Guns in the Workplace -- A Violation of the General Duty Clause

As a young boy growing up in Salt Lake City, Utah, it was not uncommon to see many trucks in town fitted with a gun rack and sporting a rifle or two.  As I recall, I'm not even sure we always locked our cars.  Hunting is common in Utah and thus seeing guns displayed, even in the city, was not disconcerting. 

The landscape has dramatically changed since the early 60s.  Because of the many horrific criminal activities that have recently occurred, many in our society would be fearful to see a weapon in a vehicle or on a person in a place other than the gun range or hunting grounds. 

Gun control will be part of our country's political debate during the months to come.  Regardless of the outcome, HR professionals will be attempting to fashion solutions in their states to prevent the carrying and use of guns in the workplace. 

In most states an employer can prohibit employees from bringing weapons into the workplace.  Some states, however, prohibit an employer from prohibiting an employee from bringing a gun into the workplace provided it remains in a locked car. 

Gun control advocates challenged these "parking lot" rules.  However, in Ramsey Winch, Inc. v. Henry, 555 F.3d 1199 (10th Cir. 2009), the court upheld the parking lot rule.  Gun control advocates challenged the law claiming that the federal OSHA Act's general duty clause preempted state law parking lot rule.  The court concluded that the general duty clause does not preempt a state law permitting the carrying of guns into the workplace in a locked car. 

No such parking lot rule exists in California.  Thus, employers are free to prohibit employees from transporting guns into the workplace, even if those guns are stored in locked vehicles.  Does the general duty clause of Cal/OSHA or of the federal OSHA Act also compel employers to mandate such rules?  Could the state or feds issue rules pursuant to OSHA preventing the transportation of guns into a workplace? 

Perhaps these types of questions will be part of the gun control debate. 

A Twist on Workplace Romance -- Thompson v. North American Stainless

A week has passed since Valentine's Day.  Have you learned about any workplace romances?  Do they concern you?  They should.  They worry me.  What about those romances that are still hidden from public view?  I hope they worry you too.  Love and the workplace is a dangerous mix.  Let me tell you about a consequence you may not have considered -- a lawsuit for retaliation by a person who did not make the initial claim of discrimination. 

Miriam Regalado filed a sexual discrimination complaint against her employer, North American Stainless ("NAS").  Three weeks later NAS fired her fiance, Eric Thompson. 

Looking for consolation Eric ran to Miriam crying uncontrollably.  She hugged and kissed him, assuring Eric that he did nothing wrong and that the company was at fault.  Over the next few days Eric and Miriam plotted their revenge.  (OK, I just made up this part, but it could have happened!) 

Eric sued NAS for retaliation under Title VII.  He claimed he was fired because of Miriam's complaint.  The U.S. Supreme Court concluded that if true, the facts alleged constitute a viable claim of retaliation under Title VII. 

The retaliation provision under Title VII prohibits an employer from “discriminat[ing] against any of his employees” for engaging in protected conduct, without specifying the employer acts that are prohibited.  According to the Court, those employer acts include anything that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination."  The Court determined that a reasonable person would have been dissuaded to file a discrimination complaint if she knew her fiance would be fired. 

You're saying, "Yeah, I understand that.  Miriam could file a complaint for retaliation if she was fired."  But the court went beyong that and indicated that Eric could also file a complaint. 

The Court had to determine whether Eric was a "person aggrieved" by the actions of NAS.  Of course he was fired and therefore suffered adverse action.  However, he did not file the complaint of discrimination. 

But Title VII allows a person "claiming to be aggrieved" to file a civil lawsuit.  The Court held that if a person is within the "zone of interests" sought to be protected by Title VII, then that person is aggrieved and can bring a lawsuit. 

In this case, Title VII is intended to protect employees from discriminatory acts of employers.  As an employee of NAS, Eric was within the zone of interests and therefore eligible to file a lawsuit alleging retaliation even though he did not file the initial complaint of discrimination. 

California law also protects persons based on their association.  The law in this area -- associational discrimination and the zone of interests -- is complex.  It is not well-defiined.  It is another potential trap for the unwary. 

Don't you hate workplace love! 

Behavior Based Interviewing & The Receptionist Who Didn't Want to Answer the Phone

At a prior job I participated in the interviewing process.  As a newer member of the interviewing committee, I took my cues from the savvy, seasoned veterans.  I soon learned that age or experience in interviewing is not necessarily an advantage.  If an interviewer does not do the job correctly, it does not matter how many times he interviewed applicants.  The information gleaned from a poor interview is inadequate. 

For example, one veteran interviewer would describe why it was important to arrive on time.  He would then ask, "Are you punctual?"  The applicant always responded with an enthusiastic "Yes, of course." 

