New Employment Eligibility Verification Form I-9

All U.S. employers must complete and retain a Form I-9 for each individual hired for employment in the U.S., including citizens and noncitizens. Revised August 7, 2009, the new Form I-9 includes an updated list of acceptable documents that employees must present upon hiring. The new form includes a note that all documents presented to establish identity and/or ability to work in the U.S. must not be expired. The new Form I-9 and new U.S. Citizenship and Immigration Services (USCIS) Handbook for Employers are available online at http://www.uscis.gov/i-9.

In addition, as of September 8, 2009, federal contractors and subcontractors must use the E-Verify system operated by the U.S. Department of Homeland Security in partnership with the Social Security Administration. The E-Verify system compares Form I-9 document information against federal government databases to verify employment eligibility. Other employers may also use this verification system.

For more on the E-Verify system please visit the USCIS website at http://www.uscis.gov/portal/site/uscis.

If you have any questions on these or any other employment laws, please contact me or any of our other employment law attorneys. Best wishes, 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.

Oddly enough, an employee may walk off the job and then sue his/her employer for wrongful termination. Even though the employer did not technically fire the employee, the issue is whether employee rights permit that resignation to be treated under California law as a “constructive discharge.”

Per the key California Supreme Court case defining and analyzing constructive discharge, Turner v. Anheuser-Busch, an employee must prove, by the “more likely than not” (preponderance of the evidence) standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable person in employee’s position would be compelled to resign.

Employees are required to notify someone in a position of authority of their plight so that employers unaware of any wrongdoing may correct a potentially destructive situation that may be affecting workplace rights. Mere existence of illegal workplace conduct does not, without more, make employment conditions intolerable to a reasonable employee.

Also, the adverse working conditions must be unusually aggravated or amount to a continuous pattern before the situation will be deemed “intolerable,” such as a repeat pattern of discriminatory acts. Conditions, such as employment discrimination or workplace harassment must be sufficiently extraordinary and wrongful to overcome the normal motivation of a reasonable employee to remain gainfully employed.

An employee cannot simply “quit and sue” claiming his or her reasons to quit were automatically tantamount to being constructively discharged. The proper focus is on whether the employer coerced the employee’s resignation, not whether it was simply one out of a number of viable options for the employee.

June 15, 2009

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.

Flexibility Added to California Alternative Workweek Schedule

California law authorizes an alternative work week schedule (AWS) of workdays exceeding eight hours without overtime pay if certain criteria are met. Classically, an alternative work schedule will be four 10-hour days, with three days off. Health care offices are common candidates for an AWS. Such flexible alternative work schedules require full advance disclosure to affected employees and the affirmative vote of at least two-thirds of those employees in a secret ballot election before performance of the work.

Effective May 21, 2009, California Assembly Bill No. 5 amended this law (Labor Code section 511) to permit an employee to opt-out of an AWS passed by the majority of his/her co-workers. This allows such worker to retain a regular five 8-hour days per week schedule. The bill also authorizes employees, with the consent of their employer, to move on a weekly basis from one work schedule to another on the adopted menu of work schedule options.

In addition, the California Division of Labor Standards Enforcement (DLSE) issued a March 23, 2009 opinion letter (online at http://www.dir.ca.gov/dlse/opinions/2009-03-23.pdf ) stating that under some circumstances, an alternative workweek schedule may be in place for only part of the year, for example rotating between a schedule of four 9-hour days and one 4-hour day during the summer months and five 8-hour days during the rest of the year.

Employers must still follow the detailed provisions of the California Industrial Welfare Commission (IWC) Wage Orders (online at http://www.dir.ca.gov/iwc/wageorderindustries.htm) when implementing or revising alternative workweek schedules and should consult with legal counsel about this and applicable California overtime laws before doing so.

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

Sexually Harassed Victim Unable to Sue Individual Supervisors for Retaliation/Wrongful Termination

A recent California federal court ruling confirmed that company supervisors are not individually liable for retaliatory acts. Sarmas v. County of Stanislaus, et al. October 26, 2009 Westlaw 3489425 (Eastern District California).

