All posts by Karen Marshall

Wilke Fleury partner Megan Lewis will be serving as the President of Women Lawyers of Sacramento ("WLS") for 2012. Ms. Lewis has been a member of WLS since 2002 and has served on the executive committee since 2009. As WLS’s Vice President in 2011, Ms. Lewis spearheaded the Unity Bar Dinner, which celebrated various diversity organizations within the Sacramento County Bar Association. Megan has an exciting and challenging year ahead of her as President, as 2012 marks WLS’s 50th anniversary.

Wilke Fleury is proud of Megan’s continuing leadership in the Sacramento legal community.

Wilke Fleury Names Ron Lamb as Managing Partner Wilke Fleury is pleased to announce that Ron Lamb has been named as the firm’s managing partner. A longstanding and well-respected fixture in the Sacramento area medical malpractice defense community, Ron joined Wilke Fleury in April of 2005, and immediately showed himself to be a highly competent lawyer and administrator. Under Ron’s leadership, Wilke Fleury will continue to deliver the efficient, high-quality legal services its clients have come to expect.

Prior to coming on board with Wilke Fleury, Ron was the managing shareholder of the Sacramento law firm of Rust, Armenis, Schwartz, Lamb & Bills. Ron is also a retired Lieutenant Colonel in the United States Air Force, where he served as a Weapons Systems Officer and, later, an Air Intelligence Officer.

Congratulations, Ron!

The following is a synopsis of notable changes in California and federal employment laws that take effect in 2012.

California Law
AB 469 – Wage Theft Prevention Act
At the time of hiring, every employer must provide each employee with a notice containing the rate and basis of the employee’s wages. Employers must also notify each employee in writing within seven calendar days of any changes to the information contained in the notice unless the changes are reflected in the employee’s next wage statement. The Division of Labor Standards Enforcement has promulgated a form to be used for this purpose, which can be downloaded from the DLSE’s website: www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf.   All of the information contained within the form must be provided even if the form itself is not used.

In addition to paying civil penalties, employers who fail to pay employees the minimum wage will now be required to pay restitution to employees for unpaid minimum wages. Furthermore, employees may recover attorney’s fees and costs to enforce a judgment for unpaid wages. Employers who willfully fail to timely pay a judgment for wages will now be guilty of a misdemeanor and subject to fines, imprisonment or both for each offense.

This law also extends the time the Labor Commissioner has to commence action to collect a statutory penalty or fee from one year to three years.

SB 459 – Penalties for Willful Misclassification of Independent Contractors
Employers that willfully misclassify an employee as an independent contractor will be assessed a penalty of between $5,000 and $25,000 per violation. The law also prohibits employers who have willfully misclassified an employee as an independent contractor from charging the employee any fees or making any deductions from his compensation if such a fee or deduction would have been prohibited if the employee were not an independent contractor.

AB 22 – Use of Credit Report Information in Employment
This law prohibits employers, with the exception of certain financial institutions, from obtaining a credit report for employment purposes unless the applicant is seeking one of the following positions:
• positions in the state Department of Justice;
• managerial positions, as defined under the “executive” exemption to California overtime laws;
• peace officer or other law enforcement positions;
• positions for which the information contained in the report is required by law to be disclosed or obtained by the employer;
• positions involving regular access to specified personal information for any purpose other than routine solicitation and processing of credit card applications in a retail establishment;
• positions in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf;
• positions involving access to confidential or proprietary information; or
• positions involving regular access to cash amounts of $10,000 or more.

If a credit report is obtained for one of these positions, the employer must provide written notice to the applicant or employee specifying the basis for requesting the report and providing the employee the opportunity to request a copy of the report.

AB 887 – Gender Non-Discrimination
Refines the definition of “gender” under the Fair Employment and Housing Act (“FEHA”) to include a person’s gender identity or gender expression. “Gender expression” is defined as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.”

SB 299 – Extended Health Coverage During Pregnancy Leave
Employers must continue to maintain and pay for coverage under a group health insurance plan for employees on pregnancy disability leave for up to four months.

AB 592 – Pregnancy Leave/CFRA Leave
This law makes it an unlawful employment practice for employers to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under the California Family Rights Act or the Pregnancy Disability Leave Law.

