Ninth Circuit Holds That Behavioral Issues Warrant Fitness For Duty Examination

Posted by Morin Jacob on January 25, 2011

On how many occasions have you found yourself asking whether you can lawfully send an employee for a fitness for duty evaluation?  At one time or another you may have been faced with an employee whose ability to perform their job is questioned.  Sometimes these situations are clear: the employee is actually failing to perform his or her job duties and you have cause to believe they are not fit for duty.  However, what about situations where an employee is performing the functions and duties of their job, Fitness-for-Duty.jpgbut is acting out behaviorally in a way that is stressful and disruptful to a department or unit?  Can that employee be sent for a fitness for duty evaluation even though they are competently performing their actual job duties?

In Brownfield v. City of Yakima, 612 F. 3d 1140 (9th Cir. 2010), Brownfield, a Yakima police officer, was performing his duties as a peace officer, but his communications with his supervisors were overly emotional on about five occasions.  For example, he used an expletive and he walked out of a meeting with two of his supervisors.  On another occasion, Brownfield swore at a supervisor and told him to leave the room when he was talking with another officer.  As a result of this behavior, the City ordered Brownfield to undergo a fitness for duty examination.  The doctor diagnosed Brownfield with a permanent mood disorder and concluded that he was unfit for police duty.  The City terminated Brownfield on the ground that he was unfit for duty.

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Formulating Effective College Freedom Of Expression Policies Under The First Amendment

Posted by David Urban on January 25, 2011

students-on-campus.JPGMany public universities and colleges in California want to establish policies regarding what kind of speech can occur on campus.  But doing so can be hazardous.  Imagine you are tasked with establishing a policy that governs organized student speech on your campus.  What would be reasonable?

Without a lot of legal guidance, you might propose the following: being careful, you might say, “none of the campus is considered any kind of ‘public forum’ for speech activities.”  But, to be generous, you might also say, “all of the walkways surrounding the school library will be considered a free speech zone for students and outsiders.”  The area is not heavily trafficked, and makes up only a small portion of the campus, but you expect that at least some students and other passersby will be able to see demonstrations or activities in the area specified.  Again being generous, you write, “student organizations and outside groups must apply to use the free speech zone for demonstrations or distributing literature, and the college guarantees it will respond to the applications in fifteen (15) days, and will only deny permission for a proposed demonstration if it is manifestly inappropriate for an academic environment as determined by the Chancellor or by his or her designees.” 

This campus policy doesn’t sound crazy.  And it certainly does not create a police state or Orwellian dystopia.  After all, it permits even demonstrations that criticize the college or its policies, since most people would agree such demonstrations would not, if reasonable, qualify as "manifestly inappropriate for an academic environment." 

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U.S. Supreme Court Holds Employee Background Checks Do Not Violate Privacy Rights

Posted by Elizabeth Arce on January 20, 2011

Gavel.jpgRecently, the Supreme Court reversed a decision of the Ninth Circuit and upheld the federal government’s ability to conduct employee background checks in an 8-0 decision (Justice Kagan did not participate) in NASA v. Nelson (No. 09-530).

The National Aeronautics and Space Administration (“NASA”) is an independent federal agency which has a workforce consisting of both federal civil servants and contract employees who are employed by Government contractors.  The Jet Propulsion Laboratory (“JPL”), a NASA facility, is staffed exclusively by contract employees.  In 2007, twenty eight JPL employees objected to mandatory background checks on the grounds that some of the inquiries violated their constitutional right to “informational privacy.”  The employees objected to a form questionnaire that asked them about treatment or counseling for recent illegal drug use.  They also objected to a form which was sent to their designated references that asked “open-ended” questions about the applicant’s “suitability for government employment and security,” “honestly and trustworthiness,” “financial integrity,” and “mental and emotional stability.”  At the time they were hired many years ago, the JPL employees were not subjected to a background check because background checks were only required for federal civil servants.  However, this changed when a recommendation by the 9/11 Commission prompted the Government to begin requiring contract employees with long-term access to federal facilities to complete background checks.  JPL management informed employees that anyone failing to complete the background check would be denied access to JPL and face termination.

The Ninth Circuit had enjoined the forms as likely being unconstitutional because  the questions about drug treatment and counseling did not serve a legitimate government interest and the open ended questions for references were not narrowly tailored to meet the government’s security interests.

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Failure To Hire Was Not Racially Discriminatory Where Employer Had Established Policy Against Applicants With Theft Convictions

Posted by Frances Rogers on January 11, 2011

African-Woman-Interviewing.jpgRecently, the EEOC lost a lawsuit against an employer, Con-Way Freight, under allegations that the company did not hire an applicant because of her race. In support of these allegations, the EEOC offered evidence that one manager, upon learning of the applicant’s race, made a statement that hiring the woman would “open a can of worms” and the other manager told the applicant that his manager did not want him to hire her because if he did he was just “begging for the NAACP.”

Were these statements inflammatory? Absolutely. Was it stupid for these managers to make these statements? Definitely. Does it make the employer liable for discrimination? Not so much.

See, Con-Way freight had an unwritten, but well established policy of not hiring any person with theft-related criminal convictions. The complaining applicant in this case had two. So, regardless of the moronic statements made by these two managers, she would not have been hired by the employer, anyways.   While not discussed in this case, Con-Way’s policy would appear to be reasonable as well. As a company devoted to shipping and carrying products across the country for its clients, theft is probably a top priority.

In addition, neither of these managers actually played a role in deciding not to hire the complaining applicant. Con-Way had a central human resources department.  Applicants had to be put forward by a manager to the HR department which would run a background check and then notify the manager whether the applicant was approved.  Since Con-Way fired the hiring manager before he put any name forward to the HR department, the complaining applicant never had the opportunity to be approved or disapproved by the company, let alone by any manager with a discriminatory intent.

