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.

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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