Identity Crisis: BMJ’s 2015 Employment Law Review

Here at the BMJ team, we are on the forefront of employment law developments.  As we wrap up the end of our year, it seems to be confirmed –we nailed it.

A recent story on CNN claims that “Identity” is the Dictionary.com 2015 word of the year.   http://www.cnn.com/2015/12/08/living/word-of-the-year-dictionary-com-feat/index.html

This development is not surprising to us.

See our blogs on identity:

Rachel Dolezal: http://wp.me/p67Lhq-1d and

and Caitlyn Jenner:  http://wp.me/p67Lhq-c

as well as our interview on Central Valley Today.  http://www.yourcentralvalley.com/story/d/story/racial-identity-vs-human-race/34097/lb2i6Z4b_UCOmDkLKXOmKQ

This is the first year with our new BMJ Employment Answers’ format.  As you are aware, in 2015 we began to identify as bloggers.  In 2016 we are rolling out our cool new twitter handle, @BMJemployment.  Follow us today!  We hope our new Twitter following will be as successful as our blog, which has now been viewed in over 30 countries worldwide!

That’s a wrap for us in 2015.  May your holiday season be merry and bright and your new year be free from legal fights.

-The BMJ Employment Answers Team

Will USC get hammered by Coach Sarkisian’s lawsuit?

Q:        This week Steve Sarkisian, USC’s former head football coach, filed a lawsuit claiming that he was wrongfully terminated.  As you may recall, Sarkisian  was fired shortly after USC’s Athletic Director, Pat Haden, indicated that Sarkisian was placed on indefinite leave and was “not well.”   It has been widely reported that Sarkisian has a substance abuse problem, and specifically, a problem with alcohol.  This was seemingly confirmed by Sarkisian going to rehab, and now, by this lawsuit.  This begs an interesting question – is it possible that USC violated the Americans with Disabilities Act (“ADA”) or other laws that protect those with disabilities by terminating Sarkisian?

A:        Well … it is complicated, but there is certainly a possibility.   As you may recall, a similar situation was covered in one of our previous blogs about “Johnny Football,” who coincidentally is getting a start this Sunday.  (See http://wp.me/p67Lhq-3g )

As a threshold matter, a person that uses illegal drugs, or abuses legal drugs, is not considered “disabled” pursuant to the ADA.  However, alcoholism is a covered disability under the ADA so long as the alcoholic is qualified to perform the essential functions of the job.  Like any disability, pursuant to the ADA (or the Fair Employment and Housing Act), an employer is required to reasonably accommodate an employee who suffers from alcoholism.  Leave can be a form of accommodation.

But, here is where it gets a little confusing.  On one hand, an employer can take an adverse employment action, including termination, against an employee whose use of alcohol adversely affects job performance or conduct.  Additionally, an employer may also take an adverse employment action if a person is under the influence at work.  On the other hand, Title 2 CCR section 7294.0 states that an employer has an obligation to engage in a “timely, good faith interactive process” when the employer “becomes aware of the need for an accommodation through a third party or by observation.”  So, even if the employee doesn’t say anything, if the employer is aware from some other source that the employee has an impairment that is interfering with his or her ability to perform his job, the employer is required to initiate the process.

Ultimately, whether USC violated federal or state law is an issue of timing and a variety of other facts.  While early reports that Sarkisian was intoxicated at games and/or practices seemingly support the termination, this doesn’t negate USC’s obligation to engage in the interactive process if the disability was obvious.  As a result, it could be possible that USC is not liable for wrongful termination, but is liable for its failure to engage in the interactive process and provide an accommodation, such as a leave, to Sarkisian.

Another wrinkle is that Haden allegedly placed Sarkisian under some type of “last chance agreement.”  In other words, Sarkisian signed an agreement prohibiting him from using alcohol and subjecting him to immediate termination if found intoxicated. There is not a lot of authority regarding these types of “last chance agreements” and the cases seem to be somewhat contradictory.  This makes sense, because in California, terminating an employee for refusing to participate in an employer-mandated alcohol treatment program has been found to violate an employee’s constitutional right of privacy.  Meanwhile in federal courts, last chance agreements have generally been upheld.  (See i.e., Pettus v. Cole (1996) 49 Cal.App.4th 402; Longen v. Waterous Co (8th Cir. 2003) 347 F.3d 685.)

