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.

California Businesses Must Reimburse for Employment-Related Use of Personal Vehicles, Phones and More

A California employer must reimburse the expenses its workers “necessarily” incur as part of their jobs (Labor Code Section 2802). On the other hand, a business generally has no such obligation for an employee’s costs that enables him or her to appear for work.

For example, a company is required to pay a worker for his/her use of a personal car for work-related purposes (travel to and from a business meeting) but not for commuting to or from the job. An employer would have to reimburse an employee for covering the expense of food and drink served at a scheduled, required staff meeting. However, a business does not have to pay a worker for his/her grocery bill even though eating meals would likely enable that person to perform more efficiently on the job.

Of course, an employee’s cost of operating his or her car for job-related actions is not limited to the fuel required. Insurance and maintenance are also included. Yet, an attempt to fairly apportion each such item of operational expense could become an administrative nightmare. California practice simplifies the process, recognizing that employers meet their obligations to reimburse business-related related use of a worker’s vehicle by paying the acceptable rate for the mileage thus traveled. The published current federal IRS mileage rate is the commonly accepted measure.

As long as a company provides such mileage reimbursement, that company will normally not be considered responsible for an employee’s damage to or loss of his/her vehicle during that such business-related operations. The worker is expected to carry the requisite insurance and to cover repair or replacement costs with the aid of such mileage reimbursement.

California Labor Code 2802 is not limited to reimbursement for vehicle use. Employers must cover an employee’s “necessary” payment for business-related telephone and computer usage, internet connections, tools, office supplies, etc. An employer may also be obligated to pay a fair allocation of an employee cost to maintain his/her living space if a portion of that home or apartment is dedicated exclusively to perform employment duties.

This means that a policy that absolves a company from reimbursing an employee who failed to obtain advance approval for his/her payment of a necessary job-related expense is unenforceable and unlawful. A company can issue a policy requiring such pre-approval where advance requests are foreseeable, but the consequence for violation should be possible disciplinary action rather than non-payment of the monies spent.

Employers who fail to reimburse for legitimate job-related expenses are subject to legal action, including payment of the worker’s attorney fees and costs incurred in collecting such monies. California Labor Code 2802(c).

What is “necessary” does not usually include what can fairly be considered extravagant. Thus, employers can and should issue sensible policy and guidelines setting expense level standards, for example an acceptable range and maximum for repayment on hotel rooms, rental cars, etc. A worker that chooses to exceed such reasonable limits would then be on notice that he/she will have to personally cover that excess.

It is also within a business’s prerogatives to require adequate documentation of claimed work-related expenses and to decline payment for unsupported reimbursement requests. Obviously, such rules should be specified in written policy to limit the potential for later disagreements and successful legal claims.

An experienced employment law attorney can help draft the written guidelines that will properly balance a company’s required reimbursement when fairly due with the needed deterrence for irresponsible and excessive employee spending in the course of job performance.

Time Off Work for Illness is No Vacation, or Is It?

California businesses with 50 or more employees must comply with the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). For eligible employees, both acts are essentially “you will have your job waiting for you” laws. Neither FMLA nor CFRA provides for paid leave. However there are some circumstances where an employer may require a worker exercising such leave rights to expend available paid vacation benefits during his or her absence.

Each of these leave laws requires such employers to provide an eligible worker with a maximum of 12 weeks unpaid leave in a 12 month period. (FMLA also directs a covered employer to provide an eligible employee with up to 26 weeks of unpaid leave to care for certain relatives injured or ill in the course of military service.)

An employee is “eligible” for a FMLA or CFRA leave if: 1) he or she works at a site with 50 or more employees within a 75-mile radius; and 2) he or she has worked for that employer for 12 months or more (need not be consecutive) and at least 1,250 within the past year. While the rules can be involved, an eligible employee may take a FMLA or CFRA leave for his or her own “serious medical condition” (as defined by law), for the care of a family member or domestic partner so afflicted, for pregnancy-related disability (FMLA only), or for bonding with a newborn or adopted child.

Paid vacation time to employees is not a requirement in California. However, the practice is common as it usually promotes worker morale and productivity. Once a business provides such a benefit, it is subject to certain rules. See, Vacation Pay in California, No Picnic for Employers Who Don’t Know the Rules. With clearly stated written policy, a company may also require employees to use such vacation benefit during an otherwise unpaid FMLA or CFRA leave, but only in certain situations.

Federal law establishes the general rule. An employer “may require the employee to substitute accrued paid leave for unpaid FMLA leave…. [as] determined by the terms and conditions of the employer’s normal leave policy.” See, 29 Code of Federal Regulations (CFR) section 825.207(a), Substitution of Paid Leave.

However, if the subject employee taking such a leave qualifies to receive disability benefits (for example, if he or she is eligible to receive paid California’s State Disability Insurance [SDI] for a serious health condition), then “neither the employee nor the employer may require the substitution of paid leave.” 29 CFR section 825.207(d).

On the other hand, employer and employee may agree to use such accrued vacation benefits to supplement amounts received under state disability. For example, state-insured and provided disability pay might only replace up to two-thirds of an employee’s salary. In that case, that worker and his or her employer can agree to apply accrued vacation benefits to make up the difference.

As situations and circumstances can be varied and complex, seeking the assistance of qualified legal counsel to assist on creation and application of appropriate FMLA/CFRA leave policies is of course a good idea. It is also good practice for employers to review the workplace policy manual regularly to confirm compliance with applicable federal and state regulations.

Basic Rules and Rates for Weekly or Daily Hours

California requires employees who are not “exempt” receive overtime pay for time worked beyond forty hours in any one workweek or after eight hours in a workday.

A “workweek” is any seven consecutive days, starting with the same calendar day each week beginning at any hour on any day, so long as it is fixed and regularly occurring. It is thus a fixed and regularly recurring period of 168 hours, seven consecutive 24-hour periods.

A “workday” is a consecutive 24-hour period beginning at the same time each calendar day, but it may begin at any time of day.

California’s overtime (“premium”) rates range from 1.5x to 2.0x an employee’s regular rate of pay. “Regular rate” is generally that worker’s total compensation for the workweek (including wages, piecework pay, bonuses and commissions) divided by the number of working hours in that week. In no case may the regular rate of pay be less than the applicable minimum wage.

The rules include:

● Hours worked over 40 hours in a workweek are compensable at 1.5x regular rate;

● Hours worked over eight, but less than 13, in a workday are also compensable at 1.5x regular rate;

● Hours worked over 12 in a workday are compensable at 2.0x regular rate;

● The first eight hours worked on the seventh consecutive day in a workweek are compensable at 1.5x regular rate; and

● Hours worked over eight on the seventh consecutive day in a workweek are compensable at 2.0x regular rate.

These are some of the basic rules. There are many other applicable laws and regulations an employer must also grasp and apply. For instance, an employer may establish different workweeks for different employees, but once an employee’s workweek is established, it remains fixed regardless of his or her working schedule.

California also provides detailed rules for workers who qualify for exemption from overtime pay. See, e.g., “California’s Exemptions from Overtime”, “Administrators and Overtime Pay in California”; “The California Administrative Exemption”; “The California Executive Exemption”; “Is Your Commissioned Inside Sales Representative Exempt From Overtime?” and “The California Computer Professional Exemption.”

Navigation through and compliance with California’s overtime standards is best accomplished with the help of experienced legal counsel.