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.

Law Offices of Timothy Bowles
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.

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.

Law Offices of Timothy Bowles
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.

Law Offices of Timothy Bowles
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.

Law Offices of Timothy Bowles
March 25, 2011

Employee Discipline Policies

Then-New York Governor Teddy Roosevelt probably summed up politics, diplomacy, and personnel management with his line: “Speak softly and carry a big stick; you will go far.” Some suggestions:

Management is Part of the Solution, Not the Problem – In the face of reported misconduct, a personnel manager should always proceed in a manner in which he or she could take pride later. It is possible the report is false, misleading, or otherwise in error. Investigation should be fair and forthright. Unless, it’s a matter of some overt, observed threat to safety, the accused should have the opportunity to respond fully to any accusation before a decision is made on consequences.

Document, Document, Document: Document.

Policies Should Allow Discretion on Discipline – Employment contracts and workplace policies that strictly define the procedures that must be followed and the consequences that must result from specific offenses are too restrictive for anyone’s good. While policy should supply standards of conduct and rules for reporting, investigation and handling of misconduct, policy should also provide management the discretion to deal fairly with situations on a case-by-case basis.

For example, a company policy that promises only a warning for any first offense may be a problem when an employee’s first misbehavior is embezzlement or violence against another worker.

Consistent Handling of Reported Misconduct – Managers should strive to deal with similar situations similarly. If there are reasons why one employee received a harsher consequence than another for a similar offense, the reasons should be documented. See Document, Document, Document: Document section above.

Workplace discipline is never fun. It is even less so when management badly handles a matter, either too softly or too harshly. When in doubt, reach out. You usually can reach us at nearly the speed of light.

Law Offices of Timothy Bowles
March 11, 2011

As one never gets a second chance to make a first impression, many employers make it their business to specify a dress code policy, particularly for workers who regularly greet and work with the public. Setting such standards is a proper commercial practice of course, so long as management is well-trained on fielding good faith requests for reasonable accommodation based on religious beliefs or practices. See, March 4, 2011 article, Accommodating Religion in the Workplace, Avoid the Employment Discrimination Gallows.

Of course, some companies simply require uniforms. In a business office where employees choose their daily clothing, the dress code issue should balance the level of professionalism management wishes to convey to the public with common sense. For instance, a set of standards that is on the overly restrictive, micro-management side of the scale might adversely affect morale. On the other hand, a vaguely worded policy that permits “casual” could be misread as condoning “sloppy.”

Dress code policies can cover any limitations on hair styles, jewelry, and “body art” as well as specify a higher level of professional appearance on particular occasions, for example public gatherings and presentations. It is also proper to spell out management’s option to request a clothing change in the event an employee comes to work in a style or manner out of synch with the intended standard.

For help creating workable, legal employee policies, contact us about our signature handbook and forms.

March 4, 2011

Sexual harassment rightfully gets the bulk of attention when drafting prevention and reporting policies or training employees on proper workplace conduct. However, managers should not stop there. In California, there are as many as ten other types of harassment claims that businesses must do everything reasonably possible to prevent.

Workplace “harassment” can be broadly defined as any behavior that a person would find sufficiently threatening or disturbing to affect his or her ability to perform on the job. California’s Fair Employment & Housing Act (FEHA) and related federal laws protect employees from unlawful harassment and discrimination on the basis of a worker’s age (40 years old and over), color, religious creed, disability (physical or mental), gender, medical condition, national origin, race, marital status (e.g, married, divorced), genetic profile, and sexual orientation.

Harassment comes in many shapes and sizes. For example:

• Verbal or written: Comments about a person’s appearance, personal behavior or body; jokes about a person’s religion, sexual orientation, etc.; telling rumors about a person’s personal life; threatening a person;
• Nonverbal: Looking up and down a person’s body; derogatory gestures or facial expressions; following a person;
• Physical: Threatening harmful contact (assault); impeding or blocking movement; inappropriate touching of a person or a person’s clothing;
• Visual: Posters, drawings, pictures, screensavers or emails of an offending or demeaning nature.

Under the FEHA and other employment laws, California employers can be liable for encouraging or condoning unlawful workplace harassment. Both the law and common sense dictate that a business take all reasonable precautions to prevent workplace harassment as well as quickly and fairly properly investigate and resolve any such complaint within the office.

For help with discrimination or harassment claims against your business or for any employment law related matter, please contact us.

Law Offices of Timothy Bowles
February 25, 2011