Mandatory Paid Leave for Organ and Bone Marrow Donors

For some time now, state employees have been given paid time off for organ and bone marrow donations by law. Beginning in 2011, this is now mandatory for private employees as well. Effective immediately, employers with 15 or more employees must provide paid leave to employees for organ donation and bone marrow donation whether or not such employees have used up available sick leaves.

Here some of the key elements of the new law that employers need to know.

• The employee’s group health coverage must be maintained during the leave;
• The leave period—30 days for organ donation and five days for bone marrow donation—is the maximum allowed per year. The law does not specify whether or not the year must be calculated as a calendar year or rolling year basis;
• Such leaves of absence are not required to be done at one time but can be taken intermittently;
• The employer has the right to ask for written documentation from a doctor stating the employee’s involvement as well as the procedure’s medical necessity;
• The employer may not interfere, discriminate or retaliate against an employee’s leave rights;
• Upon returning to work from such a leave of absence, the employee must be restored to the same position or an equivalent position i.e. equivalent salary, benefits, etc.;
• The employee must continue to accrue sick leave, vacation, seniority during the leave period and any other rightful benefits of the employee;
• The employer can require that the employee use accrued sick or vacation days if available at the time of the employee’s leave. The employer may credit all five days for the bone marrow donation leave and up to two weeks for organ donor leave;
• Employees may file a lawsuit against their employer, seeking monetary and injunctive relief, for any violation of this statute, published as sections 1508-1513 of the California Labor Code.

To prevent any mishandling of these new leave rights, they should be added to your employee handbook as soon as possible. If you have questions about employees seeking leave for bone marrow or organ donation, consult a labor or employment attorney.

Maximize Ability to Manage by Written At Will Employment Agreements

“At will” means either employer or employee can terminate or quit the relationship at any time, with or without notice and with or without a reason. That’s usually a good thing for an employer since it maximizes the company’s ability to make employment decisions. The law generally presumes an employee is employed at will unless he or she can prove otherwise, usually through oral statements the employer made. So why bother with written employment agreements for at-will employees?

Here’s why. Let’s say Company X woos job applicant Sam, a hotshot salesperson. During the hiring process, Sales Manager Marty assures Sam that his job with Company X “will always be secure” and Sam could work with the company “as long as he wanted to.” Sales Supervisor Susan also assures Sam that he would be fired “only if his sales record consistently tanked, which she doubted would ever happen to a superstar like Sam.”

Sam accepts the job offer. Several years later Company X reorganizes its sales division and lays Sam off. Having never signed an at-will employment agreement, Sam now sues Company X for breach of contract.

A well-drafted written at-will employment agreement would have avoided this lawsuit. Thus, to protect the right to fire at will, companies should simply require employees to sign an at-will statement in the employment agreement. At-will statements can and should ideally be repeated in the employment application and in the employee handbook acknowledgment form.

To avoid any subsequent disputes after the employee signs such statement(s), the employer should also ensure it does not act in a way that could contradict the at will nature of the employment agreement, including making any oral assurances or promises of continued employment.

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

New Requirements for Unpaid Internship Programs

Internship programs can promote a business or industry to ambitious students looking for experience and items on their resumés. However, a company must comply with several rules in order to exempt such interns from minimum wage laws.

An April, 2010 opinion letter from the California Division of Labor Standards Enforcement (DLSE) provides updated guidelines for qualifying intern programs. The letter upheld the unpaid “trainee” initiative of Year Up, Inc., a non-profit organization placing disadvantaged young people in the IT industry for 6-month internships. The DLSE listed six factors:

1) The intern’s training actions with the company are similar to those a student would carry out in a vocational school;

2) The training is for the benefit of the trainee;

3) The trainee does not displace regular employees, but works under close observation;

4) The company derives no immediate advantage from the activities of the trainee and on occasion its operations may actually be impeded;

5) The trainee is not necessarily entitled to a job at the completion of the training period; and

6) The employer and the trainee understand that the trainee is not entitled to wages for the time spent in training.

The California DLSE states that if a company’s program does not meet all of these conditions for a given intern, that person should be considered an employee subject to both state and federal wage and hour laws.

Employer’s Obligations to Prevent Discrimination and Other Unlawful Employment Practices

In a recent case before the California Fair Employment and Housing Commission (FEHC), paralegal Robin Williams alleged her former employer, Lyddan Law Group, was liable for hostile work environment harassment and discrimination on the bases of race, religion and sex. She also asserted Lyddan retaliated against her because she protested these alleged wrongful acts. Acting on her behalf, the California Department of Fair Employment and Housing (DFEH) also alleged the employer failed to take all reasonable steps to prevent the discrimination and harassment from occurring. DFEH v. Lyddan Law Group, FEHC Case No. E-200607-A-1082-01-rs.

In an October 2010 decision, the FEHC found the employer was not liable for the harassment, discrimination and retaliation claims but was responsible for failing to take all reasonable steps necessary to prevent such discrimination and harassment. The Commission found the employer did not have a written anti-harassment policy, did not conduct trainings for its managers or employees in harassment or discrimination prevention, and did not have an employee handbook. Also, rather than conducting a neutral, independent investigation into Williams’ claims, the employer accused her of “slander.”

The decision serves as an important reminder for all employers to properly train supervisors and employees on preventing workplace harassment, discrimination and retaliation and on how to properly respond to such allegations.

Policies to Keep Your Business in the Fast Lane

Depending on the magnitude of the error, business owners and managers who discover they have been underpaying workers for travel time could be suddenly afflicted with the equivalent of extreme motion sickness.

