DO YOU KNOW YOUR CALIFORNIA WAGE ORDER?

            The California Industrial Welfare Commission (IWC) Wage Orders regulate wages, hours and working conditions.  Employers must comply with the IWC Wage Order and California labor laws applicable to their business or industry.  For example, IWC Order 1 applies to the manufacturing industry; Order 4, professional, technical, clerical, mechanical and similar occupations; Order 7, the mercantile industry; Order 12, the motion picture industry; Order 15, household occupations; and Order 16, occupations in the construction, drilling, logging and mining industries.

            “WHICH IWC ORDER?  Classifications” – a pamphlet from the California Division of Labor Standards Enforcement (DLSE), assists employers and employees in determining which IWC Order applies to a business or employee (available online at http://www.dir.ca.gov/dlse/WhichIWCOrderClassifications.PDF).

            Each California Wage Order covers regulations on topics such as:

• Administrative, executive and professional exemptions;
• Overtime wages;
• Alternative workweeks;
• Minimum wages;
• Reporting time pay;
• Records retention;
• Cash shortage and breakage;
• Uniforms and equipment;
• Meals and lodging;
• Meal periods;
• Rest periods; and
• Required posting of the order.

            The Industrial Welfare Commission (IWC) provides copies of the 17 California Wage Orders and California’s Minimum Wage Order online at http://www.dir.ca.gov/iwc/wageorderindustries.htm.  Every California employer should know the applicable Wage Order for her/his/its business and employees and the regulations regarding wages, hours and working conditions contained therein.

            If you have any questions, please contact me or any of our other employment law attorneys.   Best, Bob Edwards

During these challenging financial times some employers are finding they need to temporarily reduce costs, including employee payroll.  Fortunately, the California Department of Labor Standards Enforcement (DLSE) has recently issued an opinion letter allowing employers to reduce exempt employee salaries in exchange for a shortened workweek.  This new August 19, 2009 opinion letter flatly contradicts the DLSE’s prior opinion letter on the same subject.

The DLSE’s new opinion states that an employer seeking payroll savings may properly shorten the workweek from five days to four days and reduce exempt employee salaries by a proportionate 20%.  The new DLSE letter specifically states an employer may do this without undermining the exempt status of affected employees under federal or California law.  (In its prior opinion letter, the DLSE originally opined that it would not be acceptable to tie an exempt employee’s compensation to the amount of hours or days worked).

The new opinion letter cautions employers that this change in California employee pay is primarily allowed for interim reductions due to temporary economic necessity during which reduction in the work schedule is only a short-term stopgap measure.  Furthermore, the affected employees must still earn a monthly salary equivalent to no less than twice state minimum wage for full-time employment.  Lastly, the affected employees must continue to satisfy the duties test for the applicable exemption which pertains to their position.

If you have any questions, please contact me or any of our other employment law attorneys.

Religion in the Workplace, Have Faith in the Law

Bill, a hospital supervisor, learned that one of his subordinates, Harvinder, has been wearing a miniature sword strapped to and hidden underneath her clothing. Harvinder is a baptized Sikh who wears the 4-inch dull and sheathed sword (called a kirpan) as a symbol of her religious commitment to defend truth and moral values. Bill instructed Harvinder not to wear the kirpan at work because it violated hospital policy against bringing weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh Code of Conduct, and gave him literature explaining the kirpan is not a weapon. Harvinder also allowed Bill to examine the kirpan so he could see it was no sharper than a butter knife.

It may be surprising to learn that if Bill were then to inform Harvinder she would be terminated if she continued to wear the kirpan at work, the U.S. Equal Employment Opportunity Commission (EEOC) would consider the hospital liable for religious discrimination in the workplace. In the face of a potential conflict between a religious practice such as Harvinder’s and an employer’s policy, in this case the company’s obligation to maintain a safe and secure workplace, that employer must almost always take the initiative to see if a reasonable accommodation for that religious practice can be reached.  Only where an employer can show that any accommodation for religious practice would impose an undue economic hardship is that company excused from permitting that practice to continue. Employment laws establish that resolution of religion in the workplace issues is a case-by-case proposition. An undue hardship is found where the proposed accommodation imposed more than a de minimus (trifling or minimal) cost to the employer. Examples where courts have found accommodations imposed undue hardship include “additional costs in the form of lost efficiency or higher wages.” Balint v. Carson City, Nevada (Ninth Circuit Court of Appeals [9th Cir] 1998) 180 Federal Reporter, Third Series (F.3rd) 1047, 1051, note 4.
Thus, faced with Harvinder’s request to continue wearing her kirpan in the workplace, Bill would have to explore whether the company could accommodate the request without a disruption in operations that would amount to more than a minimal or trivial distraction. If Harvinder’s request was to carry a loaded gun based on her religion’s principles, Bill would obviously have a much easier decision since such a weapon creates a hostile work environment to say the least, nearly certain to significantly divert fellow hospital workers from full attention to their duties. However, a ceremonial object no sharper than a butter knife – and kept out of sight of other workers in any event — can probably be accommodated since it would be difficult at best to distinguish between that object and the eating utensils brought by other workers and utilized daily on the premises.

