Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.

February 11, “Leave Me Alone! An Overview of Leave Laws in California” workshop sponsored by Industry Manufacturers Council

 

Lawrence Livermore Lab Pays $2.7M to Laid-Off Workers

Five laid-off workers from the Lawrence Livermore nuclear lab in Livermore, Calif., won a $2.7 million jury award for wrongful termination.

 

The verdict is just the beginning; 125 more laid-off workers are also suing for wrongful firing.

The lab, which is operated as a public-private partnership of the University of California and Bechtel Corp. and largely funded by the U.S. Department of Energy, laid off 440 workers in 2008. According to Gary Gwilliam, an attorney for the 130 workers who are suing, his clients were the first layoffs in nearly 40 years and happened soon after Bechtel became the lab’s first private contractor.

 

The jury awarded the five workers $2.7 million for their lost wages after finding that the lab violated a promise in their contract to fire them only for “reasonable cause.” The lab has said the layoffs came about because of reduced federal funding.

 

A new jury will now hear the workers’ claims of age discrimination, and could award additional damages for emotional distress and punitive damages. Gwilliam said the lab ignored its own rules about protecting seniority by laying off his clients, whose average age is 54 with 20 years of experience. In one case, he said, an employee with 38 years of experience was let go while the lab kept a co-worker who had only been on the job for 15 months.

 

The “Maximum” Amount of Leave in California

Can you terminate an employee that is unable to return to work after with the maximum time of leave allotted by statute has expired? Under California law, your company may have violated California’s Fair Employment and Housing Act (FEHA).

 

Earlier this year, a California appellate court was asked to determine whether an employee who exhausted all permissible leave under the Pregnancy Disability Leave Law (PDLL) may state a cause of action under FEHA. In Sanchez v. Swissport, an employee was diagnosed with a high-risk pregnancy and requested and received a temporary leave of absence from her employer. Her employer provided her with 19 weeks of leave which included the maximum time of leave (four months) allotted by the PDLL. Due to the high-risk pregnancy, the employee was unable to return to work after the leave expired and, as a result, was terminated. The employee filed a wrongful termination lawsuit alleging discrimination based on pregnancy and pregnancy-related disability under FEHA.

 

The appellate court ruled that an employer may commit employment discrimination in violation of FEHA in terminating a pregnant employee due to her failure to return to work even if the employer granted the employee the maximum leave provided under the PDLL. The appellate court held that disability leave required as a reasonable accommodation for a known disability under FEHA may in some circumstances exceed four months.

 

This decision follows a 2011 California district court ruling (Lafever v. Acosta, Inc.) which held that an employer, which terminated an employee suffering from lupus who was unable to return to her position after exhausting her Family and Medical Leave Act (FMLA) leave, may have been in violation of California’s FEHA. The court determined that a reasonable jury could find that the employer improperly terminated the employee rather than providing her with a reasonable accommodation (such as short-term leave) after her FMLA leave expired.

 

The Sanchez and Lafever decisions make it clear that, even when an employer has provided an employee with the maximum amount of required leave and even if the employee has exhausted leave under the PDLL and the FMLA, the FEHA requires employers to engage in the interactive process to determine whether there are any other reasonable accommodations (e.g., providing more leave time to the employee) available to the employee.

 

These cases suggest that an employer may not immediately terminate an employee when the employee has exhausted his/her leave and is unable to return to work. Your company would be best served by initiating the interactive process and determine whether the employee is able to return to work after an additional short-term leave, whether a modified work schedule would allow the employee to continue working, and to work with the employee around the time his/her leave was expiring to determine whether any other reasonable accommodations are available.

 

Factoids

• Children born in 2012 will cost their parents up to $241,000 each by the time they turn 18.
• Of the top nine countries that have the greatest inequality of income distribution, only Mexico has a greater inequality than the U.S.
• Of the top 27 countries that have the highest per capita spending on health care, the U.S. spends the most by a wide margin but has the lowest average life expectancy.
• 47% of workers are concerned with the financial impact of serious diseases while only 29% are concerned with dying because of them.

 

Quotes

“We must accept finite disappointment, but never lose infinite hope.”
~Martin Luther King~