance abuses. Other reasons may include safety, productivity, morale, and the health of employees.

4. Announce the program well in advance of any testing. One court has found that six months advanced notice significantly reduced an employee’s expectation of privacy with regard to employer mandated drug testing. (Smith v. Fresno Irrigation Dist. (1999) 72 Cal.App.4th 147, 161.)

5. Provide employees with a copy of the policy and obtain a written acknowledgement from each employee that they have read and understand the policy.

6. Drug testing should be conducted by outside, reliable and certified laboratories or physicians.

7. Do not inquire into the use of legal drugs, unless the use of such drugs may impair job performance or safety. Even then, there is no reason to identify the specific drug in question. It is only necessary to ensure that whatever drug is being taken does not impair the employee’s ability to perform the essential functions of the job.

8. If test results are positive, consider providing the employee or applicant with an opportunity to submit the test sample, at their cost, to another approved independent lab for retest.

In sum, if properly planned and implemented, drug testing can be an effective cost saving tool for any employer.

For more information about the topic above, contact Larry Kazanjian at lkazanjian@pkh-law.com or (916) 442.3552. To read Mr. Kazanjian's professional profile on the Palmer Kazanjian website, click here .

Guide to FMLA Compliance Oftentimes there is much confusion regarding the rights and obligations of both employers and employees under the Family Medical Leave Act (“FMLA”) and/or the California Family Rights Act (“CFRA”)(collectively the “Acts”). The Acts provide 12 weeks of leave for employees to care for the employee’s seriously-ill spouse, son, daughter, or parent or due to the employee’s own serious health condition. The Acts apply to employees who are employed by an employer with 50 or more employees within a 75 mile radius, who are employed for one year, and have worked 1,250 hours during that preceding year. Although the FMLA has a more developed set of regulations interpreting the rights and obligations under that Act, where the FMLA and CFRA do not conflict, the CFRA incorporates all of the federal regulations interpreting the FMLA. Although many employers generally comply with the requirements of the Acts, both the FMLA and CFRA have numerous specific requirements and limitations that employers often unknowingly violate. Each direct violation of the FMLA or CFRA may subject an employer to actual damages, which includes, but is not limited to, emotional injuries, as well as, an order to hire, reinstate, or upgrade employees, with or without back pay. If it is found that the employer has willfully violated the Acts it may be subject to liquidated damages, which is calculated by doubling the amount of the actual damages. In practicality, the issue of whether or not an employer violates the technical requirements of the Acts will likely arise after an employee has suffered an adverse employment action and has filed a lawsuit or complaint with an administrative agency or when the employer is about to make a decision to take a disciplinary action against an employee who may have taken or is taking leave under the Acts. In order to assist with the myriad of obligations of the FMLA and CFRA, the following are requirements that employers must follow when an employee provides notice of the need to take FMLA/CFRA leave. Designation of Leave In all circumstances it is the employer’s responsibility, once the employee or the employee’s spokesperson has provided notice of the need for such leave, to make a preliminary designation and provide notice to the employee that the leave may be considered FMLA or CFRA leave. If the leave is foreseeable, the employee must give 30 days notice, if unforeseeable then the notice must be provided as soon as practicable. Please note that the employee does not need to expressly assert rights under the Acts or even mention the Acts to meet his or her obligation to provide notice to the employer, but the employee must state a qualifying reason for the needed leave so that the employer is given adequate notice of the qualifying condition. Once the employer has acquired knowledge that the leave is for an FMLA/CFRA qualifying reason, the employer must promptly (within 2 business days absent extenuating circumstance) notify the employee that the leave is designated and will count as FMLA/CFRA leave. Although the employer’s notice can be written or oral, if it is oral, it must be confirmed in writing no later than the following payday. Request for Confirming Information In any circumstance where the employer does not have sufficient information about the reason for the leave, it is expected that the employer will inquire further of the employee or spokesperson to ascertain whether the leave potentially qualifies as FMLA/CFRA. Please note that if there is any question with regard to the reason for the leave, the employer should make the preliminary designation as FMLA or CFRA and then obtain medical certification or obtain more information to clarify whether the designation is correct. Upon receipt of the requisite information which confirms the leave is appropriate, the preliminary designation becomes final. If the employee fails to confirm that the reason for the absence was for a qualifying reason, the employer must withdraw the designation by written notice. Contents of Notice of FMLA/CFRA Leave The written notice required to be given to employees once leave is sought must outline the employee’s rights and obligations under the Acts and the consequences of failing to comply with those obligations. Such specific notice must include, as appropriate: that the leave will be counted against the employee's annual FMLA leave entitlement; any requirements for the employee to furnish medical certification and the consequences of failing to do so; the employee's right to substitute paid leave or whether the employer will require the substitution of paid leave, and the conditions related to any substitution; any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments and the possible consequences of failure to make such payments on a timely basis (i.e., the circumstances under which coverage may lapse); any requirement for the employee to present a fitness-for-duty certificate to be restored to employment; the employee's status as a "key employee" and the potential consequence that restoration may be denied following FMLA leave; the employee's right to restoration to the same or an equivalent job upon return from leave; the employee's potential liability for payment of health insurance premiums paid by the employer during the employee's unpaid FMLA leave if the employee fails to return to work after taking FMLA leave; and whether or not the employee must provide status reports during his or her leave. Medical Certification An employer may require that an employee’s leave be supported by a certification issued by the employee's health care provider. Any request for a medical certification must be made in writing. When the leave is foreseeable and at least 30 days notice has been provided, the employee should provide the certification before the leave commences. When this is not possible, the employee has 15 calendar days to provide the certification (unless not practicable under the circumstances). If the employee fails to provide the certification within 15 calendar days, the employer may take appropriate disciplinary action, which may include termination. Please note that employers must advise employees of the consequences for failure to provide adequate certification at the time the employer requests medical certification (if the certification is incomplete the employer must give the employee reasonable time to cure any deficiency). When FMLA/CFRA Leave May Be Denied An employer may deny FMLA/CFRA leave if: the employee fails to give timely notice of the need for the leave if the leave was foreseeable; the employee fails to provide a timely medical certification; the employee fails to provide fitness-for-duty certification; if the employee advises unequivocally that the employee does not intend to return to work; or if the employee fraudulently obtains FMLA/CFRA leave. Because employees on FMLA/CFRA leave have no greater rights to reinstatement, other benefits, and conditions of employment than if the employee had been continuously employed during his or her leave, an employee’s right to continued leave, maintenance of health benefits, and restoration of employment ends if and when the employment relationship ceases (e.g., layoff). The above guide is not exhaustive. Because of the complex nature of medical leaves of absence and the stringent requirements of the Acts, employers should make sure they fully understand the obligations under the FMLA and CFRA whenever an employee’s need for medical leave arises.