If you have any questions, please contact me or any of our other employment law attorneys.

Until California courts fully resolve the issue of what an employer must do to “provide” meal periods, employers must remain diligent to take all reasonable measures for ensuring hourly, not-exempt-from-overtime employees actually take timely meal periods.  These steps could include:

●  Conduct a thorough audit of the company’s meal and rest period policies and practices to make sure they reflect a close agreement with the applicable law, preferably with assistance of a California lawyer experienced in wage and hour law;

●  Ensure all non-exempt employees read and acknowledge in writing their understanding of the company’s meal and rest period rights policy and the underlying laws;

●  Determine if any exception applies for mandatory unpaid meal periods.  Consult with a lawyer experienced in wage and hour law on whether the nature of an employee’s work permits a written agreement for a paid “on-duty” meal period.  Ensure that any such written agreement for an “on duty” meal period specifies the nature of the work justifying the exception and confirmation the employee may, in writing, revoke the agreement at any time;

●  Have supervisors and managers conduct (and document) regular monitoring to ensure  employees under them are taking their meal periods and entering their unpaid meal period start and end times on time cards or sheets;

●  In the event a manager finds a worker not taking the required meal period, policy and practice should direct that manager’s correction of the matter as well as documented agreement by the worker to take those periods in the future; and

●  Ensure proper recordkeeping is in place and maintained (i.e. time cards showing meal period start and end times) for at least a rolling four-year period, or longer if currently engaged in litigation.

Federal and state laws currently do not require California employers to provide employees with paid sick leave unless the employer is located in San Francisco County.  However, as a practical matter, many employers grant sick leave, often in the form of an annual allotment of paid sick days.  Where employers provide paid sick time, employers must permit an employee to use one-half of his or her annual sick leave allotment, once it has actually accrued, to care for a sick child, spouse, parent or domestic partner (so-called “kin-care”).  See Labor Code Section 233(a).

Once an exempt employee has exhausted his or her paid sick leave, the employer may begin to deduct from the exempt employee’s salary for absences due to sickness or disability in increments of full working days.  See the California Division of Labor Standards Enforcement (DLSE), Enforcement Policies and Interpretations Manual, available online at http://www.dir.ca.gov/dlse/Manual-Instructions.htm.

Unlike vacation pay, sick pay is not a so-called “accruing benefit.” Unused sick pay is not carried over into the next calendar year.  Employers should state in their sick leave policies that employees are not paid for any sick time unused at the end of a calendar year or in the event of termination for any reason.

Sick leave policies should also state the employer reserves the right to require the employee to demonstrate the medical necessity for sick leave by his or her doctor’s written confirmation. Employers may also require a doctor’s written confirmation that an employee is able to return to work (a) without posing a safety or health risk to that employee or other workers; and (b) with the ability to perform the essential functions of his or her job with or without reasonable accommodation.

On May 18, 2009, Rep. Rosa DeLauro of Connecticut introduced a bill called the Healthy Families Act (H.R.2460) in the U.S. House of Representatives.  The Act would require employers with 15 or more employees to provide at least one hour of paid sick time for every 30 hours worked.  This bill is in the first step in the legislative process and has been referred to committee.  For more information on H.R.2460 please see http://www.opencongress.org/bill/111-h2460/show.

Mr. Bowles will be delivering an engaging all-day seminar on education in legal basics for concerned business owners, executives and human resources department staff. He will cover both federal and California labor law requirements.

This interactive seminar gives attendees experience with potential real life situations in the workplace.  At the end of the seminar we allow for a question and answer period so that each attendee has a clear understanding of the information provided.

This seminar covers the following:

• Changes in arbitration laws and how this can affect you and your business
• Changes in the discrimination laws and what this means to you, the employer
• Hiring and firing basics
• Why communication and documentation is essential
• Employment applications, interviews and testing
• Employment agreements, including employment at will
• Minimum wage, overtime and overtime exemptions
• Sample severance pay and release form
• Anti-discrimination and anti-harassment policies
• Discipline and reporting policies
• Drug testing and other policies concerning worker privacy
• Vacation, sick pay and leave policies

Seminar materials include sample hard-copy employment forms, policies, and employee manual.  Emphasis is put on the practical use of these materials.

Presented by:  Law Offices of Timothy Bowles, P.C.