I have since learned about behavior based interviewing.  I love it.  Using this technique, you ask an open question that elicits dialogue and a description of behavior.  For example, an interviewer might ask the following questions: 
*     Give me an example of how you dealt with an upset customer. 
*     How do you handle conflict with co-workers?
*     What would your current supervisor say is your greatest strength? 
*     What would be your most important function in the position? 
*     What was your most challenging work situation and how did you handle it?

You get the idea.  Each of these questions causes the applicant to respond with more than a yes or no.  It requires the applicant to give examples and describe real situations.  You will quickly see who is prepared for an interview, who has meaningful experience, and who could handle the job the best. 

Yesterday I asked an applicant for our receptionist position what work activity she would like the least if she was the successful candidate.  "Answering telephones," she responded, "because it would be very hard."  Really, an applicant for the receptionist position doesn't want to use the telephone?  Nope, she preferred working on computers.  And did she really say that she would not like hard work?  That is the message I received. 

We learned a lot from the applicant with that very simple question.  We learned that we are still looking for a receptionist -- someone who will eagerly greet our clients on the telephone or in the office, and be engaged with them. 

Give us time to recruit and train.  Then come see us.  Let us know if we hired the best person for the job. 

Substance Abuse -- From Snow Plows to Bus Drivers

Yesterday I reported on a lawsuit filed by a former snow plow driver who was legally intoxicated while on the job.  Today, I am reporting on the case of a school bus driver who tested positive for marijuana.  You won't believe the result. 

The Shenendehowa School District in upstate New York fired Cynthia DiDomenicantonio after she tested positive for marijuana in a random drug test.  The driver demanded arbitration pursuant to the collective bargaining agreement (CBA). 

The school district argued that it had a zero-tolerance policy with respect to positive drug tests.  But no written document was produced.  Thus, the arbitrator concluded that suspension or other action less drastic than dismissal was permitted.  The arbitrator concluded that per the CBA the punishment should have been a six-month dismissal followed by reinstatement. 

Ironically, the CBA indicated that the punishment for a positive drug test could include fines, suspension or dismissal.  However, even the court, on appeal, concluded that the arbitrator's award did not violate public policy and therefore could not be modified. 

My question to you is this -- Do you want Cynthia DeDomenicantonio driving your children to and from school?  Should an employer, charged with the care of our children, be limited to a short suspension?  What about a company that hires safety-sensitive employees?  Should they be subject to discipline short of termination for failing a drug test? 

Did the City Wrongfully Terminate Its Drunken Snow Plow Driver?

Jonathan Blazek is upset with the City of Lakewood, Ohio.  The peaceful suburb west of Cleveland fired Mr. Blazek after it found him legally drunk during his shift plowing snow.  His blood alcohol level registered .132, double the legal limit and six times above the level permitted by the City for its safety-sensitive employees. 

Mr. Blazek contends that the City fired him for his alcoholism in violation of the Americans with Disabilities Act.  The City contends it fired Mr. Blazek because he was drunk on the job, an action that is not protected by the ADA. 

Mr. Blazek wants back pay and reinstatement. After all, who would want to hire a person who got caught driving a snowplow drunk.  He was making $59,000 annually.  And of course, he is seeking attorneys' fees for the schmuck who took his case.

Have you seen a snowplow?  The guy could have done some real damage or injury!  He is lucky he still has a driver's license. 

I'm just glad it doesn't snow in Fresno. 

Harris v. Santa Monica -- The Case That Keeps On Giving

Many of you who attend my employment law trainings will remember the case of Harris v. City of Santa Monica.  It has been in the court system for many years now. 

Ms. Harris was a bus driver who was involved in multiple accidents.  On the morning of the day the City decided to fire her, Ms. Harris announced she was pregnant.  She contended she was fired because she was pregnant.  The City claimed it was due to her less than stellar driving. 

The case raised the issue of "mixed motive."  The City claimed that if it would have fired Ms. Harris for a non-discriminatory reason, then the case should be dismissed.  Ms. Harris claimed that if the City had a discriminatory motive, it was liable for discrimination regardless of any other reason giving rise to the decision to terminate the employment relationship. 

The Supreme Court has now addressed the issue of mixed motive.  It concluded if an employer can prove that due to a non-discriminatory reason it would have made the decision to terminte, then the court cannot award damages, backpay or order reinstatement.  However, if the employer's motive was, in part, discriminatory, then the plaintiff can obtain declaratory or injunctive relief to stop the discriminatory practices.  The plaintiff may also be eligible for attorneys' fees. 

Did you catch that?  It is in the last sentence.  Attorneys' fees.  The employee may not obtain a dime in damages, but the attorney will get paid!  What a wonderful system we have.  Lawsuits brought for the primary -- or sole -- purpose of attorneys' fees. 

