Bay Area Employment Lawyer Blog

Mr. Cuiellette was a police officer employed by the City of Los Angeles. Due to an on-the-job injury, he was no longer able to perform the duties of a field officer. He filed a workers compensation claim and was rated 100% disabled. The City reassigned him to a light duty desk job, which he could perform. When the City realized that Mr. Cuiellette was rated as 100% disabled, it promptly ended his light duty assignment and sent him packing.

Mr. Cuiellette sued, claiming disability discrimination. He claimed that, regardless of the workers compensation disability rating for his officer job, he could do the essential elements of his light duty desk job. The jury agreed, resulting in a $1.5 million judgment, and an appeal. Cuiellette v City of Los Angeles, 194 Cal. App. 4th 757 (April 22, 2011).

The California Court of Appeals upheld the verdict. It declared that a "rating received in the worker's compensation proceeding was not, as a matter of law, a legitimate nondiscriminatory reason for an employer's adverse employment action." Indeed, an employer must engage in the interactive process, and carefully analyze whether an employee can perform the essential functions of his or her job, or other vacant jobs, with or without a reasonable accommodation, regardless of any disability rating. Here, in particular, the Court noted that the City of Los Angeles had a policy and practice of permitting injured employees to perform desk jobs on a long term basis. Thus, it was inappropriate to require that Mr. Cuiellette prove that he could perform the essential elements of his field job, rather than his desk job.

There are quite a number of employers out there that refuse to engage in the interactive process when an employee is found to be mostly disabled by the workers compensation system. The court Cuiellette established that this is wrong. In addition, Cuiellette makes clear that, in at least some instances, a temporary job may be as good as a permanent one. It is important for employees to be aware of their independent rights under the Fair Employment & Housing Act and the Americans with Disabilities Act when they become disabled, and to hold the employer accountable for fully and faithfully engaging in the interactive process.

Jody LeWitter
September 19, 2011

Ms. Zullo worked for a newspaper publisher, Inland Valley Publishing Company. The employer's handbook contained a policy requiring mandatory arbitration of employment disputes. The handbook stated that any arbitration would be governed by the American Arbitration Association rules, but failed to set forth those rules in detail. The handbook did require that an employee who filed an arbitration demand meet strict timelines, altered the law by shortening potential statute of limitations, and required that an employee respond to an arbitrator's communication within ten business days. The remedy for an employee's violation of these rules was the dismissal of his or her claims. In order to work for Inland, an employee was required to sign and acknowledge this handbook.

After Ms. Zullo was fired, she filed a lawsuit in court. Inland sought an order to send her case to arbitration. The trial court ordered that the case be sent to arbitration. However, the Court of Appeals reversed, holding that the arbitration agreement was unconscionable. Zullo v. Superior Court, 197 Cal. App. 4th 477 (2011).

It is getting rather tiresome reading all the ways in which employers heavy handedly force employees to "agree" to arbitrate their claims, as well as all the ways in which the employers attempt to manipulate the arbitration process to favor the employer. Even though courts generally keep overturning such overreaching agreements, employers keep promulgating them. The reason is because most employees don't always have the resources and where-with-all to hold the employer to the letter of the law.
Employees are thus required -again and again - to contest these unfair, unequal and illegal arbitration agreements. Here the Court found that the agreement was procedurally unconscionable where the rules weren't clear from the face of the handbook and the situation was really a take-it-or-leave-it one. Interestingly, the Court also found that no testimony need be presented to prove this unconscionability as the handbook "speaks for itself."

The Court also found that the agreement was substantively unconscionable because it altered the law (here the statute of limitations) in favor of the employer, made up timelines (e.g., respond to the employer within 10 business days) to the detriment of the employee, and applied to claims an employee would bring, but not claims an employer might bring.

I can only wish Ms. Zullo the best of luck pursing her claims in state court, where they belong.

Jody LeWitterSeptember 7, 2011