September 2014 - Issue 31

Educational Forum: Ride the Wave of Risk Management

Operation Backpack

Poway Midland Railroad Celebrates Improved Access

Earthquake Preparedness

EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination and Related Issues

Employers Must Pay for Employee Cell Phone Use

Regular Mail May Not Be Sufficient for Delivery of FMLA Notice

Jon Shull

News: Worthy

Educational Forum: Ride the Wave of Risk Management

The Authority has always considered its business partners to be of strategic importance. This is true with respect to how they jointly work with members in managing risk, and also pertains to the role they play in underwriting a significant portion of the Authority’s Risk Management Educational Forum.

This year is no exception, and these partnerships have allowed us to continue to deliver an exceptional educational experience for members from throughout the state of California.

Many local government agencies are still affected by the recent deep recession. Coupled with the Executive Committee’s ongoing support of waiving registration fees for members, sponsorships make a difference for those who would not otherwise be able to attend.

We deeply appreciate the role of our strategic partners in supporting educational opportunities to members. 

 California Level
Alliant Insurance Services Inc.
Carl Warren & Company
Cihigoyenetche, Grossberg & Clouse
Markel Corporation
York Risk Services Group, Inc.

 Catalina Level
Kutak Rock LLP 

El Capitan Level
AmWINS Insurance Brokerage of California, LLC
Brit Global Specialty USA
Burke, Williams & Sorenson, LLP
Great American Insurance Group
JLT Towers Re
Kessel & Associates
Safety National Casualty Corporation
Vericlaim Inc.
Wells Fargo Insurance Services USA Inc.

Sierra Level
Allied World Insurance Company
Arrowhead General Insurance Agency
Arthur J. Gallagher
Declues, Burkett & Thompson LLP
Hayford & Felchlin, LLP
Ironshore
Law Offices of Michael R. Nebenzahl, APC
Law Offices of Scott C. Haith, APLC
McCormick & Mitchell, APC
Ringler Associates
RJN Investigations
Robin, Carmack and Gonia, LLP
Siegel, Moreno & Stettler, APC
Wesierski & Zurek LLP

Mojave Level
Daley & Heft
Goldman, Magdalin & Krikes, LLP
Law Offices of Barber & Bauermeister
Law Offices of S. Henslee Smith
Litigation Services
Norman Peterson and Associates
PFM Asset Management LLC
Pollak, Vida & Fisher
Poms & Associates
RehabWest, Inc.
Risk Placement Services, Inc.
RTW, Inc.
Wisotsky, Procter & Shyer


Operation Backpack

News: Worthy 

Operation Backpack 

All of us at the California JPIA consider community service and civic responsibility a key part of who we are as an organization. We encourage community service and civic participation by supporting organizations and programs that deliver measurable outcomes and have a lasting impact on communities.

With the start of a new school year, the staff at the Orangewood Children’s Foundation got a welcome surprise on August 1, 2014 from Authority staff members who brought over 200 new backpacks filled with supplies -- complete with pencils, pens, notebooks and more -- for underprivileged students.  A backpack seems like such a small thing, but to the children served, it makes a big difference.

Operation Backpack

The backpack collection was the latest endeavor of several Authority staff members who “adopted” the Orangewood Children’s Foundation after Rachel Lara, office assistant, inspired employees go beyond the lend-a-hand spirit following the Authority’s food drive community service project last December. Several Authority staff members have also, on their own time, volunteered to serve food at the Foundation’s kitchen, and staff donates items like shampoo and toothpaste for the Foundation’s emancipated foster youth residents. Orangewood Children's Foundation was founded in 1981 to raise money to build the Orangewood Children's Home (now called the Orangewood Children & Family Center), Orange County's emergency shelter for abused and neglected children. The Foundation continues to support the Center and its young occupants, providing a wide range of programs, activities, equipment, supplies and necessities for the children who reside there.

The mission of the Orangewood Children's Foundation is to provide life-changing prevention and intervention programs for abused and neglected children, young adults, and at-risk families through one-on-one support and community partnerships to end the cycle of child abuse. The Foundation focuses its attention to the ongoing needs of these children while in foster care and as they transition out of the system into independent adulthood.


