Turn Off/On/Down/Up Those Radios

One employee's favorite type of music is the bane of another's existence. The radio talk show host one employee finds brilliant, another employee finds ignorant and tasteless. Managers and supervisors are often called upon to referee disputes over music and radios in the workplace. What many may not know is that such disputes can lead to litigation.

Litigated Cases

In a recent case, a federal appellate court ruled that a female employee should be allowed to present a sexual harassment case to a jury that depended in part on being subjected to sexually explicit language on radio programs that her male colleagues listened to. Although she was often told that she could play her own music or change the station, when she did so, the other employees would soon change the radio back to the offensive program. Even though the language from the radio programs was not directed at the employee, it affected her work environment to the point that she was distracted and had to remove herself from her usual workspace. Reeves v. C.H. Robinson Worldwide, Inc., Case No. 07-10270 (11th Cir. 4/28/2008).

From time to time employees in union environments may challenge employers who try to limit radio use in the workplace. In one such dispute heard by a federal labor impasse panel, a unit of the Navy proposed that radios be banned at all times throughout the workplace. It claimed that radios could create shock hazards and employees might trip on electrical cords. Employees distracted by listening to radios might not hear important messages broadcast over the intercom and warning alarms. Finally, disputes between employees might erupt over programs selected and volume levels set. The union claimed that there had been a 20-year history of allowing radio before the ban, and that radio listening during personal time could help reduce stress.

The impasse panel found no evidence of safety problems, and ruled: "Employees will be permitted to listen to battery-operated radios with no or single earphone before starting work and during break and lunch periods. Radios are to be used in a courteous manner and played at a low volume." See Case No. 94 FSIP 029.

What You Should Do

The best way to avoid liability for radio disputes in the workplace is to ban use of radios or music players. In the absence of a collective bargaining issue like the one presented to the federal impasse panel, there is no legal impediment to implementing a total ban.

Those employers who permit radio or music player use in the workplace must adopt policies that prohibit listening to programs that offend fellow employees because of protected characteristics, such as race, sex, sexual orientation, religion, and so on.

Injured, Sick and Disabled Workers

The tangle of laws governing treatment of injured, sick and disabled workers can make it difficult for an employer to make the right choice. If the employer makes the wrong choice, a lawsuit with its attendant costs and exposure to a jury verdict frequently follows.

The Costs of Being Wrong

A second grade teacher fell in her classroom, injuring her knees to the extent she required surgery. She subsequently developed fibromyalgia, a pain syndrome. When she was released to return to work 20 months later to a sedentary position, the school district required her to return as a second grade teacher (not sedentary), even though there were several available sedentary jobs for which she was qualified. A Los Angeles County jury awarded her $1,410,709. Reasonable accommodation includes putting a disabled employee into a vacant position if she is no longer able to perform her regular job. Cortes v. Montebello Unified Sch. Dist., Case No. BC359419 (L.A. Superior Court 5/27/2008).

An LAPD officer returned to work following a 4-year workers compensation leave, but then was told he would not be allowed to work any more because the Workers Compensation Appeals Board had adjudicated him 100 percent permanently disabled. A Los Angeles County jury awarded him $1,571,500. Employers must make every effort to allow their disabled employees to continue to work even if a workers compensation ruling appears to bar a return to work. Cuiellette v. City of Los Angeles, Case No. BC311647 (L.A. Superior Court 9/11/2007).

A city employee took FMLA leave to undergo bypass surgery. Although her cardiologist cleared her to return to work, her employer insisted that she see a city doctor for clearance. She refused to go and was fired. An Orange County jury awarded her $216,575. Employers must strictly follow the rules on medical certification. Cosby v. City of Orange, Case No. 07CC00242 (Orange County Superior Court 2/15/2008).

Applicable Laws

The federal Americans with Disabilities Act and the California Fair Employment and Housing Act prohibit discrimination against disabled employees who are able to perform the essential functions of their jobs with or without accommodation, and require employers to provide reasonable accommodation to disabled employees.

