Court of Appeal: Cadets Can't Be Fired for Getting Hurt In Academy

In Atkins v. City of Los Angeles, the Court of Appeal ruled that the California Fair Employment and Housing Act applies to pre-probationary public safety recruits attending academy training. The City of Los Angeles used to allow recruits who were injured during training to temporarily fill light-duty administrative positions until they either healed or became permanently disabled. At some point, the department decided to cease offering these positions and told five recruits who were on light duty that they needed to get medically cleared to return to full duty or they would be terminated. None of the recruits were able to do so and they were terminated or forced to resign. They sued and won a total of $12.3 million in future wages from the date of termination through to a hypothetical date of retirement.

Under FEHA an employer may not discriminate against "qualified individuals" on the basis of their disability. A "qualified individual" is a person who can perform the essential job duties of a position. Here, the recruits could perform the essential functions of the light-duty administrative position, but not the police recruit position. On appeal the City argued that the Court must determine whether the recruits are qualified individuals with respect to the recruit position, not the temporary administrative position. The City also argued that it had no duty to accommodate pre-probationary trainees.

The Court of Appeal found there was no distinction in the FEHA between pre-probationary employees, probationary employees, and regular employees with regard to either discrimination or the duty to accommodate. Thus, the Court upheld the failure to accommodate claim. However, the Court agreed that the proper test in a discrimination context is to examine whether the employees were "qualified individuals" with respect to the police recruit position, not the temporary light duty administrative position. Accordingly, the Court found that the employer did not discriminate against them. Ultimately the City was still liable for failure to accommodate, but the court did reduce the damages as they were too speculative.

NLRB Improves Backpay Formula for Unlawfully Terminated Workers

In a recent 3-1 decision, the National Labor Relations Board ("NLRB") modified its backpay formula to make unlawfully terminated workers whole. In King Soopers, the NLRB found that its previous formula was inadequate to fully compensate workers who were unlawfully terminated. Specifically, the Board found search-for-work expenses and interim work expenses should be treated as a separate component of the backpay award, rather than an offset against interim wages.

When an employee is terminated for union activities, he or she is required to find and maintain interim employment to mitigate damages while the unfair labor practice case is decided. The pay the discriminatee receives from interim employment is deducted from the backpay award. However, the search for interim employment, and sometimes the interim employment itself, often causes the discriminatee to endure additional financial hardship. This is especially true if the discriminatee is forced to relocate, commute longer distances, or pay for additional training for the interim employment.

In the past, the NLRB treated search-for-work expenses and interim employment expenses as offsets to interim earnings. This prevented discriminatees who were unable to find interim employment to receive any compensation for search-for-work expenses. Similarly, discriminatees whose interim job wages were less than their total expenses were not compensated for the amount of expenses that exceeded their interim wages.

The Board now treats search-for-work expenses and interim work expenses as a separate component of the backpay award. The purpose of make-whole relief is to restore, as nearly as possible, that which the discriminatee would have earned if he or she had not been unlawfully terminated, and to deter future unfair labor practices. The Board found that this new formula better serves both purposes. As a result, discriminatees who prevail on their unfair labor practices will be fully compensated for the financial hardships caused by their unlawful terminations.

The Public Employment Relations Board currently treats search-for-work expenses and interim employment expenses as offsets to interim earnings. But PERB will likely follow suit and treat search-for-work expenses and interim job expenses as a separate component of the backpay award to ensure discriminatees are fully compensated.

U.S. Supreme Court Upholds the Right to Use Statistical Evidence in FLSA Class Actions

On March 22, 2016, the United States Supreme Court held that plaintiffs in a donning and doffing class action properly used representative and statistical evidence to establish class-wide liability in Tyson Foods, Inc. v. Bouaphaeko.   

Employees working in the kill, cut, and retrim departments of the Tyson Food plant in Iowa, argued Tyson violated the Fair Labor Standards Act (FLSA) by failing to compensate them for time “donning and doffing” protective gear. Tyson failed to keep any records of the time employees took for this purpose. As a result, the employees had to rely primarily on a study performed by an industrial relations expert, Dr. Kenneth Mericle. Mericle conducted 744 videotaped observations of employees donning and doffing their gear and averaged the time taken in the observations. Mericle then used the average donning and doffing times and added it to the regular time worked by the 3,344 members in the class action to determine whether they had worked over forty (40) hours in the week. 

At trial, the jury awarded the class $2.9 million in compensatory damages. Tyson sought to reverse the judgment, arguing it was unfair to allow class members to rely on representational evidence to establish damages.  Tyson's primary objections were that some class members had no damages and that the amount of time spent donning and doffing gear varied by job assignment.

Delivering the opinion of the Supreme Court, Justice Kennedy held the class could rely on Mericle’s sample study to prove damages because each class member could have relied on the sample to establish liability had each brought an individual action. Justice Kennedy followed precedent authorizing the use of estimates in wage cases, particularly when the employer failed to keep records of hours worked.  It would otherwise be nearly impossible for plaintiffs to establish a claim in cases where the employer fails to keep time records. He noted “that when employers violate their statutory duty to keep proper records, and employees thereby have no way to establish the time spent doing uncompensated work,” barring the use of statistical evidence would create “an impossible hurdle for the employee.”

While acknowledging "the question whether uninjured class members may recover is one of great importance," Kennedy criticized Tyson for opposing bifurcation of liability and damages.  In so doing, Tyson made it difficult to remove uninjured individuals from the class after the award was rendered. Kennedy indicated that Tyson should not profit from the difficulties it created.

The Court distinguished its 2011 decision in Wal-Mart, which rejected use of statistical analysis to establish liability in a class action for gender discrimination.  Kennedy dispatched the effort to pigeonhole Wal-Mart, noting that the Tyson class members were similarly situated.  This case is an important affirmation of the right to use statistical estimates to enforce FLSA rights and prosecute wage and hour class actions.

Ninth Circuit's Opinion Granting Distress Damages in Officer-Involved Shootings Stands

On October 6, 2014, the U.S. Supreme Court denied review of the City's appeal of Chaudhry v. City of Los Angeles. This upholds the Ninth Circuit's ruling allowing pre-death pain and suffering damages in section 1983 claims when the death was caused by a violation of federal law.

In Chaudhry, a jury found a police officer's shooting was unjustified despite the officer testifying the suspect lunged at him with a knife. The jury awarded $700,000 to the suspect's family for wrongful death and $1 million to the suspect's estate for pain and suffering based on an excessive force claim under 42 U.S.C. section 1983. California law prevents a decedent's estate from recovering damages for the decedent's pre-death pain and suffering. Federal law is silent on the issue.

The Ninth Circuit found California's limitation on damages conflicted with section 1983's goals of compensation and deterrence. The Ninth Circuit ruled preventing pre-death pain and suffering damages to a decedent's estate makes it more economically advantageous for the defendant to kill rather than injure. The court held the state-law limitation on damages does not apply in section 1983 claims if the death was caused by a violation of federal law. This ruling greatly increases potential liability for section 1983 defendants.