By Anthony J. Oncidi
Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)
Hernandez v. Rancho Santiago Cmty. Coll. Dist., 22 Cal. App. 5th 1187 (2018).
Marisa Hernandez worked on and off as an assistant for the District for a number of years without any complaints about her performance. Eight months into her 12-month probationary period (after which point she would become a "permanent employee"), Hernandez took a temporary disability leave of absence to have surgery to replace a knuckle on a finger that she injured while working for the district prior to her most recent hiring. Because her performance had not been reviewed, the District terminated her employment while she was on the leave to prevent her from becoming "permanent." Hernandez sued the District for failing to reasonably accommodate her disability and for failing to engage in the interactive process. Following a court trial, the judge found in Hernandez's favor and awarded her $723,746 in damages. The court of appeal affirmed the judgment, holding that "when a probationary employee suffers a temporary total disability requiring absence from work for an extended period of time, that period may be deducted from the employee's probationary period." The court further held there was evidence that the District did not conduct the interactive process in good faith.
Encino Motorcars, LLC v. Navarro, 584 U.S. ___, 138 S. Ct. 1134 (2018)
An amendment to the Fair Labor Standards Act (FLSA) exempts from its overtime requirements "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements." The U.S. Department of Labor (DOL) subsequently issued an opinion letter and amended its Field Operations Handbook to state that service advisors also are exempt from overtime under the statute. However, in 2011, the DOL issued a new rule that limited the exemption only to employees who sell automobiles, trucks, or farm implements, thus...
