Fall 2003
A BULLETIN
ON
EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW
FOR
CLIENTS AND FRIENDS
OF
JACKSON LEWIS LLP
ADA Requires Best Available Medical
Information in Making Individualized
“Direct Threat” Determination
I
n a case familiar to workplace law and human
resources professionals, the U. S. Court of Appeals
for the Ninth Circuit ruled that an employer must
use the best available medical information when
making an individualized assessment under the
Americans with Disabilities Act of whether an
applicant poses a “direct threat” to himself or others.
The court ruled in Echazabal v. Chevron U.S.A. Inc.
that the ADA required more than “the advice of a
generalist and an expert in preventive medicine” to
conclude that the individual’s medical condition
met the “direct threat” requirements. “Before terminating an individual’s livelihood, the ADA requires
more,” the court concluded.
(View the 48-pg. PDF version of the decision at
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8
CE34E4CABED63FD88256D6C0059D169/$file/9
855551.pdf?openelement)
In this decision, a divided panel of the Ninth
Circuit reversed a ruling of summary judgment
in favor of the employer. Despite its reliance on
medical opinions that a direct threat would have
existed if it hired the individual, the employer had
failed to make the “individualized assessment”
required by the ADA. The U.S. Supreme Court did
not review this aspect of the case when it issued its
June 2002 ruling in Chevron USA, Inc. v. Echazabal.
Continued on page 3
California Supreme Court Limits Legal
Protections for Employer’s E-Mail System
I
n a case closely monitored by employers, unions,
and free-speech experts, the California Supreme
Court refused to extend state trespass law to protect
an employer’s electronic communication system
from unauthorized access by a disgruntled former
employee. (Intel Corp. v. Hamidi, Cal., No. S103781,
6/30/03)
The facts of the case are relatively simple. The
employer discharged an employee after successfully
disputing the basis for his workers’ compensation
claim. Distraught over his termination, the
ex-employee sent approximately 200,000 e-mail
messages to 35,000 company employees over a
21-month period.
In the messages, he complained about the company’s
treatment of him, warned the recipients that they
might be treated similarly, and invited them to
contact him for more information. Upon request,
he removed from his mailing list any employee
who did not wish to receive his messages.
In an effort to curtail the e-mail campaign, the
employer sought an order from the Sacramento
County Superior Court precluding the former
employee from accessing the company’s internal
computer system. The company claimed he was
engaging in trespass-to-chattels by interfering
with its personal property (the computer system).
However, it conceded the messages did not breach
any computer barriers to communicate with the
Continued on page 3
1
www.jacksonlewis.com
www.jacksonlewis.com
INSIDE THIS ISSUE:
1
2
3
4
ADA Requires Best Available
Medical Information in
Making Individualized
“Direct Threat”
Determination
California Supreme Court
Limits Legal Protections for
Employer’s E-Mail System
National Labor Relations
Board Will Oppose
Enforcement of California’s
Labor Neutrality Law
California Expands List of
Prohibited Workplace Conduct
Women’s Employment
Law Conference 2003:
Plan Now to Attend
San Francisco Office
Breakfast Series Programs
Set for Oct. 30 and Dec. 4
National Labor Relations Board Will
Oppose Enforcement of California’s Labor
Neutrality Law
T
aking an unusual step, the National Labor
Relations Board agreed to join the litigation
opposing the enforcement of certain provisions of
California’s so-called labor neutrality statute. In the
“friend of the court” brief filed with the U. S. Court
of Appeals for the Ninth Circuit, the Board opposes
the statute on the grounds that the provisions
prohibiting California employers from using state
funds to assist, promote or deter union organizing
are preempted by the National Labor Relations Act
and are invalid.
EDITORIAL BOARD:
Jamerson C. Allen, Esq.,
415-394-9400,
AllenJ@jacksonlewis.com
Jennifer Brown Shaw, Esq.,
916-341-0404,
ShawJ@jacksonlewis.com
Margaret R. Bryant, Esq.,
412-232-0404,
BryantM@jacksonlewis.com
This Update is provided for informational purposes only. It is not
intended as legal advice nor does
it create an attorney/client relationship between Jackson Lewis
LLP and any readers or recipients.
