Lang, Richert & Patch continues to maintain its reputation as “The Firm of Distinction”, with five attorneys earning the title of Super Lawyer and two others being named as Rising Stars. The Super Lawyers hailing from Lang, Richert & Patch include; personal injury and wrongful death specialist Robert L. Patch II, construction and complex litigation attorney Val W. Saldana, bankruptcy and insolvency advocate Rene Lastreto II, employment and labor law attorney Charles T. Taylor, and construction law specialist Mark L. Creede. LR&P further recognizes Rising Stars, Matthew W. Quall, construction litigation attorney, and Craig B. Fry, corporate and business transactions and bankruptcy specialist.

The selection of Super Lawyers and Rising Stars from Lang, Richert & Patch represents the broad and diverse set of skills and backgrounds the firm brings to litigation matters. The seven Super Lawyer and Rising Star honorees represent two thirds of the lawyers currently practicing with Lang, Richert, & Patch and is by far the largest contingent in the Central Valley. Attorney Val Saldana commented that the title is, “as much an honor for the entire firm, as it is for the individuals involved”. Saldana further noted, “we have always taken a collaborative team approach to our complex litigation matters.” The multiple Super Lawyer and Rising Star distinctions demonstrate Lang, Richert & Patch’s ability to provide aggressive and effective results to a wide range of client demands.

Lang, Richert & Patch has strived for more than 40 years to provide its clients with premier legal services through establishing an open and collaborative environment while maintaining a result driven mentality. The experience and expertise of the firm has earned the respect of both the local and legal communities. The firm also received the prestigious, Martindale-Hubbell AV-rating, which is the highest peer rating for ethics and ability. Looking ahead, Val Saldana notes that, “we have worked hard to achieve preeminent status in the business litigation and bankruptcy departments. And we intend to keep on building.”

The Court of Appeal for the First Appellate District in Nadaf-Rahrov v. Neiman Marcus Group, Inc., et al. (Sept. 10, 2008, Cal. Ct. App. 1st) __ Cal.App.4th __ [2008 DJDAR14314] held the federal definition of “reasonable accommodation” applies to disability-based discrimination claims under California’s Fair Employment and Housing Act, Government Code section 12940 et seq. (the “FEHA”), perpetuating a split among California Courts of Appeal regarding the scope of protections available under the FEHA to qualified disabled workers.  The following holdings are of particular significance.

First, Nadaf-Rahrov holds that an employer is liable for failing to provide a reasonable accommodation under Government Code section 12940, subdivision (m) (“Section 12940(m)”) “only if the work environment could have been modified or adjusted in a manner that would have enabled the employee to perform the essential functions of the job.”  (Id. at p. 14322, italics added.)  This holding directly conflicts with that in Bagatti v. Department of Rehabilitation (2002, Cal. Ct. App. 3d,) 97 Cal.App.4th 344, which rejected application of the ADA definition of “reasonable accommodation” under the FEHA and held that liability under Section 12940(m) may attach even if the plaintiff is not able to perform the essential functions of the position held or desired.  (Id. at p. 362.)

Second, Nadaf-Rahrov holds that the availability of an effective, reasonable accommodation is a material element of a claim against an employer for failing to engage in a good faith, interactive process under Government Code section 12940, subdivision (n) (“Section 12940(n)”). (Nadaf-Rahrov, supra, __ Cal.App.4th at p. __ [2008 DJDAR at p. 14325].)  Thus, absent proof of the availability of a reasonable accommodation, an employer cannot be held liable for failing to engage in the interactive process.  This directly conflicts with Wysinger v. Automobile Club of Southern California (2007, Cal. Ct. App. 2d ) 157 Cal.App.4th 413, which held that the FEHA imposes liability on employers under Section 12940(n) regardless of the availability of a reasonable accommodation.  (Id. at p. 425.)