For more information about the topic above, contact Heather Candy at hcandy@pkh-law.com or 916.442.3552. To read Ms. Candy's professional profile on the Palmer Kazanjian website, click here. Return to Top

A Labor Code Section 132a Primer – Discrimination Based Upon Work-Related Injuries At one time or another, most employers are faced with defending a claim by an employee for discrimination based upon a work-related injury. These are known as Labor Code Section 132a claims, and are filed with the Workers’ Compensation Appeals Board. An employee has up to one year from the date of the alleged discriminatory act or the date of termination to file a Section 132a claim. Based upon this author’s experience, the frequency of these claims does not suggest that employers are wantonly discriminating against industrially-injured employees. Rather, Section 132a claims are often filed concurrently with a claim for workers’ compensation benefits by attorneys representing injured employees as a virtual knee-jerk reaction. Unlike a claim for workers’ compensation benefits, however, Section 132a claims are not covered by workers’ compensation insurance. Therefore, employers generally must retain and pay for legal counsel out of their own pockets. Labor Code Section 132a codifies the policy of the State of California prohibiting discrimination against workers who are injured in the scope of their employment. Specifically, the statute provides that any employer who discharges, or threatens to discharge, or in any manner discriminates against any employee because the employee has filed or made known his or her intention to file a claim for compensation with the employer or an application for adjudication, or because the employee has received a rating, award, or settlement, is guilty of a misdemeanor, and the employee’s compensation may be increased by 50 percent, up to $10,000.00, together with costs and expenses of up to $250. The statute subjects insurers to the same penalties and damages for directing or threatening an insured with cancellation or a raise in premium unless the insured discharges an employee who has filed or made known his or her intention to file a workers’ compensation claim, or has received a rating, award or workers’ compensation settlement. An employee who succeeds on a Section 132a claim is also entitled to reinstatement and reimbursement for lost wages and work benefits caused by the employer’s discriminatory acts, along with prejudgment interest on damages awarded. To be entitled to reimbursement for lost wages and benefits, the employer must make at least a prima facie showing that the loss was due to the acts of the employer. This generally requires the employee to prove that, during any period for which lost wages and benefits are sought, the employee was ready, willing and able to perform the duties of his or her position. Section 132a has been liberally construed by the Workers’ Compensation Appeals Board and California courts. Specifically, unlike California’s primary employment discrimination statute, the Fair Employment and Housing Act, an employee bringing a claim under Labor Code Section 132a need not prove that the employer intentionally discriminated against the employee. Instead, the critical question is whether the employer’s action caused detriment to the employee who has suffered a work-related injury. For example, a California court has held that an employer’s policy of terminating all employees who have been off work for four months for any medical reason, though applied to all disabilities, industrial and nonindustrial alike, constitutes discrimination against industrially-injured employees. Therefore, any act by the employer that causes detriment to the employee and that would not have been taken but for the employee’s injury potentially could violate Section 132a.

