The Letter of the Law: April 2016
IN THIS ISSUE:
By: Kyle D. Kring.
In light of the recent lawsuit filed by the University of Southern California’s former Head Football Coach, Steve Sarkisian, alleging discrimination against USC based on his alcohol addiction, it is imperative to address what an Employee’s rights are if they suffer from alcoholism, and what an Employer must do to protect itself from breaking the law while ensuring their employee is treated fairly.
Under the Americans with Disabilities Act (ADA), an alcoholic is considered to be a person with a disability and is therefore protected by the ADA. Thus, an employer may be required to provide an accommodation to a person suffering from alcoholism. On the other hand, an employer may still discipline, discharge, or deny employment if that person’s use of alcohol adversely affects job performance or conduct.
California’s laws protecting disabilities such as alcoholism are governed by the Fair Employment and Housing Act (FEHA). Specifically, the Act prohibits an employer from discriminating against an employee based on that employee’s disability and the FEHA recognizes alcoholism as a disability. That disability must simply be a “limitation” upon a “major life activity” (unlike the ADA’s requirement that the disability be a ” substantial limitation”) and the Act recognizes “working” as a major life activity. (Cal. Gov. Code § 12926.1(c)). In other words, an employer cannot fire an employee simply because they suffer from alcoholism, and the employer must consequently provide reasonable accommodations.
Similar to the ADA, the California Labor Code (§ 1025) requires a private employer that employs 25 or more employees to reasonably accommodate any employee who wishes to voluntarily enter and participate in an alcohol rehabilitation program, provided that the accommodation does not impose an undue hardship on the employer. Therefore, generally, an employee suffering from alcoholism may join a rehabilitation program without the fear of losing their job. If, on the other hand, an employer’s daily operations must substantially change to provide the accommodation, then the employer may have a valid argument to refrain from making the accommodation. To illustrate, Coach Sarkisian alleges in his lawsuit that he was fired despite having obtained permission from USC’s Athletic Director to get treatment for his alcoholism and made arrangements with the coaching staff to ensure his departure would not disrupt the team’s day-to-day operations.
Notably, the accommodation may overlap with federal law under the Family Medical Leave Act (FMLA) or California law under the California Family Rights Act (CFRA) which guarantees that an employee may take, and an employer must provide, up to twelve workweeks of paid or unpaid leave if an employee is unable to work because of a serious health condition. Of course, there are certain requirements that both the employee and employer must meet to qualify for leave under the FMLA and CFRA. Nonetheless, employers and employees should be aware of this alternative when confronted with the issue of an accommodation or leave for alcoholism.
The California Labor Code (§ 1025) goes on to clarify that an employer may still refuse to hire or discharge an employee who, because of the employee’s current use of alcohol, is unable to perform his or her duties or cannot perform those duties without endangering their own health and safety or the health and safety of others. This means that if an employee is currently abusing alcohol and it impairs their ability to do their job, or it jeopardizes their safety or the safety of their colleagues, the employer may validly and immediately fire the employee. To again illustrate using the USC example, the University will likely argue that Coach Sarkisian’s current and active alcohol abuse impaired his ability to effectively coach the football players and manage the football staff, evidenced by the team’s inability to win games that they statistically should have won by a landslide.
Despite the various federal and state laws and acts, employers and employees should be aware of their rights with respect to alcoholism in the workplace. Employees can rest assured that they have legitimate legal avenues to seek rehabilitation coupled with job security, whereas employers can protect their operation while still treating their employees fairly.
If you’ve read the book The Four Agreements by Don Miguel Ruiz, you’ll better understand this article. If you haven’t read the book, I highly recommend it. A summary doesn’t do the book justice, but is necessary for this article.
To summarize the overall message of the book, the author posits that if you can live your life in accordance with these four main agreements (i.e., values or rules) then you will be happier and more fulfilled with your life. I not only agree with Don Miguel Ruiz, I can show you how these four agreements can be utilized in the divorce process, or even modified to fit any other career or personal situation.
