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JANUARY
2002
U.S.
SUPREME COURT ADA RULING: On
January 8, 2002, the U.S. Supreme Court decided Toyota
Motor Manufacturing Kentucky v. Williams, in which
a plaintiff claimed her carpal tunnel syndrome was a protected
disability under the Americans with Disabilities Act. The
court disagreed, concluding that here impairment was not
sufficient to "substantially limit a major life activity." While
any Supreme Court ruling is important, the fact is that
this will have no impact on California employers,
where AB 2222 amended state law. As of January 1, 2000,
the definition of a "disability" in California
was so greatly broadened that nearly everyone would be
deemed "disabled." Accordingly, California employers
need to always consider the accommodation process and not
attempt to "split hairs" over whether or not
an individual's condition meets the legal definition of "disability."
NON-COMPETE
AGREEMENTS: California has long held that any agreement
restricting a person's right to pursue his / her livelihood
is a violation of California's Business and Professions
Code. For the most part, this meant that such agreements
were merely unenforceable. In November, 2001, a California
Court of Appeal gave the matter more teeth in Walia
v. Aetna, Inc., upholding a million dollar punitive
damages verdict. In Walia, an employee was told
to sign a non-compete agreement. When the employee refused,
she was fired. She sued, claiming that by firing her for
refusing to sign an illegal agreement, the company fired
her in violation of public policy. The court agreed and
upheld her wrongful discharge claim. Employers should note
that, although non-compete agreements are not lawful in
California, it is permissible to restrict an employee's
ability to raid your workforce, solicit your customers,
or use your confidential information for anything other
than your benefit. Such restrictions should be drafted
carefully with the assistance of qualified legal counsel.
WORKER
PRODUCTIVITY UP: American workers became significantly
more productive in the past year even as the economy itself
was sinking. The Labor Department reported that non-farm
labor productivity, or output per hour worked, grew at
a seasonably adjusted 3.5 percent annual rate during the
final three months of 2001 and at a 2.3 percent rate in
the nine months from the start of the recession in march
2001. The aggressive corporate cost-cutting that accelerated
after September 11 appears to have helped companies be
more productive, though at the expense of more than a million
jobs and many work hours. If productivity is rising as
robustly as the labor Department's latest report suggests,
it means businesses are squeezing more and more output
out of fewer workers. Fast productivity growth helps tame
inflation by allowing companies to produce more without
straining their resources.
LABOR
BOARD LOOKS AHEAD: The National Labor Relations ("NLRB")
is now GOP-led for the first time in years. They will undoubtedly
reverse some of the previous positions of the Democrat-controlled
Board. Clinton-era positions that could be targeted include
rulings that: allow non-union workers to bring co-worker
representatives into pre-disciplinary meetings; lump contingent
workers into bargaining units with full-timers; and require
employers to hold elections before withdrawing union recognition.
The new Board is expected to be more understanding of business
issues and the pressure businesses face; however, until
and unless new rulings are issued, the Clinton-era rulings
remain in effect.
HARASSMENT
AT WORK: Many women continue to confront sexual harassment
at work. A recent study of 1,000 Americans by the Employment
Law Alliance found that 21 percent of female respondents
said they have encountered sexual harassment on the job,
compared with 7 percent of males. The poll results confirm
the fact that sexual harassment is still very much a fact
of life in the American workplace. Still, it's significant
that 85 percent of those polled said they have not been
sexually harassed at work, suggesting that U.S. employers
may be doing a much better job at curtailing the behavior.
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