Wilson was a radio dispatcher in the County Sheriff’s Emergency Communication System. The agency had five different communications sub-consoles or desks operating various communication channels with field officers, paramedics, ambulances and medics. The operators rotated among the five assignments for purposes of cross-training so that each operator could back up their co-workers at all five desks. The "red channel," also known as the pursuit desk, assists officers when they leave their jurisdictions, and it was considered the most stressful of the channels to operate.
Wilson had been employed since 2001. She was hospitalized in 2002 and then on extended medical leave because of an autoimmune disorder that caused her blood to coagulate, thereby causing thrombosis and blood clots. She returned to work later in the year and worked into 2003 at all five channels including the red channel once per week. In September 2003, she told her supervisors that she did not like working the red channel because she felt she made errors and was criticized for them. Indeed, in August 2004, she mishandled a few incidents while operating the red channel. Her supervisor told her she would be scheduled for more shifts on the red channel so she could improve her skills. A week later, she told her supervisor she could not work the red channel at all for medical reasons. She claimed concentration and memory problems which she believed were due to a new medication she was taking for her health condition.
The following month her hematologist/internist wrote a letter stating that Wilson could not work the pursuit desk. The County agreed to a temporary work restriction for a 10-week period during which she only worked the teletype desk. She was told by her supervisors that the County could not permanently accommodate her work restriction due to operational concerns. Nonetheless, the temporary restriction was extended for several more months until the time when Wilson was scheduled to have her next medical appointment.
During this time, the County’s Human Resources Department began looking for other positions for Wilson. She was offered various jobs throughout the County but rejected all of them because they either involved a longer commute or a demotion and less money. The Sheriff’s Department later agreed that Wilson could continue working only the teletype desk for several more months. She went out on medical leave because her work shifts were alternating and her physician imposed additional work restrictions of no more than 10 hours per shift and no graveyard shifts.
The Human Resources Department continued to seek to accommodate Wilson and began to focus on the possibility that her need for accommodation would be permanent. The Human Resources Manager concluded that working regular shifts on the red channel and graveyard shifts probably were not essential job functions. She also concluded that accommodating Wilson by not requiring her to operate the red channel would not cause the Department undue hardship. In August 2005, the Human Resources Manager worked out an accommodation agreement that was signed by Wilson and the Sheriff’s Department. The agreement indicated that Wilson would not work more than five consecutive days, more than 10 hours per day, graveyard shifts, alternating shifts or the red channel. With those restrictions, Wilson would perform all other functions of the job including backing up on the red channel, as required. Wilson returned to work and, two weeks later, filed a Fair Employment and Housing Act claim against the County alleging that it had failed to reasonably accommodate her disability and had failed to engage in an interactive process. At the time of the trial, Wilson was still working under the restrictions to which she had agreed in August 2005.
The case went to trial and the jury concluded that Wilson did not prove by a preponderance of the evidence that she requested an accommodation and that the County failed or refused to provide one. The Court of Appeal affirmed, concluding the County in fact provided reasonable accommodation to Wilson, and that it acted in a timely manner. In fact, the court noted, "Wilson got exactly what she wanted - albeit after a series of temporary accommodations."
This case decision demonstrates that an employer who responds promptly to an employee’s work restrictions by engaging in an interactive dialogue with the employee for the purposes of finding a reasonable accommodation will insulate itself against liability. The court noted that the "real gist" of Wilson’s complaint was not that the County failed to provide accommodations. Rather, she complained that it had taken too long for her supervisors to finally agree on a permanent arrangement. The court rejected this allegation, holding the County acted with appropriate speed to resolve the situation.
The lesson to be learned from this decision is that employers should have a process in place which allows them to respond promptly to situations where employee health conditions result in restrictions, thus potentially requiring that the employer work with the employee to find a reasonable accommodation that will allow the employee to perform the essential functions of their job. Orange County had learned that lesson and therefore prevailed in this action. Other employers who have not acted appropriately are the ones on whom liability has been imposed.
Update on Brinker and Brinkley Cases and Whether Employers Need Only "Provide," Rather Than "Ensure" That Employees
Take Meal and Rest Periods
Our November 3, 2008 edition of The Personnel File reported that the California Supreme Court agreed to review the Court of Appeal decision in Brinker Restaurant Corp. v. Superior Court. The issue in Brinker Restaurant is whether the California Labor Code and state regulations impose upon employers an affirmative duty to ensure that employees actually take meal periods and rest periods as opposed to whether the employer must merely make meal and rest periods available to the employees and afford them the opportunity to take the time away from their work. At around the same time, another division of the Court of Appeal decided Brinkley v. Public Storage, Inc., which came to a similar conclusion as Brinker Restaurant. Recently on January 14, 2009, the California Supreme Court also granted review in the Brinkley case.
Now that these matters are pending before the California Supreme Court, both the Brinker Restaurant and Brinkley case are no longer legally binding precedent.
Further, after the Supreme Court granted review of Brinker Restaurant, the California Labor Commissioner issued a memorandum to its staff concerning these court decisions. Prior to the Supreme Court’s action, the Labor Commissioner had issued a memo, dated July 22, 2008, which held that Brinker Restaurant was binding and must be followed by the staff. However, even though the June 22 memo was withdrawn, the later memo, issued October 23, 2008, concludes:
Taken together, the language of the statute and the regulation, and the cases interpreting them demonstrate compelling support for the position that employers must provide meal periods to employees but do not have an additional obligation to ensure that such meal periods are actually taken.
Whether the Supreme Court will agree or disagree with the Court of Appeal, and with the Labor Commissioner, remains to be seen. Until that time, employers should make clear to employees that they are entitled to meal periods and rest periods under the terms of the applicable wage orders of the State Industrial Welfare Commission. Further, employers should make clear that employees are expected to take their meal and rest periods. Employers should never engage in any conduct which could be interpreted as efforts to coerce employees to forego their meal periods and rest periods. And, if an employee does fail to take a meal period, it must be assumed the employee worked during that time. This may require that the employee be paid for the additional time at the appropriate overtime rate if this results in the employee having worked more than eight hours on any day or more than 40 in the week.
We shall report to you as soon as the Supreme Court’s decisions in Brinker Restaurant and Brinkley are issued.
This article was written by Jeffrey Freedman, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Mr. Freedman is a Partner in the Los Angeles office and can be reached at (310) 981-2000 or firstname.lastname@example.org. For more information regarding the discussion above or on our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.
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