Third, under Nadaf-Rahrov, the employee bears the burden of proving  the availability of a reasonable accommodation for purposes of Sections 12940(m) and (n), to wit: that he or she was qualified to perform the essential functions of the job held or desired and that the job was available.  (Nadaf-Rahrov, supra, __ Cal.App.4th at pp. __ [2008 DJDAR at pp. 14323, 14325].)  In so holding, the Nadaf-Rahrov court recognized that “[a]lthough it would be unfair to require and employee in the workplace to unilaterally identify available accommodations, an employee in litigation can use discovery procedures to do so.”  (Id. at p. __ [2008 DJDAR at p. 14325].)  Thus, while it is the employee’s burden under Section 12940(n) to identify the availability of an accommodation for which he or she is qualified, the employer is liable if such a position is identified to have existed for the first time during litigation.

Finally, regarding Section 12940(n), it is not enough that an employer consider reassigning an employee only to vacant positions in the employee’s immediate workplace or to those which the employee specifically requests reassignment if a vacancy exists elsewhere in the employer’s organization that would not amount to a promotion.  (Id. at p. __ [2008 DJDAR at pp. 14319-14320].)  Thus, an employer’s failure to consider vacancies outside the employee’s immediate workplace may provide grounds for liability under Section 12940(n), as well as justify broad discovery regarding vacancies within the employer’s organization.

In adopting the federal definition of “reasonable accommodation,” Nadaf-Rahrov harmonizes certain protections afforded to disabled workers under the FEHA and the ADA.  Other California courts, however, continue to view the FEHA’s protections as broader.  Because this division among California’s Courts of Appeal runs to the very elements required to state a claim under Section 12940, subdivisions (m) and (n), the issue is ripe for Supreme Court review.

On October 22, 2008, the California Supreme Court granted review of Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25.  The Court of Appeal found, among other things, that employers need only provide, not ensure, that meal and rest periods are taken.  Because the Supreme Court has granted review, the findings by the Court of Appeal are no longer good law and should not be followed.

Original Article Posted Below:

www.calchamber.com

(July 23, 2008) In a decision that will have an impact on the laws governing meal and rest breaks, the 4th District Court of Appeal yesterday ruled that California law requires that employers need only provide meal periods, and, as a result, as with the rest period claims, the plaintiffs’ meal period claims are not amenable to class treatment.

The issue before the court in the case of Brinker Restaurant Corporation et al., v. The Superior Court of San Diego County, is did the trial court err in certifying this matter as a class action without first determining the elements of plaintiffs and real parties in interest against the defendants?

The court ruled that the class certification order is erroneous and must be vacated because the lower court failed to properly consider the elements of the plaintiffs’ claims in determining if they were susceptible to class treatment.

The court concluded that:

1. Employers cannot impede, discourage or dissuade employees from taking rest periods; they need only provide, not ensure, rest periods are taken;
2. Employers need only to authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;
3. Employers are not required to provide a meal period for every five consecutive hours worked;
4. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them, not ensure they are taken; and
5. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if the employer knew or should have known the employees were doing so.

Furthermore, the court concluded that because the meal and rest breaks need only be “made available” and not “ensured,” individual issues predominate and based on the evidence presented to the trial court, they are not amenable to class treatment.

Finally, the court concluded the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have know employees were working off the clock.

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E-discovery rules have caused in-house counsel to take a harder line with some of the e-mails that workers think are private

“Don’t put this in writing, but … ” Those are the opening words of an e-mail that got the writer’s company in legal hot water. And there are plenty more where that came from.

“This is off the record,” started the e-mail that in fact put it all on the record.

How about this one? “We may be in breach of contract, and here’s why.”

These examples of troublesome e-mails general counsel say they’ve run across don’t include the countless off color so-called jokes forwarded to contact lists of colleagues, interested or not, or links to Web sites that are definitely not part of a corporate job description.

The “send” button — together with its evil cousins, “forward” and “reply all” — are causing a world of trouble for corporations as they connect to evidence in legal proceedings and create a new mess for in-house lawyers to clean up.