Location: Western Justice Foundation Center
55 South Grand Avenue, Pasadena, CA 91105

When:  Thursday, September 24th, 2009   9:30 AM — 4:30 PM
Price :     $275 per person – $150 each for additional staff from the same company.
Lunch will be provided.  Free parking is available one block south of the center.

Call: (626) 583-6600 or visit our website at www.tbowleslaw.com/knowledge/employment-seminar-offsite-form.php for more information.

We all agree disruptive workplace incidents distract from harmony and productivity.  One of the more prevalent and sometimes inadequately addressed workplace disruptions concerns rude, boorish employees.  Their bullying can include personal insults, verbal attacks, inappropriate teasing and sarcasm, belittling another’s intelligence or capabilities, and maligning someone’s reputation through gossip and rumor-mongering.  

Is Rude Workplace Behavior Unlawful?  Although California has adopted anti-harassment laws, it has yet to enact “civility” laws.  Several states have attempted such regulation, including California’s unsuccessful Healthy Workplace Bill of 2003.  By declaring all abusive workplace conduct unlawful, such bills seek broader protection for employees facing workplace harassment, regardless of whether the abuse was directed to an employee belonging to a protected classification (race, gender, national origin, religion, etc.).  Even without such formal prohibitions, employers may be at risk for ignoring bullying behavior.

Potential Legal Theories Targeting Workplace Bullying:  Although there is no anti-bullying law in California per se, affected co-workers have filed claims under the protection of the Americans with Disabilities Act (ADA) and/or workers’ compensation laws claiming such bullying created stress and anxiety.   Employees targeted by bullies have also sued employers for damages for the intentional infliction of emotional distress allegedly caused by such bullying incidents.  Employee suits alleging such harassment was linked to a protected classification are also common.  In EEOC v. Nat’l Educ. Ass’n, a male allegedly acted in a particularly obnoxious fashion towards his female subordinates, often screaming profanities and physically intimidating them, while reportedly treating his male subordinates in a more playful, bantering fashion.  The court found harassing conduct need not be motivated by sexual desire to support an inference of sexual discrimination.  Even if the bully’s target is of the same gender, the victim might successfully sue for unlawful sex harassment. In Singleton v. United States Gypsum Co., John Singleton’s male co-workers allegedly engaged in workplace bullying by insults and sexually explicit gestures and comments.  The appellate court found Singleton could have been harassed because of gender, even though the alleged workplace bullies were also male. 

How to Resolve Co-Workers’ Complaints:  The wrong thing to do is ignore such a situation.  Granted, it’s logical to presume all workers are mature, responsible adults.  However, even where the bullying in the workplace does not seem based on some protected classification (age, religion, national origin, etc.), don’t just assume people can and should work these matters out by themselves.  Treat these bullies in the workplace complaints just as seriously as a claim for sexual harassment or other harassment on a protected classification.  Investigate in a thorough and neutral manner with the intention of truly addressing and handling the problem. 

How to Confront the Bully:  Of course, do not overreach to unnecessarily documenting the accused wrongdoer’s every shortcoming, big, small, or microscopic.  The person in question could later attempt to characterize over-documenting as attempts to create false grounds for terminating him or her.  The best approach is to ensure workplace policies clearly state what code of conduct is expected at the workplace, including how workers are to behave with one another.  If an employer finds an individual has crossed the line and is potentially engaging in office bullying, show him or her the appropriate workplace policy, discuss the resolution, and discipline and document accordingly.  Any resolution should include the appropriate corrective training.  Always apply company policies consistently and fairly: don’t single out certain individuals for bullying behavior while ignoring others.

California’s cell phone law (Vehicle Code section 23123), effective July 1, 2008, makes it unlawful to drive a motor vehicle while using a wireless telephone (cell phone) unless the driver uses a hands-free listening and talking device.  A companion law, also effective July 1, 2008, forbids anyone under the age of 18 to drive while using a cell phone, period.   In light of these new laws, should employers forbid all employees from talking on their cell phones while driving on the job?  Must employers furnish their 18-plus employees with cell phone headsets? 

According to the Assembly Committee on Transportation’s report, the main reason for this legislation is to encourage driving with two hands on the steering wheel.   Although studies show drivers remain distracted to a certain degree while talking on cell phones, even with two hands on the wheel, the legislature acknowledges the safety benefits associated with using cell phones, such as reporting road hazards, stranded motorists, and car accidents.  Accordingly, the new law attempts to strike a balance for certain cell phone use while driving (unless under the age of 18 as discussed below).  Section 23123 prohibits drivers from using cell phones unless they are using a hands-free listening and talking device, such as an earpiece, headset, speaker phone or even Bluetooth technology.  Any such hands-free listening device will suffice.

Section 23123 does not apply to persons using a cell phone for emergency purposes, to emergency services professionals, nor to persons using digital two-way radios that operate by depressing a push-to-talk feature while driving a truck (requiring commercial class A or B driver’s license to operate), farm vehicle, or tow truck.   Nor does the law apply to anyone driving a motor vehicle on private property.

