Sarah, the company receptionist, is often away from the front desk during her work hours. Her supervisor, Jane, begins looking through Sarah’s time clock records and notices Sarah also has been taking extra long lunches without authorization. Jane concludes that Sarah should be fired for failure to comply with the company’s work schedule.

The day before human resources pulls her in to terminate her employment, Sarah provides Jane with a note from her psychiatrist stating she has been diagnosed with “binge eating disorder.”

Can the company legally fire Sarah as planned? What if Sarah never notified the company of her “binge eating disorder” before the company terminated her employment? What if her supervisor suspected Sarah had an eating disorder but Sarah never said anything along these lines? Could her supervisor have raised the issue?

Instead of the above facts, what if Sarah says she has a “gambling addiction” which is why she’s often late to work Monday mornings after her Vegas benders? Or she says she has a “hypersexual disorder” and is compelled to view computer porn at her desk?

Believe it or not, the American Psychiatric Association’s draft edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), scheduled to be completed in 2013, currently proposes adding all three of these “excesses” to their already long list of psychiatric disorders.

New disorders broadening the classification of mentally disabled people could later pose a problem for unwary employers. However, inclusion of supposed disorders in the DSM listing does not automatically make them legitimate disorders under the Americans with Disabilities Act or its state counterparts. This is because the term “disorder” is defined differently in each of these contexts.

If you have any questions, please contact me or any of our other employment law attorneys. Best, Cindy Bamforth.

Kevin Kasten says he complained to his employer Saint-Gobain Performance Plastics Corporation about an improper location of the company time clock and that the company illegally retaliated against him as a result.

Saint-Gobain says it could not have retaliated against Kasten as his protest was only verbal, not written, and thus did not count as a “complaint.”

After the local court decided for the employee and the appeals court decided for the employer, the Supreme Court of the United States will have the final say. The highest court’s decision could deeply impact how employees complain and how employers and HR managers respond to such concerns.

The problem comes from apparent contradictions in the law. The original 1938 federal Fair Labor Standards Act established that any communication from an employee to a supervisor about possible violations was a “complaint” that gave the U.S. Department of Labor authority to investigate. Later laws specified that such complaints must be made in writing.

For more information and updates on Kasten v. Saint-Gobain Performance Plastics Corporation, including audio of the recent oral arguments, check out the official Supreme Court website.

Tradition dictates year-end celebration and resolution. For an office’s annual party, should such a “celebration” include alcohol? If management’s answer is “yes,” then common sense ought to be applied to maximize the safety and well-being of all attending as well as the public. For example:

• Hold the event at a restaurant or other outside facility licensed to serve alcohol;
• Have a “no-host” bar with employees to buy their own alcohol (and with plentiful non-alcoholic drinks provided for free);
• If it’s to be an “open” bar, provide participants with a limited number of “drink tickets,” requiring them to purchase their own past that limit:
• Ensure a professional bartender is handling the purchases and distribution and has definite instructions on limiting service to the attendees;
• Serve food of course, thus avoiding the added intoxicating effect of an empty stomach;
• Serve food low in salt, avoiding the additional thirst potentially created;
• Hold the event within walking distance of the office and make arrangements for safe transportation home for anyone who needs it;
• Include a statement on the party invitation and/or circulate a written reminder to all concerned on the responsibilities to drink only in moderation and to avoid driving after imbibing; and
• Emphasize to management they are the example-setters at the event.

Another option would be to just not serve or provide the opportunity for alcohol at all while holding the event over a lunch time and with work to follow.

If you have any questions on employer liability in such circumstances, or on any other labor and employment matter, please contact us.

In our expanding world of regulation and – right or wrong – of widening political correctness, interviewing job applicants can be a precarious adventure.

The federal Title VII of the Civil Rights Act of 1964 prohibits discriminatory hiring on the basis of race, color, religion, sex/gender and national origin. Other federal and state laws bar employment discrimination the basis of physical or mental disability, age (usually 40 years-of-age or over), sexual orientation, marital status, pregnancy, medical condition, veteran status and other criteria.

