Recent notable developments include:


California Customer Service Acts Apply to Satellite Video Providers:   According to an opinion issued by the California Attorney General’s Office, California’s video customer service related legislation which applies by its terms to direct broadcast satellite providers, is valid and not preempted by the federal Communications Act reserving to the FCC “exclusive jurisdiction to regulate the provision of direct-to-home satellite services” (47 U.S.C. §303(v)).  The California legislation, which applies to cable television operators and other providers in addition to satellite services, includes the Cable Television and Customer Service and Information Act (Government Code §§53054-53056) and the Video Customer Service Act (§§53088-53088.2).  The Attorney General’s interpretation is that the FCC’s exclusive jurisdiction to regulate satellite services only extends to the technical aspects of providing signals and programming, and not to the provider’s commercial relationship with its customers nor consumer protection standards.  The opinion does find, however, that based on more specific federal preemption language, California communities may not apply to satellite providers, the regulatory administrative fee which is otherwise authorized by the Video Customer Service Act. (Unequal protection for cable operators?)  The Attorney General’s opinion was provided at the request of California Assemblywoman Lynn Daucher, and as usual, is advisory in nature and not legally binding (Opinion of the Attorney General, No. 05-207, December 22, 2005).


ADA Claim for Failure to Reinstate Violent Liar:   The federal Ninth Circuit Court of Appeals sends a New Year’s gift of complications for employers, holding this week that “discriminatory failure to reinstate” is an independent claim by a terminated employee under the Americans With Disabilities Act (ADA).  The court thus affirms a jury award in favor of a telephone company home-installation employee who was hired after concealing his conviction for battery on a police officer and his successful insanity defense to an attempted murder charge.  Aside from the colorful and alarming facts, the key legal development is the Ninth Circuit’s recognition of discriminatory failure to reinstate an employee regarded as disabled, as a separately actionable ADA claim. 


Descending into the specific facts of the case, it appears that the telephone company employer had ample reason to discharge the employee who had lied on his application about his criminal background, after changing his name following a lengthy institutional commitment and parole.  However, after the unionized employee pursued a labor grievance process, it appears that the justifications for his termination may have been so obvious that casual handling allowed it to be cast as retaliation for a mental disability.  Ultimately the Ninth Circuit reasoned its way to affirming a jury verdict that the employee’s original termination was justifiable, but that its refusal to reinstate the terminated employee was discriminatory, somehow losing sight of the employer’s genuine concerns about sending an unsupervised employee with a history of violent crime, into customer’s homes alone on a daily basis.  For employers, the lessons include (1) the need to consider treating reinstatement as an independent process for ADA purposes, and (2) the value of considerable care in pre-employment screening.  (Joshua Liam Josephs v. Pacific Bell, 9th Cir. No. 03-56412, December 27, 2005)


No California WARNA for Continuing Jobs:   The California Courts of Appeal recently ruled that when the assets of a business were purchased and the buyer hired the employees from the seller’s operation, on the facts at hand, no employer obligations under California’s WARN Act lay-off notice law were triggered.  The court reached this conclusion even given an asset-purchase transaction where in fact all the subject employees were terminated by the seller, and then newly hired by the buyer.  The court’s conclusion is consistent with the legislative purpose, in that there was no “plant closing” and no employees were left jobless, though the opinion does contain a seemingly careless implication that employees could have rights in relation to a job “position” independent of the employing entity.  (MacIsaac v. Waste Management, California Court of Appeal No. A1085999, December 12, 2005)


Supreme Court Clarifies Premises Liability for Contractor’s Employees:   The California Supreme Court has found that landowners and tenants have a duty to warn incoming contractors of non-obvious hazardous conditions on property, and may be liable in tort to employees of the contractor for failure to warn of, or fix such a condition.  Specifically, the party which hires an independent contractor “may be liable to the contractor’s employee if the following conditions are present:  The landowner [or tenant] knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner [or tenant] failed to warn the contractor about this condition”. 


In this case, the party in possession of the property hired a contractor to build scaffolding, on which other persons handled construction work involving asbestos-containing materials, as a result of which the contractor’s scaffolding carpenter is now given a cause of action against the owner for failure to warn of the on-premises asbestos risk.  The case refers to the liability of a “landowner”, but then states that it refers to “either an owner or a possessor of land that owes some kind of duty of care to keep the premises safe”.  The Supreme Court’s decision underscores the need both for workplace safety including adequate warnings, and for careful indemnity and insurance provisions in any contractor agreements.  (Kinsman v. Unocal Corp., California Supreme Court No. S118561, December 19, 2005)


Best wishes for a safe and prosperous New Year!

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