"This & That" Tuesday: Undocumented Workers, Disability Discrimination

August 11, 2015

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

Announcements

Special Announcement: If you have Independent Contractors, you need to review the latest Department of Labor Guidelines. They can be found on my website under the Resoures page.  http://www.humanresources4u.com/resources

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.

Upcoming Events

August 27, 2015

Fredericks Benefits

Leave of Absence Laws in CA

Information can be found on my website.

September 15, 2015

Irwindale Chamber of Commerce

Hiring Talent for Consistent Performance

Information can be found on my website.

Undocumented Worker May Recover Lost Wages

The California Supreme Court issued a decision holding that federal immigration law does not preempt a California law that extends state law protections to all workers regardless of their immigration status. However, the court held that federal law does preempt state law on the issue of liability for lost wages for any period after an employer discovers that an employee is not authorized to work in the United States.

Vicente Salas worked as a seasonal employee for Sierra Chemical Company since 2003.  Twice he injured his back at work and, after the second injury, filed a workers’ compensation claim. In 2006, he was laid off and not rehired, allegedly due to his disability. Salas filed a lawsuit against Sierra Chemical, alleging disability discrimination in violation of California’s Fair Employment and Housing Act (FEHA) and retaliation. During the course of litigation, the employer discovered that Salas was not authorized to work in the United States and had been using another person’s Social Security number.

Sierra Chemical argued that it would not have hired Salas if the company knew that Salas was using a false Social Security number. Based on this “after-acquired evidence,” Sierra Chemical asked the trial court to dismiss the case by summary judgment. It argued that since Salas was not authorized to work in the United States, he is be precluded from recovering lost wages. The employer also argued that the doctrine of “unclean hands”—according to which a party that acted in bad faith should not be entitled to a recovery—would prevent Salas from recovering from his claim.

The California Supreme Court considered the issue of whether federal immigration law preempts California’s Senate Bill 1818 holding that (1) federal immigration law does not preempt Senate Bill 1818, which expands state law employee protections and remedies to all workers regardless of immigration status, except to the extent that it allows an award of lost wages for any period after an employer discovers that the employee is undocumented to work in the United States; and (2) the doctrines of after-acquired evidence and unclean hands are not complete defenses to an employee’s claim for violation of FEHA or state public policy, but can be a factor in limiting the employee’s recovery. The state supreme court explained that “not allowing unauthorized workers to obtain state remedies for unlawful discharge . . . would effectively immunize employers that, in violation of fundamental state policy, discriminate against their workers.”

Walgreens Pays $180,000 to Settle EEOC Disability Discrimination

Drugstore giant Walgreens has agreed to pay $180,000 to a longtime employee with diabetes and to implement revised policies and training to settle a federal disability discrimination lawsuit filed by the EEOC.

The EEOC's lawsuit charged that former cashier Josefina Hernandez, who has Type II Diabetes, was fired by a South San Francisco Walgreens because of her disability after she ate a $1.39 bag of chips during a hypoglycemic attack in order to stabilize her blood sugar level.  Hernandez had worked for Walgreen for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes.  Yet the company security officer testified that he did not understand nor did he seek clarification when Hernandez wrote, "My sugar low.  Not have time," in reply to his request for an explanation of why she took the chips before paying.

Terminating a qualified employee because of a disability violates the Americans with Disabilities Act (ADA).  The law also requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. 

The U.S. District Judge noted that "Walgreen has failed to allege any misconduct that is unrelated to her disability," and denied Walgreens' motion for summary judgment. 

"Not only was this harsh and unfair, but it was illegal, and that's why the EEOC sued to correct this wrong," said EEOC Regional Attorney.  "People may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack."

According to the consent decree settling the suit ordered by the judge, Walgreens agreed to pay Hernandez $180,000 and to post its revised policy regarding accommodation of disabled employees on its employee intranet site.  The company will also provide anti-discrimination training, make periodic reports to the EEOC, and post a notice regarding the decree for three years. 

Factoids

• 1% of employers are planning to eliminate health benefits in 2015 while 26.3% plan to add wellness rewards or penalties.
• Women make up 1/3 of small business owners, employing 7.9 million people.

Highly evolved organizations:

• Communicate how base pay and short-term incentives are determined
• Equip managers to execute pay programs well
• Differentiate base pay and short-term incentives based on performance

Quote of the Blog

“If you can find a path with no obstacles, it probably doesn’t lead anywhere.”

~Frank A. Clark~