“We all need to educate ourselves and our clients about the large bucket of problems that come up with e-mails,” said R. Scott Meece, global general counsel, senior vide president and secretary of CIBA Vision Corp. “People send e-mails as though they were having conversations with someone in a bar.”

The problem with e-mails has been a recurring topic recently in GC roundtable discussions and elsewhere — including protracted legal battles.

“We’ve broken open a lot of investigations just because of what we find in the e-mails,” said W. Scott Sorrels, a partner with Powell Goldstein specializing in corporate securities and regulatory matters and a former enforcement attorney with the U.S. Securities and Exchange Commission. He and Jennifer D. Odom, a Powell Goldstein partner specializing in securities, corporate and regulatory litigation as well as electronic discovery, have given a series of presentations on the perils of e-mail.

“We had one example that started out, ‘don’t put this in writing but … ‘” Sorrels said. The writer “then proceeded to shoot himself in the foot, the knee and the elbow.”

It has now become routine even in civil investigations for computers to be subpoenaed so lawyers can look at e-mails and hard drives. And one thing always leads to another. “We have forensic software that shows multiple levels of deletions. It shows thought processes. We can learn far more than from just a document alone,” said Sorrels. “E-mails have taken over the world.”

“You wouldn’t believe the things that people say — as though they’re just talking to a buddy,” said CIBA Vision’s Meece. Yet these e-mails are saved, backed up, forwarded or otherwise preserved — even when people think they’ve deleted them. “They very well can live forever.”

Even worse, sometimes e-mails tell a part of the story, but not all of it. So their continuing existence amounts to a sound bite taken out of context, multiplied and amplified forever.

“My biggest fear with e-mails is not that it can be used against you in some way, but that the assumption is it’s telling the whole story, and it’s not,” said Meece. “It may be the truth but not the whole truth, and there may be some silly stuff in there that’s not ‘nothing but the truth.’”

Ask just about any GC or labor and employment lawyer, and you’ll hear similar concerns. “We deal with this issue all the time — more and more,” said Matthew W. Clarke, a partner in Smith, Gambrell & Russell’s employer services. “The main problem that occurs over and over is that people have such a casual attitude and approach when it comes to writing and sending e-mails.”

The resulting problem is not just a matter of taste but a matter of law — as in harassment or hostile work environment. “People will put something in an e-mail that they would never say in front of other people or in a drafted memo,” said Clarke. “They’ll just put catty comments or frankly inappropriate language. They don’t think the e-mail will ever come back to bite them or ever see the light of day. Now, with e-discovery rules, plaintiffs are dredging up e-mails that go back years. They call people names. They make inappropriate comments.”

These include, Clarke said, “can you believe that [expletive] is complaining about this?” Or, “I can’t believe she’s pregnant at such an inconvenient time at work.” Or, “we need to get rid of the dead wood.”

E-mails, text messages, BlackBerry communications all are potential time bombs if not worded thoughtfully and with discipline. “It just creates the potential for a permanent record for all this type of stuff,” Clarke said. “People don’t realize that to some degree, if it’s in an e-mail, it’s analogous to etching it in stone.”

Clarke’s best advice to in-house counsel is to work with other departments to regularly repeat training in e-mail etiquette. Remind employees that their communications on office computers — and even company cell phones, BlackBerrys and home computers used for work — belong to the company and are not in any way private. If it’s off the record, don’t write it. Pick up the phone or better yet, walk over. Don’t hit the send button in the heat of anger.

And above all, said Clarke, never say anything in an e-mail that you wouldn’t want to see displayed on a giant screen in a court room in front of a judge and jury even years from now. Because that is exactly where it might end up.

Last year, Governor Schwarzenegger signed into law AB 1825, a bill mandating sexual harassment training for supervisory employees every two years. The new law provides that by January 1, 2006 all employers with 50 or more employees must provide at least two hours of sexual harassment training to supervisory employees. Although employers may resent initial costs and burdens of implementing training programs, this preventative law aims to reduce sexual harassment in the workplace, thereby saving employers money in the long run by reducing the number of costly lawsuits.

