Monthly Archives: February 2016

Disability Discrimination: When Can an Employer Terminate a Disabled Employee?

Wallace v. County of Stanislaus

Court of Appeal, 5th Appellate District, F068068 (February 25, 2016)

Consider a hypothetical with the following facts: [1] (1) an employer is advised by a physician than an employee’s physical condition renders him or her unable to perform essential job duties even with reasonable accommodation, (2) the physician’s evaluation is, in fact, correct, and (3) the employer removes the employee from the position because of the physical condition.  Under Government Code §12940(a)(1), the employer has clearly not engaged in impermissible discrimination.

What did Stanislaus County do wrong?

Facts: Wallace was hired by Stanislaus County as a deputy sheriff.  He injured his knee and filed a workers’ compensation claim.  Wallace had surgery and then returned to work on light duty.  Wallace was thereafter on a paid leave of absence for four months.  He returned on another light duty assignment.  Wallace went out on another leave of absence because of the knee injury, when his paid leave ran out.

Thereafter, Wallace received additional work restrictions and was offered an assignment of bailiff at his pre-injury rate of pay.  There were no performance issues.  Performance evaluations were above average.

Wallace underwent an agreed medical exam which resulted in a report listing various “preclusions” relating to lifting, pushing, pulling, climbing, squatting, kneeling, crouching, crawling, pivoting, and walking.  Wallace was removed from his job because of a lack of modified or alternative work available.  Wallace stated he could perform the job function of a bailiff (and other positions).

The County placed Wallace on an unpaid leave of absence as an “accommodation.”  The unpaid leave of absence lasted over a year.  Wallace filed a disability discrimination complaint.  About two years after the unpaid leave of absence, and after the County received a fitness for duty exam report, the County returned Wallace to full duty as a patrol officer.  Wallace sued for damages for lost compensation, emotional distress and attorney’s fees.

Legal issue:

The appellate court reversed the trial court based upon an erroneous jury instruction.  Of relevance for understanding California discrimination claims is that California law does not require an employee with an actual or perceived disability to prove that the employer’s adverse employment action was motivated by animosity or ill will against the employee.  Instead, California’s statutory scheme protects employees from an employer’s erroneous or mistaken beliefs about the employee’s physical condition.  In short, the Legislature decided that the financial consequences of an employer’s mistaken belief that an employee is unable to safely perform a jo’s essential functions should be borne by the employer, not the employee, even if the employer’s mistake was reasonable and made in good faith.[2]

The definition of “physical disability” includes “being regarded or treated by the employer … as having, or having had, any physical condition that makes achievement of a major life activity difficult.”[3]

The Court held that a properly instructed jury would have found that Wallace’s disability was a substantial motivating reason for the County’s decision to remove him from his job as a bailiff.  The County’s mistaken belief that Wallace was unable to perform his job safely is not a defense to the claim of disability discrimination.


Not infrequently, employers find themselves in this situation.  It is somewhat ironic that the Wallace decision consists of 32-pages plus a 3-page concurring opinion in reversing a trial court about how an employer should handle a disability claim of this nature.   Moreover, the Fair Employment & Housing Act (“FEHA”) applies to employers with five or more employees.  Not everyone has a human resources department and, even when they do (i.e., County of Stanislaus) the recommendation and action taken is not always accurate.

[1] Quoting from Justice Poochigian’s concurring opinion in the Wallace decision.

[2] Wallace at page 2.

[3] Government Code §12926(m)(4).

Selected New Employment Laws – 2016

Posters and Notice Requirement

Two new required posters: injuries caused by work and whistleblower protection; new minimum wage posters

Exempt and Non-Exempt

Exempt employees: $41,600/annual; $3,466,67/monthly minimum salary

Physicians and surgeons: $76.24/hour

Computer professions: $41.85/hour; $87,185.14/annual; $7,265.43/monthly

Verifying Eligibility to Work

New USCIS I-9 Form effective November 2015

It is a violation of California law to use E-Verify in a time or manner that is not required by federal law to check the employment authorization status of an existing employee or applicant who has not been offered employment.  Exception: if required by federal law or to receive federal funds. $10,000 civil penalty for each violation.

Joint Employers

Companies and staffing agencies/labor contractors are both liable for wage and hour violations, workers’ compensation, retaliation claims.  Some exclusions based upon size of business entities and type of labor performed.

Employing Minors

A child worker’s immigration status is not relevant to the issue of whether the employer violated the law or what remedies are available to the worker.

Non-Competition Agreements

“No-hire” provisions in a separation or severance agreement may violate Business & Professions Code §16600 (9th Circuit Court of Appeals).

Wage and Hour Law

Individuals can be held personally liable for a company’s failure to comply with certain wage and hour laws (“other person acting on behalf of the employer”), including

  • Wage Order violations for minimum wages, days and hours of work
  • Timely payment of wages
  • Pay stub/itemized wage statements
  • Meal and rest break requirements
  • Overtime
  • Reimbursement of expenses

“Other person acting on behalf of an employer” means owner, director, officer or managing agent.

Labor Commission can conduct hearings and award civil penalties against the company and individuals.  Labor Commission can levy on personal assets.

Employers are prohibited from retaliating against an employee because the employee’s family member engaged in, or is perceived to have engaged in, protected conduct.

