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.
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.
The voting for Professional Research Services’ survey to determine the top attorneys in 2017 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. ~ Sacramento Magazine
Wilke Fleury is thrilled to announce our 2017 Super Lawyers and Rising Stars! Twelve of our talented attorneys have been honored with the Super Lawyers distinction and an additional four attorneys were honored with the Rising Stars distinction.
Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. The Super Lawyers list represents only five percent of lawyers in California and Rising Stars reflects 2.5% of the state’s up-and-coming lawyers.
Congratulations to Wilke Fleury’s 2017 Super Lawyers and Rising Stars!
“A special-needs trust is a family’s most important tool in making plans to pay for care. Key government benefits like Medi-Cal and SSI are restricted when a person with special needs has assets of more than $2,000. But special-needs trusts are a bucket into which family members and others can deposit an unlimited amount of money for a range of eligible expenses for their family member, like clothes, furniture, a car or education. The government doesn’t count such a special-needs trust as part of their assets.” – Steven Yoder, Comstocks
These doing business in California references for employers discuss recent advancements in the State’s labor and employment laws and how those laws affect their business.
We assembled the Firm’s monthly labor and employment newsletters in easy-to-access e-books, now available for you to download. Wilke Fleury’s Labor and Employment e-Books are issued semi-annually.
A new and exciting COA membership benefit will be available to all COA member doctors of optometry starting July 1, 2016. We are pleased to add a FREE legal resource service as an added value to the many benefits you already receive as a COA member. The benefit entitles COA member optometrists up to one-half hour (30 minutes) of telephone and research work per month with an attorney at no cost.
The COA Legal Services Resource Program will offer services that will assist members in areas of the law related the practice of optometry. Services offered are:
Business tax issues
Business owner succession planning
Cal/OSHA/Prop 65 issues
Contract issues
Employment law
Licensure issues
Practice ownership and organizational structure
Regulatory and administrative law
California State Board of Optometry rules and enforcement issues
How will the program work?
Contact one of the designated attorneys from Wilke, Fleury, Hoffelt, Gould & Birney, LLP (see below), provide them with your COA member number, and receive a free consultation for up to one-half hour per month. This benefit will not accumulate from month-to-month.
All services are confidential. Any agreement for contracted services, beyond the COA free benefit, is between the individual optometrist and the attorney.
Meet the attorneys
For issues pertaining to employment and practice succession, contact:
Stephen Marmaduke. Mr. Marmaduke has practiced law in California for over 35 years. One of his primary focuses is the representation of health care providers in the area of professional employment.
For all other legal matters, contact:
William A. (Bill) Gould, Jr. Mr. Gould has been with the Wilke Fleury since 1964 and has served as COA’s general counsel for more than 50 years. His practice emphasizes health care law (including the laws affecting doctors of optometry), litigation and administrative law. During his time representing COA, he has handled all COA litigation, including the Eyeglasses I and Eyeglasses II lawsuits, and lawsuits against the Medical Board of California and others.
Daniel Baxter: A partner with Wilke Fleury since 2007, Mr. Baxter’s practice focus includes business litigation and as general counsel to clients ranging from non-profit organizations to small businesses.
Beginning July 1, access your COA legal resource services member benefit by:
Call Wilke Fleury at 916-441-2430
Provide your COA member number.
Ask for the attorney who best meets your issue from the above list.
About the Law Firm of Wilke, Fleury, Hoffelt, Gould & Birney, LLP
For more than 90 years, Wilke Fleury has served businesses, governmental entities and individuals by providing comprehensive legal services with the highest standards of integrity and efficiency. The firm as gained a national reputation in the health care arena, and has served as legal counsel to COA for more than 50 years.
California employers have to post election notices advising employees of their ability to take time off to vote when employees do not have enough time to vote outside of their working hours. Election notices need to be posted 10 days before any statewide election.
This is the week for California employers to post their election notices since the California presidential primary election is June 7. Most employers should post the election notice by Friday, May 27, 2016. For more information about the election notice, watch our Video Blog:
In addition to all of their other responsibilities, veterinarians also have a duty to warn others of animals’ dangerous propensities. As a clinician, you owe this duty to:
Staff members
Animal owners
Third parties
Warning Staff
Ensuring that your staff members understand and account for the dangers of working with animals is one of the best ways to limit the liability of your practice. To protect your staff from injuries:
Develop clear procedures for identifying potentially-dangerous animals upon intake.
Educate staff with regard to these procedures.
Ensure that procedures are consistently followed.
For example, you may implement a policy that requires your staff to label the files of animals with a history of violent behavior and take extra precautions when treating these animals in the future (i.e. muzzles, physical restraints, sedation, etc).
Warning Animal Owners
When you have reason to believe that an animal poses any type of risk, notifying the owner can shield you from liability. For example, if you believe an animal to be especially violent or dangerous, you should warn the owner of this risk. Remember to be consistent when issuing these warnings. You should also document all notifications and warnings for future reference.
Warning Third Parties
In most cases, your duty to warn third parties of potential risks can be satisfied by simply warning the animal’s owner. Since the animal’s owner holds the primary responsibility for the animal’s behavior, he or she will be liable for any injuries or damage the animal causes – as long as you satisfied your obligation to warn of potential risks. However, if you do not warn the owner of a known risk, you may be held liable for these consequences.
For example, assume an animal attacks one of your technicians, but you don’t warn the animal’s owner of its propensity for violence. The animal attacks a third party the following week. In this case, you may be held legally responsible for the third party’s injuries.
Under the Americans with Disabilities Act and California’s Fair Employment and Housing Act, veterinarian practices are required to identify and accommodate employees with disabilities as needed. These laws also prohibit you from discriminating against an employee on the basis of a disability. Covered disabilities include any mental or physical impairment that limits one or more of the employee’s major life activities. For example, if one of your technicians suffers from Type I diabetes, these laws may require you to schedule breaks for that employee at regular intervals so that he or she can check blood sugar levels.
Meal and Rest Periods
In California, workers with shifts lasting at least five hours are entitled to one unpaid meal period of at least 30 minutes. If the employee works more than ten hours in a single shift, he or she is entitled to a second meal period of at least 30 minutes. First or second meal periods may be waived by a mutual agreement between the employer and employee, if the shifts are no longer than six hours or 12 hours respectively.
During unpaid meal periods, your employees must be relieved of all duties. They must also be permitted to leave the office. If they must remain in the office during a meal period, they must be paid for their time. Employers in California are also required to offer one 10-minute break for every four hours worked. If you fail to offer your employees a meal break or a rest break when one is mandated, you owe the employee an extra hour’s worth of pay.
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“A special-needs trust is a family’s most important tool in making plans to pay for care. Key government benefits like Medi-Cal and SSI are restricted when a person with special needs has assets of more than $2,000. But special-needs trusts are a bucket into which family members and others can deposit an unlimited amount of money for a range of eligible expenses for their family member, like clothes, furniture, a car or education. The government doesn’t count such a special-needs trust as part of their assets.” – Steven Yoder, Comstocks
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