AB 1236 – Electronic Employment Verification
Prohibits the state, or a city, county, or special district, from requiring private employers to use an electronic employment verification system except when required by federal law or as a condition of receiving federal funds.

SB 559 – Discrimination: Genetic Information
This law expands FEHA to prohibit discrimination based on an applicant’s “genetic information.” Genetic information is defined as:
• an individual’s genetic tests;
• the genetic tests of the individual’s family members; or
• the manifestation of a disease or disorder in the individual’s family members.

SB 757 – Health Insurance Coverage for Domestic Partners
Existing law requires that domestic partners be provided with the same insurance coverage as spouses under all circumstances. However, policies issued outside the state of California to employers with a principal place of business and a majority of employees outside of California are exempt from this requirement. SB 757 eliminates that exemption by providing that no health insurance policy or certificate of health insurance marketed, issued or delivered to California residents may discriminate between spouses or domestic partners of the same sex and spouses or domestic partners of a different sex.

Increase in Minimum Salary Requirements for Exempt Computer Professionals and Physicians
California is raising the minimum salary required to qualify for the “computer professional” overtime exemption. Computer professionals must be paid a minimum of $38.89 per hour or $81,026.25 annually and not less than $6,752.19 per month. Similarly, the minimum rate for exempt physicians will increase to $70.86 per hour.

Federal Law

New Mandatory Federal Law Employment Poster
All employers subject to the National Labor Relations Act (NLRA) are required to post notices informing employees of their rights under the NLRA. The 11-by-17 inch notice will be provided at no charge by NLRB regional offices or may be downloaded from the NLRB website and printed either in color or in black and white. Employers must also post the notice on an internet site if personnel rules and policies are customarily posted there.

Wilke Fleury associate Sarah Scott recently joined the Advisory Committee for the Voluntary Legal Services Program of Northern California (VLSP). VLSP is a volunteer-based legal aid program that provides free assistance with civil legal matters to low income clients living in the Sacramento region. The organization is celebrating its 30th anniversary this year.

Wilke Fleury is delighted to welcome Bianca Watts as the firm’s newest associate. Ms. Watts joins Wilke Fleury in a full-time capacity after a successful clerkship with the firm during the summer of 2010. Ms. Watts is an alumnus of Pacific McGeorge School of Law, graduating with distinction in May 2011. While at Pacific McGeorge, Ms. Watts participated in the Sacramento County Bar Association Diversity Fellowship Program. She also served as Vice President of the Black Law Students Association and was a Staff Writer for the Pacific McGeorge Global Business and Development Law Journal (“the Globe”). Her article titled “Better Than a Thousand Hollow Words is One Word That Brings Peace: Enforcing Article 49(6) of the Fourth Geneva Convention Against Israeli Settlements in the Occupied Palestinian Territory” will be published this month in the Globe’s Volume 24. Welcome aboard, Bianca!

Six of Wilke Fleury’s attorneys have recently been named either “Super Lawyers” or “Rising Stars” by the 2011 Northern California Super Lawyers Magazine. Phil Birney, Tom Redmon, Ron Lamb,  and Dan Egan were named “Super Lawyers.” It was Mr. Birney’s fifth year to receive this honor, Mr. Redmon’s fourth year, and the second year for Mr. Lamb and Mr. Egan. Dan Baxter and Megan Lewis were named “Rising Stars” for the third year in a row. The list of honorees is compiled through a multi-phase process of peer nominations and evaluations, as well as third party research. Just five percent of the lawyers in California are selected for the “Super Lawyers” designation, and no more than 2.5 percent are named “Rising Stars.” Wilke Fleury congratulates these seven outstanding lawyers on their achievement.

Wilke Fleury is again participating in the Sacramento County Bar Association’s Diversity Fellowship program and welcomes Neha Mac for the summer. Ms. Mac received her bachelors degree from University of San Francisco and is currently an evening student at University of the Pacific, McGeorge School of Law, where she recently finished her second year. She is involved with the South Asian Bar Association of Sacramento and the McGeorge Orientation and Mentorship committees and looks forward to gaining invaluable experience over the summer.

