Cal/OSHA Increases Enforcement

The heat is on as “Cal/OSHA” (California Division on Occupational Safety and Health [DOSH]) announced last week that it will step up illness prevention measures through the summer months.

Marking the first day of summer, Cal/OSHA Chief Ellen Widess’s press release cautioned that the agency “will be out there across the state, ensuring that all employers are complying with the heat standard. These basic requirements—adequate water, shade, rest breaks, training and emergency procedures—can mean the difference between life and death to protect the most vulnerable employees working outdoors.”

Last year, Cal/OSHA ramped-up heat illness prevention requirements for days over 95 deg. F. for five specific industries including agriculture, construction, landscaping, oil and gas extraction, and transportation and delivery services dealing heavy equipment and material. These include sufficient supplies of water, time for rest and close supervision by managers.

The agency plans to enforce these rules using “statewide traveling heat sweeps [and] local district actions when temperatures soar and workers are at greatest risk.”

For more information, including training materials, visit the Cal/OSHA website at www.dir.ca.gov/DOSH/HeatIllnessInfo.html or the Water. Rest. Shade. campaign site at www.99calor.org/campaign/.

For legal assistance in ensuring Cal/OSHA compliance for your business, contact an attorney specializing in California employment law.

“Tip Credit” Law Not Valid in California

The food industry is prone to violations of some very unforgiving minimum wage and overtime compensation rules. For example, some restaurant owners and managers mistakenly presume they can pay employees less than the hourly minimum wage ($8.00/hour in California; $7.25 federal law) if workers can make up the rest in tips. While many states recognize such “tip credit,” California does not.

California Labor Code Section 1194 empowers employees to sue for company failure to pay minimum wage and overtime. No agreement to work for less is valid.

“Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.”

Correction and prevention are obviously preferred to dealing with a lawsuit. If you are California employer with potential minimum wage or overtime issues, contact an experienced employment attorney for help.

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.

Preventing the Summertime Blues
(‘Cause There Ain’t No Cure…)

Hiring a teen under age 18 involves some essentials:

1. Familiarity with Applicable Laws: Review federal and state laws on teen employment — especially the rules on what types of jobs teens are not allowed to perform. Many small businesses, and especially those just starting out, aren’t sure what’s required of them, or where to look for help. The information available through the U.S. Department of Labor and an on-line search for “__________ child labor laws” should be helpful.

2. California’s On-Line Information Resources: The California Department of Labor Standards enforcement has a special website devoted to this state’s rules on minors and employment. The site’s summary is particularly helpful: http://www.dir.ca.gov/dlse/MinorsSummaryCharts.pdf.

3. More Stringent State Laws Apply: The federal Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, recordkeeping, and child labor rules affecting full- and part-time workers in most of the private sector nationwide. An employer must also comply with any more stringent state laws that apply. For example, while federal child labor rules do not require work permits, many states do require them, including California. Also, the rules will vary depending on the age of the minor worker and his or her duties.

4. Hours and Age Restrictions: For minors (under 18) employed in non-agricultural jobs, federal restrictions include:

– Minimum age is 14.

– Youth 16 or 17 may perform any non-hazardous job for unlimited hours when school is not in session and outside school hours when in session.

– Unless it’s the family farm, youth 14 and 15 years old may only work in non-manufacturing, non-mining, non-hazardous jobs. They cannot work more than three hours a day on school days; or more than 40 hours per week when school is not in session.

– During the school year, 14- and 15-year-olds may not work before 7:00 a.m. or after 7:00 p.m. The cut-off time is extended to 9:00 p.m. when school is not in session (summer).

5. Safety Regulations: Whether or not minors are on the workforce, an employer must ensure its working environment complies with applicable safety regulations. A small business’s best starting point is probably the federal Occupational Safety and Health Administration’s (OSHA’s) website: www.osha.gov/smallbusiness. Check out the “Compliance Assistance Quick” Start section which helps new small businesses understand the rules and find the right resources. Dozens of private suppliers also sell OSHA compliance materials. Also review the applicable sections for the California OSHA (“Cal OSHA”) site.

6. Resources for Workplace Safety of Minors: “Young Workers” is a helpful government site with information on summer job safety for specific sectors, including construction, landscaping, parks and recreation, lifeguarding and restaurants. Under landscaping, for example, you’ll find tips on preventing injury from pesticides, electrical hazards, noise and many others. (www.osha.gov/SLTC/teenworkers)

7. Resources for Restaurant Safety of Minor Employees: Restaurants rank especially high among industries at risk for teen worker injuries. OSHA has a website devoted to such restaurant safety, covering serving, drive-thru, cooking, delivery and others aspects of the business. (www.osha.gov/SLTC/youth/restaurant/)

Labor law regulations vary depending the industry and type of job a minor is hired to perform. Before you assign a job to a minor, contact an experienced California employment law attorney to ensure you do so lawfully.

