Friday, September 30, 2011

Court of Appeal: Police Chief Qualified for Disability Retirement Despite Termination Because of Equitable Exception

In  Zimmon v. City of San Bernardino (Cal. Ct. App., Sept. 16, 2011, E050314) 2011 WL 4337123, the Court granted former San Bernardino Police Chief Garrett Zimmon disability retirement by applying an equitable exception stating that an employee terminated prior to the approval of his disability retirement is still eligible for benefits if the employee's application would have been granted but for the termination.

In the summer of 2002, Zimmon was diagnosed with a heart condition.  Later, the city’s mayor openly considered terminating Zimmon so her successor could select a new chief.  Zimmon then filed an application for disability retirement and was terminated the following day.  A hearing officer ruled Zimmon had suffered a heart-related injury.  However, the officer denied Zimmon’s petition for disability retirement.  After an internal appeal, the city ruled Zimmon had “proved his disability and incapacity for performance” but he was not eligible for benefits because his termination took place before his right to a disability retirement matured.  The superior court affirmed this decision, and the case was appealed to the Fourth District Court of Appeal.

The Appellate Court reversed, holding Zimmon’s application for disability retirement would have been approved had he not been terminated. The Court relied on an equitable exception which states “an employee who has been terminated, prior to the pension board approving his disability retirement application, may still be ‘eligible to retire for disability’ if there is evidence that the employee's application would have been granted.” (Id.) The Court further found Zimmon had already “proved his disability and incapacity for performance of duty ‘on the basis of competent medical opinion.” (Id.)

The Court in Zimmon relied heavily on two Court of Appeal cases brought by firefighters denied disability retirement. These cases helped define what it means to be eligible to retire for disability when an employee is terminated. In Haywood v American River Fire Protection Dist., a firefighter filed an application for disability retirement benefits based on stress caused by the discipline process.  (Haywood v American River Fire Protection Dist. (1998) 67 Cal.App.4th 1292.)  The Court of Appeal rejected his claims finding eligibility to retire for disability “meant that the person was an active employee, who would be able to return to his job if he overcame his disability.” (Haywood, supra, 67 Cal.App.4th at p. 1307.)

In Smith v. City of Napa, a firefighter with back injuries was dismissed for failing certification tests and filed for disability retirement the same day. (Smith v. City of Napa (2004) 120 Cal.App.4th 194.) The Court of Appeal rejected his claims but noted equitable principles could provide grounds to find that an employee’s disability rights mature and survive a dismissal for cause if the medical evidence supporting those rights is definitive. (Smith, supra, 120 Cal.App.4th at pp. 206–207.)

These two cases laid the groundwork for a case such as Zimmon, in which the employee would clearly have received disability retirement but for his termination from employment.

Wednesday, September 28, 2011

EEOC: Private Security Company Discriminated Against Older Male Security Guards

On September 27, 2011, the federal Equal Employment Opportunity Commission filed a complaint against Trinity Protection Services, Inc., a private security company.  The complaint alleges Trinity discriminated against older, male security guards in favor of younger, female guards.  The lawsuit, EEOC v. Trinity Protection Services, Inc., Case No. 2:11-cv-02535-KJM-DAD, was filed in the Eastern District of California.

The complaint alleges that in 2008 seven security guards at the company's Sacramento location did not reach a qualifying score on an arms requalifying test and were terminated by Trinity.  The men, ages 66 to 73, were told they had to wait at least six months to retest and reapply.  The women, ages 28, 29 and 50, however, were invited to retest earlier and reinstated in their positions.  According to the EEOC, this practice constituted unlawful age and sex discrimination.  In a press release, EEOC San Francisco District Director Michael Baldonado said, “Taking the initiative to diversify your work force in terms of gender cannot be done at the expense of the rights of other employees. Trinity’s invitation to requalify should have been extended to all the workers affected, not just the younger women.”  The lawsuit seeks an injunction, damages and a federal court order Trinity implement policies, practices and programs to eradicate discrimination at the company.

