IBP, Inc. v. Alvarez (2005) 126 S.Ct. 514

In this case employees filed a class action seeking compensation for time spent donning and doffing required protective gear and walking from the locker rooms to the production floor of a meat processing facility owned by IBP, Inc., and back. The District Court found the activities compensable, and the Ninth Circuit affirmed.

In a companion case employees sought compensation for time spent donning and doffing required protective gear at a poultry processing plant operated by Barber Foods, Inc., as well as the attendant walking and waiting times. Barber prevailed on the walking and waiting claims. On appeal, the First Circuit found those times preliminary and postliminary activities excluded from FLSA coverage by §§4(a) (1) and (2) of the Portal-to-Portal Act.

The United States Supreme Court affirms the Ninth Circuits finding in IBP, holding that the time spent walking between changing and production areas is compensable under the FLSA. The Supreme Court pointed out that Section 4(a) (1)'s text does not exclude such time from the FLSA's scope. FLSA does not remove activities that are "integral and indispensable" to "principal activities" from FLSA coverage precisely because such activities are themselves "principal activities."

The Supreme Court also noted that the relevant regulations, 29 CFR §790.6 do not strictly define the workday's limits as the period from "whistle to whistle." Because donning and doffing gear, that is "integral and indispensable" to employees' work, is a "principal activity" under the statute, the continuous workday rule mandates that the time the employees spend walking to and from the production floor after donning, and before doffing, as well as the time spent waiting to doff, are covered by the FLSA.

However, §4(a) (2) excludes from the FLSA's scope the time employees spend waiting to don the first piece of gear that marks the beginning of the continuous workday. The Court stated that such waiting - which is two steps removed from the productive activity on the assembly line--comfortably qualifies as a "preliminary" activity. The fact that certain pre-shift activities are necessary for employees to engage in their principal activities does not mean that those pre-shift activities are "integral and indispensable" to a "principal activity."

How does this affect your agency? The principal question presented to the Supreme Court by these cases - both of which involve employees who are required to wear protective gear, which the courts found integral and indispensable to the employees' work - was whether post-donning and pre-doffing walking time was specifically excluded by §4(a)(1) of the FLSA? The Supreme Court concluded that it was not; therefore, uniformed employees who are required to "suit up" at their work place would be entitled to compensation.

Interagency Task Force Compelled To Comply With Brown Act G.C. 54950 et seq.

McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force(2005) 134 Cal.App.4th 354

L.A. Impact was organized by the L.A. County Police Chiefs Association in 1991 to coordinate the efforts of police departments, and other law enforcement agencies, in L.A. County to fight drug trafficking and money laundering. A memorandum of understanding (MOU) was prepared which numerous city councils approved.

Because L.A. Impact does not post agendas to the meetings of its board of directors or its executive council, and does not permit public attendance at its meeting, Richard P. McKee and Chris Bray filed a petition for writ of mandate, seeking to compel compliance with the Brown Act. .

The trial court granted the petition for writ of mandate, finding that (1) "L.A. IMPACT is a 'joint powers authority' authorized by the agreement (MOU) of cities within Los Angeles County; (2) L.A. Impact "is a 'local agency' as defined by the Brown Act;" and (3) L.A. Impact's "Board of Directors and Executive Council are both legislative bodies as defined by the Brown Act." The trial court further found that L.A. Impact had violated the Brown Act by failing to adhere to its open meeting requirements and ordered L.A. Impact, its board of directors, and its executive council to obey the open meeting provisions of the Brown Act.

The California Court of Appeal Second District affirmed, and held the trial court properly concluded that LA. Impact is subject to the open meeting requirements of the Brown Act

The Appellate Court pointed out that L.A. Impact was created by MOU, with the authority to employ municipalities' police powers and public funds throughout L.A. County to fight drugs, money laundering, and terrorism. Numerous cities throughout Los Angeles County authorized participation in the MOU. In accordance with the terms of the MOU, L.A. Impact is governed by a board of directors and executive council, with operations conducted under a separate command structure, is a fiscally separate entity subject to strict accounting procedures, and is authorized to enter into contracts and purchase equipment, which it did.