Other laws also provide protection for injured, sick and disabled employees -- the Family and Medical Leave Act, the California Family Rights Act, the pregnancy disability provisions of the Fair Employment and Housing Act and the Workers' Compensation Act.

Our Tips for Handling Injured and Disabled Workers provides an overview of the important principles for all these statutes. An employee's condition may require the employer to apply principles from all, some, one or none of the statutes discussed.

Employers must pay close attention to having an accurate and up-to-date job description for each employee, and to obtaining medical verification for physical and mental conditions that affect employment decisions. Job descriptions must describe the essential functions of each position. Obtaining medical verification will assure that the employer has the necessary information to confirm the effect of the employee's condition on performance of job duties. It will also support the employer's decision if the employee should challenge any adverse actions.

Other Resources

EEOC Disability Discrimination Page

DOL Family & Medical Leave Page

DFEH Publication on Disability Discrimination

DFEH Publication on California Family Rights Act

DFEH Publication on Pregnancy

Division of Workers' Compensation Employer Information

References Pose Risks

Employers can get themselves in trouble by giving references -- good or bad -- for their former employees. As the following cases illustrate, the safest response to an inquiry about a former employee is to provide the dates of employment, and nothing more.

Cases Hold Employers Liable

In May 2008, the United States Court of Appeals for the Fifth Circuit in New Orleans affirmed a jury verdict against a medical group and two of its doctors for giving glowing recommendations to a doctor who they knew had been using drugs on duty. After the doctor was hired at another hospital based on those recommendations, he committed malpractice that resulted in an $8 million loss for that hospital. While the medical group and its doctors were liable for that loss, the hospital where the problem doctor had worked was exonerated. Its response to the other hospital's inquiry just confirmed the dates that the problem doctor had been on its active medical staff. Kadlec Medical Center v. Lakeview Anesthesia Associates, 527 F.3d 412 (5th Cir. 2008).

A few years ago, Weyerhaeuser learned the cost of a negative reference. One of its truck drivers wrote a letter about his reasons for leaving the company, which criticized his supervisors. When he applied for a job at Wal-Mart, one of those supervisors provided a negative assessment in a hostile tone. Wal-Mart turned him down, and the truck driver sued for defamation and other torts. The jury awarded $662,089 in compensatory damages (which were then trebled under California Labor Code section 1054 to $1,986,267), and $993,134 in punitive damages. Neely v. Weyerhaeuser Co., Case No. 693747 (San Diego Superior Court, 11/4/1999). Negative references can also give rise to retaliation claims under equal employment opportunity statutes, such as Title VII and the California Fair Employment and Housing Act. See, for example, Robinson v. Shell Oil Co., 519 U.S. 337 (1997).

Other examples of employers facing liability for references abound. See Davis v. Board of County Commissioners, 987 P.2d 1172 (N.M. Ct. App. 1999) (County could be held liable for sexual and physical assault by former employee at psychiatric hospital where he was hired based on a positive recommendation from the county detention center where he had worked; the recommendation did not mention that the former employee had resigned rather than face discipline for questionable conduct toward female inmates); Randi W. v. Muroc Joint Unified School Dist., 929 P.2d 582 (Cal. 1997) (victim of sexual molestation by vice principal had claim against school districts that formerly employed him, because they had recommended him without disclosing disciplinary actions for inappropriate conduct); Jerner v. Allstate Ins. Co., Case No. 93-09472 (Fla. Cir. Ct. App. 8/10/1995) (employer who said former employee resigned as part of downsizing effort could be held liable for shootings at subsequent employer's office; he had in fact been discharged for carrying a gun); Gutzan v. Altair Airlines, Inc., 766 F.2d 135 (3d Cir. 1985) (employment agency could be held liable for rape of female employee where it knew about previous charges of rape and reassured employer that perpetrator was "not really a rapist").