Readers should consult counsel of
their own choosing to discuss how
these matters relate to their individual circumstances.
Reproduction in whole or in part
is prohibited without the express
written consent of Jackson Lewis
LLP.
Jackson Lewis LLP represents
management exclusively in workplace law and related litigation.
Our attorneys are available to
assist employers in their compliance efforts and to represent
employers in matters before state
and federal courts and administrative agencies. For more information, please contact the attorney(s) listed above or the Jackson
Lewis attorney with whom you
regularly work.
© 2003, Jackson Lewis LLP
In May, attorneys representing the parties in the
litigation presented their arguments to all five
members of the Labor Board, as well as the
General Counsel and a number of agency staff.
Following the separate appearances of the parties,
the Board voted 3-2 authorizing the general counsel
to intervene in the pending appeal. Bradley
Kampas, a partner in the San Francisco office of
Jackson Lewis, has argued the matter on behalf of
the U.S. Chamber of Commerce and California
Association of Health Facilitites in the litigation.
The provisions under challenge have been the
subject of rigorous public debate. While California
was not the first state to enact neutrality legislation,
it was the first one to have a mechanism for enforcement. Legislation mandating employer silence in
the face of union organizing attempts exists or has
been introduced in at least nineteen other states,
including Illinois, Massachusetts and Pennsylvania.
Spearheaded by the AFL-CIO, the state “neutrality”
bills are the focus of legislative and political initiatives to jump start organized labor’s struggling
organizing efforts.
In 2002, the U. S. Chamber, CAHF, and other
employer associations successfully argued their case
before the U. S. District Court for the Northern
District of California. They asserted that the state
law and its companion bills are part of a state-bystate campaign by organized labor to modify the
federal laws and dilute employer “free speech” rights
under the NLRB. In defense of the legislation, the
California Attorney General and others claimed the
National Labor Relations Act does not protect
employer speech, despite a 1947 amendment to
the federal labor laws declaring employers free to
present their views on unionization in a noncoercive manner.
2
www.jacksonlewis.com
Recent statistics show that unions win about
50% of the elections held. However, that number
increases significantly when employers are bound
by neutrality clauses, according to a 1999 AFL-CIO
study showing a leap in that percentage to 84%.
While voluntarily agreed to and collectively
bargained neutrality clauses explicitly incorporate
the will of the parties into the labor/management
relationship, state mandated neutrality provisions
do not.
The effects of the California law, should it
ultimately be upheld, will reach a large portion
of the employer community. Many employers
providing critical health care and social services in
California are 100% dependent on state funds for
revenues. Under the California law, these employers
cannot use even the profits on their state contracts
to express their views about unionization. Employers
conducting business on state property are forbidden
to talk to their employees about unions at the
workplace. Federal law protecting the rights of
employees to discuss their views on unions during
working hours potentially are in conflict with the
state law. Further, the California law presumes that
employers co-mingle money received from state
funding sources with other funds. To avoid any
suggestions of impropriety or unlawful conduct,
virtually every employer would be required to
maintain dual accounting systems to show that no
state funds were used to educate, train, or inform
the workforce about either the pros or cons of
union representation.
Editor’s Note: For more information about the
California litigation, please contact Bradley Kampas
(KampasB@jacksonlewis.com) or Michael J. Lotito
(LotitoM@jacksonlewis.com) in the Jackson Lewis
San Francisco office at 415-394-9400.
California Supreme Court
Limits Legal Protections for
Employer’s E-Mail System
Continued from page 1
employees, and did not cause physical damage or
functional disruption to the company’s computer
system.
In opposition to the injunction, the ex-employee
claimed his conduct was privileged under the
First Amendment. He argued the electronic
communication system, which could be accessed
via the internet, was akin to a public forum, and
the e-mail messages did not constitute a substantial
burden on Intel, especially when weighed against
his free speech rights.
