Partial Day Absences Approved for California Exempt Employees

The California Court of Appeal in Conley v. Pacific Gas and Electric Co., Cal.App. 1st Dist. (July 21, 2005) No. A105832 found that employers may require exempt employees to use paid time off for partial day vacations.

In Conley, the Court of Appeals specified: “We find nothing in California law that precludes employer from following the federal rule that permits them to require the use of vacation leave for partial-day absences without causing otherwise exempt employees to become non-exempt under the salary basis test.” Conley involved a wage and hour action where plaintiff pursued claims for unpaid overtime on behalf of several classes of PG&E employees. The Court of Appeal affirmed the trial court’s order denying certification with respect to the proposed “salary basis” class. The court remanded for further proceedings claims related to the proposed “job duties” class.

Recently, the California Labor Commissioner withdrew an August 2002 Division of Labor Standards Enforcement (DLSE) opinion letter which restricted employers' use of mandatory vacation policies and prohibited against partial day vacations or paid time off (PTO) for exempt employees. The Labor Commissioner now requires employers to provide "reasonable notice," for requiring use of vacation or PTO, but no less than one full fiscal quarter or 90 days, whichever is greater. Further, the Labor Commissioner no longer finds the partial day vacation or PTO a violation of the "salary basis" portion of the exemption test.

How Can Dorsey Help?

  • Dorsey’s California employment team can conduct a workplace audit to make sure your employees are properly classified as exempt.
  • Review your existing PTO and vacation policies and consult with your Dorsey employment counsel to ensure you are in compliance with California law. Please contact Gabrielle Wirth or Mandana Massoumi for more information.

Ninth Circuit Finds Reading Is A Major Life Activity, And Medical Evidence Not Necessary To Demonstrate Disability Under The ADA

The Ninth Circuit Court of Appeals has expanded the protections offered under the Americans with Disability Act ("ADA") by finding that reading is a major life activity protected under the ADA. Head v. Glacier Northwest, Inc. (Ninth Cir., July 6, 2005) No. 03-35567. The court also found that an employee bringing a claim of disability discrimination under the ADA is not required to produce "comparative or medical evidence" to establish the existence of disability to oppose summary judgment, and could merely introduce his own sworn declaration. This finding will most likely make it more difficult for an employer to prevail on a motion for summary judgment on "disability" claim.

In Head, plaintiff informed his employer that he was diagnosed with depression and bipolar disorder and took a two-month family medical leave of absence. He returned to work with medical restrictions on his hours and shifts of work. A few months later plaintiff was terminated from his job for cause. He then sued Glacier for a number of claims, including violating the ADA and Oregon law. The District Court granted partial summary judgment for Glacier, and Head's remaining claims went to trial. At trial, despite Head's objections, the judge instructed the jury that the employee's evidence must show his employer terminated him "because of" discrimination or retaliation. The jury reached a verdict for the employer and Head appealed.

The Ninth Circuit reversed the trial court's decision on certain points. First, the court found that an employee bringing a claim of disability discrimination is not required to produce "comparative or medical evidence" to establish the existence of disability at the summary judgment stage. Instead, the court ruled, "[w]e hold that Ninth Circuit precedent does not require comparative or medical evidence to establish a genuine issue of material fact regarding the impairment of a major life activity at the summary judgment stage." Rather, our "precedent supports the principle that a plaintiff's testimony may suffice to establish a genuine issue of material fact."

However, the court cautioned that "an affidavit supporting the existence of a disability must not be merely self-serving and must contain sufficient detail to convey the existence of an impairment." The court found that Head had established sufficient evidence to demonstrate a substantial impairment in the major life activates of sleeping, interacting with others, reading and thinking.

Head was also arguing that he was disabled because of an "inability to interact with others." Although interacting with others has been considered a disability, individuals are required to show consistently high levels of social withdrawal, hostility or failure to communicate with others. In Head, the Ninth Circuit found plaintiff met his burden of demonstrating a substantially limiting impairment in this regard by submitting a written affidavit which specified that he avoided crowds, stores, large family gatherings and even doctors' appointments, and would not leave the house on most weekends.

The Court also found that thinking was a major life activity. Head's inability to concentrate and failure to stay focused on something (a condition described as a "jumbled mind") lead the court to believe that he may have a substantially limiting impairment. The court found these facts should be heard by the jury to determine if plaintiff was in fact disabled.

How Can Dorsey Help?

Ninth Circuit Finds Employee Nicknames Discriminatory

The Ninth Circuit Court of Appeal has found that an apparently non-offensive nickname was racially motivated and constituted race discrimination based on ancestry or ethnic characteristics. El-Hakem v. BJY, Inc., (Ninth Cir., July 21, 2005) No. 03-35514, No. 03-35544, No. 04-35063. The court upheld a jury verdict against an engineering firm CEO who insisted on calling an Arab employee, Mamdouh El-Hakem, "Manny" and "Hank," in an effort to "Westernize" the employee's name.

In El-Hakem, plaintiff, who is of Arabic heritage, brought an action against his former employer and the CEO of the company for discrimination under Title VII of the Civil Rights Act of 1964, wrongful termination, and failure to pay wages under the Fair Labor Standards Act. El-Hakem's racial discrimination claims stemmed from the CEO's repeated references to El-Hakem as "Manny," and "Hank," despite El-Hakem's strenuous objections, on the basis that a "Western" name would increase El-Hakem's chances for success. At trial a jury found that the CEO intentionally discriminated against El-Hakem environment and awarded him $15,000 in compensatory damages and $15,000 in punitive damages.

The Ninth Circuit rejected the employer's argument that "Manny" is not a racial epithet, finding "names are often a proxy for race and ethnicity." The court found that the CEO's repeated use of the name "Manny" over a one-year period was pervasive enough to create a hostile work environment; "The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct." Finally, the Ninth Circuit found that discriminatory intent was present, where "the record is clear that [the CEO] intended to discriminate against El-Hakem's Arabic name in favor of a non-Arabic name."

How Can Dorsey Help?

  • Dorsey’s Sexual Harassment Prevention Training Program for California employers, complies with California’s new Sexual Harassment Training Law (AB1825) and includes preventive strategies for all types of workplace harassment and discrimination issues. Please contact Mandana Massoumi or Gabrielle Wirth for more information regarding this training.
  • Monitor the workplace to ensure that discriminatory or harassing comments or conduct are prohibited and managers are properly trained.