In investigations of alleged discrimination under California’s Fair Employment and Housing Act, workplace investigators frequently rely on standards enunciated by federal courts interpreting Title VII, as such standards often apply equally to cases brought under California’s Fair Employment and Housing Act. California courts have expressly recognized the overlap between the two statutory schemes and the appropriateness of relying on federal Title VII cases when considering FEHA claims. In some cases, however, California has considered and rejected the federal stray remarks doctrine. As a result, workplace investigators must be more wary of relying on federal authorities when determining whether discrimination has occurred.

The “Stray Remarks Doctrine”
The stray remarks doctrine was first coined by the U.S. Supreme Court in 1989 and has since been adopted and notably expanded by federal circuit courts. Under this doctrine, federal courts deem irrelevant any remarks made by non-decisionmaking coworkers and remarks made by decisionmaking supervisors outside of the decisional process of adverse employment decisions, and evidence of such stray remarks are insufficient to defeat summary judgment. Further, federal courts treat ambiguous comments as stray remarks because they do not sufficiently indicate discriminatory animus.

In Reid v. Google, the California Supreme Court rejected the “Stray Remarks Doctrine” and held that California courts must consider the totality of the evidence, including any relevant discriminatory remarks, in determining whether discrimination has occurred. This decision represents a significant divergence from the Federal Courts’ acceptance of the “Stray Remarks Doctrine” and creates impetus for California employers to make efforts to eliminate all inappropriate comments from the workplace.

Case Background
In 2002, Google hired Brian Reid, age 52, to be Google’s director of operations and director of engineering. Reid alleged that during his employment at Google, an executive to whom Reid occasionally reported, as well as other co-workers, made derogatory age-related remarks to him. According to Reid, the executive told him his opinions and ideas were “obsolete” and “too old to matter,” that he was “slow,” “fuzzy,” “sluggish,” and “lethargic,” and that he did not “display a sense of urgency” and “lack[ed] energy.” Other coworkers called Reid an “old man” and an “old fuddy-duddy,” and joked that Reid’s compact disc jewel case office placard should be an “LP” instead of a “CD.” Less than two years later, Google terminated Reid’s employment, stating that he was not a “cultural fit.” Reid then sued Google, alleging age discrimination and offering as evidence the comments that had been made to him. Google moved for summary judgment, arguing that the comments were stray remarks and thus insufficient to defeat the motion. The trial court granted Google’s motion, finding Plaintiff’s evidence insufficient to raise a triable issue. The Court of Appeal reversed, rejecting Google’s argument that the alleged ageist comments were stray remarks and finding them sufficient to create an inference of illegal discrimination.

The Supreme Court’s Decision
The California Supreme Court affirmed the decision of the Court of Appeal, holding that the comments made by Reid’s supervisors and coworkers should not be viewed in isolation as stray remarks, but instead should be considered with all the evidence in the record. The Court rejected the stray remarks doctrine for a number of reasons. First, the Court explained that strict application of the stray remarks doctrine would result in a court’s categorical exclusion of evidence even if the evidence was relevant. The Court noted that remarks not made directly in the context of an employment decision and remarks uttered by a non-decisionmaker may still be relevant circumstantial evidence of discrimination, particularly where a non-decisionmaker influences a decisionmaker. Second, strict application of the stray remarks doctrine would be contrary to the procedural rules codified by statute and adopted in California cases. Specifically, California law directs that at the summary judgment stage, courts “shall consider all of the evidence set forth in the papers and all inferences reasonably deducible from the evidence.” Third, while a stray remark alone may not create a triable issue of discrimination, when combined with other evidence of pretext, an otherwise stray remark may create evidence that is sufficient to defeat summary judgment. Fourth, because there is no precise definition of who is a decision maker or what constitutes a remark made “outside of the decisional process” in the employment context, federal courts have treated identical remarks inconsistently. Thus, the Court concluded, in a California employment discrimination case, the stray remarks doctrine is not to be applied and the court is to consider all alleged discriminatory comments.

