California’s Labor Codes do a lot to protect employees but there are some laws that benefit employers as well. For instance, unless a company and an employee agree otherwise, their relationship is presumed to be “at-will.” As defined, this means there is no promise or obligation of continuing employment. Either the employer or employee may terminate the working relationship at any time, for any legitimate reason or no reason at all, and with or without advance reason.

Thus, employers can potentially strengthen their protections against lawsuits for so-called “wrongful termination” by consistently defining the employment relationship as “at-will” in written agreements, company policies and verbal communications with employees. This includes everything from job announcements and interviews to employee handbooks, training seminars and employee reviews. Knowledgeable employers also strength employee’s “at will” status by avoiding references in written agreements and policies that promise or infer indicate job security or permanence.

There are of course “illegitimate” discriminatory reasons for which an employee may not be disciplined, terminated or denied benefits. In these instances, “at will” employment status is no justification. For instance, a company may not terminate an employee due to his or her race, gender or any other classification protected by law.

The ins and outs of at-will employment policies can sometimes be subtle. An experienced labor law attorney should be able to help.

July 27, 2011

California’s Department of Labor Standards Enforcement website explains that a non-union employer has full discretion: a) to close the business on any holiday; b) to give employees the day off for any particular holiday; or c) to pay employees taking a holiday off. In this state, hours worked on holidays are not considered differently from any normal work day. Thus, as long as no overtime is involved, the law does not require any extra rate of pay for holiday work.

Union employees may have special terms under collective bargaining agreement. Many employers may provide (and thus must provide) holiday pay by policy but, again, it is not a legally required benefit.

Contact an experienced employment law attorney if you would like assistance issuing a policy covering time-off and pay for holidays.

July 8, 2011

Keeping Up with Changing Employment Laws

A recent California Employer Daily article touches on an important employment law subject — the unanticipated pitfalls HR managers and employers face, including from the shifts and refinements in the state and federal leave laws.

Key leave laws—the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA)—only apply to businesses with 50 or more on payroll.  However, other leave rights apply to far smaller companies.  For example, California’s pregnancy leave rights apply to businesses with five or more employees.  Full time and part time workers apply in the calculation of total employed.

Whichever leave laws apply, employers should be cautious about strictly enforcing employment policies that limit employees’ unpaid leaves of absence.  For example, some businesses carry policies that permit employees to take a specific amount of additional time off without pay after using up a medical or family leave under FMLA or CFRA.

As we have reported previously See “Say ‘ADAAAAHHH!’”, employers are obligated under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA) to explore reasonable workplace accommodations for disabled workers.  Thus, a disabled employee might successfully challenge the above set-maximum leave policies on the ground that such strict application does not constitute an attempt at reasonable accommodation. Thus, employers should consider revising such “additional leave” policies to permit case-by-case examination and flexibility.

An experienced employment lawyer will be able to assist you in developing such legally-sound workplace policies.

24 June 2011

June 24, 2011

How Old is Legally “Old”?

While many might recognize that business cannot use “age” as a criterion for employment decisions, including hiring, promotion, discipline or termination, the federal and California protections actually only apply to persons “of a certain age.” Workers under 40, the relatively “young,” do not have such rights. Employees aged 40 or over, considered legally “old,” are protected.

Federal age discrimination protections – including the Age Discrimination in Employment Act of 1967 (ADEA) — also only apply to companies with 20 or more on payroll. This is different than most other federal workplace anti-discrimination laws (race, gender, religion, etc.) which apply to businesses with 15 or more employees. See, e.g., Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

All California’s workplace anti-discrimination law – the Fair Employment and Housing Act (FEHA) — applies to employers with five or more on payroll.

According to the federal Equal Employment Opportunity Commission (EEOC), ADEA protections include:

– Apprenticeship Programs – Employers with apprenticeship/internship programs should not restrict qualified applicants over age 39 from participation. Only in rare circumstances when age is shown to be a “bona fide occupational qualification” (BFOQ) may an age limit be included. For example, a bar serving alcohol can legitimately restrict under-age apprentices or interns;

– Job Notices and Advertisements – It is generally unlawful to include age preferences, limitations or specifications in job notices or advertisements. For example, it is generally not a good idea to promote that “youth” or any particular age-range is a condition for hiring. Again, only in those uncommon settings were age is a valid BFOQ may an age limit be included;

– Pre-Employment Inquiries – Similarly, except where a certain age range or age limit is a legitimate BFOQ, an employer should not request age information from job applicants. Asking for a person’s age could be seen as evidence of an employer’s intent to discriminate. However, a company can obtain such information after hiring as long as the data gathering is not selective and is needed for a lawful purpose, for example insurance coverage.

