California Employers’ Obligations

It has been said that death and taxes are the only two sure things in life but man, those people ought to cheer up. After all, you don’t even get to all that “death is inevitable” drivel without love (hopefully), sex (rock & roll optional), pregnancy and childhood. California supports the pregnancy part with some of the most protective workplace leave laws in the nation.

California’s Pregnancy Disability Leave (PDL) law requires any employer with four or more persons on payroll to provide a worker up to four months of unpaid leave for her pregnancy, delivery and newborn care. Pregnant employees have those rights even if they must go out on such leave within days of taking on new employment. These protections extend to full time and part-time workers alike.

Among other features:

● Employers may require a doctor’s written confirmation that the employee has become medically disabled due to a pregnancy—unable to perform her job duties—before granting such leave;

● Employers can also require the worker utilize any deserved sick pay during that leave;

● The pregnant worker can take that leave in increments or on a part time work schedule;

● Employers may transfer a pregnant woman who has requested a reduced work schedule to another position, as long as the employee’s benefits and pay remain the same and the position demands the same skill set; and

● Except in very limited circumstances, the employer must provide the worker her former position or an equivalent one on her return from leave.

The California Department of Fair Employment and Housing website states “all employers must provide information about pregnancy leave rights to their employees and post this information in a conspicuous place where employees tend to gather. Employers who provide employee handbooks must include information about pregnancy leave in the handbook.” The State of California issues a pamphlet it suggests can be used to provide the required pregnancy leave rights information to individual employees.

Most employment agreements typically contain an arbitration clause. This requires that any employment-related dispute that cannot be resolved by direct communication or other informal means is to be arbitrated instead of going to court. Arbitration is a form of private dispute resolution that takes the place of a lawsuit and court trial.

Arbitration has many business-related advantages, including a process much more efficient than the often-prolonged procedures of the courts. Thus, employers naturally favor this alternative. The key is ensuring the terms of the arbitration are enforceable.

Many employers make the mistake of providing an “arbitration clause” in employment applications or contracts without attention to the very specific requirements of California and/or other applicable law. If a court finds that the arbitration agreement is so one-sided in favor of the employer as to be “unconscionable” (i.e., there is no equal bargaining power, no meaningful choice and the terms are grossly unfair to the employee), the court can refuse to enforce the arbitration clause.

Moreover, the applicable California law on unconscionable arbitration agreements continues to change, with major Supreme Court decisions on the subject over the last several years.

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.

Hiring Help the Right Way

Families can sometimes have some very expensive misconceptions about California’s rules for hiring a private, live-in caregiver. For starters, it is never a good idea to have verbal “handshake” agreement to compensate through a combination of money, housing and/or meals. Common mistakes include:

• Presuming the caregiver fits the California definition of “personal attendant” when not all elements are stated in writing or are not actually met in practice (www.dir.ca.gov/iwc/WageOrders2006/iwcarticle15.html at “Definitions,” section 2(J));
• Paying a caregiver less than minimum wage (currently $8.00/hour in California), even if he or she “agrees” to a lower rate of compensation (no such agreement is enforceable);
• Subtracting the “market value” of housing and/or meals when calculating the caregiver’s compensation. California Wage Order 15, section 10 defines the value of housing and meals below market value for live-in caregivers (www.dir.ca.gov/iwc/WageOrders2006/iwcarticle15.html);
• Failing to keep accurate records of hours worked and time off. Should a caregiver file a wage claim (including any possible overtime pay), written time records could be crucial;
• Assigning a caregiver as an “independent contractor” to avoid the minimum wage (or any overtime) obligations. It is unlikely that a full time caregiver could be classified as an independent contractor, even if there is a written agreement in place. This is because the hiring family member will almost certainly want to retain control over how the caregiver accomplishes his or her work. That right to control and direct will likely classify the caregiver as an employee no matter how the parties seek to label the relationship.

Thus, pertinent words to the wise include:

• Define in a written agreement the terms of the caregiver’s employment, including duties and compensation. That agreement should specify the relationship is “at will,” meaning the caregiver can resign or be released from employment at any time, with or without cause or advance notice. It is also a good idea to specify that a live-in caregiver will vacate the premises promptly when employment ends;
• Pay the caregiver at least minimum wage for all “hours worked,” defined by law as any time an employee is “suffered or permitted to work.” In other words, all time the caregiver is on duty; and
• Have the caregiver maintain a written log of all hours worked with the caregiver confirming in writing its accuracy each day.

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.