The California Supreme Court’s Decision
In addition, employers should implement general
electronic communications policies to establish
appropriate and inappropriate uses of employerprovided computers, telephones, internet access,
and other electronic resources. The policy should
be drafted to diminish employees’ expectation of
privacy in the employer’s electronic communications
system. In particular, employees should be informed
that all employer-provided computers and telephones are property of the employer and may be
monitored for compliance with internal policy and
the law. The policy also should contain prohibitions
against sending offensive or harassing e-mail
messages and cross reference the employer’s
harassment prevention policy.
Employers also should assess whether computer
system “filtering devices” are warranted to block
unauthorized e-mail messages. Finally, employers
must safeguard against the unauthorized disclosure
of employee e-mail address lists.
Rejected by the state trial and first level appellate
courts, the ex-employee found relief at the California
Supreme Court. The court found the economic
damage claimed by the employer (lost productivity)
was not an interference with the company’s interest
in its computers any more than the personal distress
caused by reading an unpleasant letter would be an
injury to the recipient’s mailbox, or the loss of privacy caused by an intrusive telephone call would be an
injury to the recipient’s telephone equipment.
By proactively adopting and monitoring an effective
electronic communications policy, employers may
not only guard against improper use by current
employees, but also protect against unauthorized
intrusions from third parties (including former
employees).
In the court’s view, to prevail on a trespass-to-chattel
claim, Intel was required to prove actual damage
or impairment to its computer system. A general
loss of productivity was insufficient to satisfy this
standard.
ADA Requires Best Available
Medical Information in Making
Individualized “Direct Threat”
Determination
The only good news for employers was the court’s
comment that its decision did not limit other
legally cognizable claims available to employers,
including interference with prospective economic
relations, interference with contract, intentional
infliction of emotional distress, defamation,
publication of private facts and other speech-based
torts. The court also stated that its decision did
not affect legal remedies available to internet
service providers against senders of unsolicited
commercial bulk e-mail.
Recommendations for Employers
As e-mail usage continues to grow, employers
must be prepared for the various issues raised by
electronic communications. To the extent feasible,
employers should maintain records of the cost of,
and damage caused by, the receipt of unauthorized
e-mail messages, including the negative effects
on and damage to the processing and storage
capabilities of their computer systems.
Continued from page 1
Among other things, this decision suggests
employers should re-evaluate the processes they
follow in determining whether applicants and
employees can perform jobs safely. It also calls into
question the opinions of “company doctors” who are
generalists. It appears now that employers, especially
those doing business within the jurisdiction of the
Ninth Circuit, must be prepared to argue that their
“direct threat” determinations were correct, based on
the best available medical evidence. This likely will
force most employers to retain medical experts to
offer opinions concerning the ability of applicants
and employees to perform jobs safely. Employers and
their counsel also will need to critically evaluate
the medical judgment of doctors who, in turn,
are likely to prepare more detailed medical reports
justifying their opinions.
3
www.jacksonlewis.com
Editor’s Note: If you
have any questions,
please contact the
Jackson Lewis attorney
with whom you
regularly work, or
attorney Jennifer
Brown Shaw in our
Sacramento office at
916-341-0404,
ShawJ@
jacksonlewis.com.
Note: Excerpted from
an article originally
appearing in the
August 6, 2003
edition of the
Daily Recorder.
Editor’s Note: For more
information or to
discuss a particular
situation, please
contact the Jackson
Lewis Disability
Management Group
coordinators Francis
P. Alvarez (AlvarezF@
jacksonlewis.com)
in our White
Plains office at
914-328-0404, or
Michael J. Lotito
(LotitoM@
jacksonlewis.com) in
our San Francisco office
at 415-536-6322.
Editor’s Note: For
specific questions
regarding how these
changes affect workplace policies and procedures, or to discuss
any other workplace
law matter affecting
California employers,
please contact the
Jackson Lewis attorney
with whom you regularly work or partner
Craig Woo in our
Los Angeles office at
213-689-0404, ext.
137 or WooC@
jacksonlewis.com.
