Same-Week Makeup Time in California

California is one of a minority of states that requires higher pay for daily overtime, after eight hours of labor. This could discourage companies from permitting employees to make up time taken for important engagements by adding hours onto another day’s work. However, following certain guidelines will permit a worker to work past the eight hour threshold to make up time without requiring the business to pay the higher overtime compensation rate:

• The makeup time cannot be for more than 11 hours on any workday or for more than 40 hours in a workweek;

• The makeup time must be in the same workweek as the day in which the employee took the time off;

• Normally an employee must provide the employer with a signed, written request for each occasion that he or she desires to make up time. However, if an employee knows that he or she will be requesting makeup time over several weeks on a recurring basis, the employee can ask to make up the missed work time for up to four weeks in advance;

• A business is free to inform employees of the makeup time option, but cannot encourage or otherwise solicit workers to do so; and

• The employer may not make the makeup time a condition of the employee’s request for time off.

It is of course vital that the parties keep accurate time records that clearly designate extra hours that are makeup time paid at the employee’s normal rate and those that are paid at the overtime rate.

For assistance implementing a workable makeup time system in California, contact a attorney specializing in that state’s labor law.

Best Practices for Fair and Equal Employment

In our richly diverse society, it is perhaps no surprise that national origin workplace discrimination claims have been increasing steadily across the country since 2001.

It is unlawful for business to make a significant employment decision – e.g. hiring, advancing, demoting, or firing – based on a worker’s country of origin, culture, accent, ethnicity or assumed ethnicity. For example, an employer is prohibited from only hiring applicants born in the United States.

Other instances of unlawful workplace actions prohibited by U.S. Civil Rights Act of 1964 (as known as the “Title VII” law) as interpreted by the courts:

• Discrimination based on citizenship: Unless required by law, it is unlawful to hire only U.S. citizens or lawful permanent residents.

• Harassment: Supervisors, co-workers, company clients and customers may not create a hostile, oppressive environment for an employee based on his/her national origin, ethnicity, or accent.

• Language requirements: While employers may require “English-only” communication if that is necessary for the contact of business, a company may not impose that requirement for employee breaks or other off-periods. Also, an employer may not make employment decisions based on a person’s accent unless that accent significantly interferes with the function of a job.

Prevention is the best cure for any bad management habits. An experienced employment law attorney can advise on and help implement appropriate policy changes.

Photo: Ellis Island Photography Collection, New York Public Library

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

Re-Employment and Pay Requirements for Returning Service Members

Soldiers returning from active duty to civilian life are protected by a number of federal and state laws. This includes reservists and National Guard members.

Under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), it is unlawful for an employer to deny initial employment, reemployment, promotion, or any employment benefit because of the person’s obligation to perform military service.

According to the USERRA, returning service members are “required to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status, and pay, as well as other rights and benefits determined by seniority.” This is known as the “escalator principle” because the employer is obligated to keep the person in the seniority progression even though that individual is away on active military duty. USERRA also requires an employer to make significant efforts to train or retrain returning veterans to refresh or upgrade their skills.

Under the federal Americans with Disabilities Act, employers must seek to make reasonable accommodation for returning employees who have become disabled during their service. If the employer is unable to make reasonable accommodation for the person’s former position, the business is obligated to place him or her in another in another position for which the person is qualified or could become qualified. A disabled veteran also retains rehiring and placement rights for two years after his or her service ends.

These are just a few of the rules at play. State law may provide even more stringent requirements. An experienced employer rights attorney can help when management is confronting military leave issues.

A Workplace Lesson on Confirming Grounds for Termination

A hospital lab technician and army reservist sued his employer claiming two of his supervisors openly discriminated against him because of his military status and duties. The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) requires employers to treat military veterans fairly, prohibiting terminations and other major employment decisions motivated by a worker’s military status.

The reservist asserted his supervisors had voiced their displeasure with his military status with one of them intentionally scheduling him for work on his training weekends. He also claimed his supervisors issued groundless disciplinary warnings which ultimately and unfairly caused his termination by HR.

Although HR was not motivated by hostility regarding his reservist duties, he asserted the personnel manager (and thus the company) was the “Cat’s Paw” for the two supervisors. As the fable goes – sometimes wrongly attributed to Aesop — a monkey persuades a cat to grab roasting chestnuts from a fire which the monkey then eats (or steals), leaving the cat nothing except a burnt paw. Thus, the supervisor (monkey) purportedly asked the HR manager (cat) to issue the termination (chestnuts). HR and the company, unaware of the supervisor’s underlying discriminatory motives, get “burnt” when the HR manager approves the decision.

In Staub v. Proctor Hospital (2011) 131 Supreme Court 1186, the U.S. Supreme Court ruled that an employer can be liable under the “Cat’s Paw” theory if:

• A supervisor performs an act motivated by unlawful bias (in this case anti-military bias);
• The act is intended to cause an adverse employment action (in this case termination); and
• The act is a legal cause of that adverse employment action.

The Supreme Court decision expands the protections against workplace discrimination. Under these circumstances, HR’s lack of knowledge of the discrimination or a HR manager’s mistaken basis for a termination may no longer be relevant or controlling.

What should employers do now?

• Be on the alert for potential biases in supervisors;
• Institute and enforce formal complaint procedures directing employees to promptly report any supervisor’s wrongful conduct;
• Allow the employee being terminated a fair chance to present his or her side of the story;
• Before implementing a requested adverse employment decision, HR should confirm by objective evidence a supervisor’s asserted basis for the decision;
• Thus, avoid automatically signing off on a supervisor’s recommended adverse action, especially where such decisions are based on subjective criteria; and
• Train supervisors and managers on anti-discrimination and retaliation laws as well as how to properly communicate disciplinary action and job expectations.

It is of course also a good idea to seek knowledgeable labor and employment legal counsel to help management navigate potentially troublesome terminations.

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.

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.