Wrongful Termination Defenses, Unions and the Supreme Court, Workers Compensation and Vocational Rehabilitation, Sexual Harass.
The Goldstein Law Firm
Mid-April 2009 Newsletter Supplement
“Wrongful Termination Defenses, Unions and the Supreme Court, Workers Compensation and Vocational Rehabilitation, and Sexual Harassment Training”
By: Charles H. Goldstein, Esq.
The Goldstein Law Firm
The first four months of this year have been extraordinarily challenging for many of our clients. However, these clients come to work every day with the same strong desire to “make everyday count” with the hope and expectation that the economic storm will pass and that their businesses will once again be profitable and successful. This optimism and refusal to quietly and efficiently go out of business has replaced much of last year’s pessimism. That being said, nobody believes that we are economically out of the woods and employers must remain vigilante and continue to strive for workplace efficiencies which mean holding employees accountable for their performance.
A. Fourteen Basis Defenses to Wrongful Termination, Discrimination, and/or Retaliation Lawsuits
In my previous article at the beginning of this month, I discussed how Employers can minimize their risk of being a victim of costly employee lawsuits for wrongful termination, discrimination, and/or retaliation. I then discussed the 15 most common firing mistakes that employers make. In this companion piece, I list the 14 basic defenses that Employers, depending on the facts of the particular case, can assert against a wrongful termination, discrimination, and/or retaliation lawsuit. Employers who are aware of these basic defenses will be in a better position to successfully resist and prevail against these costly and unnecessary claims. The following is a list of these basis defenses:
1. Management’s decision to terminate was for good cause or just cause.
2. Management’s decision to terminate was in accordance with the employer’s rules, policies, and procedures.
3. Management’s decision to terminate was based on legitimate, non-discriminatory business or organizations reasons.
4. Management’s decision to terminate was based on a good faith determination that the employee engaged in the conduct giving rise to the termination following a full and fair investigation.
5. Management conducted a full and fair investigation of the employee’s claim of misconduct by the employer, a manager, supervisor or co-worker, and the employer took appropriate remedial action in response to the employee’s claim.
6. Actions claimed by the employee to be retaliatory were in actuality actions taken by the employer in carrying on the normal course of the employer’s business and were non-discriminatory.
7. The employer did everything reasonably possible to mitigate the effects of any unlawful conduct of its supervisors and the employee still decided to resign.
8. The employee misrepresented material facts regarding their qualifications for employment and they would not have been hired had the employer been aware of the true facts.
9. The employee unreasonably failed to take advantage of employer’s policies and procedures, prior to filing a lawsuit.
10. The employee failed to exhaust his/her administrative remedies and receiving a “right to sue letter” from the DFEH and/or EEOC prior to filing a complaint in state of federal court against employer.
11. The employee was not an otherwise qualified disabled worker and, therefore, the employer did not have an obligation to reasonably accommodate the employee.
12. The employee was not properly released to return to work because his/her treating physician or other health care provider would not certify that the employee could return to work to perform the essential duties of their job without the immediate risk of injury or re-injury to their existing health condition.
13. The employee exhausted all leave, including where appropriate, pregnancy disability leave and family medical leave, did not return to work, and was terminated.
14. All communications and records regarding the termination were disclosed only to persons on a need to know basis; were kept confidential and, most importantly, were truthful.
B. Unions and The United States Supreme Court
In 14 Penn Plaza LLC v. Steven Pyett 556 U.S. ___ (2009), the United States Supreme Court just issued an important decision reaffirming the right of Union Employers to compel arbitration of employment discrimination disputes. In reaching its decision, the Court considered the case of union members who were subject to a collective bargaining agreement with an arbitration provision mandating that union members submit all claims of employment discrimination to binding arbitration.
The Union filed grievances challenging the job reassignment of its members contending that these reassignments led to a loss in income, caused their members emotional distress, and that the job reassignments were less desirable. The Union alleged that the Employer (1) violated the collective bargaining agreement’s ban on workplace discrimination by reassigning the employees because of their age; (2) violated seniority rules by failing to promote one of the employees to a handyman position; and (3) failed to equitably rotate overtime. After an initial arbitration hearing, the Union withdrew the employee’s age discrimination claims from arbitration, while continuing to arbitrate the seniority and overtime claims, which were ultimately denied.