The Labor Commissioner to now investigate and enforce local overtime and minimum wage laws, such as the local minimum wage ordinances enacted by many cities.

Minimum Wage

$10/hour – California$15/hour – overtime (time and one-half)$20/hour – overtime (double time) $10.15/hour – federal construction and service contracts. 
California Federal

Cities or towns having local minimum wage                                                  Counties with a living

or living wage ordinance                                                                    wage ordinance





Long Beach

Los Angeles

Mt. View




Port Hueneme Richmond


San Diego

San Fernando

San Francisco

San Jose


San Leandro

Santa Barbara

Santa Cruz

Santa Monica






West Hollywood



            Los AngelesMarinSan Francisco

Santa Clara

Santa Cruz




On-Call Resident Employees

Applicability is to employees under Wage Order 4.  Compensation is appropriate for all on-call hours spent at the assigned worksite under the employer’s control where employer exercised significant control over employee’s activities during the on-call time.  Employees must live on-site, respond promptly, not free to leave at-will, but only when relief available.  No children, no pets, no alcohol, no visits with adult friends or family without permission. California Supreme Court decision.

Wage Garnishments

Employer can deduct $1.50 from employee’s earnings for each payment made in accordance with any garnishment order.  The amount of wages exempt from garnishment is higher under California law than the federal standard.

Training Related Expenses

Requirement to reimburse training costs if employee terminated employment within 5 years of date of hire held to be invalid.  California Appellate Court decision.

Security Screenings

Time a worker spends in security screenings is not compensable under FLSA.  U.S. Supreme Court decision.

Paid Sick Leave

The Healthy Workplaces, healthy Families Act creates an employer mandate to provide paid sick leave (PSL) effective July 1, 2015.

  • Employees cannot start using accrued sick days until the 90th day of employment.
  • Employers can limit the amount of PSL an employee can use to three days or 24 hours per year.
  • Statutory accrual method: one hour of sick pay for every 30 hours worked; any accrued but unused sick time must carry over to the following year of employment but can be capped at 48 hours or 6 days.
  • PSL must be provided upon an employee’s oral or written request. If the need for PSL is foreseeable, an employee must provide “reasonable” advance notice.  If not, the employee must provide notice “as soon as practicable.”
  • An employer can set a “reasonable minimum increment” of time that must be taken not to exceed two hours.
  • Under California’s “kin care” law, employers must allow employees to use one-half of their annual sick leave entitlement to care for a family member.

See California Department of Industrial Relations Website for additional information including “Frequently Asked Questions” and responses.

School and Child Care Activities Leave

Employers with 25 or more employees working at the same location must permit employees to take time off to participate in certain school or child care activities up to 40 hours annually.

Safety (OSHA)

Heat illness prevention requirements are applicable to agriculture, construction, landscaping, oil and gas extraction and transportation, deliveries of agricultural products, construction materials or other heavy materials.

Gender Wage Equality – Fair Pay Act

Effective January 1, 2016.  Employers are prohibited from paying any of their employees less than employees of the opposite sex for “substantially similar work.” The burden is on employers to justify pay differentials from an acceptable list of factors that must be applied reasonably.  The relied upon factors must account for the entire wage differential.  No discriminatory intent is required.  “Substantially similar work” means a composite of skill, effort and responsibility that is performed under similar working conditions.  It does not have to be the exact same job title or function.

Employers cannot prohibit employees from disclosing their own wages, discussing wages of others, asking about another employee’s wages, aiding or encouraging other employees to exercise their rights under the Fair Pay Act.  There is no obligation, however, of an employee to disclose wages when asked.  Employers must keep wage, job classification and other terms and conditions records for 3 years.

Fair Pay Act includes all forms of compensation (salary, bonuses, commissions, and related perks).

Requests for Reasonable Accommodation

The mere act of requesting a reasonable accommodation for a disability or religious reasons is a protected activity and an employer cannot discriminate or retaliate against a person for requesting the accommodation, regardless of whether the request was granted.

Wage Statement Violations

Wage statements must include nine items of information, including the beginning and end date of the period for which the employee is being paid and the employer’s name and address.  Employers who don’t include all of these items on their wage statement get a break: An employee can’t file an action under the Private Attorneys General Act for these omissions without first notifying the employer and giving the employer a chance to fix the problem by issuing new (and compliant) wage statements for the 3-year period before the notice.

Requirements for Paying Piece-Rate Workers

Employees must be separately compensated for rest and recovery breaks and other “nonproductive” time. (Wage statements have to reflect this time, too.)  But employers can satisfy this requirement by paying minimum wage for all hours worked, in addition to any piece rate. This will particularly affect agricultural and transportation companies, which have historically compensated employees based on piece-rate and activity-based formulas.

National Labor Relations Board (NLRB)

Sections 7 and 8(a) (1) protect the rights of employees to engage in “protected concerted activity” (i.e., 2 or more employees taking action relating to terms and conditions of employment for their mutual aid or protection).  Applies to union and non-union employees

  • Single employee acts on authority of other employees in bringing group complaints to the employer’s attention or attempts to induce group action.
  • Employees can act together to improve wages and other conditions of employment.
  • NLRB invalidated employee confidentiality agreements in workplace investigation.

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