Monday, September 19, 2011

Ninth Circuit: Employers Must Prove Workplace Disruption Claims in Employee Speech Cases

In Nichols v. Dancer (9th Cir., Sept. 15, 2011, 10-15359) 2011 WL 4090676, the Ninth Circuit held that under the Pickering balancing test, employers must prove an employee's speech causes workplace disruption to justify subjecting an employee to an adverse employment action.  Following the Fifth Circuit, the Court rejected the employer's claim that it is sufficient to merely assert a potential disruption.

Kathleen Nichols worked in the General Counsel's office of the Washoe County School District.  She went to a school board meeting about whether her boss would be fired and sat next to him during the meeting. When she returned to work, a manager told her there were questions about her loyalty to the District. The manager told Nichols that she could remain in Human Resources, where her salary would be frozen, or take early retirement. She opted for the latter and sued for a violation of her First Amendment rights.

The case turns on whether Ms. Nichols' conduct caused sufficient interruption to trigger the employer's right to preserve workplace efficiency.  Balancing Nichols' rights against workplace efficiency is part of the Pickering balancing test, the analytic framework used by courts to evaluate public employee free speech claims.   In this case, the District asserted Nichols' association with her former boss met its burden under the test.  The Court rejected that claim.

The Court explained "engaging in Pickering balancing is not like performing rational basis review, where we uphold government action as long as there is some imaginable legitimate basis for it."  (Id. quoting Kinney v. Weaver (5th Cir. 2004) 367 F.3d 337, 363.) The Court went on to explain, "An employer may not interfere with an employee's First Amendment rights unless there is evidence that the employee's actions have actually disrupted the workplace or are reasonably likely to do so in the future. Simply saying that there has been or will be disruption, without supporting evidence, is not enough.  In the face of Pickering, the “because I said so” approach is insufficient to establish a reasonable prediction of disruption, let alone actual disruption." (Id.)

Monday, September 12, 2011

NLRB: Facebook Post Was Protected Activity

In Hispanics United of Buffalo, Inc. (September 2, 2011) NLRB Case No. 3-CA-27872, an administrative law judge of the National Labor Relations Board ruled a New York nonprofit violated federal law by firing five employees who posted comments on Facebook about working conditions, including workload and staffing.

An employee of the nonprofit brought the case after he was fired for comments he posted on Facebook. The employee claimed some employees did not do enough to help their clients, drawing responses from other employees about job performance, working conditions and staffing levels. Some of the comments supported the initial post and some disagreed. The nonprofit later fired five employees involved, claiming their posts harassed another employee.

The judge determined firing employees for these comments violated the National Labor Relations Act. The relevant part of the NLRA gives employees “…form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The judge noted “[e]mployees have a protected right to discuss matters affecting their employment amongst themselves.  Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected…” The judge went on to hold that protected applies equally to Facebook posts as it would to a workplace conversation around the water cooler.

The judge found there was no evidence the employees harassed anyone with their posts and noted “[the employer] was looking for an excuse to reduce its workforce and seized upon the Facebook posts as an excuse for doing so.”

Ultimately, the judge ordered the nonprofit to reinstate the employees and pay them back pay plus compound interest.

Friday, September 9, 2011

Assembly Commits to Study Pension Reform in Future Legislative Sessions

The California State Assembly passed Senate Bill 827 to declare its intent to study pension reform in future sessions. The bill provides in its entirety:

"It is the intent of the Legislature to convene a conference committee to craft responsible, comprehensive legislation to reform state and local pension systems in a manner that reflects both the legitimate needs of public employees and the fiscal circumstances of state and local governments."

The current legislative session ends at midnight tonight.

Tuesday, September 6, 2011

Court of Appeal Limits Exposure of Retirees' Private Information

In Sonoma County Employees’ Retirement Association v. Superior Court (August 26, 2011, A130659) 2011 WL 3795212, the Court of Appeal found Sonoma County’s retirement system did not have to disclose the ages of retirees. The case is the latest in a series of cases where newspapers have used the Public Records Act to identity retirees by name and pension amount. In reaching its decision, the Court focused on language exempting “individual records of members” from disclosure. The retirement system argued this language protected retirees' names, but the Court found the public’s interest in knowing the names and pension amounts of retirees outweighed their privacy interests. However, the court drew the line at disclosure of the retirees' ages, finding retirees' dates of birth and ages at retirement are protected from disclosure under the statute.