The Sacramento Bee had an interesting article on Ross v. Ragingwire this morning, which is the case about whether a positive drug test for state-legal marijuana is grounds for termination. The Supreme Court heard arguments yesterday.

Justice Joyce L. Kennard said the issues before the court do not simply weigh the use of “illegal drugs.” “Under California’s Compassionate Use Act, this particular use … is allowed,” she said. “What we have is a conflict.”

Indeed. It seems pretty clear to me that that conflict means the federal law wins, and, not unlike the no-match letters, it would put a lot of employers in damned-if-you-do, damned-if-you-don’t situations. Thing is, it also puts employees in the same kind of position, doesn’t it? The article is focused on the medical marijuana issue, because that’s more interesting to the newspapers. My hope is that this adds new dimensions to Tameny claims, which, ironically sprang from an employee’s unwillingness to do an illegal act. Paging Alanis Morrisette.

I will add this to the track list. Its current procedural status is “under review,” so, red.

You can watch the oral arguments, here.

UPDATE:

After watching the oral arguments, I would say that we should be prepared to see Ragingwire overruled. With one justice absent, and many mostly silent, it’s hard to speculate. Of the six there, I saw two to overrule, two on the fence, and two to affirm.

I would say that I thought Ross’s counsel had the better of the argument, but was, to be fair, thrown a number of easier questions. I thought that it was interesting that the issue of illegal aliens was only touched on for a very brief moment, when that seems to be the perfect analogy: state law extends them certain benefits; federal law prohibits their presence, and this exact conflict is very much on everyone’s mind with the no match issue—yet this was almost never discussed.

I’m not sure what result will cause less problems for the people I represent. Before, I was certain it was one way; now, I’m not so sure.

UPDATE II:
Upon further reflection (and not having read the papers at all), I’m surprised that the parties didn’t touch at the main question here: sovereignty. This is not a question of the FEHA or California common law as much as it is a question that relates to conflicts of laws and sovereignty. Yet, unless I’m forgetting something, that was not discussed at all in the oral argument.

In general, states are free to regulate the health, safety, welfare, and morals (i.e., the police power). Though apparently, the commerce clause issues opened by the Lopez case have been re-liberalized, what really needs to be looked at here, in my humble opinion, is whether the Federal CSA, even if allowed under purely intrastate grounds, means that all state laws necessarily contain it in some “implied” form.

I’m not an expert, or even a novice, on this kind of law, but, to me, this issue, and the illegal worker analogy, seem to be closer to the crux of the issue than whether it’s a “prescription” or a “recommendation.”

[display_podcast]
The Legislature’s end-of-session flurry.

A FEHA disability discrimination Plaintiff, not the Defendant, bears the burden of proof with respect to whether the Plaintiff was qualified to perform the essential functions of the job with or without reasonable accommodation.

While I was in Alaska running with caribou (alas, vacation is over) the above-entitled case was granted review on the following question:

May an individual be held personally liable for retaliation under the California Fair Employment and Housing Act?

Now, each side of the bar “knows” what the answer to this question, and we’ve probably all written a brief or two on it. I would be more sympathetic to personal liability in cases where the employer corporation was uncapitalized, because otherwise, in most cases, isn’t it duplicative?

Anyway, no matter how much we think we know the answer to this, the judges in the courts I frequent have gone both ways, and I would look forward to a bright line rule.

The poorly decided case of Hernandez v. Hillside has been depublished.

I rarely express strong opinions on case law like this. Often, I don’t understand all of the details to really speak with the level of authority I feel is necessary to be critical. But, Hillside speaks on an issue that I spent the better part of a year litigating.

The worst part of Hillside is its sloppy misreading of Saunders. You can read my original analysis here.

In November, the Second District
issued an opinion in this case that outlines both California Law under the FEHA
and Federal Law under Title VII. The
case involved claims under the FEHA against an employer for retaliation and a supervisor
for failing to prevent discrimination. The
case is worth reviewing, because court applied both the state and federal
standards in its analysis of the plaintiff’s claims.

The Second District first applied
the materiality test for FEHA retaliation claims under the California Supreme
Court decision in Yanowitz. The court then applied the deterrence
test for retaliation claims under the United States Supreme Court decision in

Burlington

. The court held that the retaliation claims
against both the employer and the supervisor stated a cause of action
sufficient to overcome a demurrer under either standard.

However, in its analyses of the
different standards, the court did not state the practical differences between
the two standards. While the court noted
that it saw no difference between the legislative intent of the FEHA and Title
VII, it failed to discuss what practical differences, if any, exist between the
materiality and deterrence tests. It
thus seems that the differences in application of the two standards are
currently an open question.

In addition to its analysis of the
FEHA and Title VII, the court also held that employer notice of protected
activity, when considered with the timing of adverse employment actions in
relation to the protected activity, could be considered constructive knowledge
by the employer of the plaintiff’s protected activity.

