Retail Employment Law Blog : U.S. Lawyers & Attorneys for Labor Law

In Sanford v. Slade’s County Stores, 2010 U.S. Dist. LEXIS 34094 (N.D. Ala., 2010), the plaintiff claimed the company discriminated against her on the basis of her son’s disability when she was informed that health insurance was available after 90 days, and also when she was discharged.  The District Court recognized a claim for associational discrimination under the Americans with Disability Act but found that employers are not required to make reasonable accommodations for disabilities of relatives or associates of a non-disabled employee.

This case underscores that as more plaintiffs are able to prove they have a “disability” under the amended ADA, the focus of litigation will turn to whether employers have complied with their obligation to provide “reasonable accommodation” and equal employment opportunities to qualified individuals with disabilities.

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On October 20, 2010,the EEOC held a meeting to hear testimony from representatives of various stakeholder groups as well as social scientists and the Federal Trade Commission on the growing use of credit histories as selection criteria in employment.  It is somewhat unclear what the commission intended to have come out of the hearing, but it is significant that in her first meeting as chair, Jackie Berrien wanted to cover this issue. 

In her opening remarks, Chairwoman Berrien noted that this will be the first in a series of hearings that will focus on neutral employment tools that may have a discriminatory effect in the employment marketplace.  The EEOC will likely move to issue guidance on this issue in the near future. 

Consumer reports remain a critical tool to minimize legal liability and help gather the best pool of job applicants.   However, federal and state laws make lawfully utilizing background checks difficult.  Employers should consider the relationship between the competencies of the position and how the information obtained in the report fits with those competencies.

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           In Hernandez v. Chipotle Mexican Grill, Inc., 2010 Cal. App. LEXIS 1853 (2010), the California Court of Appeal issued a decision addressing the issue currently before the California Supreme Court: whether employers must ensure that employees take required meal and rest breaks, as opposed to simply providing the opportunity to take required breaks.  California employers, especially retailers, have been waiting anxiously for the Supreme Court to address this issue in Brinker v. Superior Court of San Diego.  While there are many outstanding cases waiting for this ruling, many judges have been reluctant to issue a decision while Brinker is pending.

           However, in Hernandez, the Court of Appeal sided with federal precedent in holding the employers need only provide the opportunity to take required breaks.  This opinion remains good law, at present.  Of course, the Supreme Court’s ruling in Brinker will either affirm or strike down this ruling.

            Brinker remains the “case to watch,” for at least two reasons.  First, retailers will likely be saddled with more onerous monitoring and liability if they are required to ensure breaks are taken rather than merely provide break time. Second, however, an “ensure” rather than “provide” standard may make class action treatment more appropriate in multi-plaintiff break cases. Courts may be more likely to find whether an employer simply provided break time presents a common question of fact for all plaintiffs, as opposed to the question whether the employer required each individual employee to take all required breaks, which may present individual factual issues.

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