CA Court Rules Participation in a Work Program Doesn't Make You an Employee Under the FEHA

Employers in California are required to provide reasonable accommodations to their disabled employees when the requested accommodations will not present an undue hardship for the employers. However, not everyone is considered to be an employee under the meaning of the Fair Employment and Housing Act. In Talley v. County of Fresno, Cal. Ct. App. Case No. F078541, the California Court of Appeals considered whether a person who was ordered to participate in a work-release program in lieu of a jail sentence was considered to be an employee under the FEHA.[1]

Plaintiff Ronald Talley pleaded guilty to driving without a license or insurance in October 2015 and was sentenced to 18 days in the Fresno County Jail. in lieu of his jail service, he was ordered to participate in a work program through the county that was supervised by the probation department. Before he began working in the program, he was presented with a form that asked him if he had any physical or mental conditions that would prevent him from being able to perform manual labor. Talley checked the box on the form to indicate that he did not have any physical or mental conditions that would prevent him from performing the work. Talley had a condition called congenital talipes equinovarus, which is more commonly known as clubfoot. Because of his condition, he had to wear a 10-pound brace to walk.

Talley was accepted to the program and assigned to work for the city's parks and recreation department. On his last day of the program, he was asked to blow leaves and was given a heavy gas-powered leaf blower to do the work. As he was walking up a stairway, his footbrace got stuck in a stair and caused him to fall backward. Talley sustained injuries, and his foot had to be amputated. He applied for and received workers' compensation benefits, including medical benefits, temporary total disability and permanent partial disability for his injuries.

Talley filed a complaint against the county in January 2017 but failed to have it properly served. He then filed a first amended complaint and subsequently replaced it with a second amended complaint. In his second amended complaint, Talley alleged that he suffered from a clubfoot disability that was obvious given his large brace. Talley claimed that he had discussed his disability with his supervisor, but his supervisor failed to provide reasonable accommodations to him.

On Feb. 4, 2016, the plaintiff asked his supervisor to let him use a rake instead of the heavy gas leafblower because of his disabled foot. His supervisor refused and told him to use the leafblower. He was told to blow leaves on the University Medical Center Campus, including on the second landings and stairs of the building. While he was climbing the steps, his brace slipped on the damp surface, causing his brace to get caught and his subsequent fall. The angle and impact of his fall caused the bones in his foot to break and also caused him to suffer neck and back injuries.

Talley filed a discrimination complaint with the Department of Fair Employment and Housing and the Equal Employment Opportunity Commission on Aug. 31, 2016. He received a right to sue letter on Oct. 25, 2016. In his second amended complaint, Talley listed eight causes of action, including two causes of action for disability discrimination under the Fair Employment and Housing Act, two causes of action for disability discriination under the Government Code, a negligence claim, a cause of action for dangerous conditions on public property, gross negligence, and negligent hiring, retention, and supervision of a supervisor manager. The county filed a demurrer, and the court ruled that the two FEHA claims, the negligence claim, and the dangerous conditions on public property claim were cognizable. It found that the remaining claims were not legally valid.

The county filed a motion for summary judgment or summary adjudication in June 2018. It argued that Talley was not a county employee and did not have cognizable claims for disability discrimination under FEHA because of the lack of an employee-employer relationship. The county also argued that the county had provided accommodations for Talley's foot disability. Talley had testified at his deposition that the supervisor told him to use the smaller leafblower instead of the larger one when he asked for accommodations. He was also told to sit down when the pain in his foot was too much to handle. The county also argued that the negligence claim and the dangerous conditions on public property claim were barred under the Workers' Compensation Act.

Talley opposed the motion for summary judgment, arguing that he was an employee for the purposes of the FEHA. He argued that while he did not receive monetary compensation for his work, his participation in the program compensated him by allowing him to return home each night instead of spending time in jail. He argued that his work for the county meant that he was a county employee and met the conditions under the FEHA. He also argued that the negligence claims were alternative theories because if he was not considered to be an employee for the purposes of the FEHA, he should be allowed to pursue negligence claims.

The county argued that he did not receive any compensation and instead paid to participate in the program instead of going to jail. The trial court issued a tentative ruling on Aug. 18, 2018, granting the county's motion for summary judgment. The plaintiff filed an appeal.

The primary issue on appeal is whether Talley was a county employee for the purposes of the FEHA. The county argued that he was not an employee since he was not paid for his work and could have opted to serve time in jail instead of participate in the work program. Talley argued that he was a county employee under the FEHA and that the fact that he was able to go home at night was a form of payment for his work. He also argued that other cases in which people have not been determined to be employees under the FEHA involved volunteers, and he distinguished work program participants from them.

Rule: Under the FEHA, employers are required to provide reasonable accommodations to disabled workers unless doing so would present an undue financial hardship.

Under the Fair Employment and Housing Act, California employers must reasonably accommodate disabled workers upon their request as long as the accommodations will not present an undue financial hardship. However, volunteers are not considered to be employees because they are not compensated for their work. Employers do not have to provide reasonable accommodations to volunteers. Talley argued that he was not a volunteer since he was participating in a court-ordered work program to avoid serving a jail sentence and was compensated for his work by being allowed to return home at night. Analysis

The court analyzed whether Talley was a county employee under the meaning of the FEHA for his disability discrimination claims.[2] The court noted that the law does not provide much guidance about what is considered employment for the law's purposes. It then stated that the Legislature's intent when the law was written was important in determining who qualifies as an employee. The court noted that other courts had turned to federal law to determine the extent of the employee-employment relationship under the FEHA. The court found that a majority of the federal circuits had adopted a remuneration test, meaning that people who were not paid for their work were not considered to be employees for purposes of discrimination statutes.

The court then turned to two California cases that considered whether an uncompensated worker was an employee under the FEHA. In Mendoza v. Town of Ross, 128 Cal.App.4th 625 (2005), the court found that a volunteer community service officer could not file claims under the FEHA because he was not compensated for his work.[3] In Estrada v. City of Los Angeles, 218 Cal.App.4th 143 (2013), a different appeals court found that a volunteer reserve police officer was not an employee under the meaning of the FEHA because he did not receive compensation for his work.[4] The court found that the FEHA requires remuneration before a worker will qualify as an employee under the statute. It concluded that Talley was not a county employee since he did not receive compensation for his work. It also found that his being able to return home at night did not count as compensation. Finally, it found that his negligence claims were barred under the Workers' Compensation Act since he had recovered workers' compensation benefits for his injuries. Conclusion

The court affirmed the ruling by the trial court. The county was ordered to receive its costs on appeal. Contact Steven M. Sweat, APC

If you have been injured while working within the scope and course of your job because of a failure by your employer to reasonably accommodate your disability, you may have legal grounds to recover compensation through workers' compensation as well as to file disability discrimination claims. Contact Steven M. Sweat, APC for a free evaluation of your claim by calling us at 866.966.5240.

[1] Talley v. County of Fresno

[2]Disability Discrimination

[3] Mendoza v. Town of Ross

[4] Estrada v. City of Los Angeles