Re: Members

Poway Midland Railroad Celebrates Improved Access

By Alex Mellor

Since the early 1990s, the City of Poway has been offering train rides to members of the public at Poway Midland Railroad in Old Poway Park. Riders are treated to an enjoyable and relaxing ride through the park landscape that has become a local favorite among children and adults alike. The railroad is operated under an agreement with the City by the Poway Midland Railroad Volunteers (PMRRV), a 501(c)3corporation.

Poway Rider

Historically, wheelchair-bound patrons have been unable to enjoy the experience of riding the train because of the difficulty associated with getting the wheelchair onto and off any of the coaches. However, that is changing thanks to a project spearheaded by PMRRV and supported by the City of Poway to design and construct an accessible coach, and to purchase a wheelchair lift allowing access to the new coach.

“ADA is such an important aspect of life today that it just made sense for us to construct an accessible coach and purchase a lift that allows people with disabilities to enjoy the experience,” said Bob Kaplan, Executive Vice President of PMRRV.

The process for determining what would be acceptable under ADA, however, was an intimidating one. City of Poway staff worked closely with PMRRV volunteers to research the requirements.

“Under ADA, the railroad is considered an amusement ride, so we reviewed the relevant ADA requirements to ensure we were compliant,” said Sarah Heins, Recreation Supervisor with City of Poway.

The custom-built coach, that features benches in the rear that can be removed to accommodate a wheelchair, is in the final stages of completion with the exception of a few minor cosmetic touches.  The wheelchair lift, however, was another matter: “Many other modes of travel incorporate wheelchair lifts but we couldn’t do that here so a lift needed to be purchased separately,” explains Kaplan.

Thanks to funding made available through the City of Poway’s Capital Improvement Program, the City and PMRRV were able to purchase a lift from Adaptive Engineering, Inc., a Canadian company that specializes in the design and manufacture of products for people with disabilities. The lift is stored on an auxiliary platform when not in use and can be easily wheeled adjacent to the coach when needed.

The inaugural journey of the new coach and use of the wheelchair lift occurred on July 4. PMRRV is planning to train all its volunteers on safe and effective operation of the lift over the next few months with full-time implementation of the coach and lift expected in early 2015.


Risk Solutions

Earthquake Preparedness

by Maria Galvan, Risk Manager

The recent earthquake in Napa serves as a reminder that California is Earthquake Country and taking steps to prepare for the next temblor is key. In addition, September is National Preparedness Month, which makes it an opportune time to review your agency’s Emergency Action Plan (EAP).  National Preparedness Month is sponsored by the Federal Emergency Management Agency (FEMA) and the Department of Homeland Security. The initiative is designed to encourage everyone to take steps to prepare for emergencies in their homes, businesses, schools, and communities. What is your EAP role?

Cal/OSHA’s General Safety Order Title 8, §3220 requires employers with 10 or more employees to have the EAP in writing. Elements of the plan should include: 

  • Procedures for reporting a fire or other emergency
  • Procedures for emergency evacuation, including the types of evacuation and exit route assignments
  • Procedures to be followed by employees who remain to operate critical operations before they evacuate
  • Procedures to account for all employees after evacuation
  • Procedures to be followed by employees performing rescue or medical duties
  • An employee alarm system that has a distinctive signal for each purpose and provides warning for necessary emergency action as called for in the emergency action plan. The employee alarm must be capable of being perceived above ambient noise or light levels by all employees in the affected portions of the workplace. Tactile devices may be used to alert those employees who would not otherwise be able to recognize the audible or visual alarm.
  • Training for each employee on the preferred means of reporting emergencies, such as manual pull box alarms, public address systems, radio or telephones. The employer must also designate and train employees to assist in a safe and orderly evacuation of other employees.
  • Emergency telephone numbers which must be posted near telephones, employee notice boards, and other conspicuous locations when telephones serve as a means of reporting emergencies.
  • The name or job title of every employee who may be contacted by employees who need more information about the plan or an explanation of their duties under the plan.

