Commuters Driving up Exposure for Employers

March 30, 2010

 

Most California employers know that when an employee is acting on behalf of an employer, the employer is generally liable for the acts of the employee.  For example, if an employee is driving to a customer’s location to inspect products for the employer and the employee accidentally hits another car on the way over or back, that both the employee and the employer can be liable for the damage caused by the employee.

 

Equally most employer are generally aware that when an employee is driving to work, or driving home after work, the employee is on their own time and the employer is not liable for whatever the employee may be doing.  This is referred to by the courts as the “going and coming rule.” The idea is that going to work and coming home is outside the scope of what the person has been hired to do as an employee.

 

What employers may not know is that an exception to “going and coming rule” exists when the employee’s use of the car during work hours gives a benefit to the employer.  As an example, if the employee has been hired to deliver products to a customers by using their own car, this would fit within the “required use” exception to the “going and coming rule.”  If the exception applies, the employer could be liable even when the employee is driving to and from work.

 

This seems logical, but wait that’s not all.

 

At the end of February, a California appellate court, decided the Lobo v Tamco case which seems to allow this exception to almost completely overpower the rule.  The very sad facts in that case were that an employee of Tamco pulled out of the employer’s parking lot on the way home after work directly in front of three deputy sheriffs on motorcycles.  One of the deputies was killed and the widow and surviving daughters filed lawsuits against the employee and the employer.

 

The employer asserted the “going and coming rule” for the proposition that since the employee was on the way home, the employer should not be liable for the damages caused by the employee.  The evidence revealed that the employee may have used his own car for company business as many as 10 times during the employee’s 16 years of employment.

 

The court held that even this minimal use of the employee’s car while at work was enough for the court to apply the “required use” exception to the “going and coming rule” so that the employer would be liable for the damages cause by its employee on the way home from work that evening.

 

It is not much of a stretch to see that if this less than annual use of a vehicle for work was enough for the court to apply the exception, nearly anytime an employee has used the employee’s own car to accomplish something for the employer, the employer may be liable for all the employee’s “going and comings.”  So, if a staff member was asked to pick up some supplies for a company party in 2009 (using their own car), and then hits a school bus on the way to work in 2010 - under this appellate court ruling, the employer may be jointly liable with the employee for the damages caused by the employee’s commuting accident.

 

Prudent employers will want to review their insurance policies to be certain that they have coverage for exposure in these situations where an employee may have, at some point in the past, used their own car for company purposes.

 

 

 

California Employers are Introduced to GINA

November 3, 2009

 

Former President Bush signed the Genetic Information Nondiscrimination Act ("GINA") into law in May 2008. GINA represents new national Equal Employment Opportunity policy prohibiting employers and health insurance companies from discriminating on the basis of a person's genetic makeup.

 

GINA's changes are mandatory for most all U.S. businesses. Federal labor law requires all businesses with at least one employee to display the current labor law postings in each office location. The Equal Employment Opportunity Commission ("EEOC") has created a new poster and supplement with information on the employment-related provisions of GINA. These new regulations for employers, known as "Title II," will take effect November 21, 2009.

 

Under GINA, companies are prohibited from using genetic information when making employment decisions, and from intentionally acquiring genetic information. When in possession of genetic information, employers must adhere to strict requirements and store the data in separate health-related files. This new restriction under federal law, however, should not actually present any problems for California employers since amendments to the Fair Employment and Housing Act (DFEH) have made discrimination by employers on the basis of genetic information illegal for several years.

 

The federal posting requirement, however, is new to California employers.  To comply with the posting requirement employers can post EEOC's supplement alongside the EEOC's September 2002 "EEO is the Law" poster or the OFCCP's August 2008 "EEO is the Law" poster.

 

A copy of the EEOC GINA supplement follows:

 

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Employer Wireless Phone Liability

August 5th, 2008

 

On July 1, 2008 drivers in California became prohibited from using wireless phones while driving. The Wireless Telephone Automobile Safety Act allows a driver to use a phone if it is configured for hands-free use. The law allows drivers of commercial vehicles to use push-to-talk phones until July 1, 2011 and emergency services professionals while operating an emergency vehicle. Additionally, the law allows drivers to use wireless phones to contact a law enforcement agency or other public safety entity for emergency purposes.