Why Litigate? Perhaps to Persuade Other Workers Suing Isn't the Answer

I encourage employers to avoid litigation.  Much of my practice is devoted to training employers on lawful employment practices.  It creates a better workplace.  And it cuts down on litigation.  When disputes arise, an employer should consider settlement.  It can help heal the workplace and reduce costs. 

But litigation can serve a useful purpose.  For example, sometimes you should litigate because you want to dissuade other employees from suing. 

I have a client who faced a serious legal challenge when a couple of former employees filed a lawsuit.  Of course everyone in the office was aware of the lawsuit.  There was plenty of gossip in the office, and speculation as to the outcome of the litigation. 

My client felt compelled to vigorously defend the lawsuit.  The client knew it was in the right and could prevail.  However, the client also knew that proceeding to trial was risky and could result in an adverse judgment.  At that point, the client would have spent a lot of money and had its nose rubbed in it! 

But the client knew that if it did not defend the case, other employees would follow.  In fact, one employee was overheard saying something to the effect that if she didn't get her way on something, she would also file a lawsuit against the company. 

I often see former employees hire the same lawyer as a former co-worker who was successful in litigation or in settling a dispute.  So it is a valid point for an employer to consider:  What will happen with the rest of the staff if I settle this case?  Will others file a similar lawsuit? 

By the way, my client won.  Big.  The client won on everything.  Other employees don't gossip about filing a similar lawsuit anymore. 

Spending Time with the Labor Commissioner is Not Fun!

Employers should do their best to avoid claims filed with the Labor Commissioner.  The process is time-consuming.  The risks can be substantial.  And the process lacks the indicia of an orderly judicial process. 

I am not criticizing the employees in the agency.  They have always treated me and my clients professionally and with respect.  They are good people trying to do their job. 

It's the process.  Consequences are too severe for such an informal process. 

California implemented "Berman hearings" many years ago.  The thought was that employees, many of whom depend upon their daily wages to pay their bills, should not be held up by an employer who does not fully pay its obligations.  The Berman hearing was instituted to provide employees a quick and relatively easy way to obtain unpaid wages. 

A deputy labor commissioner oversees a Berman hearing.  They are not lawyers, but have received training in the positions taken by the Division of Labor Standards Enforcement ("DLSE") in California wage law. 

The hearings are set on short notice.  The process does not contemplate discovery.  Subpoenas can be obtained from the deputy, but they are regularly ignored by potential witnesses.  And there is no adequate consequence for a witness who disobeys a subpoena. 

The rules of evidence are not followed.  Therefore, just about anything is permitted in way of testimony and documentary evidence.  Often a defendant is limited in the number of witnesses it can produce because the deputy labor commissioner does not want to hear duplicate evidence.  But the deputy will accept affidavits of persons not present. 

The deputy rules within 15 days of the close of the hearing.  A party may appeal the case to Superior Court, but there are strings.  If the employer is appealing, it must post a bond for the amount of the award issued by the deputy.  And of course, if the employer loses on appeal, it not only pays a judgment, but also attorneys' fees. 

No case is too small for a Berman hearing.  I have a client currently defending against a $12 claim.  Why not just pay the employee $12?  The employer would love to be done with this for $12.  But that won't settle the case. The employee wants waiting period penalties because she was not paid the $12 before she left the workplace.  The penalties are one month's worth of wages.  In this case, the penalties sough are $2,040. 

So why won't the deputy just dismiss the case since the employer is willing to pay the $12 and the whole matter seems frivolous?  Because the deputy can't.  The authority to dismiss an action was taken away from the deputies.  In other words, even the smallest of cases that would lead to unfair results, must proceed to the hearing stage, unless the parties decide to settle. 

No case is too large for the Labor Commissioner.  In a hearing I attended this morning, the employees (who banded together to file a claim against an employer) sought $130,000 in wages and penalties.  It is difficult to imagine that the State of California would allow a claim of this magnitude to move forward in a Berman hearing when the consequences can be so severe to the employer.  Think about it -- making the employer face this substantial claim in a proceeding without formal rules of evidence, discovery and other procedural safeguards.  It's wrong.  Just wrong. 

In the case we defended this morning, the employees claimed they were not given meal and rest periods, and worked overtime without pay.  However, when we began investigating the matter, we learned that the employees falsified their time cards.  They took meal periods without clocking out.  They even had their nails and hair done, still on the clock, without the employer knowing what was happening. 

California needs to add some reasonableness to this process.  There should be a way for an employer to avoid a month's worth of wages (nearly $2,000 on a minimum wage worker) on a $12 claim.  And there should be a way for substantial cases involving complex issues, including fraud, to move directly to Superior Court where safeguards exist in the litigation process. 

Unfortunately, we don't have that available.  So, my advice to employers is to understand the process.  Prepare for it -- and for avoiding it.  Understand your obligations and comply.