A comprehensive plan will include a multitude of preparedness objectives including how individuals with disabilities will be assisted during an emergency. A featured resource of the National Fire Protection Association, the Emergency Evacuation Planning Guide for People with Disabilities provides information on the five general categories of disabilities (mobility, visual, hearing, speech, and cognitive) and the four elements of evacuation information that occupants need: notification, way finding, use of the way, and assistance.

Drafting an emergency action plan (EAP) is not enough to ensure the safety of employees. In the event of an evacuation, trained individuals will be responsible for coordinating activities in order to achieve a safe and effective evacuation. To achieve a successful evacuation, content in the EAP needs be up to date and employees should understand the plan and be appropriately trained before an actual evacuation. If training is not reinforced, the EAP is likely to be forgotten. Retraining employees at least annually is suggested.

Agency operations and personnel changes occur regularly. An outdated EAP will not protect employees in the event of an emergency. Contents of the EAP should be reviewed regularly and updates should be made whenever an employee’s responsibilities in the event of an emergency change or when there are changes in the layout or design of facilities, when new equipment is in place, hazardous materials, new processes are implemented that affect evacuation routes, or other new hazards are introduced.

Employers must review the EAP with each employee covered by the plan when it is first developed or an employee is assigned initially to a job; when the employee’s responsibilities under the plan change; and when the plan is changed.

Holding practice evacuation drills is highly suggested. Evacuation drills allow employees to become familiar with procedures in the event of an emergency, egress routes, and assembly locations. Outside resources such as police and fire departments should be included whenever possible. Following each drill, management and employees can evaluate the effectiveness of the drill, identify the strengths and weaknesses of the plan, and collaborate to improve it.

Next month, millions will practice how to Drop, Cover, and Hold On at 10:16 a.m. on October 16 during Great ShakeOut Earthquake Drills. FEMA and Cal/OSHA offer the following earthquake preparedness tips:

  • Check with your local building-regulatory agency to determine the seismic design provisions for your building and if it needs retrofitting.
  • Evaluate your workplace for non-structural weaknesses, which FEMA says can be more dangerous and costly than structural vulnerabilities. “Any non-structural items that are not effectively anchored, braced, reinforced, or otherwise secured could become safety hazards or property losses in an earthquake,” FEMA warns.
  • Hazardous items can include items located six feet or more above the floor, according to Cal/OSHA. Mitigation methods include: 
    • Locating employee work stations and exits away from such areas.
    • Anchoring, bracing, containing or restraining objects by using brackets, clips, latches, bolts,   screws, tie-downs, braces and hook-and-loop material.
    • Using physical barriers, such as fencing, netting or barricades.
    • Restraining objects by methods designed by a California-licensed structural engineer.

An Emergency Action Plan template is available to members in the Resource Center.

Additional earthquake preparedness resources include:

http://www.earthquakecountry.org/    

http://www.caloes.ca.gov/For-Governments-Tribal/Plan-Prepare/Earthquake-Preparedness

http://www.fema.gov/earthquake

If you have questions, contact your Regional Risk Manager.


Legal Matters

EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination and Related Issues

(Press Release from the EEOC, July 14, 2014)

Fact Sheet for Small Businesses and Question and Answer Document Also Released

WASHINGTON -- The U.S. Equal Employment Opportunity Commission (EEOC) today issued Enforcement Guidance on Pregnancy Discrimination and Related Issues, along with a question and answer document about the guidance and a Fact Sheet for Small Businesses.  The Enforcement GuidanceQ&A document, and Fact Sheet will be available on the EEOC's website.

This is the first comprehensive update of the Commission's guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject.  This guidance supersedes that document and incorporates significant developments in the law during the past 30 years.

In addition to addressing the requirements of the Pregnancy Discrimination Act (PDA), the guidance discusses the application of the Americans with Disabilities Act (ADA) as amended in 2008, to individuals who have pregnancy-related disabilities.