What This Means for You
In California, even casual comments made by non-decisionmaking employees or ambiguous remarks made by decisionmakers outside of the decisionmaking process may be used as evidence of discrimination. Employers must take care to ensure that all employees are trained regarding proper conduct in the work place. This includes making sure that employees do not make improper and potentially discriminatory comments about another employee’s race, ethnicity, sex, gender, age, sexual orientation and the like. Even comments as seemingly innocuous as “lethargic” and “quick study” may be found to constitute evidence of age discrimination. Finally, you should ensure that all employment decisions are made based on objective qualifications that cannot be misinterpreted as potentially discriminatory.

FMLA Leave
The Family and Medical Leave Act (FMLA) is a federal law that has long provided for up to 12 weeks per year of protected family and medical leave from work for qualifying employees. Typically, employees take FMLA leave to receive medical treatment for the employee’s own illness or injury, or to care for an ailing spouse or family member.
Recently, in response to the country’s prolonged involvement in military operations in Iraq and Afghanistan, Congress created two new categories of FMLA leave: (1) military caregiver leave, and (2) military qualifying exigency leave. These new categories are in addition to the family and medical leave already provided for under the FMLA.

Military Caregiver Leave
Military Caregiver Leave provides up to 26 weeks of time off per year for an employee to care for a child, parent, spouse, or next of kin who is a “covered military member” – i.e., a current member of the Armed Forces (including the National Guard and Reserves), or a member of the Armed Forces, the National Guard, or Reserves on the temporary disability retired list – and who has a serious injury or illness sustained while in the line of duty. “Next of kin” is defined as anyone other than a child, parent, or spouse who is the nearest blood relative of the covered member. Typically, covered members designate their “next of kin” for military caregiver purposes, but if none is selected, the following level of priority applies: blood relatives granted legal custody of the servicemember; brothers and sisters; grandparents; aunts and uncles; and first cousins. Under military caregiver leave, “children” and “parents” include step-children and step-parents and foster or adopted children and parents.

Military Qualifying Exigency Leave
Military Qualifying Exigency (QE) Leave provides 12 weeks of leave per year for an employee whose child, parent, or spouse is a “covered military member” – meaning in this case that he or she is either a member of the reserve components (Army National Guard of the United States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of the United States, Air Force Reserve, and Coast Guard Reserve) or a retired member of the Regular Armed Forces or Reserve – that is on active duty or notified of impending active duty status in support of a “contingency operation.” “Contingency operations” are those that either (1) are designated by the Defense Secretary as one in which members of the armed forces are or may become involved in military actions, operations, or hostilities against an enemy of the United States or against an opposing military force, or (2) result in active duty of members of the uniformed services during a war or national emergency declared by the President or Congress. (The military member’s active duty orders should specify if the call is for a “contingency operation,” and employers may require that the employee certify the need for leave by providing either those orders or a signed statement from the employee describing the facts supporting the request for QE leave.) Note that QE leave does not apply to family members of the Regular Armed Forces or Reserve on active duty or call to active duty status – only reserves and retired members.

The Department of Labor has identified eight categories of QE leave – key to each of these is that the need for leave must arise out of the fact that the employee is a parent, child, or spouse of a covered military member:

1. Short-notice deployment. The eligible employee may take up to seven days of leave if his or her spouse, parent, or child is given seven days’ notice or less of deployment.
2. Military events and related activities. The eligible employee may take leave for any official, military-sponsored ceremony, program, or event related to the active duty or call to active duty status of a covered military member. Leave may also be taken to attend family support or assistance programs sponsored or supported by the military or the American Red Cross that relate to the active duty or call to active duty status of a covered military member.
3. Childcare and school activities. Eligible employees may take leave to make child care arrangements or to attend certain school functions for the child of a covered military member.
4. Financial and legal arrangements. Eligible employees may take leave to make or update financial and legal arrangements for when the covered military member is on active duty or call to active duty.
5. Counseling. Leave is available for the employee, the covered military member, or the covered military member’s child to attend counseling by a non-health care provider, as long as the counseling arises from active duty service or call to active duty.
6. Rest and recuperation. As much as five days of QE leave is available to an eligible employee to spend time with a covered military family member on rest and recuperation leave during his or her deployment.
7. Postdeployment activities. For 90 days following the termination of active duty status, eligible employees may take leave to attend ceremonies incident to the return of the covered military family member, such as ceremonies and reintegration briefings, or to address issues related to the death of a covered military family member, such as recovering the body and making funeral arrangements.
8. Other additional activities. The employer and employee may agree that other events arising out of a covered military member’s active duty or call to active duty status qualify as exigency. In such instances, the employer and employee must agree on the QE coverage, timing, and duration.