A violation of this new cell phone law in California is an infraction punishable by a base fine of twenty dollars ($20.00) for a first offense and fifty dollars ($50.00) for each subsequent offense.  

Teens Talk at their own Peril:   Minors are forbidden from driving while using any one of a multitude of electronic items including cell phone, even if equipped with a hands-free cell phone device.  The prohibited list includes cell phone, pager, two-way messaging device, laptop computer with mobile data access, specialized mobile radio device, or broadband personal communication device, unless for emergency purposes, such as an emergency call to a law enforcement agency, health care provider, fire department, or other such emergency services agency.   Violation of this law is an infraction punishable by a base fine of twenty dollars ($20.00) for a first offense and fifty dollars ($50.00) for each subsequent offense.  Unlike the ban on handheld cell phones, however, a law enforcement officer may cite a teen for a suspected violation of this law only in connection with another suspected driving offense – meaning law enforcement officers cannot stop a vehicle for the sole purpose of determining whether the driver is violating this law.

Sensible Employer Actions:  Employers should update their company handbooks and other policy pertaining to employee driving and cell phone use.  Obviously, the safest policy would be to prohibit all cell phone use – hands free or otherwise – unless in an emergency.  Employers probably do not want to find themselves in the unenviable position of having to justify the lack of such a policy if an employee causes a traffic collision while talking on a cell phone about work-related matters or while driving on the job, even if using a hands’ free system.

With this increased focus on the manner of work-related driving, employers should also ensure they have updated copies of employee drivers’ licenses and insurance policies for those employees whose jobs require them to drive on company time.

 Along with each paycheck, California law requires employers provide a written itemized statement containing nine pieces of information about that payment:

(1) Gross wages earned;
(2) Total hours worked (except salaried exempt employees);
(3) Piece rate units and rate, if applicable;
(4) All deductions, including taxes, disability insurance, and health and welfare payments (deductions ordered by the employee may be aggregated and shown as one item);
(5) Net wages earned;
(6) The inclusive dates of the pay period;
(7) The name of the employee along with his or her social security number (last four digits only) or an employee identification number;
(8) The name and address of the legal employing entity; and
(9) All applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

 These payroll laws are intended to prevent workers from being cheated on their pay.  Intentional failure to provide this payroll stub data entitles the employee to recover all actual damages or up to $50 for the initial pay period in which a violation occurs and $100 per employee for each violation in a subsequent pay period, up to a total of $4,000, plus costs and reasonable attorney’s fees.

 The Division of Labor Standards Enforcement (DLSE) provides an example of an itemized wage statement (pay stub) as required by California law for an employee paid an hourly wage (http://www.dir.ca.gov/dlse/PayStub.pdf) to reflect the January 1, 2008 requirement that the itemized statement may only show the last four digits of the social security number.

“Reverse discrimination” is a variant of religious discrimination.  Reverse discrimination means a plaintiff asserts the employer wrongfully discriminated against him/her because plaintiff did not adhere to the employer’s religious beliefs.   In reverse discrimination cases, the plaintiff claims religious discrimination based on the religious beliefs of the employer, and the fact that the employee does not share those beliefs.  The plaintiff claims his/her lack of adherence to the religious beliefs promoted by company management was what led to the unlawful discrimination the plaintiff later faced.  To establish this claim, plaintiff has the burden of proving all of the following: (1) plaintiff was subjected to some adverse employment action; (2) at the time the adverse employment action was taken, plaintiff’s job performance was satisfactory; and (3) plaintiff can show some additional evidence to support the inference that the employment action was taken because of a discriminatory motive based upon plaintiff’s failure to hold or follow his/her employer’s religious beliefs. 
 
In Venters v. City of Delphi, the plaintiff was able to prove she was wrongfully discriminated against based on this theory of “reverse discrimination.”  Plaintiff’s supervisor gave plaintiff a bible and other religious materials and then told her she would no longer work at that company unless she started going to church and following God’s way.  The supervisor asserted plaintiff practiced incest and bestiality and she should commit suicide.  Plaintiff asked supervisor to stop but he continued making similar statements.  After her termination, plaintiff sued for religiously motivated discharge.   
 
The court noted that her claim was not that her employer refused to accommodate her religious practices, but that her employer discharged her because she did not measure up to her supervisor’s religious expectations.  Plaintiff’s supervisor didn’t simply share his religious beliefs with her; instead he made it clear if she did not conform to those views she would be discharged.  The court determined under these circumstances of religion in the workplace, the plaintiff need only show that her perceived religious shortcomings played a motivating role in her discharge.   The court concluded plaintiff had a right to work without being compelled to submit herself to her supervisor’s religious scrutiny.