Questions deemed directed at discovering an applicant’s membership in any such “protected category” can later become possible evidence of an employer’s discriminatory intentions. Thus, while any of these “getting to know you” queries may seem perfectly innocent, each of them is a potential problem in the event of a later government investigation or lawsuit:

• Are you married? Divorced? Single? Engaged?
• Do you have children?
• Do you plan to start a family?
• Do you own a home? Rent?
• Are you a citizen?
• What country do you come from?
• What is your maiden name?
• When did you graduate from high school?
• Been sick lately?
• Get that scar in the military?
• What are you doing over Christmas?

Questions to prospects that are clearly aimed at determining actual qualifications for the position applied for are usually within the rules.

Ensuring you have job application forms that fall on the right side of the law is, of course, important. We offer such forms as well as customized guidance on employment screening, hiring, training, terminations and other related issues.

Whether you’re starting a business or it’s been some years since you reviewed and updated your company’s employment forms and policies, contact us to see how we can help.

The National Labor Relations Board has stepped in to defend a worker terminated over disparaging remarks she posted on Facebook about her supervisor.

The NLRB asserts that employer American Medical Response’s firing decision — as well as its policies prohibiting employees from writing about the company on social media sites — violate worker free speech rights, including freedoms to publicly discuss workplace conditions.

The Connecticut company has defended its actions: “The employee was fired because of multiple, serious complaints about her behavior. The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”

The NLRB’s complaint is scheduled to be heard by an administrative law judge in January, 2011.

For more, see Company Accused of Firing Over Facebook Post [NY Times]

Terminating an employee is never high on a manager’s fun list. No doubt, it can be a delicate task. Firing an employee the wrong way can lead to a nightmare of expensive accusation and counter-accusation, destroying workplace production and executive morale.

Prevention is key. Two recent articles cover the topic nicely:

Top 10 Employee Firing Mistakes (AllBusiness.com)

Not Legally Required, But Legally Recommended (California Employer Daily)

Have questions or observations about employee termination? Submit a comment and we’ll get back to you.

Christians and Jews hold far from a “monopoly” on December as a major holiday month. Here is your end-of-the-year interfaith and cultural diversity line-up for 2010 (to the degree we could determine with a few Google searches):

Dec 1: Suijin-Matsuri – Shinto

Dec 2-9: Hanukkah – Jewish

Dec 7: Al-Hijra (New Year) – Islam

Dec 8: Bodhi Day – Buddhism

Dec 8: Immaculate Conception of Mary – Catholic Christian

Dec 12: Feast day – Our Lady of Guadalupe – Catholic Christian

Dec 12: Advent Fast Begins – Orthodox Christian

Dec 16: Ashura – Islam

Dec 16-25: Posadas Navidenas – Hispanic Christian

Dec 21: Solstice (Yule) – Wicca/Pagan

Dec 25: Christmas – Christian

Dec 26: Death of Prophet Zarathushtra – Zoroastrian

Dec 26-Jan 1: Kwanza – African cultural celebration

Dec 31: Oharai – Shinto

Dec 31-Jan 4: Maidyarem Gahambar – Zoroastrian

We suppose the “rap” on California is that a large enough office is likely to employ not only members of every group named above, but multiplicity of adherents to other spiritual groups and their equivalents, falling just short of the Church of Monday Night Football. In this state as in all others, employers must be particularly keen in December to the proper fielding of religiously based requests for time away from the office.

Under the federal Civil Rights Act, the California Fair Employment and Housing Act, and the equivalent laws of other states, businesses must seek to “reasonably accommodate” an employee’s religious observances (including, by-the-way, the sincere parallel observances of atheists and agnostics) unless any feasible approval of the request for time off results in “undue economic hardship” for the company’s operations.

The law states that such “undue hardship” need only be more than “minimal” (Latin: de minimus). However, there is also the practical aspect. Denying a request, no matter how extensive the disruption to the employer, could lead to a discrimination claim if not handled properly.

Moral, just in time for the holidays: When an employer is in doubt on whether to grant a religiously based request to be exempted from any workplace activity, it’s time to consult with a labor law attorney.

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.

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.