It would seem too obvious to have a policy that workers must show up in order to keep their jobs and to be paid. Perhaps it is, but it’s still not a bad idea to issue clear written directives expecting attendance, specifying work days and working hours, and setting procedures for employees to notify the business when they are unable to keep the schedule.

The policy should provide examples of reasonable, legitimate circumstances for absences, including illness or family emergency. Some companies also specify bonuses for wellness, i.e, consistent attendance and productivity.

Some basic elements are:

• Employee work hours – Define a work day, including the times for start, meals, and ending work. Define the schedules for each shift if the company has more than one. The policy should also inform workers of their rights to take paid breaks;

• Define lateness – Be clear about what constitutes lateness (including any few “buffer zone” minutes) and the procedure for notifying a manager if one is going to be late;

• Family Medical Leave Act (FMLA) (federal), California Family Rights Act (CFRA) – A business with 50 or more employee must comply with these laws and should have written policy covering qualifications for such leaves and the applicable procedures.

• Pregnancy Leave: A California business with five or more employees must provide unpaid leave benefits for pregnant women and new moms. Written policy should describe the requirements and procedures compatible with the law;

• Leave of absence – A company that chooses to provide unpaid leaves of absence should of course issue policy on the criteria and other rules;

• Discipline and consequences – The policy should also specify the company’s ability to decide the consequences for attendance policy violations. The standard should not be set out in stone, i.e., a business should not specify some set discipline for an infraction since circumstances are almost always going to vary. It is of course a given that an employer’s disciplinary actions cannot discriminate on the basis of gender, older age, and the host of other protected classifications.

For assistance in creating a workable, legally sound attendance policy, contact an employment law attorney.

State Supreme Court Issues an Employer-Favorable Decision in a “Mixed Motive” Case

In February, 2013, the California Supreme Court decided that even where illegal discrimination (e.g., racial, gender, age, religion) was one of a number of motivating factors in terminating a worker, the employer will not be liable for damages if it can show the business would have fired that person in any event for non-discriminatory reasons.

Wynona Harris v. City of Santa Monica was the Supreme Court’s long-anticipated decision in a “mixed motive” case, where a defendant employer is found to have terminated someone for improper, discriminatory reasons as well as legitimate business purposes.

Ms. Harris was a newly hired bus driver for the city. She had a rocky start, including two accidents and two unexcused latenesses or no-shows. Under the city’s point system, termination was warranted.

While her supervisors were deciding whether to fire Ms. Harris over these offenses, she announced she was pregnant, a circumstance protected against discrimination by California’s Fair Employment and Housing Act (FEHA). See, e.g., Bowles Law Office blogs “Pregnancy Disability Leave, California Employers’ Obligations” and “Expanded Pregnancy Health Benefits Law for Most California Employees.” The city nevertheless terminated Ms. Harris a few days later, citing the above performance problems. She sued Santa Monica for pregnancy and sex discrimination under FEHA.

At trial, the judge directed the jury that the city was liable for discrimination if the employee-plaintiff was able to prove that her pregnancy was a “motivating factor/reason for the discharge.” The jury then found that Harris’s pregnancy had in part motivated the city to terminate her, awarding her $177,905 in damages and $401,187 in attorneys’ fees.

However, the Supreme Court found the trial judge’s jury instruction had been mistaken. The court resolved that if the city can prove it would have terminated Ms. Harris even if she had not been pregnant at the time, then she will not be able to collect damages nor be reinstated. While this poses a significant new barrier for plaintiffs to receive compensation for emotional distress or lost wages resulting from a “partly discriminatory” termination, the decision still permits injunctions and attorney fee awards against employers in such a “mixed motive” case. Obviously, no employer is immune from complying fully with prohibitions against unlawful discrimination.

For help on how this decision might impact your business, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

(Photo by Paul Sakuma, Associated Press)

IRS Increases Rate by One Cent to 56.5

The IRS updates annually the reimbursement mileage rate for an employee’s business use of his or her vehicle. The rate has increased from 55.5 cents in 2012 to 56.5 cents per mile in 2013.

The government determines the mileage rate by a study of the fixed and variable costs of operating an automobile, including of course gas prices.

For more details on required reimbursements to employees for business purposes, visit IRS.gov. That site includes the statement: “Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.”

Sitting Down on the Job

As raised in several recent class action suits against retail giants Wal-Mart, Home Depot and others, California requires “suitable seating” for certain employees.