The EEOC jumped too quickly on this one simply because a couple managers made some incendiary statements. But what the EEOC was missing was a nexus. There was a lack of evidence linking the statements to any decision not to hire the applicant. In addition, the EEOC missed the fact that this applicant would have never been hired, anyways, because of her criminal record.  As an agency with a noble cause on a taxpayer-budget, the EEOC would do well to better pick the cases it takes to litigation.

Equal Employment Opportunity Commission v. Con-Way Freight, Inc. (8th Cir. 2010) -- F.3d --; 2010 WL 3655999.

Employment After PERS Retirement: What Are The Limits?

Posted by Jeffrey C. Freedman on January 11, 2011

Retirement-LCW.jpgA local agency employee retires and begins receiving a pension from the California Public Employees Retirement System (PERS) and is then offered part-time employment with the old employer because economically motivated layoffs had left the old department short-handed.  What obstacles and limitations do the agency and the retired employee face in this situation?

The PERS statutes contain an entire chapter on employment after retirement (beginning at Government Code section 21220.)  There are two specific provisions in that chapter which relate to this subject.  One of those (section 21221(g) and (h)) deals with employees brought back by a City Council, Board of Supervisors or other governing body.  These are positions which report directly to the governing body such as a City Manager.  The second provision (section 21224) applies to those positions appointed by an “appointing power” such as a City Manager, Executive Director or Superintendent. 

While these provisions have a great deal of similarity, there are a few significant differences.  Both allow retirees to return to work on a basis limited to 960 hours in a fiscal year.  The most significant difference between these two provisions is the permissible duration of the appointment.  For those appointments made by the governing body (section 21221) the appointment may not exceed one year unless specific permission for an additional year is granted by PERS.  Section 21224 does not have the specific one year limitation but only allows the appointment if the retiree has special skills or is needed in an emergency.  However, the appointment is allowed only for “a limited duration.”  Neither PERS nor any court has defined the term “limited duration” as it appears in section 21224.  However, caution would dictate that “limited duration” is not a synonym for “indefinitely.”  We have advised agencies that these appointments should be limited to one fiscal year or, if the agency can establish a specific need for extending the retiree’s services two years. 

Employment beyond the maximum limits set in the Government Code can have consequences.  Both the retiree and the employing agency can be required to repay PERS for any excess amount of pension benefits received while the retiree was reemployed.  In a worst case scenario, PERS could declare the retirement null and void and cancel the individual’s pension checks.  See Government Code section 21220.

We understand that some agency representatives have telephoned PERS staff to obtain oral opinions on questions such as these and some have received oral advice at variance with the views set forth above.  Our experience is that PERS will not necessarily stand behind oral opinions given by staff members.  PERS has been known to change its view on issues of statutory construction and will only recognize and follow interpretations set forth by courts, PERS regulations or its own interpretative bulletins.  In our view, any agency that relies on oral advice received from PERS staffers by phone does so at its own peril. 

We also suspect that employment of retirees beyond the limits set forth in the Code has often escaped detection.  An agency that relies upon a suspicion that PERS will not detect excessive employment of retirees also acts at its own peril.  PERS can require, and has required, both retirees and agencies to repay money.  There are a number of ways that PERS can be alerted to potential violations of the Code.  PERS conducts random audits of agencies and also receives “tip-offs” by phone calls from members of the public and newspapers.

We recommend that all PERS contractor agencies who employ PERS retirees examine their practices to ensure that they are not risking liability for exceeding the limits set forth in the Government Code on employment after retirement.

Recent Lawsuits Fuel Debate Over Whether Appearance-Based Discrimination Should Be Illegal

Posted by Elizabeth Arce on January 11, 2011

Two headline making lawsuits ignited a national debate over whether it should be illegal for an employer to make employment decisions based on an employee’s appearance.  The Wall Street Journal reported that Cassandra Marie Smith filed a lawsuit against her former employer, Hooters, alleging that restaurant management told her during a performance evaluation to join a gym in order to “lose weight and improve her looks so that she would better” fit into the uniform she was required to wear.  Smith also claims she was required to sign an agreement placing her on “weight probation” as a condition of staying employed.

Woman-in-front-of-mirror.jpg

Within weeks, Debrahlee Lorenzana made headlines across the country for suing her former employer, Citigroup, for firing her for being “too attractive.”  Lorenzana alleges she was fired after complaining about comments made by male managers telling her to refrain from wearing clothing that accentuated her curvaceous figure because it distracted her male colleagues.  Lorenzana also alleges that, when she pointed out that some co-workers wore more revealing clothes than she, a manager told her “your body is very different from them” and “it’s OK for them to dress like that” because they “are short or fat.”

Discrimination lawsuits based on appearance are not new in California.  For example, in Cassita v. Community Foods, Inc., a female applicant claimed she was not hired for a job because she was overweight.  However, since California has no law prohibiting discrimination based on weight, the applicant sued under a disability discrimination theory and lost because she had no evidence her weight was the result of a physiological condition or disorder.  Perhaps if California had a specific anti-discrimination law targeting appearance and weight, the outcome in Cassita might have been different.  The State of Michigan (where the Hooters lawsuit was filed), City of Santa Cruz, and City of San Francisco currently have anti-weight discrimination laws. 

The Hooters and Citibank lawsuits should serve as a reminder to employers that bias may arise from an unconscious reaction to an applicant’s or employee’s appearance.  Employers should also remain vigilant in preventing workplace harassment, discrimination and retaliation.  Employees, particularly supervisors and managers, should be trained regularly on how to avoid discrimination and harassment.  Finally, all applicants and employees should be treated equally and employment decisions should be based on the person’s qualifications and individual merits without regard to their physical appearance or any other protected status.