 

The law does not apply to a person driving a school bus or transit vehicle subject to certain existing wireless telephone usage restrictions, and it does not apply to a person driving on private property.

 

Violation is punishable by a fine of $20 for a first offense and $50 for each subsequent offense.

 

Generally, an employer is not liable for an accident caused by an employee while the employee is not on company business. Of course, an employer could be liable for an accident caused when an employee is using a wireless phone while driving for company business.

 

However, additionally an employer might also be liable for an accident caused when an employee, not on company time, is driving while using a wireless phone to conduct company business (i.e., an employee calls the office while driving during a vacation).

 

To minimize exposure an employer might adopt and promulgate a policy requiring use of a hands-free device for any employment related calls while driving. Such a policy might include an acknowledgment form that could be preserved in an employee’s personnel file. Furthermore, if the employer provides wireless phones to employees it may want to consider placing a warning on the phone and even providing hands-free devices. Another approach might be to simply ban all employee communications related to company business via wireless phone while driving.

 

 

 

Employment Law Unchanged After Same-sex Marriage Ruling

May 19th, 2008

 

On May 15, 2008, the California Supreme Court, using the “compelling state interest test,” determined that the statutory scheme of having different official names for a same-sex couple relationship (”domestic partnership”) and an opposite-sex couple relationship (”marriage”) violated the right to marry and the equal protection clause of the California Constitution.

 

In light of this determination the Court, rather than denying marriage to all couples under the applicable statutes, held that the language in the Family Code section 300 defining marriage as a union “between a man and a woman” must be stricken and that the balance of the statute be understood to include same-sex couples, and that Family Code section 308.5 stricken completely.

 

The Court ordered state officials to take actions necessary to ensure that county clerks and other local officials permit same-sex marriages.

 

This decision changes little regarding employer obligations to same-sex couples.  Before the decision same-sex couples could register as “domestic partners.”  Prior expansion of the “domestic partners” laws left no significant legal differences between an employer’s obligations to same-sex couples and opposite-sex couples under California law.

 

Therefore, California employers may soon have employees that are married same-sex partners.  All married couples must be treated the same, without discrimination, whether same-sex or opposite-sex couples, whether they are “domestic partners” or married.

 

Apparently complicating matters, the federal Defense of Marriage Act (”DOMA”) remains in place.  Under that federal law same-sex couples cannot qualify for “spousal” benefits like retirement, medical, dental, and COBRA benefits.  DOMA also bars “spousal” treatment for FMLA, immigration and Social Security purposes.  Nevertheless, California law has already made these benefits avaialble (to the extent possible) under California’s “domestic partners” laws.

 

 

 

No Personal Liability for Retaliation

May 12th, 2008

 

On March 3, 2008 the California Supreme Court decided that a manager was not individually liable for retaliating against another employee based on discrimination in the Jones v. The Lodge at Torrey Pines Partnership case.

 

This decision is favorable for employers facing lawsuits brought by former employees who claimed that not only the company, but also the individual managers are liable for retaliating against them.  The Court’s decision eliminated the possibility that the former employee could expand litigation by increasing the parties responsible for retaliation claims, in spite of the fact that the language of the enabling statute uses the word “person” in a list identifying who may be responsible.

 

Note that this is different than the result when there is discriminatory harassment claimed.  In that circumstance the Court found that the inclusion of the word “person” in a similar list created personal liability.  Nevertheless, In an earlier case of Reno v. Baird the court found that there was no personal libility for discrimination.

 

So if you are keeping a score card, as an example, only the employer is liable if a manager refuses to promote an employee because of the employee’s sex, both the employer and the manager are liable if the manager makes repeated, unwelcomed sexual advances, and the employer alone is laible if the manager discharges the employee for complaining about the lack of promotion because of the employee’s sex.

 

This leaves open the interesting question, what if the employee is discharged for complaining about sexual harassment.  If such a termination is characterized as another form of sexual harassment, instead of simply retaliation, then are both the employer and manager subjected to liability or is such a termination just a form or retaliation that, in spite of the harassment element, does not subject the manager to liability?