Inquiries are Limited to Job-Related Skills and Qualities

While a manager’s “gut instinct” might work when choosing which candidate to hire, it might not. Employing an individual who makes a seemingly great first impression in an interview but who turns out to be a dud or hell-on-wheels once in the stress of the working environment can be a very expensive mistake.

Pre-employment testing on job-related qualifications and capacities, conducted within the limits of the various disability discrimination laws, California’s privacy protections, and other applicable requirements can help employers better understand and predict the physical abilities, mental acuity, temperament and communication skills of their job candidates.

The applicable law includes:

(1) The federal Americans with Disabilities Act (ADA) and its California counterpart, the Fair Employment and Housing Act (FEHA), prohibiting discrimination against those with physical or mental disablities;

(2) California’s strong constitutional and other legal protections against private business’s intrusion into personal privacy;

(3) California’s prohibition against political “coercion” in the workplace;

(4) California’s prohibition on the use of lie detectors “and similar tests or examinations”; and

(5) The federal and state laws prohibiting discrimination in employment on the basis of “protected classifications,” including gender/sex, race, color, national origin, religion, age (40 or more years old), and several others.

In essence, a hiring company must ensure its pre-employment testing regimen limits inquiry to a candidate’s abilities and traits directly related to the job and working environment at issue. Employers cannot ask irrelevant and improper questions about an applicant’s personal life or his or her otherwise unknown membership in a protected classification, including, for example, race, national origin, sexual preference, religion, or mental or physical disability.

Of course, clear-cut application forms and policies on employment screening, hiring, training and a regular review of any testing line-up with the help of an experienced labor and employment attorney are common sense.

Employment sex or gender discrimination arises from treating male and female employees with comparable skills and in comparable jobs differently. Personnel decisions must be made on the basis of skills and other job-related qualifications. Unless a person’s sex is a job requirement (e.g., locker room attendants in a sports club), choosing to hire, discipline, fire, train, promote or make any other major employment decision based on an individual’s gender is unlawful. Thus, for example:

• Hiring/Firing/Promotions: With the exception of obvious examples such as locker room attendants or medical assistants, an employer should take care to avoid decisions to hire, fire or promote founded on a consideration that the company’s long-time clients might be more comfortable dealing with men or with women. Hair stylists or flight attendants are good illustrations. In such an instance, laying off an employee not of the supposedly preferred gender, but with a good track record and more seniority over co-workers of the other sex, could lead to trouble.

• Pay: A company must pay female employees the same as their male counterparts working in similar positions with comparable work experience. Thus, paying a newly-hired male employee more than a female employee who has worked longer at the same or similar position could also create a discrimination claim. See also, The Equal Pay Act.

• Benefits: Employers must provide comparable health insurance benefits to all employees regardless of gender. Of course, if available, pregnancy coverage only applies to females. However, if a business provides any sort of paid benefit to female workers to help cover newborn childcare, the company should also provide such benefits to male workers similarly caring for his child.

While the term “sexual harassment” is not found the text of “Title VII” (the nickname for United States Civil Rights Act of 1964), the federal (and state) courts have consistently held for decades that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are potentially forms of unlawful gender discrimination. Annoying sexually based conduct generally becomes unlawful sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment or is so intimidating, hostile or offensive that it unreasonably interferes with an individual’s work performance.

If management receives an employee complaint of sex/gender discrimination or observes an actual or possible gender-based discrimination or harassment situation, consultation with an attorney who specializes in employer representation is a good idea.

Employer Precautions

There is very little more precious to an individual than his or her employment. For management and personnel directors facing poor economic times, there is probably very little more difficult than ending a productive worker’s relationship when the company simply can no longer afford to carry that position.

Handling that final meeting with a departing employee can be a manager’s diplomatic challenge akin to negotiating the end of a marriage or other major international conflict. Faced with the intense personal pride a person commonly derives from gainful employment, managers can fumble a layoff by either being too personal with — or too coldly removed from — the outgoing employee in the transition.

Where the manager fails to walk the fine line of credibly conveying the economic realities that have forced the layoff decision while appropriately acknowledging the departing individual’s worth, that manager may be deeply motivating that worker to find some ground, any ground, for a large legal claim to “get even.”

Layoffs of a significant percentage of a company’s workforce raise the stakes and probability that one or more suits may follow suit. For example, law firm Seyfarth Shaw’s 2009 Annual Workplace Class Action Litigation Report found that the 2008 financial meltdown caused a sharp jump in workplace class action litigation, especially age discrimination and Worker Adjustment and Retraining Notification (WARN) Act claims. (WARN is a federal law applicable to companies with 100 or more employees, requiring minimum advance notice and other opportunities to workers slated for layoff.)

