Leave RequestLeaves of absences are one of the most complex and frustrating areas of personnel management that public agency employers face.  There are several complex, overlapping, and intersecting laws to apply and navigate.  In many situations, it is difficult for the agency to determine its rights and obligations.

Employers must determine if a leave is protected

Medical LeaveLast week, in Higgins-Williams v. Sutter Medical Foundation, the Court of Appeal of the State of California, Third Appellate District, upheld the trial court’s granting of summary judgment for an employer where it determined that an employee’s inability to work for a particular supervisor, because of anxiety and stress related to the supervisor’s standard

EEOC SealThe EEOC issued two informal discussion letters critiquing policies and forms used by unidentified public employers when making disability related inquiries of employees.  Although informal discussion letters are not “official” EEOC opinions, they provide guidance on an employer’s legal obligations.  In these informal letters, the EEOC reviewed the agencies’ fitness for duty exam forms and

Service DogEmployers navigate a morass of federal and state employment laws on a daily basis.  Some of the more vexing and confusing laws are those related to employees with disabilities.  Often it is difficult for employers to know whether an employee is disabled or what the disability could be.  Questions that frequently arise concern whether an

Businesswoman on Videoconference with BusinessmanThis was the very question the U.S. Court of Appeals in Ohio was asked to consider in Equal Employment Opportunity Commission v. Ford Motor Company.  The issue in this case is whether a telecommuting arrangement could be a reasonable accommodation for an employee suffering from a debilitating disability.  In a 2-1 split opinion, the

Retirement-Sign.jpgMore than 2/3 of the discrimination claims filed in California allege disability as the protected category at issue.  California’s complex disability laws are compounded for public agencies by constitutional due process requirements and PERS and ’37 Act requirements which are triggered when the public agency is contemplating separating the employee based on an inability to

AnotherGavel.jpgIt pays to read statutes carefully. Many statutes authorizing lawsuits for employment discrimination allow an award of attorney’s fees to the prevailing party. Almost uniformly, these statutes have been construed as authorizing an award of attorney’s fees to a prevailing plaintiff as a matter of course but only to a prevailing defendant when the lawsuit

Stairs.JPGThere are numerous signals that the U.S. economy is recovering – unemployment numbers are improving in California and elsewhere, there are mixed indications of a brighter housing market, and the stock market over the last months has improved substantially.  The overall mood may have also turned a corner, with less news of economically motivated protests, or of waves of foreclosures, and more talk of IPO’s and new business ventures.

For some California public sector employers, a brighter outlook is corresponding with more hiring.  Although this is good news, the hiring process does carry legal risks, just as did downsizing and other like matters in bad economic times.

Here are six areas of the hiring process in the public sector that deserve particular attention from a legal perspective.  This is not an exhaustive list of such areas, or a complete list of considerations, but it provides a general framework for what to trouble-shoot before hiring begins in earnest.  

1.         Utilize Accurate Job DescriptionsAt the very outset of the hiring process, it is critical to develop accurate and sufficiently detailed job descriptions.  These will prove important not only for hiring, but also for legal issues that may arise later during the course of the employment relationship.  An accurate job description will help the agency demonstrate that questions on job applications and during interviews are legitimate and non-discriminatory, and help those in the hiring process focus on eliciting those facts that are job-related.  Also, in the context of disability discrimination laws, in both the hiring process and during employment, an agency’s identification of the “essential functions of the job” will be critical.  Under both federal and state law, a Court will treat the job description prepared by the employer prior to advertising or interviewing for the job as evidence of what are essential functions. 

Detail in the job description can be very important also, because vague or overly general job descriptions can fail to give proper guidance either to applicants deciding whether to seek the job, or to agency personnel making the hiring decisions.  Misunderstanding about the nature of the job can produce charges of discrimination or of failure to accommodate.  At a minimum, a job description should contain: (a) job-related educational requirements, (b) necessary vocational skills, (c) required work experience, (d) examples of duties, (e) unusual physical requirements, (f) work hours, and (g) compensation.  Where possible, job requirements should be validated by experts using professionally accepted validation methods.  