The 411 on Email and Texting Policies

With the prevalence of workplace email and texting, businesses should consider publishing sound written policies on expected etiquette and on management’s ability to access and monitor such electronic communications. For lack of such guidelines and rules, employees should not be left with the impression that their privacy rights extend to the content of emails or texts utilizing company equipment.

Key elements of such policy include:

• Employee Privacy – There is no reasonable expectation of privacy for the information stored on computers or other devices owned by the company. Further, management should have the right to review any such information at any time;
• Ownership of Information – Any information stored or transmitted a computer, mobile device, etc. owned by the company is property of the company; and
• Acceptable Usage: Employees may only use e-mail or texting on company devices for company business. Communications should be professional and respectful and not degrading, insulting or bullying.

Of course, it is a good idea to require each worker to sign an acknowledgment that he or she has received such written policy and understands his/her obligations to read, duplicate and comply with it.

No Picnic for Employers Who Don’t Know the Rules

While California businesses are not legally required to provide paid vacation days to their employees, there are important rules when this benefit is offered. In this state, there is no “use it or lose it.” The fancy first year law school term means that paid vacation is an “accrued benefit.”

Thus, a written policy simply providing a full time worker “one week paid vacation” each calendar year will mean that the employee who doesn’t bother taking that time off for, say, ten years is going to have ten weeks of pay coming to him or her.

As vacation benefit “accrues” throughout an annual cycle, a worker who ends employment in the middle of that year will have earned his or her proportionate share of the full annual benefit. An employer who neglects to pay that proportionate amount on the employee’s departure will be subject to a penalty of as much as one month’s wages.

The solution is a written paid vacation policy that specifies a maximum amount a worker can accrue (for example, 18 months of benefits). Such a policy will direct the worker to utilize paid vacation, after which the benefit can begin accruing again up to the specified limit.

Among other things, a decent written vacation policy should also specify the advance time required for a worker to request and coordinate his or her time away.

California law treats sick pay benefits differently. That’s the subject of a future article. Please contact us to answer the more detailed questions.

EEOC Investigates Discrimination Against the Unemployed

A recent trend in on-line job ads has caught the attention of the federal Equal Employment Opportunity Commission (EEOC). That agency is holding hearings at their Washington D.C. headquarters today on why some businesses are choosing to exclude the unemployed from consideration for job openings.

Lines like “must be currently employed” or “no unemployed candidates will be considered” have been appearing on on-line job listings and websites, enough to warrant the EEOC’s attention. Apparently, the businesses running such ads would contend they are justified on the presumption that individual joblessness stems largely from performance problems rather than the slumped economy. While this is not overtly aimed at any particular sector of the unemployed (e.g., racial minorities, women, the disabled), the inquiry will focus on whether this practice has the effect of such unlawful discrimination on the basis of race, color, national origin and the like.

While the unemployed are not a class protected against discrimination per se, there is not necessarily a correlation between being out of a job and the ability to perform one. As such, it is probably best to steer clear of such language when seeking out a new hire.

Sounding the Alarm on Off-The-Clock Work

We are lawyers, not magicians. Yet, we have received perhaps more than our share of requests to turn back time. If only that employer client could have it all back, to start out the right way on workplace timekeeping and compensation practices.

While we cannot put the proverbial toothpaste back in the tube, we can offer some tips on avoiding future wage-and-hour litigation disasters stemming from accusations that a company required or allowed employees to work off-the-clock without paying them.

1. Understand the difference between “exempt from overtime” and “non-exempt” and ensure your human resources department is properly classifying employees. A disproportionate number of salaried, supposedly “exempt” workers means there are probably errors in need of attention;

2. You MUST pay non-exempt employees for ALL hours worked, even if management did not ask for the time to be spent or even if the work was against management’s directions. The solution is appropriate discipline for violating applicable schedule and timekeeping rules, not to withhold pay;

3. So that employees are on clear notice of those rules, ensure your handbook includes written policies that establish:

– Workers are to keep standard work schedules and not to start early or stay over without management’s written authorization;

– Off-the-clock work is not permitted;

– Employees must log their working hours accurately;

– Employees who violate hours and timekeeping policies will be disciplined;

– Likewise, managers who authorize such violations, including off-the-clock work, will be disciplined; and

– Employees need not fear retaliation for reporting any such violations;

4. Maintain written timekeeping records – either hard copy and/or computerized – that require non-exempt employees to legibly and honestly document their own daily start, meal break, and departure times and, for each pay period, to verify in writing the accuracy of their report; and

5. Ensure management is uniformly enforcing these policies and practices.