"Pregnancy is not a justification for excluding women from jobs that they are qualified to perform, and it cannot be a basis for denying employment or treating women less favorably than co-workers similar in their ability or inability to work," said EEOC Chair Jacqueline A. Berrien.  "Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.  This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC's Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes."

Much of the analysis in the enforcement guidance is an update of longstanding EEOC policy.  The guidance sets out the fundamental PDA requirements that an employer may not discriminate against an employee on the basis of pregnancy, childbirth, or related medical conditions; and that women affected by pregnancy, childbirth or related medical conditions must be treated the same as other persons similar in their ability or inability to work.  The guidance also explains how the ADA's definition of "disability" might apply to workers with impairments related to pregnancy.

Among other issues, the guidance discusses:

  • The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant;
  • Lactation as a covered pregnancy-related medical condition;
  • The circumstances under which employers may have to provide light duty for pregnant workers;
  • Issues related to leave for pregnancy and for medical conditions related to pregnancy;
  • The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave;
  • The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
  • When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
  • Best practices for employers to avoid unlawful discrimination against pregnant workers.

In February, 2012, the Commission held a public meeting to hear from stakeholders about issues related to pregnancy discrimination and discrimination against individuals with caregiving responsibilities.  The Commission Meeting record was held open for 15 days following the meeting, to facilitate public comment.  The materials from that meeting, including testimony and transcripts, are available at www.eeoc.gov/eeoc/meetings/2-15-12/index.cfm.

The EEOC enforces federal laws prohibiting employment discrimination.  Further information about the EEOC is available on its web site at www.eeoc.gov.


The Court Report

Employers Must Pay for Employee Cell Phone Use

(Reprinted from the Society for Human Resource Management, August 19, 2014)

Employers must reimburse employees a reasonable percentage of their bills when they are required to use their personal cell phones for work, a California appellate court ruled Aug. 12, 2014 (Cochran v. Schwan’s Home Services Inc., No. B247160).

“This sweeping decision may lead to a new wave of class action lawsuits against California employers,” according to Remy Kessler, an employment lawyer with Reed Smith in Los Angeles.

A customer service manager sued his employer to recover expenses for the work-related use of his personal cell phone. He asked the court to certify his case as a class action. The trial judge denied class certification on the ground that individualized inquiries about the class members’ cell phone plans would overwhelm common issues. The trial court determined that no “expense” was incurred, and no reimbursement owed, unless the employee had to pay something out of pocket, above and beyond the expense to maintain the cell phone for personal use. The appellate court disagreed, finding that an employer is obligated to reimburse an “expense,” even if the employee has incurred no additional cost associated with the business use of the phone. Because this error was the basis for the trial court’s decision to deny certification, the court reversed that decision and sent the case back to the trial court.

California Labor Code section 2802 obligates employers to reimburse employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”

The appellate court found that the trial court erred when it determined that the statutory obligation to reimburse would depend on 1) whether the employee had a plan allowing unlimited use; and 2) whether the employee or a family member paid the bill. Instead, it held that when an employee “must” use his personal cell phone for work-related calls, the employer is required to reimburse him or her and that the “reimbursement owed is a reasonable percentage of the cell phone bills.”

Employers Should Review Reimbursement Policies

To the extent employers require employees to use a cell phone for work, employers should consider providing their employees with cell phones and voice/texting plans, according to Kessler. In the alternative, employers should implement written policies requiring their employees to track and submit expense reports regarding their work-related cell phone usage so that employees can be reimbursed for the actual cost of such usage.

The court ruled that, if the actual cost of an employee’s cell phone use for work cannot be determined, for example if an employee has an unlimited minutes/texting personal plan, the employer will then be required to reimburse the employee for a “reasonable percentage” of the personal cell phone bill. However, the court did not provide any guidance as to what a “reasonable percentage” means, Kessler said. He noted that employers can avoid the problem altogether by making clear that cell phones are not needed and should not be used for work.