- Be Impeccable With Your Word : Meaning, speak with integrity, say only what you mean, avoid using the word to speak against yourself or gossip about others, use the power of your word in the direction of truth and love.
A volatile or emotionally-laden situation, such as a divorce, is rife with opportunities to explode either verbally or physically, and to behave in ways you’ll later regret. Some people say that hard times reveal a person’s true character. I’m not so sure about that. While I’ve been surprised by a client’s occasional degradation of character, I don’t know that I believe that is their true character. Rather, I tend more to believe that when a person is exposed to emotional stress for a longer period of time than they are hard-wired to handle, that stress will find a way to release. It’s not their true character unless it manifests in a pattern of behavior.
By committing to being impeccable with your word, you can protect your case, your conscious, your reputation and your dignity during a divorce process. It’s so tempting to reciprocate in the verbal mud-flinging and airing of dirty laundry. But who will that help? Neither a judge, nor your attorneys, are going to want to hear about Joe’s affair with his secretary or Betty’s weight gain and snoring. Protect your privacy and dignity by discussing matters solely with your attorney and allow him/her to decide what facts should be shared on public documents.
- Don’t Take Anything Personally: Nothing others do is because of you. What others say and do is a projection of their own reality, their own dream. When you are immune to the opinions and actions of others, you won’t be the victim of needless suffering.
Nothing can feel more personal than going through a divorce. Whether you are the one who filed or not, it feels “gasping for air” personal. Realistically, for the family court judges and staff, you are just item #35 on their day’s calendar, and the next day, and each day thereafter, they will have another calendar with 35 items to process. For the attorneys involved, it’s a bit more personal, because we all think that our client is right and perfect, but we don’t have to live with the decisions on a case. It’s not our kids that are going to be involved in that custody arrangement. It’s not our retirement accounts that are being subdivided. Truth be told, as invested as we are in a client at the time, we attorneys will eventually move on and that client will become an old memory. That’s the nature of the beast. So, protect your psyche during the divorce process by imbedding the idea that nothing others are doing is really because of you. That value will alleviate a lot of needless suffering and drama.
- Don’t Make Assumptions: Find the courage to ask questions and to express what you really want. Communicate with other as clearly as you can to avoid misunderstandings, sadness and drama. With just this one agreement, you can completely transform your life.
Any legal procedure is replete with jargon, procedures and rules with which the average person is ignorant. Clients sometimes fail to ask questions or seek clarification for various reasons. Either because they don’t want to appear uninformed, or they don’t want to run up the attorney fees, or they just assume that their attorney has things handled. Truth be told, the divorce process actually belongs to the client, the parties, and not to the attorneys or the judge. The parties should understand as fully as possible the what’s, why’s, where’s, and so forth. If you are paying an attorney for their time, use some of that time to educate yourself. Knowledge is power. When you understand the lay of the land, you tend to make better decisions. I’m always impressed by a client that demonstrates participation in their process. When a client assumes ownership of the divorce and asks thoughtful questions, articulates points of view, and values and desires, that impresses me.
- Always Do Your Best: Your best is going to change from moment to moment; it will be different when you are healthy as opposed to sick. Under any circumstance, simply do your best, and you will avoid self-judgment, self-abuse, and regret.
You simply cannot do better than your best, whatever that looks like at the time. If you do your best in any given situation, then you never have to doubt yourself or the outcome. Most couples put a lot of effort into their wedding. They often plan for months or years on each detail, from the rings, to the colors, to the dress, flowers, appetizers, seating arrangements and honeymoon. When they reach their wedding day, they’ve given their best efforts toward that blessed day. Now with divorce, on the other hand, not so much.
Divorce is not a time to scrimp or become lackadaisical. Since the outcome will affect a good portion of your future, if not the rest of your life, it deserves to be taken seriously and be given your best efforts. What does that look like in the context of a divorce setting? It means to be where you are supposed to be, and be early. It means to communicate with your attorney fully, and timely. It means to comb the attic for documents your attorney requests, if that’s what is needed. It means to conduct yourself with dignity and truthfulness. It means to put your children’s interests ahead of your own and realize that they love mom and dad. It means to mentally walk in the other party’s shoes when you want a certain outcome and ponder how you would want to live with that outcome.