Finally, the court interpreted
section 12940(k) of the FEHA in regards to supervisor liability, and held that
supervisors are “persons” under the statute, and may thus be found liable for failing
to prevent acts of discrimination and harassment. While the court noted that a
supervisor may not be held liable for employment discrimination under the FEHA,
a supervisor may be liable for failing to prevent discrimination. As part of its ruling on this issue, the
court also held that a failure to prevent retaliation against protected
activity, in this case opposition to discrimination, is the same as a failure
to prevent discrimination.

California Supreme Court case No. S127921

The Supreme Court has ruled that the amendments to the FEHA explicitly requiring employers to protect employees from harassment by third parties were "merely declaratory of existing law" and, therefore, had retroactive effect.

This reverses the holding of the Court of Appeal (which was contra Salazar II).

I lost an MSJ trying to argue what the Supreme Court said was wrong here, so I can feel better about it, and my local judge, but somehow I think this is wrongly decided.

A woman is suing her former employer, who she alleges fired her for having an "Air America" bumper sticker.  The complaint alleges that the employer fired her for having the liberal network’s sticker on her car, because that meant that she could be part of al-Qaeda.

The North County Times has more.  (Via HR Lawyer’s Blog.)

California law protects the political activities of employees.  All I can say is, good thing she didn’t have a Pacifica/KPFK/KPFA bumper sticker. Oy.

Conley v. Pacific Gas & Electric Co. - Partial day vacation usage is not “forefeiting” it for exempt employees. DLSE opinion differs. Except for the narrow dig into Suastez, this case is unremarkable.

Hope v. California Youth Authority, 134 Cal. App. 4th 577 (2005) - $1.9M verdict for gay cook. 5 years of failure to act on complaints of discrimination. Except for the amount, this case is unremarkable.

and now for the one I’m the most nervous to report on:

Gentry v. Superior Court (Case No. B169805). This case upheld a class action waiver in an arbitration clause in the employment context on the theory that this fits into an exemption in Discover’s rule about inherently small amounts that would shield employers from any liability because of the potentially large amounts involved in employment cases.

Well, the only case of that kind I’m working on right now doesn’t involve large amounts. Be careful with this, and carefully draft any agreement. I would also suggest that you clarify this rule with any client.

File this one under NEVER TRY THIS AT HOME.  Fisher & Phillips latest employment law bulletin documents the "equal opportunity harasser" defense. In a nutshell, the article cites some cases where someone who was equally harassing towards men and women might have an out.

I would never count on this, and probably would never even raise it.  Even suggesting this might exist to employers is irresponsible, and might discourage the simpler, more reasonable step of enforcing existing policies.

Apropos of that post below on Ross v. Ragingwire, the California Supreme Court has decided to hear an appeal on the matter. Via EMPLOYMENT LAW NEWS.

Somehow, during my jury service, multiple illnesses, home renovation, out of town conferences, and the normal press of business, I failed to notice this important case until last week, when it came up.

Jackson Lewis has the scoop, here.

AB 1825, the law that requires employers with more than 50 employees to train their managers on sexual harassment, is now in effect. But with the little guidance it gets, I’ve had a lot of questions. Who can do the training? Can you do the training? What does it have to cover? Who is a supervisor according to this law? Etc. etc.

Hopefully these regulations will provide some guidance. According to the article linked above, California licensed attorneys can do the training (all-righty then). The trainer should be able to cover:

(A) what is unlawful harassment;
(B) how to intervene when harassing behavior occurs in the workplace;
(C) how to report harassment complaints;
(D) how to respond to a harassment complaint;
(E) how to investigate harassment complaints and an employer’s obligation to do so;
(F) the illegality of retaliation for filing a harassment complaint and how to prevent retaliation from occurring when an employee has filed a harassment complaint; and
(G) the employer’s anti-harassment policy.

Wal-Mart has managed to create another PR nightmare for itself. This week, an internal memo (p.14) suggesting that Wal-Mart discourage unhealthy people from applying for jobs has raised hackles from the usual anti-Wal-Mart suspects. But it might also raise a lawsuit.

If you’re reading this blawg, you’re probably aware that the ADA and (in California) the FEHA prevent discriminatory hiring practices against those with disabilities.

Nothing in the memo suggests that this is anything but a proposal, and it probably wasn’t vetted by the company’s lawyers. Even still, nothing in it is per se discriminatory. Instead of trying to exclude the disabled, instead it’s trying to attract health-conscious workers.

I’m not an ADA jock. I don’t know enough to say for certain whether or not this all on its own violates the ADA, but my sense is that it doesn’t, and, if it does, it’s bad policy. Given the bovine nature of America, the country’s largest employer should do something to encourage more physical activity!

The SEIU’s spokesperson told the WSJ (sub. req’d) that

“When you add physical requirements to jobs that don’t need them, you begin to weed out a whole pool of people such as the elderly, the obese, people with pre-existing medical conditions,” says Andrew Stern, president of the Service Employees International Union, which represents 1.8 million workers, including health-care workers, janitors and security guards. “I think this memo steps over the line of what’s legal,” he adds.

There is an argument that they might be unnecessarily adding tasks to job descriptions. Here’s where I’d ask for some reader feedback. To what extend does the FEHA or ADA mandate than an employer create job descriptions? Can the ADA stop Wal-Mart from making cashiers collect carts? If so, what else can’t they do? Do employer have to create job descriptions that are always carefully calibrated according to potential disability impact?

