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New developments in wrongful termination law

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In this age of boundless access to information, employees are well aware of their legal rights.

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Approximately 65 percent of all employees who are terminated seek the advice of legal counsel. As a result, employers must stay informed concerning developments in the law of wrongful termination. The following provides a summary of some of the most significant developments over the past few years.

Legal marijuana user may be discharged

Since employers maintain a legitimate business interest in not employing persons who use illegal drugs, a California Appellate Court held in 2005 that employers have the right to enforce a drug-free workplace policy, even though the employee's medical marijuana use is permitted under California's Compassionate Use Act of 1996. (Ross v. Raginwire Telecommunications)

New protection for transsexuals

Transsexuals and transgender individuals are now protected in California form discrimination by employers. AB 196 bars treating an applicant or employee in a different fashion because he/she looks or acts differently from what an employer considers to be "traditionally associated with the employee's sex at birth."

The statute does, however, permit employers to require employees to adhere to reasonable workplace appearance, grooming and dress standards, as long as they are permitted to appear or dress consistently with the employee's gender identity.

The motivating factor test, employers' burden of proof in ADA cases

Two disability discrimination cases decided in 2005 make these cases more difficult for employers.

In Head v. Glacier Northwest Inc., an employee was diagnosed with bipolar disorder and was restricted to working only the day shift. The company terminated the employee after a loader he was operating became stuck in the mud, citing violation of an equipment abuse policy. In reaching its decision to permit the case to go to trial, the 9th Circuit Court of Appeals held employees can prove liability against employers in ADA cases if they simply show their disability was a "motivating factor" in the termination, rather than the "sole cause".

In Green v. State of California, the California Appellate Court held that employers have the burden to prove employees are incapable of performing their job duties with reasonable accommodation before placing them on disability retirement.

Risks of termination for blogging

A Web log ("blog") is an online diary or a personal chronological log of thoughts published on a Web page. When a blogger is terminated for making negative comments in cyberspace about her/his employer, or making political or sexual comments, does such action constitute wrongful termination?

The law in this area is just beginning to develop but the risks for employers are obvious.

In addition to a standard claim for wrongful termination, consideration should be given to such possible claims as discrimination, retaliation, invasion of privacy, violation of Labor Code 96(k) (protection for lawful conduct during nonworking hours), Labor Code 1101 & 1102 (right to engage in political activities), and Section 7 of the National Labor Relations Act ("concerted activity" by even nonunion workers is protected).

Employers should also consider developing a policy to provide guidelines for employees concerning appropriate blog related activities and content.

Enhanced rights for whistleblowers

California SB 777 enhances the rights of employees to report violations of law by their employers and prevents employers from terminating or in any way retaliating against such "whistleblowers."

In addition, the law provides that in a civil action or administrative proceeding brought under this law, once it has been demonstrated by a preponderance of the evidence that an activity proscribed was a contributing factor in the termination or other alleged prohibited action against the employee, the employer has the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in whistleblowing activities.

Employers are also now required to prominently display in the workplace a list of employees' rights and responsibilities under the whistleblower laws, including the telephone number of a newly established whistleblower hotline set up by the California Attorney General's Office.

Use of "kin care" may not result in discipline leading to termination

For approximately five years, California employers have been required to permit employees to use an amount of sick leave they would accrue during a six-month period at their current rate of entitlement to attend to the illness of the employee's child, parent or spouse.

Thus, for example, if the employer provides 12 days of paid sick leave each year, the employee could use up to six days each calendar year to care for the illness of his or her family member.

More recently, this statute was amended to provide that employers must permit the use of this "kin care" for employees to attend to an ill domestic partner or child of a domestic partner.

In addition, the statute now provides that an employer's absence control policy that counts sick leave taken to attend to an illness of a child, parent, spouse or domestic partner, as an absence that may lead to or result in discipline, discharge, demotion, or suspension, is a per se violation of California Labor Code Section 233.

Employers may terminate supervisors for dating subordinates

In Barbee v. Household Automotive Finance, it was held that terminating an employee for dating a subordinate did not give the terminated employee a valid cause of action for wrongful termination or invasion of privacy. The supervisor ignored warnings to cease his relationship and was subsequently fired. He sued for invasion of privacy and wrongful termination, but the trial court granted summary judgment in favor of the employer.

In confirming the judgment, the appellate court held there is no protected privacy interest in pursuing a sexual relationship and that intimate relations among employees may be restricted when they present potential conflicts within the organization.

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