Only you will recognize your best. No one else will know for sure what your full potential was in any given moment. But, if you do your best, you will know. And if you didn’t do your best, you will know that too.
There has been a recent trend in the Plaintiff’s Bar to utilize what is colloquially known as “Reptile Theory” to maximize injury awards. The strategy is based on a book by David Ball and Don Keenan entitled “Reptile: The 2009 Manual of the Plaintiff’s Revolution.” The thesis of the book is the reptile’s primary instinct of self-preservation. The theory is that a juror’s impulse of self-preservation will override logic based on the evidence presented. The book advises Plaintiff attorneys to convert every issue into one of self-protection, which helps to compel the jurors to make their rulings due to a misguided sense of fear for themselves, despite what the evidence has presented. This tactic also influences the jurors to award large verdicts.
An example of this can be found in the context of a motor vehicle case, where a Plaintiff attorney will cross-examine the Defendant driver and ask: “Name three things you would have done differently to avoid the accident” (with an anticipated response by the Defendant that they “would have paid more attention,” “drive slower,” etc.). Another example is in the context of a product liability case, where a Plaintiff attorney will cross-examine a defendant manufacturer and ask: “What is the worst thing that could happen if a manufacturer fails to design safe products?” (with the anticipated response by the manufacturer that “someone would be injured” or “someone could lose a life.”)
Issues of liability and damages must be based on the evidence, rather than prejudicial fears of self-preservation. In many instances, reptilian tactics are pretexts for Plaintiff’s counsel to impermissibly invoke the Golden Rule and/or make appeals to the community conscience. In order to effectively defend against such tactics at trial, defense counsel must be trained to recognize such tactics and take measures to prevent such tactics by way of a Motion in Limine, or otherwise.
In Nevada, Golden Rule arguments are prohibited pursuant to Lioce v. Cohen, 124 Nev. 1 (2008). In Lioce, the Nevada Supreme Court stated that attorneys cannot make a Golden Rule argument, which is an argument asking the jurors to place themselves in the position of the Plaintiff. Although Plaintiff attorneys may not explicitly ask jurors to put themselves in the shoes of the Plaintiff under the Reptilian Theory, defense counsel must be aware of such disguised Golden Rule arguments and make the appropriate objections in Court.
Defense counsel must also be ready to argue that reptile tactics should be precluded on the basis of relevancy. Arguments related to generalities regarding personal or community safety are irrelevant and should be excluded. Jurors should only consider the evidence and circumstances presented to them, not hypotheticals regarding “the safest possible environment” as advocated by the Reptilian Theory.
Lastly, defense counsel must be prepared to advocate that such Reptilian testimony is more prejudicial than probative pursuant to NRS 48.035(1). Reptilian tactics tend to inflame the jury and the argument should be made that such testimony would be inflammatory and prejudicial.
Students at Olive Crest Academy Plant School Garden
On April 18th, 2016, Olive Crest Academy students planted their individual classroom gardens for the horticulture program that Kring & Chung, LLP, Orange County Women Lawyers Association and other local businesses helped develop.
While working in their therapeutic school garden and learning about the life cycle of plants, students will gain an understanding of nurturing, problem solving, learning from mistakes, personal responsibility, and compassion. Each classroom selected a garden theme, such as salsa, butterfly, berries, and scratch n’ sniff. The students were very enthusiastic and involved in the planting process. We look forward to seeing their gardens grow and the beneficial effects this program will undoubtedly have on the children. Click here for further information.
Olive Crest Academy is a nonpublic, non-profit special education school for grades K-12 that specializes in providing individualized academic instruction to students with unique needs, including developmental and learning disabilities, emotional and mood disorders, behavioral challenges, dual diagnosis, and Autism Spectrum Disorder.
If you are interested in contributing to the ongoing maintenance and curriculum implementation of Olive Crest Academy’s horticulture program, please contact Courtney Kring at (949) 261-7700 or [email protected]om.