2.         Establish a Uniform Screening Process for ApplicationsThe next phase to consider is the initial “screen” of applications for those who are not qualified or not competitive in light of the quality and experience of other applicants.  As a general matter, an employer’s initial “screen” must be conducted in a neutral manner that does not result in an unjustifiable, disproportionate impact with regard to a protected characteristic, e.g. race, gender, religion, age over 40, etc.  Accordingly, the agency should establish a set of job-related screening criteria which do not result in exclusion of individuals who are qualified and competitive for the job.  The agency should also have a process in place to make a separate review of the fairness and appropriateness of screening criteria, to make sure the screening guidelines are followed, and to confirm that decisions were not influenced by improper considerations. 

3.         Focus Interviews on Job-Related Questions, and Avoid Improper Questions:  Like other aspects of the hiring process, interviews must be non-discriminatory.  Questions should focus on qualifications for the job in question, and not pertain to protected characteristics.  The California Department of Fair Employment and Housing has promulgated a list of questions that cannot be asked in an interview.  Some unlawful questions are straightforward, such as asking about an applicant’s race, age, religion, or other protected characteristics.  But the list also encompasses some questions that bear indirectly on these matters, such as questions about the date of completion of school, religious days the applicant observes, or the applicant’s birthplace.  (The list of questions is available at: http://www.dfeh.ca.gov/res/docs/publications/dfeh-161.pdf.)  The FEHA publication lists how questions can be phrased in a way that requests information the employer legitimately needs without creating an impression of bias.  (For example, it would be appropriate to ask which languages an applicant speaks, if relevant to the job at issue.) 

It is vital that agencies ensure that those employees conducting interviews have received training in what are protected classifications, and what questions are prohibited – and of course those conducting interviews should have become thoroughly familiar with the job description and nature of the job in question.  Continue Reading Trouble-Shooting The Hiring Process For A Public Agency

Performance-Review.pngHow many times have you heard LCW attorneys tell you to timely and accurately complete performance evaluations?  You likely hear this advice at every Employment Relations Consortium training you’ve attended.  A recent case reminds us all how crucial honest performance evaluations and other forms of progressive discipline can be.

In the case of Dickerson v. Board of Trustees of Community College District No. 522,   Bobby Dickerson was employed as a part-time janitor by an Illinois Community College District.  Between 2005 and 2007, his supervisor gave him written warnings issued for his refusal to perform work assignments, failure to secure job-related equipment, and for leaving the worksite without permission.  In 2005, 2006 and 2007, Dickerson applied for full-time positions with the district, but never succeeded.  Shortly after his third failed attempt at a promotion, Dickerson complained to the district that he was being discriminated against because of his “personal traits” and a speech defect. 

Dickerson then received a performance evaluation in December, 2007 for the period of November, 2006 through November, 2007.  Dickerson received “unsatisfactory” ratings in three of the seven performance categories.  The supervisor also provided written comments such as, “Dickerson is consistently late for work and needs to improve;” “jobs need to be redone because of not listening to the job instructions;” and that Dickerson “does only the bare minimum to meet job requirements.”  Dickerson disagreed with the evaluation and filed a grievance with his union alleging the district gave him the evaluation in retaliation for his exercise of union activities.

In February, 2008, Dickerson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the district failed to promote him to a full-time position because it believed he was mentally disabled in violation of the Americans with Disabilities Act (ADA).  Dickerson had a below average IQ which indicated “mild mental retardation.”

Shortly after filing the EEOC complaint, Dickerson approached the Vice President of Human Resources and asked what he should be doing differently in order to be promoted to a full-time position.  The Vice President replied to the effect of, “you are suing your employer and you should not be suing your employer.”Continue Reading Documentation Of Poor Work Performance Defeated Claims Of Discrimination And Retaliation In Violation Of The ADA