As with traditional FMLA leave, eligible employees may take leave under either the QE or military caregiver provisions on an intermittent or reduced schedule basis. Also as with traditional FMLA leave, employees must make a reasonable effort to schedule any leave for medical treatment so as to disrupt the employer’s operations as little as possible, and employees must give as much notice as practicable in advance of their leave.

The same approaches that employers have used in the past to manage their FMLA leave policies apply to these new categories, as well. For instance, employers would be wise to:

• Require written notice of leave in advance;
• Track all periods of leave, and keep all records regarding leave eligibility, determinations and notifications on file, ideally with one dedicated person;
• Avoid inflexible leave policies that will interfere with the obligation to make decisions on a case-by-case basis;
• Get specific information regarding the need for the leave up front to avoid later problems and miscommunication; and
• Provide notice to the employee that FMLA leave time is being counted, and notify the employee before his or her leave time is exhausted.

These common-sense precautions will minimize the problems with and abuse of FMLA leave that many employers confront.

Wilke Fleury partner Dan Baxter was recently elected to serve as Chairman of the Board of Directors for Teaching Everyone Animals Matter ("TEAM"), a non-profit organization formed to assist Sacramento County Animal Care and Regulation in caring for the lost, abandoned, abused, and neglected animals in Sacramento County. Dan has been involved with TEAM for several years, and Wilke Fleury itself has also sponsored TEAM through Wilke Fleury’s "Jeans Friday" program, in which employees contribute $5 to selected non-profit organizations for the privilege of wearing jeans on Fridays.

Dan’s duties as TEAM’s Chairman will consist of, among other things, overseeing Board meetings, writing letters on behalf of the organization, appearing at events, and ensuring that TEAM’s mission continues to be fulfilled.

Wilke Fleury congratulates Dan on his new position!

Wilke Fleury Partner Jim Krtil was recently awarded lifetime membership in the Sacramento Estate Planning Council. The Sacramento Estate Planning Council is a non-profit, professional association which serves as an educational and networking resource for over 140 regional members in matters of estate planning. The Sacramento Estate Planning Council provides a forum where trust officers, private fiduciaries, attorneys, certified public accountants, chartered life underwriters, chartered financial consultants, certified financial planners, chartered financial analysts, educators, planned giving professionals, and accredited valuation experts in the Sacramento Valley can meet and share information about new developments in the estate planning, a constantly changing field. Mr. Krtil joined the Sacramento Estate Planning Council in 1980 and was president in 2000-2001.

Wilke Fleury’s own Dan Baxter has been named as a finalist for the Sacramento Business Journal’s “40 Under 40” awards, which honors Sacramento’s up-and-coming professionals for their business success and community contributions. Dan is one of 100 finalists selected from a group of nominees spanning Sacramento’s business spectrum, including physicians, accountants, developers, lawyers, entrepreneurs, and public employees. Dan’s notable successes over the last year include a multi-million dollar jury verdict against the California Correctional Peace Officers’ Association, and a successful arbitration regarding the value of the Downtown Railyards property sold to the City of Sacramento, which Dan handled with colleague Tom Redmon. Dan and his fellow “40 Under 40” finalists are listed in the March 18 edition of the Business Journal. Congratulations, Dan!

In a unanimous decision, the United States Supreme Court recently held that an employee who has not engaged in protected activity may still have a valid cause of action for retaliation, if the employer took adverse action against the employee due to the employee’s connection to another employee who engaged in protected activity. This holding dramatically expands the scope of retaliation liability for employers under Title VII of the Federal Civil Rights Act of 1964.