The Appellate Court concluded that the fact that not all city councils may have formally agreed to the MOU was irrelevant, and stated that once at least two city councils agreed to create L.A. Impact as a separate entity, it became a local public agency whose legislative body was subject to the Brown Act.

How does this impact your agency? This may have an impact on the formation of "joint" task-force structures, directives issued by the governing body of these entities, and the funding and participation by federal agencies. How the task force is created will determine if it is a separate public agency subject to the Brown Act.

CYA Held Accountable For Supervisory Inaction re Discrimination Based on Sexual Orientation

Hope v. California Youth Authority (2005), 134 Cal.App.4th 577

Bruce Hope worked as a cook in various restaurants and other establishments. At the age of 34, Hope applied for a cook position with the State of California , took a written test and was interviewed by a four-member panel. Based on his scores, Hope was notified of openings in two correctional facilities and interviewed for the jobs.

Hope was subsequently offered a position as a cook at the Fred C. Nelles Youth Correctional Facility (Nelles) in Whittier , and accepted it. While at Nelles, Hope was subjected to derogatory remarks based on his sexual orientation. Hope testified that his immediate supervisor, Felipe Marcellino, called him a "motherfuckin' faggot" and a "homo." Santos Ortiz, a security officer assigned to the kitchen, did the same. Ortiz also used other derogatory terms, such as "faggot ass bitch" and "faggot ass motherfucker."

Michael Hedgepath, a "Supervising Cook I" and one of Hope's supervisors, testified that Marcellino referred to Hope as a "homo" or a similar derogatory term every day. Hedgepath heard Marcellino use a derogatory term - "faggot" - in Hope's presence. Hedgepath heard Ortiz use derogatory terms - like "faggot" - in front of management, the kitchen staff, the wards, and directly to Hope. Hedgepath told Ortiz to stop the name-calling. Ortiz said "he didn't care" and didn't "give a damn what that homo has to say." Ortiz continued to call Hope names. Hedgepath did not take any further action. Instead, when Hedgepath heard Ortiz engage in name-calling, he would "just usually turn it off and leave it alone." Hedgepath further testified that Ortiz was sometimes "cruel" to Hope and frequently "mistreated" Hope.

During his five years of employment at Nelles, Hope complained to supervisors or superiors about the harassment and abuse he received. Hope was promoted to Cook II and four days later the promotion was revoked. Hope was denied a "merit salary adjustment" in part because his "working relationship with staff and wards has been substandard.

Hope filed an action against the California Youth Authority (CYA) alleging causes of action under the FEHA for discrimination, harassment, retaliation, and failure to prevent harassment. Hope also alleged a common law claim for wrongful termination in violation of public policy. In general, Hope alleged that he had been mistreated because of his sexual orientation and HIV status.

The trial court summarily adjudicated the discrimination claim in favor of CYA by way of a motion for summary adjudication. The case was tried to a jury that returned a verdict in favor of Hope on both causes of action: harassment and retaliation. The jury awarded Hope $917,104 in economic damages and $1 million in noneconomic damages.

In subsequent proceedings, CYA's motions for a new trial and judgment notwithstanding the verdict were denied. Hope's motion for attorney fees was granted, as was a supplemental motion for additional fees. Hope also recovered costs and post judgment interest. CYA appealed.

The California Court of Appeals affirmed the judgment, noting that "[A]n employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their [sexual orientation]. . . . The working environment must be evaluated in light of the totality of the circumstances: '[W]hether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462, citations omitted).

"In determining what constitutes 'sufficiently pervasive' harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature." (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)

Further, the Appellate Court noted, "[t]he FEHA imposes two standards of employer liability for sexual [orientation] harassment, depending on whether the person engaging in the harassment is the victim's supervisor or a nonsupervisory co-employee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to take immediate and appropriate corrective action. (§ 12940, subd. (j)(1).) This is a negligence standard. . . . Because the FEHA imposes this negligence standard only for harassment 'by an employee other than an agent or supervisor' (§ 12940, subd. (j)(1)), by implication the FEHA makes the employer strictly liable for harassment by a supervisor." (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026).