In the end, these are shakey, not stirred, situations.  An employer considering terminating an employee for alcohol abuse must look to both federal and state law for guidance and proceed carefully to avoid getting smashed with a lawsuit.

We made our list. You should check it twice. Here is our BMJ holiday employment checklist.

Q:     The Holidays can be a gift to Plaintiffs’ attorneys and disgruntled employees.  Are there any strategies that an employer should utilize so that this holiday season employers can enjoy the man with a red suit and not a New Year’s lawsuit?

A.     Yes. Here is our BMJ Holiday Employment checklist.  Check it twice.

○The Holiday Party

Just because the employees are offsite (or onsite after hours) does not mean they are not subject to sexual harassment rules and laws.  Parties can cause employees to be merry, but they should not be too merry…or …well…just plain naughty.  To that end, employers should remind employees to keep dress appropriate and their behavior nice.FullSizeRender

Also, employers should think carefully before serving alcohol at their holiday parties.  Not only may it facilitate inappropriate comments (and lawsuits in the new year), it may also lead to other more dangerous situations, like drinking and driving.  To limit exposure, employers who still want to serve alcohol may want to limit employee alcohol intake by issuing drink tickets, employing private bar tenders (who check IDs and refuse to serve people who have had too much), and closing the bar early.  Also, employers should offer rides or reimbursement for Uber or taxis.

Finally, employers should not require (or strongly suggest) that employees attend the party if it is outside working hours.  If it is considered a requirement, then it is compensable time, and an employer will need to pay their employees for attending.

○Holiday Pay

California does not require paid time off for holidays or additional wages for employees who work on holidays.  If an employer does pay a holiday premium and employees work overtime, the premium does not need to be calculated in their overtime rate.  In other words, premium holiday pay is not considered part of the “regular rate” of pay.  Indeed, an employer is allowed to credit the time and one-half premium pay on holidays against the overtime otherwise owed to the employee.  Additionally, small holiday gifts or discretionary holiday bonuses are not  included in the “regular rate.”

Also, please note that if an employer does provide a paid holiday off (e.g., it provides 8 hours of pay and the employees are not required to come to work), this paid holiday off does not count as time worked to determine whether an employee worked more than 40 hours for the purposes of overtime.

○Gift Cards

Some employers like to give gift cards to their employees during the holidays.  These may be deemed taxable income if the gift card can be considered a cash equivalent under Treasury Regulations section 1.132-6(c). The IRS considers a gift card to be a cash equivalent if it provides for the purchase of general merchandise, as opposed to being used to redeem a specified item.

○Volunteering

While this is the time of year we all want to give back, remember that “volunteer work” is only allowed without contemplation of pay for individuals who volunteer for a nonprofit or like organization.  In other words, an employer must be careful if their company is partnering with a charitable organization and their employees seek to donate their time.  If an employer is directly involved in giving, the employer should take care to also give its employees their pay if the employees are providing their time to the charitable cause.  Also, if the employees’ children want to help out (once school is out) you may run into child labor law issues.

○ Religion in the Workplace

The California Fair Employment and Housing Act prohibits religious discrimination of any kind.  But, this is tricky because the law does not permit prohibiting all forms of an employee’s religious expression.  As such, employers need to walk a delicate line.  That said, employers should be wary of religious-themed décor and other forms of displays and expressions that discuss religion.

○ Payday falls on a holiday

An Employer’s established payday sometimes falls on a holiday.  The Civil Code defines “holidays” (which includes every Sunday).  If payday falls on a defined holiday, pay may be provided on the next business day following the holiday.

From everybody at the BMJ Employment Law Team – Happy Holidays and a lawsuit free New Year!