Case Background
Mariam Regalado and her fiancé, Eric Thompson, were both employees of North American Stainless (NAS). In 2003, Ms. Regalado filed a sex discrimination charge against the company with the EEOC. The EEOC notified NAS that Ms. Regalado had filed the charge. Three weeks later, NAS terminated Thompson’s employment. Thompson then sued NAS, alleging his discharge was in retaliation for his fiancé’s EEOC charge. The trial court and the Court of Appeals dismissed the lawsuit, finding that Title VII’s protections did not apply to Thompson because he had not personally engaged in the protected activity. The United States Supreme Court disagreed.

Analysis
The Court looked at two issues: (1) whether Thompson’s firing constituted unlawful retaliation under Title VII, and (2) if it did, whether Title VII provided Thompson with a cause of action.

As to the first issue, the Court concluded that, assuming the facts alleged by Thompson were true, it was difficult not to conclude that NAS’s termination of Thompson had violated Title VII. In its analysis, the Court noted that Title VII’s anti-retaliation provisions must be construed to cover a broad range of employer conduct. Specifically, Title VII’s anti-retaliation provision prohibits any employer action that may dissuade a reasonable worker from making or supporting a charge of discrimination. The Court found that it was “obvious that a reasonable worker might be dissuaded form engaging in protected activity if she knew that her fiancé would be fired.”

As to the second question, the Court set forth the “zone of interest” test. The Court determined that a plaintiff could not sue unless he falls within the zone of interest sought to be protected by the statutory provision whose violation forms the legal basis of his complaints. In other words, as an employee of NAS, Title VII was intended to protect Thompson from the unlawful actions of his employer. The Court reasoned that, if the facts alleged by Thompson were true, then Thompson’s termination was the intended means of punishing Ms. Regaldo for filing a charge against her employer. Therefore, Thompson was a “person aggrieved with standing to sue under the statutory regime of Title VII.” Even though Thompson did not engage in any protected activity under Title VII, he was within the “zone of interest” sought to be protected by Title VII, which allows a person aggrieved by an alleged employment practice to bring a civil action.

What this Means for You
While the Court allowed an employee who had not engaged in protected activity to bring a claim, it declined to identify the specific types of relationships that would fall within Title VII’s protections. The Court noted that “firing a close family member will almost always meet the requisite standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so.” Accordingly, it is important for employers to realize that Title VII protects more than just the employee who engages in the protected activity. Here are some things to keep in mind in light of Thompson:

• Promptly investigate employee complaints.
• Review all personnel decisions involving the complaining employee to ensure that your employment actions are free of any retaliatory motive.
• Ensure that all employment policies include anti-retaliation provisions.
• Train managers, supervisors, and human resource staff to refrain from and to identify potential instances of associational discrimination or retaliation.
• Following a complaint, remind supervisory employees that retaliation is prohibited and taking action of any sort, even against someone associated with an employee who has brought a complaint, may be unlawful.
• Document performance problems thoroughly and contemporaneously to support any adverse employment actions taken.
• Always make certain that adverse employment decisions are based on legitimate and non-discriminatory factors.

Because most cases in California are brought under FEHA, rather than Title VII, it is unclear how this holding will impact the majority of retaliation cases in California. However, given that California courts look to federal decisions for guidance and because California courts are usually more liberal than the federal courts, it would not be surprising to see California courts follow the reasoning of this decision.

The transition to or maintenance of a drug-free workplace raises concerns regarding employee privacy of which employers must be cognizant. An employer may choose to implement a workplace alcohol and drug policy for many reasons, including to provide a safe workplace for employees, to avoid adverse health effects on employees with concomitant costs to the employer, and to protect the company’s image. An employer may also choose to implement a workplace alcohol and drug policy in order to contract with the state or federal government, or to be eligible for federal and state aid.

Whatever the motivation for implementing an alcohol and drug policy, the policy should be a written document that addresses the use of, or being under the influence of, alcohol and drugs in the workplace. The policy should be clear and precise, and strictly followed at all times. The policy needs to be disseminated to employees and easily accessible to them (e.g., posted on a bulletin board, included within the employee handbook, additional copies available in the human resources department). The policy should address the reason for the policy, and cover such areas as (a) pre-employment screening, (b) use, sale, or possession of alcohol and drugs on company premises, (c) searches of employees and their personal property, (d) testing for alcohol and drugs, (e) disciplinary action, and (f) employee assistance programs.

