Working Out May Be Work

Whether an employee is acting within the course of employment determines whether the employer is responsible for the employee's acts and omissions. Under Labor Code section 3600 the course of employment for workers compensation purposes does not extend to “voluntary
participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”

A correctional officer injured himself while doing jumping jacks at home as part of a regular exercise regimen. He claimed workers compensation benefits because correctional officers were required to “maintain themselves in good physical condition so that they can handle the strenuous physical contacts often required of a law enforcement officer,” and to undergo periodic training exercises, many of which involved physical activity. Because the officer's department did not provide time at work for exercise, it was objectively reasonable for him to believe that he was expected to engage in an off-duty exercise regimen to maintain his physical fitness. Young v. WCAB, Case No. C075047 (Cal. Ct. App. 6/25/2014).

California Employment Law Changes for 2013

California State Capitol, Sacramento

The Legislature and Governor Brown have completed their law-making activities for the 2011-2012 regular legislative session. The following laws that affect employers will become effective January 1, 2013:

Social media: AB 1844 bars employers from requiring or requesting an employee or applicant for employment to disclose a user name or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. It also prohibits retaliation for not complying with a request or demand by the employer that violates the statute. There are exceptions for requests to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, and for requiring or requesting an employee to disclose a user name, password, or other method for the purpose of accessing an employer-issued electronic device. The provisions are codified in new Labor Code section 980.

Elimination of the Fair Employment and Housing Commission: SB 1038 eliminates the Fair Employment and Housing Commission as part of a broad effort to eliminate duplication in state government. It transfers the duties of the Commission to the existing Department of Fair Employment and Housing and to a newly created Fair Employment and Housing Council. It also expands specified powers of the DFEH related to complaints, mediations, and prosecutions, and provides mandatory dispute resolution at no cost.

Accommodation of religious dress and grooming practices: AB 1964 amends the Fair Employment and Housing Act's definition of religious practices that employers are required to reasonably accommodate to include religious dress and grooming practices. "Religious dress practice" shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. "Religious grooming practice" shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. An accommodation that would require that person to be segregated from the public or other employees is not a reasonable accommodation. No accommodation is required if it would violate the FEHA or other laws prohibiting discrimination or protecting civil rights.

Further workers compensation system reform: SB 863 amends various provisions of the Workers Compensation Act in the hopes of eliminating waste and improving efficiency. A press release from the Governor's Office described the changes and hoped for savings.

Breastfeeding: AB 2386 amends the FEHA's definition of "sex" to include breastfeeding or medical conditions related to breastfeeding. The effect is to make it unlawful for an employer to discriminate or harass an employee because she is breastfeeding or has medical conditions related to breastfeeding.

Inspecting employment records: AB 2674 requires an employer to maintain personnel records relating to the employee's performance or to any grievance concerning the employee for at least three years, and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within 30 days of receipt of a written request, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. An employer need not comply with more than 50 requests for a copy of employee personnel records from an employee representative in one calendar month. The new requirements do apply to an employee covered by a valid collective bargaining agreement if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. In the event of a violation a current or former employee may recover a penalty of $750, and obtain injunctive relief and attorney's fees.

False Claims Act: AB 2492 strengthens the California False Claims Act, which is a tool for fighting fraud and abuse by government contractors, and will enable the state to continue receiving millions of dollars in federal incentive awards for recovering Medi-Cal false billings.

Workers Compensation Preemption

The workers compensation system provides the exclusive remedy against an employer for an employee who is injured at work, except when it does not. Here, we explore the extent to which the workers compensation remedy preempts tort and other remedies against an employee's employer and fellow employees.

Through the "compensation bargain," "the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort." Shoemaker v. Myers, 52 Cal. 3d 1 (1990). For injuries within the scope of the compensation bargain, the employee may only recover what is allowed under the Workers Compensation Act, even if the Act does not provide compensation for the employee's particular injury. (See Livitsanos v. Superior Court, 2 Cal. 4th 744 (1992) (emotional distress claims barred even if no award available in the workers compensation system). The Act also bars claims against fellow employees. Cal. Lab. Code section 3601.

The Workers Compensation Act itself provides some exceptions. For example, one employee may sue another for injuries resulting from a "willful and unprovoked physical act of aggression." Cal. Lab. Code section 3601(a)(1). The Act does not preempt claims for injuries resulting from  the employer's "knowing removal of, or knowing failure to install, a point of operation guard on a power press." Cal. Lab. Code section 4558.

The California Supreme Court has also recognized a broad exception for claims deemed "not stemming from a risk reasonably encompassed within the compensation bargain." Shoemaker v. Myers, 52 Cal. 3d 1 (1990). This exception allows employees to sue their employers for violations of statutory provisions, such as the Fair Employment and Housing Act (City of Moorpark v. Superior Court, 18 Cal. 4th 1143 (1998)) and whistle blower statutes (see Shoemaker).

The exception also permits pursuit of some tort remedies. For example, employees may bring claims for wrongful termination in violation of public policy (Shoemaker), defamation (Howland v. Balma, 143 Cal. App. 3d 899 (1983)), and unlawful imprisonment (Fermino v. Fedco, Inc., 7 Cal. 4th 701 (1994)).

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