California Industrial Welfare Commission Wage Order 7-2001, section 14, covering retail businesses, states:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of such seats.

(B) When employers are not engaged in the active duties of their employment and the nature of their work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.

While this retail business wage order does not require that all employees must be able to sit at any time, it does require that employees be allowed to sit down if the nature of their work reasonably permits the use of seats.

Eligible workers do not need to first request seating from their employers in order to bring a claim under Wage Order 7. Thus, California retail employers should be proactive on providing reasonable seating, supported by adequate policy consistent with the above requirements, (A) and (B).

When Employers May be Liable for “Causing” a Resignation

As an employer, you might assume the company is immune from any wrongful termination claim if an employee quits on his or her own accord. However, a worker may still prove a business is responsible for wrongful “constructive discharge” even when he or she has deliberately resigned the employment.

Wrongful constructive discharge occurs when an employee is “forced“ to quit because the employer has unlawfully made working conditions unbearable. For example, an employee may complain about a possibly unsafe or improper working condition. The employee might even be mistaken about the issue, based on faulty information. If, as a result of the complaint, that worker experienced management’s continued harassment, discrimination or other unfair treatment to the degree that a reasonable person in that worker’s position would have found no alternative but to quit, the company may be liable.

A business is also prohibited from constructively discharging a worker due to that employee’s race, national origin, gender or any other classification protected from discrimination by federal and/or state law. A worker constructively discharged for such reasons has the right to claim and collect damages under workplace anti-discrimination laws, including the federal Civil Rights Act of 1964 (also known as “Title VII”) and/or the California Fair Employment and Housing Act (FEHA).

While an employee who resigns is usually not qualified to receive unemployment benefits, a worker who can show he or she was constructively discharged is an exception.

However, the applicable laws do not grant a blank check to every worker who has quit because he or she considers the employer was harsh or unfair. First, the harshness or unfairness has to stem from the worker’s exercise of protected rights or from his or her membership in a classification protected by law (race, disability, sexual preference, religion, etc.). Second, the employee has a corresponding duty to seek all reasonable resolution of such perceived harassment or discrimination that is internally available in the company. Wrongful constructive discharge occurs only where there is no reasonable alternative to solve the retaliation except to resign. This of course makes clearly written complaint policies and a personnel department skilled in handling such complaints essential.

There is a great deal more to the subject. See, for instance, our article, “Forced to Quit? A California Employment Lawyer’s Perspective on Constructive Discharge.” For help on handling or responding to specific potential or actual wrongful constructive discharge claims, contact an attorney who specializes in employer defense.

The California Supreme Court has ruled that the state’s overtime requirements apply to work performed in California by non-residents. In Sullivan v. Oracle Corp., three non-resident Oracle employees worked in California as instructors and trained Oracle’s customers in the use of the company’s products. They sued the California-based company for underpayment of compensation under this state’s overtime rules (employers must pay premium rates after more than eight hours of work in a day or 40 hours in a week). Oracle asserted California’s laws did not apply as these employees worked primarily in their home states (Colorado and Arizona), traveling to California only on occasion.

The California Supreme Court sided with the plaintiff-workers. Due to California’s strong policy on protecting employee compensation, this state’s overtime rules apply to anyone performing substantial work within the state, regardless of his or her state of residency. (In this case, the employees performed labor in California for days or weeks at a time. The court noted it was not addressing the situation where an out-of-state employee, say from Las Vegas, enters and leaves California as part of a single workday.)

The court’s decision is also limited to overtime laws and does not address whether employers must also take care to ensure they comply with California’s other labor laws for non-resident employees, including time card or pay stub requirements and many others.

Employers’ Right-to-Appearance Policies

Whether an employee’s visible tattoo or body piercing stems from a claimed sense of aesthetics, rebellion or “it seemed like a good idea at the time,” business has discretion to regulate appearance and thus may usually decline to hire, fail to promote or terminate that person on that basis alone.

As long as the policy is based on reasonable grounds of acceptable appearance for the particular industry or business involved, an employer may impose different standards for men and women. For instance, a professional law or accounting office would likely be able to prohibit earrings for men when permitted such jewelry for women.

However, companies must take care to seek reasonable accommodation of visible tattoos (“body art”) or piercings arising from religious belief and practice. Employers must also apply such policies consistently to prevent other possible claims of unlawful discrimination. For example, a company prohibiting visible tattoos on just lighter skinned employees is probably setting itself up for a racial or national origin discrimination suit.