– Benefits – The federal Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA to specifically prohibit employers from denying benefits to older employees. However, as the cost of providing certain benefits to “older” workers (40 or over) is sometimes greater, Congress did include an exception. Employers may reduce benefits available to older workers as long as the cost is no less than the cost of benefits available to younger workers;

– Special Waiver Requirements – A company can offer a departing worker extra “severance pay” in exchange for that worker’s written promise never to bring a legal claim against that business or its management (a “release and waiver”). However, such a waiver must comply with specific requirements in order to validly release ADEA claims. The waiver must:

• be in writing and be understandable
• specifically refer to ADEA rights or claims
• not waive rights or claims that may arise in the future
• be in exchange for valuable consideration in addition to anything of value to which the individual already is entitled
• advise the individual in writing to consult an attorney before signing the waiver; and
• provide the individual at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

This article is only a general overview of federal and California workplace age discrimination laws. A knowledgeable employment law attorney should be able to guide personnel management through the perils and pitfalls of this sometimes very sensitive area.

June 10, 2011

California Employers Must Carry On-the-Job Injury Insurance

California businesses must carry workers’ compensation insurance for every employee, even just one. Group or personal health insurance is not a substitute.

Workers’ compensation is oldest social insurance program in the U.S., adopted by most states in early part of the 20th century. The coverage is intended to ensure employees receive swift and sufficient medical treatment for on-the-job injuries and job-related illnesses. It is a “no-fault” insurance, i.e., it does not matter whether the employment-related accident or sickness was the due to the employee’s inattention, an unsafe workplace condition, or an act of God, the coverage applies.

Workers’ comp insurance provides six basic benefits: medical care, temporary disability benefits, permanent disability benefits, supplemental job displacement benefits, vocational rehabilitation, and death benefits.

Non-California employers may need to carry workers’ compensation for workers who are regularly employed in California or whom entered an employment contract here.

An employer may purchase workers’ compensation insurance from any of the privately licensed insurers authorized to write policies in California. A list of authorized insurers can be found on the California Department of Insurance website.

If you are a business owner or manager with questions about the legal requirements of workers’ compensation, contact an experienced employment law attorney.

Additional Resources:

Employer Rights Blog Article (Dec 30, 2010): “New Workers’ Compensation Regulations in California”

California Division of Workers’ Compensation homepage

California Division of Workers’ Compensation FAQ

Photo: The Library of Congress

May 27, 2011

The Equal Employment Opportunity Commission (EEOC) has issued its final rule, effective May 24, 2011, implementing the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The agency’s directive seeks to cement the ADAAA’s expanded scope of workers protected against disability discrimination.

The original ADA (1990) defines “disability” as: a) a physical or mental impairment that substantially limits one or more major life activities; b) a record of such an impairment; or c) being regarded as having such an impairment. The EEOC’s final rule supplies guidelines on how ADAAA will bring a larger number of persons under the ADA’s protections. For instance:

• Previously, an employee needed to show that he is “severely restricted” from carrying out one or more major life activities (e.g, walking, talking, eating) to qualify as “disabled” under the law. Now, a worker needs only to demonstrate he or she is “substantially limited” compared to most people;
• Certain impairments are now almost always to be found to impose “substantial limitations” by definition, including, but not limited to cancer, autism, HIV/AIDS, cerebral palsy, multiple sclerosis, muscular dystrophy, diabetes, epilepsy, intellectual disabilities (formerly called mental retardation), major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia;
• The determination of whether an impairment substantially limits a major life activity requires an individualized assessment (as was true prior to the ADAAA);
• With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the correcting or helpful effects of mitigating measures, such as medication or hearing aids; and
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

The new EEOC rule thus directs the inquiry more toward whether there was a discriminatory act and away from fine points on whether the worker’s condition fits the strict definition of disability. The rule of thumb is to always base personnel decisions on sound business factors with “management radar” on high alert when dealing with such decisions concerning persons saddled with physical or mental impairments.

A knowledgeable employment law attorney can and should assist in understanding what precautions to take.