After the Union withdrew the employee’s age discrimination claim from arbitration, the employees filed a complaint with the Equal Employment Opportunity Commission alleging that the Employer violated their rights under the Age Discrimination in Employment Act of 1967. The EEOC issued a Dismissal and Notice of Rights which explained to the employees that the EEOC’s review of the evidence failed to indicate that a violation of the ADEA had occurred and that employees had a right to sue. The employees then sued the Union employer in United States District Court for the Southern District of New York alleging that their reassignment violated the ADEA and state and local laws prohibiting age discrimination. Both the District Court and Second Circuit Court of Appeals denied the Union Employers motion to compel arbitration of their employee’s claims under the arbitration provision of the collective bargaining agreement.
The Supreme Court held that both lower courts were legally in error and that a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. This decision reaffirms the importance of having an arbitration provision in all collective bargaining agreements mandating that union members submit all employment dispute claims, including claims of employment discrimination, to binding and binding arbitration.
The interpretation of law announced in this case will be tested in future cases because of its broad application to Union Employers and employees covered by collective bargaining agreements. Prior to the 14 Penn Plaza LLC v. Steven Pyett case, courts had routinely held based on an earlier Supreme Court decision that union employees could arbitrate discrimination claims, lose the arbitration, and that the Arbitrator’s award was not binding and the employee could still bring a subsequent lawsuit for discrimination in federal or state court. Therefore, the 14 Penn Plaza LLC v. Steven Pyett decision can be a useful tool for a skilled employer negotiator.
C. Workers Compensation/Vocational Rehabilitation In Hertz Corporation v. Workers’ Compensation Appeals Board and Manuel Aguilar, California Court of Appeals, 6th District, Case No. H032438, WCAB Case Nos. SJ0226456, SJO228891, and SJO235420, the Court held that Employee Manuel Aguilar sustained specific and cumulative injuries to both of his knees, shoulders and wrists, and to his right ankle while working as an auto washer for his employer, the Hertz Corporation. Due to Aguilar’s injuries and his inability to read and write English, the workers’ compensation judge found him to be non-feasible for vocational rehabilitation and thus permanently totally disabled. The Workers’ Compensation Appeals Board affirmed the Workers Compensation Judge’s decision and award. Hertz petitioned for review of the Workers’ Compensation Appeals Board’s decision, contending that an employer should not be liable for permanent total disability benefits when an injured worker’s inability to participate in rehabilitation is due, in part, to nonindustrial causes, such as an inability to read and write English.
In analyzing Hertz’s claim, the Court first determined that Aguilar’s permanent disability should be rated using the 1997 rating schedule rather than the 2005 rating schedule. The Court then determined that a finding of permanent total disability was not appropriate in this case because under the revised worker’s compensation system, even when the 1997 rating schedule is used, an Employer is liable for only the portion of an injured worker’s permanent disability that is directly caused by the industrial injury. The finding of 100 percent permanent total disability in Aguilar’s case was based in part on the finding that vocational rehabilitation was not feasible, and the finding of non-feasibility is due in part to pre-existing nonindustrial factors, such as his inability to read and write English.
The Court held that the Workers Compensation Appeals Board’s finding of 100 percent permanent disability must be annulled, and that the Workers Compensation Appeals Board redetermine Aguilar’s permanent disability rating.
D. Sexual Harassment Training required by California law As many of you know, the California Legislature passed California Government Code section 12950.1, which requires that every California employer with 50 or more employees provide 2 hours of interactive training to their supervisors, concerning the prohibition against, and the prevention and correction of, sexual harassment and the remedies available to victims of sexual harassment in employment. This training must be conducted once every two (2) years.
Any California Employer who is legally required to provide mandatory sexual harassment training, and has either not done so, or has provided non-interactive or inadequate training could be more likely to have the Department of Fair Employment and Housing find that a Complaint for Discrimination has legal merit. That is why since 2006, The Goldstein Law Firm’s Sexual Harassment Training Program has been used by Employers to train over 7,000 managers and supervisors. I personally conduct and tailor each training program to the individual needs of the Employer and/or industry. My Training Materials are written by me and based on several decades’ worth of experience successfully litigating sexual harassment and gender based discrimination cases.
Although the economic climate is extremely challenging, California Employers who are required to conduct sexual harassment training and have not done so, cannot neglect to provide this training thinking that “when times get better we will do the training.” and must do this training as soon as possible.
The Goldstein Law Firm
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Beverly Hills, California 90211
Telephone: (310) 553-4746
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