“This &That” Tuesday 12.10.9 by Martin Levy

by hr4u.
Oct 20 12

Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.



You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.


Labor Law Update 2013: If you are interested in having me give a “Labor Law Update for 2013” presentation to your organization early next year, please contact me so we can schedule the event.


Attention: Have you taken the HR4U mini-Human Resources audit, yet?


Social Media

Social Media can be a troublesome area for employers; therefore, I’ve added the Social Media policy template from the NLRB to my website. I hope you find it useful.


Special Update

Governor Jerry Brown signed into law two privacy bills, Assembly Bill 1844 and Senate Bill 1349. These laws prohibit employers, universities employees, and university representatives from requiring or requesting the social media log-in information of their respective employees, prospective employees, students, prospective students, or student groups.


Public Entity May Be Liable for Negligent Hiring, Retention and Supervision

Reversing dismissal of a complaint against a California school district, the California Supreme Court has held that a public school district could be held vicariously liable for the negligence of supervisory or administrative personnel who allegedly knew or should have known of a school guidance counselor’s propensity toward sexual molestation, but hired, retained and inadequately supervised her.


Section 815.2 of the California Government Code states that a “public entity is liable for injury proximately caused by an act or omission of an employee … within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.”


The Supreme Court first noted that California law imposes on school authorities a duty to “supervise at all times the conduct of students on the school grounds and to enforce such rules and regulations as are necessary for their protection.” The Court further observed that a total lack of supervision or ineffective supervision could constitute a lack of ordinary care on the part of those responsible for student supervision. Therefore, under Section 815.2, a school district could be held vicariously liable for injuries proximately caused by such negligence.


The Court then found that a school district and its employees have a “special relationship” with the district’s students, arising out of “the mandatory character of school attendance and the comprehensive control over students exercised by school personnel.” Therefore, the duty of care owed by school personnel includes the duty to use reasonable measures to protect students from foreseeable injury at the hands of third parties, including injury to a student resulting from a teacher’s sexual assault.


The Court emphasized that a district’s liability must be based on evidence of negligent hiring, supervision or retention, not on assumptions or speculation. Even when negligence by an administrator or supervisor is established, the greater share of fault will ordinarily lie with the individual who intentionally abused or harassed the student than with any other party, and that fact should be reflected in any allocation of comparative fault, the Court instructed.

Accordingly, within these limits, the Court concluded that a school district could be held vicariously liable for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who allegedly sexually abused a student.


Adams Jeep to Pay $50,000 to Settle EEOC Disability Discrimination

An Aberdeen, Md., auto dealership will pay $50,000 and furnish other remedial relief to settle a disability discrimination and harassment lawsuit filed by EEOC.


According to EEOC’s suit, Adams Jeep of Maryland, Inc., engaged in unlawful discrimination when it denied a reasonable accommodation to Amy Smith shortly after she was diagnosed with bipolar disorder and because of her record of disability. Further, the EEOC said, the company subjected her to harassment and fired her.


Smith had been employed since October 2009 as a telephone operator and promoted to an accounts payable/receivables position, when she was diagnosed with bipolar disorder in or around March 2010. After Smith disclosed her disorder to the office manager and assistant manager, she was subjected to epithets such as “pill popper” and “psycho.” While out on a medical leave of absence and under a doctor’s care, Smith was fired.


The Americans with Disabilities Act (ADA) makes it unlawful to harass or discriminate against a qualified individual because of a disability or a record of disability. An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an undue hardship on the operations of the employer’s business. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.


Along with the monetary payment to Smith, which represents back pay and compensatory damages, the consent decree settling the lawsuit requires that Adams Jeep of Maryland institute and distribute a written policy to all employees on disability discrimination and harassment. The policy will contain procedures for employees requesting reasonable accommodations under the ADA, and include medical leave as a reasonable accommodation. Additionally, the dealership will provide four hours of training to all current and new supervisors, post a notice affirming its commitment to all federal equal employment opportunity laws and submit reports to EEOC for the agreement’s two-year duration.


Cadillac Jack Pays $87,200 to Settle EEOC Lawsuit

Cadillac Jack, Inc., a supplier of innovative games and systems based in Duluth, Ga., will pay $87,200 to settle a lawsuit for retaliation filed by the EEOC.


In its lawsuit filed in September 2011 the EEOC charged that Cadillac Jack fired Tracey Tucker, an African-American, from her position as contracts manager in retaliation for her complaining about race and gender discrimination. Tucker, who had worked for the employer since October 2006, was terminated one day after lodging the discrimination complaint.


Title VII of the Civil Rights Act of 1964 prohibits employers from subjecting employees to discrimination due to race, color, religion, sex or national origin. It also prohibits an employer from retaliating against an employee for complaining about discriminatory conduct. The consent decree settling the suit, in addition to the monetary relief, includes provisions for equal employment opportunity training, reporting, and posting of anti-discrimination notices. In the suit and consent decree, Cadillac Jack denied any liability or wrongdoing.


According to the EEOC, this lawsuit was filed in large part due to the timing of the complaint and termination. Fortunately, the parties were able to arrive at a solution designed to prevent similar occurrences in the future.


Health Factoids

  • Healthcare spending is predicted to rise by 7.5% in 2013 (PricewaterhouseCoopers) 
  • 77% of people who report being in poor health say they have skipped or delayed care to avoid costs. 
  • 39% of uninsured say they can’t afford the prescription drugs they need while 17% of insured also say they can’t afford them. 
  • 77% of employers are very likely to provide employee health coverage in 2014 and 78% consider themselves already extremely compliant with the current provisions of PPACA.

Bonus Factoid

  • Red cars attract more bird droppings than any other color (18%) while green attracted the least (1%).


“If you tell people where to go, but not how to get there, you’ll be amazed at the results.”

~General George Patton~