Ninth Circuit Holds Applicant Drug Testing Policy Violates Fourth Amendment

The City of Woodburn, Oregon, has an applicant drug testing policy. All prospective applicants must be screened for illegal drugs prior to hire.

As a government employer, Woodburn is bound to follow the U.S. Constitution. Drug testing is a "search" within the meaning of the Fourth Amendment. To avoid securing a warrant to conduct the search, the City must demonstrate a sufficient reason to conduct the drug testing without one.

Lanier applied for a job as a part-time worker in the city's library. She refused the drug test and was not hired. She claimed that requiring her to take a drug test as an applicant violated her rights. The Ninth Circuit agreed. The court held that the city's articulated reasons - general societal problems with drug abuse, protecting children in the library, and the adverse effect drug use has on work performance were sufficiently special. Not so, said the court of appeals. Rather, to conduct applicant drug testing, the City would have to demonstrate that these factors were specific problems in the City's workforce, and involving the particular job for which Lanier applied.

Unless the U.S. Supreme Court reverses this decision, many government drug testing programs for applicants will be invalid. The case also may have ripple effects for private employers. In California, for example, applicant drug testing by private employers is generally lawful. The courts have relied on constitutional jurisprudence in reaching that decision. So, stay tuned.
The case is Lanier v. City of Woodburn. The opinion is here.

Resident Employees Paid Only For Time Worked

Industrial and Welfare Commission Order No. 5-2001 contains a special provision applicable to employees who are required to reside on the premises. These employees are required to be paid only for the time spent actually working, rather than their entire time on the premises, even if they are "on call." The Isners were resident managers of a non-profit home for the elderly. They were required to live on the premises. When they were "on call," they had to remain within earshot of call alarms and respond to "emergencies." They sought compensation for all on-call time. But the Court of Appeal decided that their employer, Falkenberg, compensated them properly for only the time they actually spent working.
The case is Isner v. Falkenberg. The opinion is here.

Recent Shaw Valenza Articles Winter/Spring 2008

In case you missed them, here are some recent articles we've published on a variety of topics. None was an Oprah selection of the month.

NO INDIVIDUAL LIABILITY FOR RETALIATION UNDER THE FEHA
By Jennifer Brown Shaw and Shane Anderies
The Daily Recorder
12 March 2008

NEW PROPOSED REGULATIONS FOR THE FMLA
By Jennifer Brown Shaw
The Daily Recorder
26 February 2008

ONE TOKE OVER THE LINE
By D. Gregory Valenza
The Daily Journal
15 February 2008

EXPANSION OF FMLA LEAVE FOR FAMILIES OF SERVICE MEMBERS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
13 February 2008

LEDBETTER V. GOODYEAR: WHAT DOES IT STAND FOR AND WILL IT STAND?
By Carolyn G. Burnette and D. Gregory Valenza
Employment & Labor Relations Law - American Bar Association
1 February 2008

FREE SPEECH AND THE PRIVATE SECTOR WORKPLACE
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
30 January 2008

SHOULD PAY CARDS BE TREATED THE SAME AS PAYCHECKS?
By D. Gregory Valenza
The Daily Journal
18 January 2008

EMPLOYEE TERMINATIONS: STEPS TO REDUCE LIABILITY
By Jennifer Brown Shaw
The Daily Recorder
15 January 2008

PREVENTING UNION ACTIVITIES VIA COMPANY EMAIL GETS EASIER
By Jennifer Brown Shaw
The Daily Recorder
2 January 2008

UPDATED EMPLOYEE POLICIES FOR 2008
By Jennifer Brown Shaw
The Daily Recorder
18 December 2007

DISABILITY AS A JUSTIFICATION FOR EMPLOYEES' MISCONDUCT?
By D. Gregory Valenza
The Daily Journal
7 December 2007

Cease and Desist Letter Gets SLAPP Protection

Here's the way the court put it:

An employer fired one of its employees amid allegations that the employee had misappropriated customer lists and solicited his employer’s customers to start a
competing business. Several months before litigation was commenced by the employer against its former employee, the employer’s attorney drafted a letter to the employer’s customers that accused the employee of breach of contract and
misappropriation of trade secrets, and that “suggest[ed]” to the customers that, to avoid potential involvement in any ensuing litigation “as a material witness, or otherwise,” the customers should not do business with the former employee. The employee commenced a defamation action against the former employer. We hold that, in the circumstances of this case, the lawyer’s letter to the customers was a “writing made in connection with an issue under consideration or review by a . . . judicial body” (§ 425.16, subd. (e)(2)) and therefore covered by the anti-SLAPP statute because the letter directly related to the employer’s claims against the employee, and the employer was seriously and in good faith contemplating litigation against the employee.

Of note, the court also ruled that it made no difference that the lawyer sent the letter to its customers rather than just the former employee. The court also said that the litigation privilege was irrelevant to whether the communication satisfied the requirements of the anti-SLAPP statute. However, the litigation privilege would be relevant to the second prong of anti-SLAPP analysis - the plaintiff's chance of success on the merits.

This case is good news for practitioners who send out "cease and desist" letters to former employees accused of violating restrictive covenants. It's also good news for employers, as they could have found it harder to find lawyers to send out such letters if the former employee could freely sue for defamation.

