California employers can establish workplace conduct policies and discipline employees who fail to comply with them.  Employers also have to engage in an interactive process with employees who have a disability to explore reasonable accommodations, if any, to address work limitations from the disability.  However, an employer’s duty to reasonably accommodate an employee’s disability is prospective, meaning that employees are not excused for their past bad conduct just because a disability may have contributed to it when the employer was unaware of the disability at the time the transgressions occurred.  A recent case is instructive.

In Alamillo v. BNSF Railway Company (9th Cir., Aug. 25, 2017), 2017 WL 3648514, an employee sued his employer under California law for wrongful termination based on disability, failure to accommodate his disability, and failure to engage in the interactive process.  The employee had ten unexcused absences during the year.  While the discipline process for the most recent unexcused absences was ongoing, the employee was diagnosed with obstructive sleep apnea (OSA).  The company accommodated the OSA prospectively, but did not excuse the employee for the unexcused absences before it learned about the OSA. As to them, the discipline process continued and the employee was ultimately terminated when the discipline process finished because of the past attendance violations.  The court of appeal upheld the employee’s termination because there could be no failure to engage in the interactive process after the violations had already taken place and because no reasonable accommodation could fix the past absenteeism since reasonable accommodations are prospective.

As this case reminds us, employers do not have to change or excuse employee transgressions that occur before the employer knows about a disability.   Rather, once an employer learns that an employee has a disability, the employer should work with the employee to prospectively address any limitations from it, but past transgressions remain and may subject the employee to discipline notwithstanding the disability.

  By Samson R. Elsbernd

Employers may lawfully defer an employee’s paid vacation accrual until after their first year of employment. On July 28, 2017, the California Court of Appeal in Minnick v. Automotive Creations, Inc., No. D070555 (Cal.App. 4 Dist. 2017) affirmed that California law does not prohibit employers from imposing a waiting period before paid vacation time accrues.

For more information, click on the link: http://www.wilkefleury.com/blog/employers-may-implement-vacation-accrual-waiting-periods/

On August 31, 2017, Senior Judge Lynn J. Bush of the United States Court of Federal Claims issued a $4,000,000 judgment against the United States in favor of Magnus Pacific Corporation, a Wilke Fleury client and one of the leading geotechnical contractors in the country.

Magnus Pacific’s claims arose out of levee restoration work performed for the United States Section of the International Boundary and Water Commission (USIBWC) along the Rio Grande River near Presidio, Texas.

Magnus Pacific’s work took place from approximately April of 2011 through May of 2012, and was performed pursuant to a contract entered into with the USIBWC.  During the course of the project, Magnus Pacific encountered site conditions that differed significantly from those depicted in the project plans and specifications.  Those differing conditions led to significant additional work, and associated cost overruns.  Magnus Pacific requested the USIBWC’s voluntary payment of those additional costs, but those requests were rejected.

Upon completion of the project, and successful construction of the levee under extraordinarily difficult conditions, Magnus Pacific submitted “certified claims” to the USIBWC, again requesting payment of the additional costs incurred.  Once again, those claims were rejected.  Therefore, on October 31, 2013, Wilke Fleury partner Dan Baxter filed a lawsuit in the Court of Federal Claims, advancing three claims on Magnus Pacific’s behalf, and seeking approximately $4,000,000 in damages.  After the completion of significant written discovery, and over a dozen depositions occurring in California, Texas, Mississippi, Arizona, and Massachusetts, a three-week trial took place in August and September of 2016.  At trial, Magnus Pacific was represented by Dan Baxter, assisted by Wilke Fleury paralegal Sharon Brazell.  The United States was represented by three lawyers and two paralegals from the Department of Justice.  After trial, the parties engaged in extensive post-trial briefing, and the case was submitted for decision on January 17, 2017.

On August 31, Judge Bush issued a 110-page reported decision and associated judgment.  Judge Bush found in Magnus Pacific’s favor on all three claims, and awarded Magnus Pacific the principal amount of $3,879,919, plus interest on approximately 3/4ths of that amount.  With such interest, the amount awarded exceeds $4,000,000.

Wilke Fleury is proud of its association with Magnus Pacific (now Great Lakes Environmental and Infrastructure), and pleased at the opportunity to secure a successful outcome for its longstanding client.

See the final reported decision here: Magnus Pacific v. US–Final Reported Decision

  Dan Baxter