Hourly employees must be paid for all “hours worked.” Depending on the circumstances, an employee can be considered experiencing a “working hour” even when in deep unconsciousness or obnoxious intoxication in seat 36C, Flight 363 Los Angeles to New York. Where an employee is required to travel for work, near or far, the employer must compensate the worker for that time. Exceptions are normal commute time or road trip downtime, e.g., meals or entertainment. Thus, an hourly worker who boards that New York flight for business is earning pay for his or her hours on the plane except the time spent taking a meal.

Unless there is a clear agreement (and it should be in writing) setting a special, reduced “travel rate,” the compensation is at the employee’s normal hourly rate. In no event should any hourly rate of pay be less than the minimum, currently $8.00 in California. That state’s daily and weekly overtime laws also apply to work-related travel days. Thus, that worker that spent a ten hour day flying to New York and then preparing for a meeting in the hotel room has eight straight time hours and two overtime hours coming to him or her.

Written workplace policy on the rules and obligations is of course the best policy here.

Workplace Misconduct Charges in 2010

The U.S. Equal Employment Opportunity Commission recently published its annual statistical report on unlawful workplace discrimination, harassment and retaliation charges. Individuals filed 99,022 complaints (“charges”) with the agency in 2010, more than in any of the EEOC’s 45 years of existence. The total is a 7% increase over 2009. Many complaints contain multiple accusations. Retaliation and race-based accusations top the 2010 list, comprising 65% of the total:

• Retaliation (36,258)
• Race discrimination (35,890)
• Sex discrimination (29,029)
• Disability discrimination (25,165)
• National origin discrimination (11,304)
• Religious discrimination (3,790)

The EEOC also reports it obtained in 2010 a record $404 million in employer payments for alleged misconduct. The agency also filed 250 lawsuits against employers nationwide last year.

The majority of the 31,000 harassment accusations submitted to the EEOC last year centered on race, national origin and religion, with 11,717, roughly one-third, based on sex.

The volume and increase of charges underscore the importance to employers and employees alike to know and apply clearly written workplace policies prohibiting all types of unlawful discrimination, harassment and retaliation, requiring reporting, and specifying prompt and fair internal investigation procedures to resolve any such allegation.

Wrongful Termination of At-Will Employees

Theory is one thing, practice another.

In theory, “at-will” employment means neither employer nor employee are obligated to continue the relationship for any period of time. Either may terminate for any reason or for no reason at all, with or without advance notice.

In practice, some company executives and personnel managers are sometimes surprised that “at-will” employment status does not give them a supposed water-tight prerogative to fire a problem employee regardless of circumstances. An employer can let an at-will employee go for no reason or any legal reason, but of course has no right to fire an individual for an illegal reason. For example:

Discrimination Protections – The federal Civil Rights Act of 1964 made it unlawful for employers to terminate any employee due to race, gender, skin color, religion, or national origin. More recent state and federal laws protect against employment discrimination due to age, mental or physical disability, pregnancy, marital status, sexual preference, medical condition, genetic traits, and several other bases.

Worker’s Compensation Protections – Businesses cannot and should not fire an employee for filing, or for announcing an intention to file, a workers’ compensation claim for an injury he or she claims was sustained on-the job.

Whistleblower Protections – Employers cannot retaliate against an employee who reports alleged misconduct, law violations, or unsafe conditions in his workplace, either internally or to a public regulatory or enforcement agency.

Contractual Protections – Businesses sometimes have written policies specifying required disciplinary or termination procedures. Companies must follow those rules or be open to a wrongful termination claim from a disappointed former worker.

Employing Big Eaters, High Rollers and Voyeurs Unusual Mental Disability Claims on the Horizon?

Sarah, the company receptionist, is often away from the front desk during her work hours. Her supervisor, Jane, begins looking through Sarah’s time clock records and notices Sarah also has been taking extra long lunches without authorization. Jane concludes that Sarah should be fired for failure to comply with the company’s work schedule.

The day before human resources pulls her in to terminate her employment, Sarah provides Jane with a note from her psychiatrist stating she has been diagnosed with “binge eating disorder.”

Can the company legally fire Sarah as planned? What if Sarah never notified the company of her “binge eating disorder” before the company terminated her employment? What if her supervisor suspected Sarah had an eating disorder but Sarah never said anything along these lines? Could her supervisor have raised the issue?

Instead of the above facts, what if Sarah says she has a “gambling addiction” which is why she’s often late to work Monday mornings after her Vegas benders? Or she says she has a “hypersexual disorder” and is compelled to view computer porn at her desk?

Believe it or not, the American Psychiatric Association’s draft edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), scheduled to be completed in 2013, currently proposes adding all three of these “excesses” to their already long list of psychiatric disorders.

New disorders broadening the classification of mentally disabled people could later pose a problem for unwary employers. However, inclusion of supposed disorders in the DSM listing does not automatically make them legitimate disorders under the Americans with Disabilities Act or its state counterparts. This is because the term “disorder” is defined differently in each of these contexts.

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

Is There a Wrong or Right Way to Complain?

Kevin Kasten says he complained to his employer Saint-Gobain Performance Plastics Corporation about an improper location of the company time clock and that the company illegally retaliated against him as a result.

Saint-Gobain says it could not have retaliated against Kasten as his protest was only verbal, not written, and thus did not count as a “complaint.”

After the local court decided for the employee and the appeals court decided for the employer, the Supreme Court of the United States will have the final say. The highest court’s decision could deeply impact how employees complain and how employers and HR managers respond to such concerns.

The problem comes from apparent contradictions in the law. The original 1938 federal Fair Labor Standards Act established that any communication from an employee to a supervisor about possible violations was a “complaint” that gave the U.S. Department of Labor authority to investigate. Later laws specified that such complaints must be made in writing.

For more information and updates on Kasten v. Saint-Gobain Performance Plastics Corporation, including audio of the recent oral arguments, check out the official Supreme Court website.