Limiting Liability

Many states have statutes that limit employer liability for communications about former employees, so long as the employer does not knowingly or recklessly distort the facts about the employment record. The California statute is Civil Code section 47, which immunizes "a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant." The problem with such statutes is that they do not stop former employees from filing lawsuits, nor jurors from concluding that there was no credible evidence to support the negative reference.

Conditioning the reference on a written release from the former employee will avoid any possibility of liability to the former employee, but will not affect claims by others who are injured by the former employee because of failure to warn about misconduct.

Silence Is Golden

The only way to avoid all liability is refrain from making positive or negative comments. The hospital absolved of liability in the Kadlec Medical Center case limited its remarks to the following: "Our records indicate that Dr. Robert L. Berry was on the Active Medical Staff of Lakeview Regional Medical Center in the field of Anesthesiology from March 04, 1997 through September 04, 2001." Use that as a model.

Employers should adopt these additional written policies to bolster their defenses against liability: (1) Provide that all inquiries about former employees must be directed to a particular individual or department. Emphasize that no other employee of the organization is authorized to provide information about former employees. (2) Provide that all inquiries about former employees must be in writing accompanied by a signed release from the former employee. (3) Provide any responses to inquiries about former employees in writing. Do not provide any information over the phone or in person.

Starbucks To Pay Over $100 Million For Requiring Baristas To Share Tips With Supervisors

The Case

A San Diego Superior Court judge recently determined that Starbucks owes over $100 million for allowing its shift supervisors to participate in tip pools at its restaurants. The practice ran afoul of a California law that makes tips the sole property of the employees who receive them. Starbucks management had reasoned that shift supervisors deserved a share of the tips because they spent time doing the same tasks -- making drinks and serving customers -- as the baristas who were entitled to the tips. But, the court ruled that shift supervisors could not participate because they also directed the work of the baristas. Chou v. Starbucks Corp., Case No. GIC836925 (San Diego Superior Court 3/14/2008).

The judge computed the amount owing by estimating the average hourly tip rate earned by the shift supervisors at $1.71, and multiplying that times the 50,694,674 hours that shift supervisors had worked during the relevant time period. That amounted to $86.7 million. The balance of the award was for accrued interest. The judge also enjoined Starbucks from continuing its practice. Click here to read the judge's decision.

The Rules on Tips

The California statute (Labor Code section 351) declares all tips to be the sole property of the employee or employees to whom they were left.  It is illegal for an employer or its "agent" to collect, take, or receive a tip, or to deduct any amount attributable to tips from wages owed to the employee. "Agent" means every person other than the employer who has authority "to hire or discharge any employee or supervise, direct, or control the acts of employees."

Since tips belong to employees, the employer may not count tip money toward its obligation to pay minimum wage. (This differs from the rule under the federal Fair Labor Standards Act, which allows employers to credit some tip money toward the minimum wage, as explained here.) At the same time, the rule means that tip money is not counted toward the regular rate of pay for computing overtime pay.

Tips include any money left for an employee over and above the actual amount due the business for services rendered or for goods, food, drink, or articles sold or served to the patron. For dancers, the definition is broader, covering any amounts paid directly by a patron to the dancer. For an explanation of the legislative intent behind that provision, see Jameson v. Five Feet Restaurant, Inc., 107 Cal.App.4th 138 (2003) and the 2001.06.22 opinion letter listed under "Resources" below.

A 1990 Court of Appeal decision ruled that employers could require employees to pool their tips without violating the statute. But, requiring tipped employees to share with supervisors who meet the definition of "agent" is not permitted, as Starbucks has now learned, at a cost of $100 million plus. For further information about tip pooling, see Leighton v. Old Heidelberg, Ltd., 219 Cal.App.3d 1062 (1990); the Jameson decision referred to above, and the 2005.09.08 and 1998.12.28-1 opinion letters listed under "Resources" below.

Resources

Starbucks Decision

California DLSE Tips and Gratuities FAQ

California Labor Code Provisions on Tips

DLSE Opinion Letter 2005.09.08

DLSE Opinion Letter 2001.06.22

DLSE Opinion Letter 1998.12.28-1