May 24, 2011

A strong policy prohibiting harassment and discrimination is worth little if an investigation over a complaint is badly handled. Among the important rules:

Don’t Delay – Failing to start or complete an investigation promptly creates a potential claim that the company condoned the alleged misconduct, thus increasing the risk of a legal claim;

Ensure no retaliation – Employees have the right to complain over perceived wrongful or unfair workplace conditions and should not be criticized, marginalized or disciplined for doing so. Retaliating against a complaining worker is a separate basis for a lawsuit, even if the employee had no basis for speaking up. Of course, falsifying information in a complaint is a disciplinary offense;

Investigator’s Only Agenda is a Competent, Fair Process and Result – The person responsible for handling the investigation should have no personal stake in the parties or the outcome. Obviously, assigning the alleged harasser’s closest friend in the workplace as investigator is a disaster by definition. The investigation must include the opportunity for the accused to fully address all assertions made as well as the accuser to respond to potentially relevant information obtained from the accused and others;

Document, document, document – The investigatory and management should compile and maintain a thorough investigatory file on the matter. It should include: (1) a copy of the original complaint; (2) detailed notes of each interview; (3) the name of each witness, whether that person was interviewed, and if not, why not; (4) any notes or documents provided by any participant in the investigation; (5) a final report summarizing findings and conclusions; and (6) planned follow-up monitoring;

Make a determination and communicate the results – The investigation should result in a clear written determination of the validity of claims based on the credible facts obtained. An investigator has the ability and obligation to judge such credibility as objectively as reasonably possible. Management should monitor and confirm the fairness of the process prior to release of the results. Key elements of an investigative report include:

• The time of, and information regarding, the initial complaint
• A summary of the allegations of the case
• A summary of the interviews conducted and documents compiled and reviewed, including credibility assessments
• A summary of the investigator’s factual findings; and
• A statement of the recommended remedial action, if any.

Follow Up – Check in periodically with the complaining employee to ensure there has been no further harassment or discrimination and that there has been no retaliation and obtain that person’s written confirmation of the information supplied.

It is also sound practice for company management to include capable legal guidance through the entire process.

April 22, 2011

More on Accommodating Employees’ Religious Beliefs

As our planet’s civilizations and cultures continue to combine and intertwine, the importance of workplace respect for diverse religious backgrounds also grows. For the increasing number of business owners and managers that seek to include or permit religious prayer sessions or other observances on the work premises, an understanding of an employer’s obligations to reasonably accommodate the practices of diverse religious backgrounds is vital.

We have recently covered an aspect of accommodating religion in the workplace. Accommodating Religion in the Workplace: Avoid the Employment Discrimination Gallows. Employer sponsored or permitted prayer sessions or observances can present other, similar issues. Among probable best practices are:

• Written policy or notices should be clear that attendance is optional. Participation or non-participation will have no impact on an employee’s status. Individual attendance at such events should not be noted;
• Policy should also provide any employee with an immediate, direct means for reporting in writing and for promptly resolving any instance where that worker perceives any sort of inappropriate imposition of religion against him or her in the workplace;
• If company communication systems are used to send out notices about a company-approved or permitted religious meeting (email, notice boards, etc), employees should be able to promote other, similar types of events via those same systems; and
• If the members of one religion can hold spiritual meetings or study sessions on company property, then policy and practice should permit the employee/adherents of other religions the same opportunity and under the same standards. It is common sense that such sessions should be outside working hours and that no such activity should be permitted to disrupt the company’s production or any worker’s ability and access to perform his/her work duties.

Religious practice in the workplace can be a complex, sensitive topic. Consult an experienced labor law attorney for assistance in implementing policies concerning the issues.

April 8, 2011

Some Workers Must be Paid for Waiting

Patience is a virtue, but it may also be a business cost. Depending on the circumstances, a company may be required to pay an hourly employee waiting for the call to come to work. California and federal law recognize the various distinct situations:

– On-Premises Standby: An employee required to remain on a business’s premises after-hours to protect against crime or potential emergencies must be paid for all such time. This is true even if the worker is idle. Where any working hours count as daily or weekly overtime, care must be taken to ensure the proper compensation rate such extra hours. There are sometimes complicated formulas that come into play here.

– Uncontrolled Standby: An on-call employee required to respond to an employer’s request return to work at any time, 24/7, but not restricted in any manner on off-work activities, response time, or location does not need to be paid as he or she is not considered under the control of the employer for those wide-open standby hours.

– Controlled Standby: On the other hand, if an employee’s activities or location are sufficiently restricted during the off-hours, the employer is considered to have control of the employee and, therefore, must pay for the waiting time. Such “controlled standby” restrictions include: (1) geographical restrictions on employee’s movements; (2) required response time; (3) required readiness standards (no degree of alcoholic consumption for instance); and (4) the extent the employer’s policy would otherwise impact on personal activities during the on-call time (for example, no travel to a zone where there is no cell phone coverage).

There are other factors once a worker is contacted for work during his or her off-hours. For instance, a business must compensate an hourly employee for all time spent responding to an off-hours question or emergency via phone, text, email, or other communication channel. In California, once an employee arrives to the business facility for work, “reporting time” requirements kick in and a minimum of 2 hours of pay is required.

These are just some of the basics. Seek a knowledgeable employment lawyer for more detailed question and answer.

March 25, 2011