Since the law’s enactment, employers have raised important questions regarding their obligations. The questions and answers below provide a brief overview of the new law.

What employers are subject to the law?

The law only applies to employers that regularly employ 50 or more employees. This number includes independent contractors, part- time employees, temporary employees, and employees working out-of-state. Presumably, the law applies to an employer with only one employee in California and 49 located elsewhere. Although the new law does not require employers to train employees working out of state, we recommend training out-of-state supervisory employees who interact with California employees.

Who must receive the training?

All “supervisors” hired before July 1, 2005 must receive sexual harassment training by Jan. 1, 2006, and once every two years thereafter. As to employees hired or promoted after July 1, 2005, the law requires training within 6 months of acquiring a supervisory position. The law defines “supervisor” broadly. A supervisor includes anyone with authority to hire, transfer, suspend, lay off, promote, reward, discipline or direct other employees. This broad definition requires employers to look beyond job titles. When deciding who to train, employers should err on the side of caution, training all employees who possibly qualify as supervisors. Employers may also consider training all employees. An all-inclusive training program demonstrates to employees (and the courts) the company’s commitment to prevent sexual harassment.

What type of training is required?

The new law requires at least two hours of classroom or other “effective interactive training.” Due to the “interactive” requirement, the training must go beyond merely watching a video or reading an employee manual. Employers may use interactive web-based programs as a component of training, but the law does not specify whether online training alone will suffice. If an employer does opt for online training, it is recommended to supplement with in-person interaction such as role playing or question and answer sessions. The training curriculum must address four topics:

1. The legal prohibitions against sexual harassment under federal and state law;
2. Prevention of sexual harassment;
3. Correction of situations involving sexual harassment; and
4. Remedies for victims of sexual harassment.

In addition, the training must incorporate practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. The training should be personalized to reflect the trainees’ work environment. The law is unclear whether training is required for the prevention of harassment or discrimination on other protected bases, e.g., disability, age, religion, race, etc. Of course, comprehensive training covering all aspects of the anti-discrimination laws is recommended as it demonstrates a firm commitment by the employer in equal employment opportunity for all of its employees.

Who should conduct the training?

The new law requires use of “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” Generally, this calls for someone with more experience than a crash-course on sexual harassment, i.e., training the trainer. The trainer must have sufficient knowledge to answer questions raised by trainees. The law does not prohibit the use of in-house trainers. However, if the adequacy of the training is questioned, the trainer’s credentials may come under careful scrutiny.

What records should employers maintain?

The statute does not specify what records employers should keep as evidence of compliance. The Department of Fair Employment and Housing (DFEH), the state agency responsible for enforcing compliance, will look for evidence of the following: (1) attendance records; (2) time sheets showing at least two hours of training; (3) training modules, written and web-based; (4) resumes of trainers; and (5) quizzes demonstrating employees’ comprehension of information.

What penalties result from noncompliance?

The DFEH may audit an employer and issue an order mandating compliance. Although this penalty seems innocuous, the teeth of the law sink deep when litigation arises. While failure to provide training does not result in automatic employer liability, the jury or administrative tribunal may weigh noncompliance heavily in its decision, resulting in increased damages or penalties. Compliance with the new training law does not insulate the employer from liability, but it can provide an opportunity to assert a strong defense, which will go a long way to reduce or eliminate employer liability. Moreover, failing to comply sends a message to employees that sexual harassment is not important, and risks leaving employees without the tools to avert a potential sexual harassment situation.

For more information on compliance with the new law, or to inquire about Lang, Richert & Patch’s sexual harassment training program, please contact Charles Taylor at (559) 228-6700.

Charles Taylor is the head of the employment law group at Lang, Richert & Patch. Charles has 20 years of experience in representing clients on a variety of employment issues in state and federal courts throughout California. As detailed in the earlier article, In August 2005, Charles was nominated by his peers and based upon professional achievement in the area of employment litigation was selected as one of Northern California’s Super Lawyers.