For more information about the topic above, contact Larry Kazanjian at lkazanjian@pkh-law.com or (916) 442.3552. To read Mr. Kazanjian's professional profile on the Palmer Kazanjian website, click here .

Labor Agreements and Arbitration: Permitting Two Bites at the Litigation Apple A recent case from the California Court of Appeals demonstrates how employees subject to the terms of a labor agreement can be given multiple opportunities to challenge employment discipline and termination actions taken pursuant to the agreement. Employees may be permitted to commence the grievance and arbitration process available in the agreement and then, when a favorable result becomes uncertain, shift the matter to civil litigation in state court. The employee, Michael Haney, in Haney v. Aramark Uniform Service, Inc., was a member of the union and subject to the terms of a labor agreement. Haney was terminated for various errors and faults in his duties. In particular it was contended that he overcharged customers, failed to act on customer instructions, added merchandise to customer orders without authorization and lost customer goods. In response, Haney contended that the employer’s billing system and practices were fraudulent and that he was terminated for complaining about this issue. Pursuant to the labor agreement, a grievance was filed on behalf of Haney which ended in a deadlock between the employer and union. The union notified the employer of its intention to proceed to arbitration as permitted by the agreement. However, instead Haney filed a civil lawsuit in state court against the employer alleging wrongful termination in violation of public policy. On appeal, the court analyzed whether Haney’s civil lawsuit should be allowed to continue in light of the grievance and arbitration process available under the collective bargaining agreement and in light of the protections available to him under federal labor law. Ultimately, the court permitted Haney to maintain his action in state court thereby allowing him a second forum to litigate his discharge. The court considered and rejected two possible reasons for dismissing Haney’s civil lawsuit against his employer. The first possible reason for dismissing the state court action was federal labor law under National Labor Relations Act (“Act”). Among other protections, the Act protects employee concerted activity when employees complain about workplace conditions and issues. The court reasoned that because Haney was acting alone -- and not on behalf of other employees -- when he complained about the improper billing practices, his state court action could proceed without improperly infringing on the scope and protections offered by the Act. The second possible reason for dismissing the action was the collective bargaining agreement itself. Under federal law a state court action is preempted and dismissed if interpretation of the collective bargaining agreement by an arbitrator is necessary to the determination of the claim. The court decided that interpretation of the collective bargaining agreement was not necessary to determine the relevant facts of the state court action. As such the two actions (the arbitration under the collective bargaining agreement and the state court action) were sufficiently distinct to allow the state court action to proceed notwithstanding the fact that Haney had a full and binding grievance and arbitration process available to him under the labor agreement. This case demonstrates that the procedures and protections of a labor agreement are not necessarily exclusive. Had Haney’s grievance been completely litigated under the collective bargaining agreement through final and binding arbitration and an arbitrator decision rendered, there is some argument that no additional litigation would be appropriate. However, in this case, Haney apparently realized that the grievance and arbitration process was not moving favorable to his position, so he decided to change the forum to state court where he believed he would find a more favorable outcome. Of course, in the process the employer likely spends considerably more time and resources defending two litigation matters instead of one. Likewise, finality in the termination decision and the dispute resolution process was lacking because Haney has the option to changing the forum at his pleasure. For certain types of state law claims, modification to the grievance and arbitration provisions of the labor agreement may operate to maintain the exclusive nature of that process. Nevertheless, it appears that some courts are willing to encroach upon the exclusive nature of the grievance and arbitration process found in labor agreements. In so doing, unionized employees will be permitted to maintain actions in arbitration and state court for the same adverse employment decision.

For more information about the topic above, contact Treaver Hodson at thodson@pkh-law.com or (916) 442.3552. To read Mr. Hodson's professional profile on the Palmer Kazanjian website, click here . Return to Top

This communication contains general information and is not intended to provide legal advice. Should you require legal advice, please seek the assistance of legal counsel. To unsubscribe to this newsletter: click here. © Copyright 2004 Palmer Kazanjian LLP

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