The case is Neville v. Chudacoff. The opinion is here.

California Court of Appeal Upholds Rare Attorneys Fees Award Against Plaintiff

Daniel Villanueva sued the City of Colton for discrimination under the Fair Employment and Housing Act. The trial court sustained nearly all of the City's objections to his evidence, leaving him with virtually no opposition to the City's motion for summary judgment. He lost. Then the trial court awarded the City $39,000 in attorneys fees for pursuing a frivolous case. The Court of Appeal held that the City properly won summary judgment, that the unchallenged evidentiary objections precluded the court's consideration of excluded evidence, and that on the merits there was nothing to the case. The court then held that 1) the trial court must consider the employee's ability to pay an attorneys' fees award and 2) the plaintiff put on no evidence of inability to pay. So, the trial court's award of fees was upheld, as the case was frivolous.

The case is Villanueva v. City of Colton. Opinion is here.

Court of Appeal: $44 recovery; $500 in fees

The Second District Court of Appeal reversed a trial court's refusal to grant attorneys' fees in a wage and hour case. The amount in controversy was: $44.63. The plaintiff, Harrington, unsuccessfully tried to bring a class action. His individual claim was for one day of unpaid overtime. Because of penalties, etc., the case settled for $10,500, plus "reasonable attorneys fees." The trial court said that the $10,500 was enough to pay the attorneys.
The Court of Appeal held that the trial court was required to award "reasonable" attorneys' fees to Harrington as the prevailing party. The court then said there was "no way on earth" that Harrington's attorneys were entitled to the $46,000 in fees they claimed. Instead, the court fixed a reasonable amount at ... $500. That's enough for a nice lunch for the whole office, guys. Celebrate the win!

Harrington v. Payroll Entertainment Services, Inc.

California Supreme Court: No Individual Liability for Retaliation Under FEHA

Years ago, lower courts held that individual managers may be held liable for "retaliation," i.e, taking negative action against an employee for his or her engaging in protected activity. At the same time, the courts decided individual managers could not be held liable for "discrimination," i.e., taking adverse action based on an employee's membership in protected groups. Back in 1998, the California Supreme Court ruled in Reno v. Baird that supervisors could not be held liable for discriminatory decisions amounting to "personnel actions."

The difference in the courts' treatment of these two types of actions apparently was based on differences in language between the statute barring "discrimination" and the section prohibiting "retaliation." However, a primary policy underlying Reno - permitting managers to manage without fear of personal liability - was inconsistent with holding managers personally liable for retaliation. That is, a manager's "retaliatory" decision is based on an unlawful motivation, just as a "discriminatory" decision.

The California Supreme Court finally reviewed the issue of individual liability for managers based on allegations of retaliation in violation of FEHA. In Jones v. Lodge at Torrey Pines, the Court decided that Reno's rationale controlled the question and that individuals could not be held personally liable. The opinion is here.

The Legislature has never overturned Reno. When the Supreme Court held in Carrisales v. Dept. of Corrections that individual non-supervisors could not be held personally liable for harassment, the Legislature moved quickly and specifically passed a law imposing such liability.

Perhaps the Legislature will seek to do so again. However, as the Court pointed out, a manager facing personal liability for normal personnel actions (demotion, termination, failure to promote, compensation, discipline, etc.) will face a conflict of interest every time he or she faces the issue of whether to take adverse action against an employee. With harassment, on the other hand, a manager may avoid liability simply by refraining from engaging in conduct that may amount to "harassment." Hopefully, the Legislature will consider that issue carefully before seeking to overturn Reno or Jones.

U.S. Supreme Court: A Charge by Any Other Name... Is Still a Charge

The U.S. Supreme Court decided 7-2 that an EEOC Intake Questionnaire was a valid substitute for the official "Charge" of Discrimination. Justice Kennedy, writing for the Court, reasoned that the Intake Questionnaire, coupled with an attached affidavit, contained all the information required of a Charge by regulation. The attached affidavit also contained a request for the EEOC to act. That was enough in the case at bar. However, the EEOC need not deem every Intake Questionnaire to be a Charge.

The employer, Federal Express, did not receive notice of the Charge, nor was it given the opportunity for conciliation, all of which appear to be contemplated by the Age Discrimination in Employment Act. The majority recognized that problem, suggesting the district court can stay the civil action pending the conciliation process.

The majority also suggested that the result might be different under Title VII. The procedural rules and laws differ slightly under the ADEA, which permits lawsuits after agency inaction for more than 60 days. The EEOC also may commence litigation under the ADEA without a charge, so long as it first attempts to conciliate.

Justice Thomas, joined by Justice Scalia, dissented.

This case will create problems for employers seeking to invoke the statute of limitations in federal discrimination actions. Additionally, as Justice Thomas pointed out in the dissent, becaause not every Intake Questinonaire will qualify as a Charge, there most likely will be litigation over this issue, driving up litigation costs and delays. It remains to be seen whether the EEOC accepts the Court's suggestion to clarify its rules on filing Charges.

The case is Federal Express Corporation v. Holowecki, and the opinion is here.