According to Stanislaus County’s Sheriff’s Department (Department) employee Valine Sarmas, Sheriff Christianson’s sergeant Pedro Beltran sexually harassed her on two incidents in September and October 2008 during which he made unwelcome physical advances, insisted she drive him to a strip club, kissed, bit and groped her in her car, and showed her cell phone videos of him having sex with another coworker. Days after the September incident, Sarmas learned a Department lieutenant was aware of Beltran’s conduct and was investigating the matter further. Beltran himself then contacted Sarmas, voicing his concern that he would be fired and asking Sarmas what she intended to say in the investigation. She responded she would tell the truth.

On January 20, 2009, Sarmas called 911 for assistance when a man came to her front door, verbally harassed her and her friends, and made various threats. The police arrested that suspect. On February 2, 2009, the Department’s Internal Affairs informed Sarmas she was being investigated on rumors that the man arrested at her home in January was a gang member and her boyfriend. Then on March 2, 2009, the Department fired Sarmas despite having given her an excellent performance evaluation the week before. The reason for her termination was “administrative decision.”

Sarmas’s lawsuit for violations of the California Fair Employment and Housing Act (FEHA) alleged that her termination was “retaliation for bringing Beltran’s conduct towards her to the attention of Internal Affairs and Sheriff’s Department command staff.”

The individual defendants, Sheriff Christianson and Sergeant Beltran filed a motion to dismiss the retaliation cause of action, contending that as a matter of law Sarmas was unable to sue them as supervisors for retaliation/wrongful termination under California law. The district court agreed, ruling that Stanislaus County (Sarma’s employer) was the only proper retaliation defendant as settled by the California Supreme Court’s ruling in Jones v. Lodge at Torrey Pines Partnership (2008) 42 California Reports 4^th 1158.

Disagreeing with two appellate court cases and a federal Ninth Circuit case to the contrary, the Jones court had ruled that only an employer can be liable under FEHA for firing someone in retaliation and not individual supervisors.

In a footnote of its Jones ruling, however, the Court stated it was only addressing alleged retaliation by firing, demotion or other major deprivation of benefits. It left open whether a supervisor might be personally liable for retaliating against an employee by harassing that individual. One or more future decisions may deal with that issue.

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

The California Computer Professional Exemption

Under California law and Wage Orders, a “computer professional” is exempt from overtime compensation if he or she is “highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.”

In addition, he or she must be primarily engaged (51%-plus of the time) in:

• work that is intellectual or creative, requiring exercise of discretion and independent judgment; and
• performing one or more of these duties:

1. Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
2. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; and/or
3. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

Exercise of “discretion and independent judgment” means entrusted with comparison and evaluation of possible courses of conduct relative to his duties and with the authority to make an independent choice among the alternatives, free of immediate supervision. Someone who mostly follows specified “paint by numbers” procedures does not qualify for the exemption.

The California computer professionals’ exemption has no requirement for any particular academic degree and there is no licensure or certification requirement. Furthermore, job titles are not determinative of the applicability of this exemption.

There are several types of computer workers who are not eligible for the exemption:

• trainees and workers at entry-level positions;
• employees not skilled enough to work independently and without close supervision;
• employees engaged to operate, manufacture, repair or maintain hardware;
• engineers, drafters and machinists using computer-aided design software, including CAD/CAM, but not in a systems analysis, programming or any other similarly skilled computer-related occupation;
• writers creating box labels, product descriptions, setup and installation instructions, or content material to be read by customers or subscribers or visitors to computer-related media (including the internet or CD-ROM); or
• employees creating imagery for effects in the movie, television or theatrical industry.

Effective on September 30, 2008, amended Labor Code Section 515.5 extended the exemption to salaried employees whose annual and monthly salaries are not less than statutorily specified rates, which the California Division of Labor Statistics and Research (DLSR) is responsible for adjusting every October 1^st of every year, effective January 1^st the following year (online at http://www.dir.ca.gov/DLSR/statistics_Research.html).

During 2009, the minimum monthly salary for the exemption for 2009 is $6,587.50 and the minimum annual salary is $79,050.00. DLSR states it should issue the 2010 minimum monthly and annual salaries for the computer professional exemption in the next one or two weeks.

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

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.