The Court Report

Regular Mail May Not Be Sufficient for Delivery of FMLA Notice

(Reprinted from the Society for Human Resource Management, September 2, 2014)

An employer may not rely on the “mailbox rule” to prove that the employer provided an employee with notice of his or her rights under the Family and Medical Leave Act (FMLA), the 3rd U.S. Circuit Court of Appeals ruled.

The FMLA requires that employees going on FMLA leave receive specific notice that their leave will be designated as FMLA, as well as a summary of their rights and responsibilities. Dating back to the 1800s, courts have recognized the “mailbox rule,” which creates an inference that when an object is placed for mailing, it promptly reaches its recipient. In this case, the employer provided sworn testimony that an employee had prepared the required notice and placed it in the outgoing mail bin. The employee contended she never received it. The 3rd Circuit held that the employee had sufficiently rebutted the mailbox rule as applied to unverified first class mailings, and resurrected her FMLA interference and FMLA retaliation claims.

Corinthian Colleges Inc. (CCI) hired Lisa Lupyan in 2004. In December 2007, at her supervisor’s suggestion, Lupyan applied for a personal leave of absence from Dec. 4 through Dec. 31 for depression, which included submitting a certification of health care provider. CCI’s HR department reviewed Lupyan’s application and classified the leave as FMLA and not personal leave.

On Dec. 19, 2007, Lupyan met with a CCI administrator who told her to initial the box marked “family medical leave” on her leave application form and, acting on information in the certification, also extended the end date of her requested leave to April 1, 2008. The administrator did not discuss FMLA rights and responsibilities during this meeting.

CCI contended that it sent a letter, explaining Lupyan’s rights under the act, later that day. One employee testified about CCI’s usual mailing practices, and another employee testified that she was certain she had prepared Lupyan’s FMLA notices and put them in the outgoing mail bin. However, Lupyan swore that she never received this mailing.

On March 13, 2008, Lupyan advised CCI she could return to work with restrictions, but on April 1, CCI said she could return only if she was released without any restrictions. Shortly after April 1, Lupyan received a full release from her psychologist. Nonetheless, CCI terminated Lupyan on April 9, 2008, for low enrollment and because she had not returned to work until after her 12 weeks of FMLA had expired. Lupyan claimed this was her first notice that she had been on FMLA leave.

CCI prevailed at the trial court level by convincing the district court to apply the mailbox rule and to draw the inference that Lupyan had, in fact, received the notice of her FMLA rights. Since she had knowledge of the 12-week limitation, and had not returned within the 12-week period, she would not be entitled to reinstatement. Accordingly the district court granted summary judgment to the employer on Lupyan’s interference claim. The district court also found no evidence of bias or pretext to support Lupyan’s FMLA retaliation claim.

The 3rd Circuit disagreed with the district court. According to the appellate court, regular mailings only get the weakest level of inference, and the recipient’s sworn statement to the contrary was enough to upend that inference. Certified mail is due a stronger inference.

However, as the court pointed out, her FMLA interference claim would still fail if Lupyan would not have been able to return to work within 12 weeks. Lupyan testified that she could have and would have structured her leave differently to get back to CCI within 12 weeks had she known she had such a limitation. Though Lupyan was not medically trained, the appellate court found that Lupyan’s opinion on this subject created a question for a jury to decide.

The 3rd Circuit’s rehabilitation of the FMLA retaliation claim was more straightforward. The appellate court simply disagreed with the trial court’s conclusion that there was no evidence of bias or pretext. The 3rd Circuit pointed to testimony by a CCI witness that instructors like Lupyan were not normally laid off even during declining enrollment, and that despite an alleged hiring freeze, CCI had hired another instructor (albeit in another department) shortly after Lupyan’s termination and during the hiring freeze. Finally, CCI’s instruction to Lupyan that she needed a full release to be able to return to work undermined its position that, eight days later, her position had been eliminated.

Lupyan v. Corinthian Colleges Inc., 3rd Cir., No. 13-1843 (Aug. 5, 2014).

Professional Pointer: Employers should communicate with FMLA-qualifying employees about their leave, throughout their leave, in more than one format.