Americans with Disabilities Act and Cancer

December 1, 2015 by

americans with disabilities actMany people think of the Americans with Disabilities Act (ADA) as protecting people with permanent disabilities. But the legislation also protects people with conditions, such as cancer, that may be temporary. The Equal Employment Opportunity Commission (EEOC) has clarified that cancer is covered by the Americans With Disabilities Act, and has released a document providing guidance to employers regarding the rights of employees with cancer.

The document clarifies that individuals with cancer “should easily be found” to be disabled, according to the ADA’s requirement that an individual be substantially limited in a major life activity or normal cell growth. It also clarifies that individuals who once had cancer and are now in remission should also easily be found to have a disability under the Americans With Disabilities Act, as they would be substantially limited in a major life activity or normal cell growth if they had a recurrence of cancer.

What an Employer May and May Not Say to an Employee with Cancer

The document details the types of questions an employer may ask an employee or job applicant regarding cancer:

  • An employer may not ask a job applicant if he or she has cancer, or if he or she has ever had cancer, or if he or she is undergoing any type of cancer treatment.
  • If a job applicant volunteers that he or she has cancer, or that he or she once had cancer, an employer generally may not ask follow-up questions about the cancer – unless the employer reasonably believes that the applicant will need accommodations due to the cancer.
  • If a job applicant has received a conditional job offer, and then the employer learns that the applicant has or had cancer, then the employer may ask the applicant additional questions.
  • An employer may ask an employee with cancer questions about his or her condition, if the employer reasonably believes that the employee will be unable to perform his or her job functions safely.

Accommodations

The EEOC has also addressed the issue of accommodations for employees with cancer. An employee with cancer can request an accommodation merely by explaining that they require it because of their cancer. In addition, another person can request the accommodation on their behalf.

However, an employer does not necessarily need to grant all requests for accommodation. An employer can turn down a request for accommodation if it is unreasonable. An employer may also turn down a request for a reasonable accommodation if it would cause undue hardship for the employer. (In addition, an employer who receives a request for accommodation has the right to ask for medical documentation.) [Read more…]

Filed Under: Americans With Disabilities Act, Blog Tagged With: , , ,

The NLRB Changes Joint Employment Standards

October 12, 2015 by

joint employment, joint employment standardsThe National Labor Relations Board (NLRB) has issued a ruling that adopts a new definition of joint employment. The case revolved around a California labor dispute – but the more expansive definition of joint employment laid out in the decision is expected to have a significant effect on labor cases around the country.

The labor dispute case involved Browning-Ferris Industries of California (BFI), which operates a recycling facility in Milpitas, and Leadpoint Business Services, which provides BFI with employees. A union, Sanitary Truck Drivers and Helpers Local 350, sought to represent the sorters, screen cleaners, and housekeepers who work at the facility. The Union argued that BFI and Leadpoint were joint employers of the employees in question.

A regional director of the NLRB issued a decision stating that Leadpoint was the sole employer of these employees. The ruling used the NLRB’s previous definition of joint employment, which focused on whether the employers exercised the right to control workers in a direct, immediate way (rather than a limited and routine way).

The NLRB’s Reversal on Joint Employment Standards

The NLRB overturned the Regional Director’s decision and found that BFI and Leadpoint are joint employers. The NLRB concluded that it is relevant whether a putative employer has the authority to control the terms and conditions of employment, even if the employer does not actually use that authority. The NLRB’s ruling clarifies that the correct test for whether joint employment exists is “whether one statutory employer possesses sufficient control over the work of the employees to qualify as a joint employer with another employer.”

Under the ruling, entities are considered joint employers if:

  • They are both employers within the meaning of the common law, and
  • They share or codetermine those matters governing the essential terms and conditions of employment.

The factors that the NLRB examined in order to determine the answers to these questions included hiring, firing, discipline, supervision, direction of work, hours, and wages. After considering these factors, the Board concluded that BFI shared and co-determined the terms and conditions of employment, and thus, was a joint employer along with Leadpoint.

Why the Joint Employment Standards Change?

The ruling states that the new standard was previously used by the NLRB and courts for years, and that it is based on the common-law definition of an employment relationship. According to the opinion, the common-law test for an employment is based on the right to control and not on whether that control is exercised.

The ruling argues that the previous standard was significantly narrower than the common-law standard. It also states that, under the old standard, employees could be deprived of their right to bargain effectively simply because there were two employing firms involved in their work arrangements instead of one. [Read more…]

Filed Under: Employee Rights Tagged With: , , , , , , ,

Personal Cell Phone Reimbursement for Work Use?

August 26, 2015 by

Personal cell phone reimbursement for work use? A California court has weighed in on the issue of whether employers must reimburse employees for personal cell phone reimbursementwork calls made on their personal cell phones. In the case of Colin Cochran v. Schwan’s Home Service, Inc., a state appellate court ruled that employers must compensate their employees for work-related phone calls.

The case involved a customer service manager who filed a putative class action suit against his employer, Schwan’s Home Service, Inc., on behalf of 1,500 of his fellow employees. He alleged that Home Service’s failure to reimburse the employees for the cost of their business calls violated Section 2802 of the California Labor Code. Section 2802 states that an employer must indemnify an employee for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer.”

The Trial Court’s Verdict on Cell Phone Reimbursement

When the case was first heard by a trial court, issues were raised regarding how damages would be tabulated. Would it matter if an employee had an unlimited data plan, and so the work calls didn’t actually add to the employee’s cell phone bill? And if an employee had an unlimited data plan, would it matter if the employee purchased that plan because of his or her work calls?

An expert witness submitted a brief on behalf of Cochran, and asserted that a survey could be used to determine the extent of Home Service’s liability. The witness submitted a draft survey with 22 questions regarding cell phone-related finances that could be distributed to each employee. The witness proposed that the answers to these surveys could be used to tabulate statistics that would indicate Home Service’s total damages.

The trial court refused to certify the employees as a class, holding that statistics from a survey could not be used to prove liability. The court also held that Home Service would be entitled to ask the employees about whether they had purchased their cell phone plans due to their work cell phone usage – and that these individual inquiries, asked of 1,500 employees, would “overwhelm the liability determination.”

The Appellate Court’s Ruling on Cell Phone Reimbursement

The Court of Appeal for the State of California, Second Appellate District, Division Two, reversed the trial court’s ruling and ordered the trial court to reconsider Cochran’s motion for class certification. The court held that an employer must always reimburse an employee for the reasonable expense of the mandatory use of a personal cell phone.

The ruling states that even if an employee does not incur an extra expense due to the cell phone usage, the employer still has the obligation to provide compensation for that usage, by paying a reasonable percentage of the employee’s cell phone bill. The court held that this is a necessary requirement because “otherwise, the employer would receive a windfall because it would be passing its operating expenses onto the employee.” [Read more…]

Filed Under: California Labor Law Tagged With: , , ,

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.