Saturday, September 22, 2007

Applicant Waives ADA claim in Employment Application

Christine Nilsson applied for a job as a police officer in Mesa, Arizona. As part of the application process, she had to undergo a detailed background investigation. she signed a waiver regarding this investigation:

Nilsson agreed to “waive all [her] legal rights and causes of action to the extent that the Mesa, Arizona, Police Department investigation (for purposes of evaluating [her] suitability or application for employment) . . . violate[d] or infringe[d] upon . . . [her] legal rights and causes of action . . .” In addition, Nilsson: [A]gree[d] to hold harmless and release from liability under any and all possible causes of legal action the City of Mesa, Arizona Police Department, their officers, agents, and employees for any statements, acts, or omissions in the course of the investigation into [her] background, employment history, health, family, personal habits and reputation.

Ultimately, Nilsson was denied employment allegedly based on a negative psychological evaluation. She sued under the ADA, Title VII (for retaliation) and state law.

The Court of Appeals held that the ADA claim, based on denial of employment due to a mental disability, was barred by the release. However, the court said that the Title VII claim was different. The release covered the entire background and investigation process, but did not cover the interview. Nilsson claims Mesa asked improper questions about a prior EEOC proceeding. That claim was permitted to proceed to the merits. (The Ninth Circuit then said summary judgment was properly granted).

Of note, the opinion does not discuss the Fair Credit Reporting Act and its potential effect on the case. In addition, the Court first analyzed whether Nilsson knowingly and voluntarily released the claims. The Court found Nilsson had the necessary education and experience to sign the release. The release also advised her to consult with counsel if she did not understand it.

So, at least where the employee is sufficiently sophisticated to understand a release, a relatively simple release in an application bars claims based on pre-hire background checks, medical examinations, etc.

The case is Nilsson v. City of Mesa.


Sunday, September 16, 2007

California Court: Alleged Independent Contractor Drivers Are Employees

In Estrada v. Fedex Ground Package System, Inc., the Court of Appeal upheld the trial court's determination that certain FedEx drivers were mis-classified as independent contractors.

There's a lot more to the court's analysis, but this pretty much sums up the court's discussion of the independent contractor issue:
FedEx’s control over every exquisite detail of the drivers’ performance, including the color of their socks and the style of their hair, supports the trial court’s onclusion that the drivers are employees, not independent contractors.

The Court of Appeal also denied FedEx's appeal of the class certification order. The Court concisely summarized the requirements:

A class action requires an ascertainable class with a well-defined community of
interest among its members. Community of interest, in turn, requires that common questions of law or fact predominate, and that class representatives (who must be able to adequately represent the class) have claims typical of the class. The class is ascertainable if it identifies a group of unnamed plaintiffs by describing a set of common characteristics sufficient to allow a member of that group to identify himself as having a right to recover based on the description.

Finally, the Court of Appeal ruled once and for all that employers may require employees to use their own vehicles as part of the job. (Of course, the employee must be reimbursed for the expenses associated with using the vehicle).


Saturday, September 15, 2007

Settlement of Wage Claim under FLSA

The Fair Labor Standards Act permits settlements of claims for unpaid wages under the supervision of the Secretary of Labor. The Secretary has a form, under which employees acknowledge receipt of all wages due them and release all claims under the Fair Labor Standards Act arising from the failure to pay those wages.

In Dent v. Cox Communications Las Vegas, Inc., the employees signed U.S. DOL approved releases. Then Dent sued for more unpaid wages, but for a time period preceding the dates included in the DOL release. The Ninth Circuit held that the release covered only the payroll periods expressly covered in the DOL release and Dent was free to pursue earlier claims.

WARN Act Inapplicable to Remote Employees

The WARN Act normally applies to layoffs or plant closings at "single" sites of employment. There are detailed regulations on what constitutes a "single site." These regulations extend the "single site" concept to mobile workers (such as traveling salespersons), who receive work assignments and report to management at a "headquarters." These mobile employees may be covered by WARN under those special circumstances.

In Bader v. Northern Line Layers Inc., the workers were at construction sites in several states. Headquarters was in Billings, MT. The workers argued that because the construction assignments were temporary, and the Billings office handled all accounting, billing, payroll, and other administrative functions, they were actually employed in Billings for WARN purposes. The Ninth Circuit disagreed. The court noted that work assignments were made locally. Most of the employees were not Montana residents. The supervision was located locally, not in Montana, etc.

WARN is tricky and each layoff or shutdown needs to be closely examined in light of the applicable regulations and case law.

Pending California Bills

Every year at this time, the California Legislature sends a raft of proposed laws to the Governor for signature or veto. Here is a fairly comprehensive list of the employment-related bills awaiting action by Governor Schwarzenegger this year. Click the link for the text of the bill.

We of course will analyze the ones that are passed in future posts. We also will cover all the new laws and major court decisions at our annual legal update, held in Sacramento and San Francisco later this year. Get details here.

AB 504 - Lockouts - fines for employers

AB 622 - Independent Contractors

SB 936 - Workers' Compensation benefits

SB 942 - (More) Workers' Compensation benefits

AB 8 - Health care tax on employers to fund universal health care

AB 124 - applying meal period laws to certain government employees

SB 549 - Mandated bereavement leave

SB 836 - Familial status discrimination

AB 377 - Labor contractors and pay records

SB 727 - Expansion of Paid Family Leave

AB 1707 - new requirements for personnel files

SB 180 - "card checks" for agricultural employees seeking union representation