After drafting a number of employee handbooks, I (seriously) often wondered how I would tackle a client like hooters. Well, here’s their handbook, so I guess I know now.

Guest Blogger: Steven M. Chanley

Ross v. Ragingwire Telecommunications, Inc.The Court of Appeal (Third Appellate District) holds that an employer does not violate the FEHA’s prohibition against disability discrimination for firing an employee whose pre-employment screening tested positive due to physician-prescribed marijuana smoking. Although the drug use was lawful under California’s Compassionate Use Act of 1996, it remains unlawful under federal law. Nothing in the FEHA requires an employer to tolerate current illegal drug use. Moreover, the California statute “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions. The initiative says nothing about protecting the employment rights of those who do so.”

Comment: It is difficult not to be sympathetic to the plight of those who must rely legitimately on mind-altering drugs to mitigate their physical pain. However, it seems a non-starter to argue that the employment laws require an accommodation in the form of permitting illegal drug use.

Guest Blogger: Steven M. Chanley

Donald Green v. State of California

Court of Appeal in the Fourth District holds that it is the defendant’s burden to prove plaintiff’s incapacity as an affirmative defense and not plaintiff’s burden to prove his capacity to perform as part of his prima facie case of disability discrimination under the FEHA. The holding specifically disapproves the Judicial Council jury instructions on the issue, as well as Brundage v. Hahn, both of which place the burden on the plaintiff as part of his prima facie case.Comment: This is another unfortunate case where California law is made to deviate from federal ADA precedent in a way that makes no sense. Being a qualified individual with a disability should be considered a baseline standing requirement, properly placing it within the claimant’s prima facie case. This one is destined for depublication.

Via George’s. I think you’ve probably all heard about this one. The California Supreme Court says just having an affair in the office can create a hostile work environment. The reason I wanted to post on this is because I think this does change some of the legal advice that we need to actually give, instead of speculating on results.

It just pays to keep relationships out of the workplace for so many reasons.

Also note that for an experimental 30 days, my posts will be cross-posted here.

Tellis v. Alaska Airlines, Inc.
9th Cir. Case No. 04-35137

Plaintiff’s cross-country trip to retrieve family vehicle during his wife’s late-stage pregnancy difficulties, and his calling her on the phone during the three and a half days he was away, were not “to care for” his wife under the Family and Medical Leave Act and thus not a protected absence from his employment.

Head v. Glacier Northwest, Inc.
(9th Cir. Case No. 03-035567)

In employment discrimination action under Americans with Disabilities Act, plaintiff’s own testimony, unsupported by medical or comparative evidence, may suffice to establish triable issue of fact as to whether plaintiff’s ability to engage in a major life activity is impaired.

Comment: Yikes!

I would like to preface this case note by saying that I am Norwegian and we don’t fire people for not being Norwegian, we fire them for being Swedes! (=

Coghlan v. American Seafoods
(9th Cir. Case No. 03-35314)

The gist: When the same person demotes you that just promoted you have to show why they weren’t being racist before.

Plaintiff, who alleged that he was terminated from his employment in commercial fishing by his company’s new owners because he was not of Norwegian birth, was required–to establish prima facie case–to present sufficient evidence to overcome the “same actor inference” of nondiscrimination based on fact that decision to terminate plaintiff was made by same person who had earlier made decisions to hire and promote him. Evidence that employer had, on two occasions, given temporary control of ship to Norwegian-born employee who had less experience than plaintiff was insufficient to overcome inference of nondiscrimination where there was uncontroverted evidence that decision was based on recommendation of non-Norwegian supervisor who felt plaintiff lacked sufficient leadership skills.

I don’t usually blog federal cases, but I found it interesting that the Ninth Circuit agreed to rehear en banc the Harrah’s case. The Bakersfield Californian has more.

The OC Register has this article on piercings/tatoos in the workplace. It’s interesting in that it shows that in Orange County’s tightening labor market that less employers care, while some worry about perception even still.

Question: would discriminating against someone who has a tatoo be illegal, if, say, that person was Polynesian? (The recent Ninth Circuit ruling made it clear that certain appearance requirements are ok, but what about when it’s cultural?)

Plaintiff’s statements that she had a fibroid removed and that she was hoping to become pregnant did not establish that employer was aware of pregnancy, and employee’s statement to employer at Christmas party that “[i]t looks like I get to have one of these,” referring to a baby, was too ambiguous to place employer on notice of pregnancy. (However, the court notes in a footnote that Plaintiff didn’t complain she was fired for attempting to become pregnant.)

2d Dist., Div. 5 No. B174101

(No free advice this Wednesday, I’m off to a conference)

This one is really more for the “interesting and sort of funny” file than for the practice hotsheet. The plaintiff checked the wrong box on her DFEH complaint, and, as a result, the Court of Appeal held that her case was dead.

While it’s amazing how much a little checkbox can matter, it’s also amazing how much courts can disagree. Courts have gone the other way too.