Employee Has the Burden of Proof in Disability Discrimination

As if to add to the rather unfavorable decision for employees concerning meal and rest break claims, the California Supreme Court recently held that an employee who alleges that he has been discriminated against has the burden of proof to establish that he can carry out duties in work with or without reasonable accommodation.

This decision was handed down in the case of Green v. State of California. The Court, in effect, is saying that it is not incumbent upon the employer to show whether the complaining employee was unqualified in order to avoid liability but of the employee’s to show that he was indeed being discriminated against because of his disability.

The Supreme Court in this case disagreed to the contention adopted by the Court of Appeals, which puts the burden of proving discrimination on the part of the employer.

The Court said that “the Legislature has placed the burden on the plaintiff to show that he is a qualified individual under the FEHA (i.e. that he can perform the essential functions of the job with or without reasonable accommodation. As explained further below, legislative intent, case law, and legislative history support defendant’s position – a view that also finds support in Evidence Code section 500, which requires a plaintiff to prove each fact essential to the claim for relief he is asserting.”

The Court first held that FEHA clearly provides that the "drawing distinctions on the basis of physical or mental disability is not forbidden discrimination in itself. Rather, drawing these distinctions is prohibited only if the adverse employment action occurs because of a disability and the disability would not prevent an employee from performing the essential duties of the job, at least not without reasonable accommodation."

Green case can be considered a victory for the employers. However, we should not fail to see that it still give emphasis to the need of carefully evaluating whether an employee who suffers from disability is able to perform the essential functions of their position with or without accommodation before making any decision like firing, transferring, demoting, hiring, etc.

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Are Toys Safer Now?

Following the unprecedented pull out of toys containing leads, among others, last year, there will soon be a mandatory federal mandate which will order how many children’s products are made before they are displayed and sold in stores.

The President has signed into law a consumer product safety measure that sets new stringent standards for lead and chemical contents in toys or products intended for children below 12 years of age.

It requires compulsory safety tests and provides it ways to keep kids safe in the event of another recall of the products from the market.

Said the White House Deputy Press Secretary, "this bill will help to ensure that products Americans find on their store shelves are safe and that the regulating agencies have the resources they need to enforce law.”

"This has become an increasingly difficult and complex job as more imports from more nations are now sold in the United States than ever before. Although we had some concerns with the bill, we're pleased that Congress included some recommendations from the President's Action Plan for Import Safety."

Consumer groups such as Consumers Union, the Union of Concerned Scientists, the U.S. Public Interest Research Group and Public Citizen, among others said that more than 27,000 deaths occur in the United States each year from products under the purview of the Consumer Product Safety Commission.

According to a February 2008 joint release from consumer groups, there were 473 recalls during the 2007 fiscal year. Among them were 25 million toys recalled because of lead paint, magnets and other concerns.

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Heparin Overdose kills Baby

Heparin is a leading anti-coagulant or blood thinner, which is widely used worldwide to prevent and treat blood clots. Just like any other kind of medicine, it can be dangerous when overused.

A rather negligent administration of heparin, which resulted to overdose occurred just recently in the ICU of Christus Spohn Hospital.

It appears that Heparin was given to babies to prevent blood clots in the IV lines. Nurses later on found out that babies were given overdoses of the drug. They tried to remedy the problem by administering counteracting drugs but one of the babies died.

In fairness, the death was still undergoing investigation to know whether or not it was caused by Heparin overdose because it was reported that the baby was seriously sick and could have died from other cause.

But whether the death was caused by Heparin or not, isn’t negligence apparent here? Because of the incident, two staff was said to have left the hospital already.

To those who have experienced personal injury or wrongful death because of Heparin overdose, consult with a personal injury lawyer for possible invocation of your rights under the law – that is to go after those who caused you damage and injury, for reparation.

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Dog Attacks Man and other Animals

A neighborhood is threatened not by a disease or terrorist attack nowadays but by animal attack.

There were two separate dog bite attacks reported last week in Vallejo. The first happened when one man was walking his Yorkshire Terrier and a Labrador one fair day when a pit bull suddenly came up and ferociously and aggressively attack his dogs.

The man tried to fend the attack on his dogs to no avail. When the pit bull was finished, the Terrier ended up disemboweled and dead while the Labrador has its leg severely wounded.

In trying to fend the attack, the dog owner also suffered injuries to his arms and legs.

Slightly one hour after the first accident, another one was reported to have occurred. This time it was a mixed bred Chihuahua-Labrador dog. The dog fortunately suffered only minor injuries.

Animal attacks such as this is prevalent in different communities and cities in California. Statistics show that there are nearly 4.5 million reported dog bites in the US today. Out of that figure, 800,000 were reportedly to have sought medical attention and a whopping $165 million were spent.

In this particular case, the owner of the pit bull can be held liable to his dog’s victim if the owner knows that his dog has been unleashed due to his lack of supervision.

Cases are filed for animal attack because of the negligence of the owners or possessors thereof.

The California law says that animal owners are responsible for their pets’ misbehavior such as attacking and injuring other animals or a human being.

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Consequences of Irresponsible and Negligent Driving

“What we sow, we reap in return” may be a fitting aphorism for the drunk driver who was charged and arrested for the death of a motorcyclist in a fatal vehicle accident in the article, “San Francisco Bay Bridge Accident Sends a Motorcyclist to His Death and Drunk Driver to Jail”, posted on July 23, 2008.

Ironically, the incident occurred in the picturesque San Francisco Bay Bridge and it involved a motorcyclist and a car driver, which accident resulted in the death of the motorcyclist.