JACKSON LEWIS
WEST COAST OFFICES
LOS ANGELES OFFICE
725 South Figueroa Street
Los Angeles CA 90017
Phone: 213-689-0404
Fax: 213-689-0430
Lawrence H. Stone
Managing Partner
SACRAMENTO OFFICE
1215 “K” Street
Sacramento CA 95814
Phone: 916-341-0404
Fax: 916-341-0141
David S. Bradshaw
Managing Partner
SAN FRANCISCO OFFICE
199 Fremont Street
San Francisco CA 94105
Phone: 415-394-9400
Fax: 415-394-9401
D. Gregory Valenza
Managing Partner
SEATTLE OFFICE
One Union Square
Suite 2900
Seattle WA 98101
Phone: 206-405-0404
Fax: 206-405-4450
Wayne W. Hansen
Managing Partner
California Expands Women’s Employment
Law Conference 2003:
List of Prohibited
Plan Now to Attend
Workplace Conduct
Norwich, CT – Oct. 23-24, 2003
Berkeley, CA – Nov. 13-14, 2003
A
recent amendment to the California Fair
Employment and Housing Act has expanded
the definition of “sex” to include the term “gender”
in the prohibitions against workplace discrimination
and harassment. Government Code Section 12926,
subdivision (p) has been amended to define “sex”
as follows:
“Sex” includes, but is not limited to,
pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.
“Sex” also includes, but is not limited to,
a person’s gender, as defined in Section
422.76 of the Penal Code, except that,
for purposes of this part, the reference in
that definition to the “victim” shall mean
the employee or applicant and the reference
in that definition to the “defendant” shall
mean the employer or other covered entity
or person subject to applicable prohibitions
under this part.
Make plans now to attend the Jackson Lewis 4th
Annual Women’s Employment Law Conference.
A special seminar created exclusively for female
in-house counsel and high-level human resource
executives with workplace law responsibilities,
the program will be held at the Spa at Norwich Inn,
Norwich, Connecticut, on October 23-24, 2003,
and at the Claremont Resort & Spa in Berkeley,
California, on November 13-14, 2003. The agenda
includes workshops on a variety of workplace law
issues. Participation is limited so that those who
attend will have an opportunity to meet and interact
with everyone present. Participants will earn 7.0
hours of CLE credit, including 2.0 hours
of ethics credit. For more information, visit our
website at http://www.jacksonlewis.com/events/
national.cfm or contact Michelle Stouber at
914-328-0404.
Gender, as defined by Penal Code Section 422.76,
for FEHA purposes, is a person’s “actual sex, or the
[employer]’s perception of the [employee or applicant]’s sex, and includes the [employer]’s perception
of the [employee or applicant]’s identity, appearance
or behavior, whether or not that identity, appearance, or behavior is different from that traditionally
associated with the [employee or applicant]’s sex at
birth.” Pen. Code Section 422.76.
San Francisco Office
Breakfast Series
Programs Set for
Oct. 30 and Dec. 4
The new law also amends Government Code Section
12949, which states:
The Jackson Lewis San Francisco office is presenting
two remaining programs this Fall as part of its 2003
Workplace Law Breakfast Series. The first program,
set for October 30, is entitled, Managing an Employee
Attendance Policy in California: A Proactive Approach
for Employers. The second program, set for December
4, is entitled, Workplace Law Update: New Laws and
New Rules. Approved for 1.5 credit hours of CEU
through HRCI, the programs will be held at the
Park Hyatt San Francisco. The registration fee is
$50 per session per attendee. For more information
(including registration), visit our website at http://
www.jacksonlewis.com/events/regional.cfm#SF
or contact Laurie Armstrong-Jackson at
415-394-9400.
Nothing in this part relating to genderbased discrimination affects the ability of
an employer to require an employee to
adhere to reasonable workplace appearance,
grooming, and dress standards not precluded by other provisions of state or federal
law, provided that an employer shall allow
an employee to appear or dress consistently
with the employee’s gender identity.
For the text of the laws, as recently amended, please
go to: http://www.leginfo.ca.gov/pub/bill/asm/ab_
01510200/ab_196_bill_20030802_chaptered.html
4
www.jacksonlewis.com