The Appellate Court concluded that substantial evidence supported the jury's determinations that Hope was subjected to harassment because of his sexual orientation, the harassment was severe or pervasive, Hope's superiors either knew or should have known about the harassment and its cause, and did not take immediate and corrective action to stop the harassment.

The Appellate Court rejected CYA's argument that the jury's award of $1 million in non-economic damages was so grossly disproportionate to the evidence of Hope's emotional distress that "it shocks the sense of justice." The Court noted that ". . . An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury." (Street Scenes v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233, 245.) "'[T]here is no fixed or absolute standard by which to compute the monetary value of emotional distress.'" (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067, fn. 17.) "[T]he jury is entrusted with vast discretion in determining the amount of damages to be awarded . . . ." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.)

How does this affect your agency? This case once again affirms the public policy of this state that management is under the affirmative obligation to take "swift and affirmative action" whenever it becomes aware that a "hostile and intimidating" work environment issue has been raised. Also affirmed is that a jury's judgment based on "sexual orientation harassment" will not be altered where the harassment is pervasive. There should be no doubt that discriminatory behavior on the part of any public employee will not be tolerated and the organization will be held accountable for the acts of its supervisors.

Employer Required To Engage In An Interactive Process To Reasonably Accommodate A Disabled Employee

Michael Claudio v. Regents Of The University of California, (2005) 134 Cal.App.4 th 224.

Claudio was employed by the School of Veterinary Medicine at the University of California at Davis when he contracted leptospirosis, a disease that left him disabled because he could not work in any area where he might become infected. He went on medical leave and moved to Florida . The University began to communicate with Claudio about the possibility of finding him another job at the University that did not require him to work around animals. Because Claudio had been informed on four different occasions by the University that he had been fired, he requested the University to communicate directly with his attorney.

The University's employment specialist phoned the law firm of Claudio's attorney and, without talking to the attorney, learned the firm specialized in workers' compensation law. The specialist reasoned that because plaintiff's employment situation with the University was not a workers' compensation matter, she did not have to communicate with Claudio's attorney. Without speaking further with plaintiff, the employment specialist checked Claudio's resume against available positions at the University, concluded none was available that matched Claudio's job skills, and effected his termination from employment.

Michael Claudio appealed a summary judgment entered in favor of the Regents of the University of California in Claudio's suit for wrongful termination of employment. The California Court of Appeals, Third Circuit reversed.

The Appellate Court noted that California's Fair Employment and Housing Act (Gov. Code, § 12900 et seq. fn. 1 (FEHA)) requires an employer "to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by [a disabled] employee . . . ." (§ 12940, subd. (n).) The Court concluded that, ordinarily, a disabled employee may not require an employer to communicate directly with his/her attorney, because the interactive process contemplates that the employee and employer will communicate directly with each other to exchange information about job skills and job openings.

In this case, the Appellate Court pointed out, unusual circumstances existed because the University had informed Claudio on four occasions that he had been fired. In the unusual circumstances, created by the University itself, the Court could not say it was unreasonable as a matter of law for Claudio to request the University to communicate with his attorney. The Court stated that the University's employment specialist did not act reasonably in unilaterally determining she did not have to communicate with Claudio's attorney simply because the attorney worked for a firm that specialized in workers' compensation law.

How does this affect your agency?This case reaffirms that "wiggle room" does not exist in the legislative requirement that an employer must work, in a positive manner, with an employee who is/has become disabled, in order to find a position the employee is otherwise qualified for, if one exists, before finalizing a decision to terminate the employment relationship. Department heads must insure that subordinates do not make unsupported conclusions regarding the "interactive process" thus setting up "unusual circumstances" which expose the agency to undue liability as well as unnecessary legal costs.