It is thus important for a company planning to lay off any number of employees to take effective precautions that should limit potential wrongful termination and discrimination claims. These include:

● Document a Methodology for Selection: Management should establish a sensible and consistent system for business-based selection of individuals to be let go. Guidelines that seek to balance seniority with objective indicators of employee performance are a common approach.

● Develop a Viable System for Performance Appraisals: Management should thus create and consistently conduct performance evaluations that are as objective and impartial as possible. See also, “Grading Employee Performance ” A company that has been able to compile such evaluations is almost certainly better equipped to deal with the difficult selection process of who must go in the event of a significant business downturn.

● Maintain Accurate and Relevant Job Descriptions: A system for performance evaluation will have limited value unless accompanied by thorough, updated, and clearly stated descriptions of the duties, prerogatives and required products/results for each position in the company. Layoff decisions based on relative, objectively evaluated proficiency in each person’s well-defined post should be very difficult to challenge as unlawfully discriminatory against a particular gender, ethnicity, age, etc. Such criteria are of course also useful in hiring, compensation and promotions.

Experienced labor counsel can provide further valuable guidance on the often delicate task of company layoffs.

Photo: Dorthea Lange, 1932

Breaking the Language Barrier

A company catering to English-speaking clientele may implement appropriate English-only rules and language fluency requirements in the name of customer service. However, such employers must ensure that such policies are fairly and only applied for business-based reasons. For example, declining to hire an individual who speaks English proficiently with an unfamiliar accent might well open the company to employment discrimination claims and liability.

Federal and state laws prohibit discrimination based on national origin, including a person’s ancestry, birthplace, culture, or surname associated with a particular ethnicity. As an employee’s accent is generally associated with national origin, turning down an employment application (or terminating a person’s job) on that basis alone could be unlawful.

Any workplace linguistic requirements must be truly necessary for employer’s conduct of business. The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces the U.S. laws prohibiting discrimination, considers language proficiency requirements legal if such fluency is actually required to effectively perform a particular job position or skill. Blanket fluency requirements that do not distinguish the higher proficiency skills that might apply to some jobs, for example customer service representatives, and the lower skills expected of other positions, e.g., warehouse workers or other manual laborers, would likely be subject to challenge.

These standards of course apply for fluency requirements in other languages. A business with a predominant number of Spanish-only speaking customers can require employees who interact with such public to speak fluent Spanish. If such employees are also expected to communicate effectively and efficiently with managers and executives who only speak English, the company could legitimately require those employees to be bilingual.

Some instances that may not be clear cut. A manager may judge an employee’s accent to be so thick and unintelligible that it in effect amounts to an inability to speak the English customers are accustomed to speaking. Yet, if asked, many customers might disagree, claiming they can understand and converse with that worker perfectly well. Thus, that manager’s judgment would be to some degree subjective and thus subject to discrimination charges.

For assistance in steering clear of language-based national origin discrimination at your business, contact a seasoned employment law lawyer.

Nice Idea, But Don’t Promise

The wisdom of implementing a progressive discipline policy – imposing ever greater consequences upon an employee’s repeated misconduct – would seem a personnel management no-brainer. After all, it’s only fair to give an errant but largely productive employee a second or third chance. It would also be poor judgment for management to impose termination, the workplace equivalent of the death penalty, for a first-time minor infraction.

However, implementing a guaranteed and mandatory progressive discipline procedure would create two significant difficulties.

First, such dictated policy contradicts “at will” employment status. “At will” means that either employer or employee may terminate their relationship at any time, for any lawful reason or for no reason at all, with or without advance notice. However, promising workers unconditionally a progressive series of steps of escalating discipline before management could terminate can destroy any “at will” status. Now, an employer would actually have to have a verifiable, just cause to lay off a worker.

Second, a required progressive discipline policy could protect a gross first-time offender from a deserved termination while threatening the safety and security of the remaining workforce. For example, a “no exceptions” progressive discipline policy might protect a worker who commits a violent act causing serious injury from immediate and deserved termination, exposing the rest of the staff to repeat offenses from that individual.

To prevent these harmful consequences, management should specify that:

• its progressive discipline policy is a guideline only and that the company reserves the discretion to adjust the discipline to the offense, including instant termination for a grave first time violation; and

• nothing in the policy is intended or should be interpreted as modifying the company’s previously established “at will” employment relations with any of its staff.

An experienced employment attorney can of course assist on ensuring employee discipline policy and practice are fair to all concerned.

See also, Oh No You Didn’t! Wrongful Termination of At-Will Employees.