One of the primary components of any alcohol and drug policy is testing for alcohol and drugs. There are generally three categories of testing: pre-employment testing, reasonable suspicion testing and random testing. Pre-employment testing is the least risky type of policy the employer can implement. Pre-employment testing refers to the employer testing applicants for employment for drug and alcohol use as part of the employer’s review of the applicant’s qualification for employment. Employers may implement alcohol and drug testing as part of a regular, pre-employment physical examination for all applicants.

On the other hand, an employer may not require alcohol and drug testing for all employees who are eligible for promotion. Instead, employers should only require employees who are eligible for promotion to submit to testing after the employer determines that there is a compelling business need to test the employee, based on the nature and qualifications of the new position for which the employee is being considered. If the employer does not have a compelling business need to test the employee, then the employer could be subject to substantial tort liability for invasion of the employee’s privacy rights.

Current employees who are not being considered for promotion should only be tested based on a reasonable suspicion of alcohol or drug use. Reasonable suspicion may be based on direct observation of drug use or possession, custody or control or the physical symptoms of being under the influence of a drug, a pattern of abnormal conduct, arrest or conviction for a drug related offense, information provided by a reliable source or evidence that the employee has tampered with a previous drug test. Although reasonable suspicion testing does not require certainty, mere “hunches” are not sufficient to warrant a test. A random alcohol and drug test is the most risky test the employer can administer. Random drug tests will generally only be allowed where the employer can demonstrate that the employer’s special interest and the public interest outweigh the employee’s reasonable expectation of privacy. Generally, the employer must show that the employee’s to be tested are in safety sensitive positions. Moreover, the employer must provide advance notice of the random testing program, minimize the degree of intrusion involved, and provide safeguards for protesting the confidentiality of the process. Finally, there should be little or no discretion as to who is chosen for testing. In other words, the testing should be truly random.

Claims that may be asserted by employees who have been tested under a policy found to be unlawful include invasion of privacy, intentional infliction of emotional distress, defamation, discrimination and wrongful termination if the employee is discharge as a result of the test.

Any testing that is performed should be conducted by an independent contractor. With experience conducting tests. This will provide additional protection to the employer against a lawsuit by an employee alleging flawed testing because the torts of an independent contractor are generally not be attributable to the employer. Furthermore, employers should only receive a simple pass or fail result, not a detailed reporting of the employee’s private test results.

After the results are received by the employer, the employer should ensure that access to the results is limited. For example, the employer should not store the results in the employee’s personnel file. Moreover, the consequences for an employee who receives adverse test results should be predetermined in the workplace alcohol and drug policy.

Finally, employers should be aware that they may be required to make reasonable accommodations for employees desiring to enter rehabilitation, whether this desire is motivated by an adverse test result or is made by the employee at the employee’s initiative. Apart from the workplace alcohol and drug policy, an employer with twenty-five or more employees must reasonably accommodate any employee wishing to voluntarily enter and participate in an alcohol or drug rehabilitation program as long as the accommodation does not pose an undue hardship on the employer. If the employee receiving an adverse test result is not terminated, the employer may need to make similar accommodations for that employee.

If you are considering implementing a workplace alcohol and drug policy, or are reviewing your current policy, Wilke Fleury can help ensure that it complies with state and federal law, and meets the stringent state and federal contracting and federal aid standards.

The Institute of Governmental Advocates (IGA), California’s professional association of lobbyists and government relations specialists, has announced the election of Wilke Fleury Partner, John Valencia, to its Board of Directors.

Founded in 1974, IGA’s mission is to protect and defend the First Amendment rights of lobbyists and government relations professionals to advocate on behalf of their clients before California’s Legislature and the Executive Branch of state government. The Institute of Governmental Advocates (IGA) is a voluntary, non-partisan association representing the leading professional lobbyists and lobbying firms in California’s Capitol.

IGA members subscribe to a voluntary code of conduct and professional ethics that go beyond what is required under the Fair Political Practices Act. IGA also works instill core values of integrity, honesty, and professionalism among the members of the “Third House” and pass along those values to the next generation of lobbyists.