Contact a labor and employment attorney for assistance creating a “uniform” appearance policy (pun intended) and for applying that policy where an employee has raised a religious or other seemingly legitimate objection.

Respecting Privacy While Obtaining Necessary Info

Hiring outside vendors to conduct pre-employment background checks into any criminal record, bad credit history and/or other matters is a common tool for an employer’s informed hiring decisions.

Federal and California laws cover the procedures for such checks, designed to balance a company’s right to research and obtain relevant information about job applicants and applicants’ rights of privacy on information unrelated to a hiring decision. By applying for work, a person in effect consents to some degree of scrutiny. The required forms and written notices are to make sure the process is fair. Among key points:

1. Conduct background checks even-handedly – While it is usually not sensible to have to run checks on every single applicant off the street, an employer should establish a definite point in the process at which any and all applicants would be checked. It is up to the employer to set that point and to make it known, perhaps checking on those in the final group of candidates or only on the person tentatively chosen for the job. Arbitrarily deciding who should be checked and when unnecessarily exposes the company to possible discrimination allegations;
2. Notify candidates of background checks in advance – Under the federal and California laws, an employer must let a candidate know ahead of time if the company is going to conduct a check. An employer must also provide the candidate a written summary of the applicable procedures, including the prospect’s right to see the resulting report and to challenge any aspect of the report he/she contends are inaccurate. The California law requires an employer to supply a candidate a form with “yes” and “no” boxes on whether that prospect chooses to obtain a copy of the report; and
3. Understand the limitations of background checks – It is important to be able identify personal information not considered relevant to the hiring process and thus protected from disclosure. (For a related topic, see “Pre-Employment Testing: Inquiries are Limited to Job-Related Skills and Qualities”)

The legally required procedures, notifications and forms only apply when a company utilizes an outside vendor in the business of conducting such checks. Most reputable vendors are able to supply the necessary forms and notifications although it is the employer’s ultimate responsibility to ensure compliance.

Thus, an employer’s direct check of a candidate’s references is not covered by these laws. However, it is a good idea to include on a company’s standard job application a statement that the applicant should expect the employer to contact references to obtain job-related information.

For more extensive discussion, see Pre-Employment Background Checks, Bowles Law Report, Vol. 9, Issue 3

For a business to determine or confirm whether its particular use of pre-employment background checks and other hiring practices are in compliance, management should utilize an experienced labor law attorney for the applicable state jurisdiction.

Enhancing Employee Morale and Productivity with Workforce Competitions

In the never-ending quest to promote worker morale on the job, employers are offering an expanding range of clearly creative outlets and opportunities to escape workplace stresses. A search around the web will reveal, for example:

• Inter-office Chess Competition: this U.K. insurance company holds seasonal team battles with more ground rules than soccer’s English Premier League;

• Office Ping Pong; an Australian software enterprise now dedicates a blog to its in-house table tennis competitions. The company’s new office now features “touch screen TV that shows the office rankings, custom bat holders and special grooves to house 20 balls so you’re never short.” Become a ping-pong ninja!;

• Taco Tuesday: employees of a California real estate firm unwind in their parking lot, complete with “gourmet food” coach of choice;

• Office Olympics: for flat fees, another Australian-based company will organize or provide do-it-yourself instructions for a workplace Olympiad, with sessions between 15 minutes and two hours.

• National Junk Food Day Cupcake Social: this past July, an on-line apparel business held its second annual “Cupcake Social” at a local bistro in honor of National Junkfood Day. As they explain: “We really weren’t kidding when we said we love our junk food around here!”

• Laughter Yoga: the same apparel company had previously hosted a “laughter yoga” class. The firm writes: “ For those of you who aren’t familiar with it, laughter yoga is meant to release ‘feel-good’ hormones called endorphins, which in turn boost positive state of mind, optimism and helps strengthen the immune system. With all those awesome benefits, laughter yoga is definitely nothing to laugh at!”

Of course, management must balance all this potential morale-building with steps to minimize the chances of the fun leaving the rails. For instance, business should have written procedures and rules for:

♦ Prevention of sexual and other harassment. See, for example, “Office Holiday Survival Guide III: Harassment Hotbed”;

♦ Prevention of accidents and injuries;

♦ Proper definitions for work and off-work hours. Workplace “play time” may be actually be compensable work time if participation is expected or even required and if the purpose is primarily work-related.

When in doubt, let an experienced labor and employment legal firm assist you with the needed policies.