Reports said the car driver was driving under the influence of alcohol when he sideswiped the motorcyclist. The car struck the rear of the motorcycle as the car was changing lanes. As a result, the motorcyclist died while the car driver was arrested and jailed for drunk driving.

This incident is another grim reminder of the risks posed by drunk driving, which is one of the perennial traffic safety problems in our country.

As cases like this continue unabated, it may well be good to remind motorists on the basics of blood alcohol concentration (BAC) based on the guidelines put up by the National Highway Transportation and Safety Administration, which also appeared in the same article.

Here are some vital facts about it:

• Alcohol is quickly absorbed and can be measured within 30 to 70 minutes after a person has had a drink.

• The amount of alcohol measured in a person’s body is measured by the weight of the alcohol in a certain volume of blood, which is known as BAC.

• The type of alcohol you drink does not affect your BAC, meaning a typical drink equals about half an ounce of alcohol (.54ounces), which is approximately equal to one shot of distilled spirits, or one 5-ounce glass of wine, or one 12-ounce beer.

• Because of several factors, it is often difficult to assess one’s own BAC or impairment.

• The failure to recognize alcohol impairment is itself a symptom of impairment.

• Every state has passed a law making it illegal to drive with a BAC of .08 or higher.

This information may be useful but the best way to stay safe after drinking is to avoid driving. Otherwise, the consequences of driving drunk can result in tragedy like this one. Surely, no one wants to be arrested or be held liable for the death of another.

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When is an Independent Contractor Really an Employee?

This question is answered by the Court in a decision earlier this year in the case of East Bay Taxi Driver’s Association v. Friendly Cab, Inc.

It appears that the taxi drivers in this case leased their cabs. They formed a union under the premise that they are “employees”, that, according to the National Labor Relations Act, is required to be recognized by their employer and to bargain.

Naturally, the company doesn’t think so – considering that the drivers leased their vehicles and keep whatever they make in a day for themselves.

But, the NLRB said that these taxi drivers are employees of the company.

The Court concurred. In determining whether the taxi drivers are independent contractor or employees of the company, the court used the control test.

The presence of control by the company over the taxi drivers negates the theory that they are independent contractor and not employees. For one, the drivers respond only to company’s radio dispatches and no one else, even their own.

Two, they are not allowed to pick up fares on their own.

Three, they are not allowed to advertise their services except the company.

All of these prevent the drivers from obtaining actual “entrepreneurial profit” for themselves, by themselves.

So where do we draw the line? Who is an employee? Who is an independent contractor?

The Court explained in this wise: “Employees work for wages or salaries under direct supervision. Independent contractors undertake to do a job for a price, decide how the work will be done, usually hire others to do the work and depend for their income not upon wages, but upon the difference between what they pay for goods, materials and labor and what they receive for the end result, that is, upon profits.

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Claiming for Medical Malpractice, Why Fear?

In the field of medicine, you may not have a complete assurance that undergoing a medical procedure will free you from your particular ailment or even further suffering. Doctors, like any other professionals, can also make their mistakes in exercising their jobs.

Medical malpractice, nowadays, is creating a deep concern not only for the sick people but also for those who wish to enhance their physical characteristics. Aside from this, some companies manufacturing medical products and devices are receiving complaints and allegations that their items can inflict further injuries to patients instead of providing cure to their ailments.

Like for example, the case of Hip Cups being produced by Zimmer Durom, some medical experts reveals that these devices have defects that may worsen the injury of a patient. According to Dr. Leary Dorr accusations, such cups fail to meet its purpose.

Unlikely, many patients who have experienced further suffering after undergoing treatment or surgeries have chose to keep their mouth shut. This is because most of them believe that the process of filing a claim can cost them a lot of money and that the entire case may last for a long period.

However, it is true that some medical malpractice claims can last even for one to two years depending on the issues involved. But generally, the victims just have to establish a strong case and gather proper evidences in order to obtain justice and suitable recoveries.

All they need is a credible lawyer who is adept in handling this type of claims. An able lawyer can help them minimize the cost of pursuing a legal action by entering a negotiation process wherein, you would not need to undergo case hearings. You just have to agree with defendant regarding the damages that you must receive from them.

So, if you have been a victim of medical malpractice, you do not have to worry much. Just hire a competent lawyer, provide him/her the details of your case and let him/her take care of the rest.

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Sexual Harassment Symptoms and Remedies

Sexual harassment as a form of discrimination is prevalent in many workplaces around the country. In some instances, many of the victims in these cases fail to recognize signs of abuse, which sometimes cause delay in the filing of suit against the abuser.

Unknown to many, the following acts may constitute sexual harassment:

• Unwelcome sexual advances

• requests for sexual favors

• other verbal or physical conduct of a sexual nature

Not only is sexual harassment a form of discrimination, but it is counter-productive as well, as it creates a “hostile work environment” that could affect the quality of work of an employee.

The article, Hostile Work Environment Sexual Harassment, posted on July 27, 2008, provides information on the damaging effects of these acts. According to the article, a sexual harassment act may “alter the work environment and create an abusive workplace”.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

• The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex

• The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee

• The victim does not have to be the person harassed but could be anyone affected by the offensive conduct

• Unlawful sexual harassment may occur without economic injury to or discharge of the victim

• The harasser's conduct must be unwelcome

In California, a statute was specially created to help victims of sexual harassment. Title VII of the Civil Rights Act of 1964 includes sexual harassment as a form of discrimination and provides protection for harassed workers.

In situations where a worker or employee is confronted with harassment of this nature, the victim must immediately ask a harasser to stop or refrain from doing it. After that, the victim may file a complaint with the proper office.

Otherwise, with the help of a lawyer, the victim may also lodge a complaint with the Equal Employment Opportunities Commission (EEOC).

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