The California Assembly passed earlier this year the “Healthy Workplaces, Healthy Families Act of 2014” (Assembly Bill [AB] 1522), sending it over to the Senate for consideration. If passed into law, the measure would mandate all employers to provide at least three paid sick days per calendar year to all workers who qualify. There is currently no sick pay requirement under federal or California law. See our article, Don’t get Sick of Sick Pay – An Overview of California Paid Sick Leave.

This is the Legislature’s third attempt to enact such a law (previously in 2008 and 2011). In its current form, AB 1522 would direct that eligible workers earn (accrue) at least one hour of paid sick leave for every 30 hours worked and may start using such benefits after three months of employment.

The California Labor Federation, AFL-CIO supports AB 1522 contending it will guarantee “every California worker paid time off to recover from illness, care for a sick family member, or bond with a new baby. AB 1522 also protects workers claiming this benefit from employer retaliation.” While observing that many employer already voluntarily offer non-accruing sick leave to full-time workers, the California Chamber of Commerce’s objects to the bill for its creating a “huge burden” on employers through required expansion of benefits to temporary, seasonal, and part-time employees.

Connecticut is currently the only state that requires paid sick day benefits. Several cities, including New York, Washington, D.C., Portland, Seattle and San Francisco, mandate such benefits.

As we have described in California’s Expanded Immigration-Related Protections and California Extends Protections for Whistleblowing Employees, several California laws protect employees, regardless of undocumented status, from actual or threatened retaliation for demanding workplace rights.

These state protections of immigrant workers, some of the strongest nationwide, would seem at odds with the federal law (Title 8, section 1324a of the United States Code) making employment of undocumented persons illegal and requiring companies to confirm an applicant’s ability to work in the U.S. by a completed “I-9” form supported by sufficient evidence (e.g., birth certificate, green card).

However, in Salas v. Sierra Chemical (2014), the California Supreme Court confirmed that an undocumented individual’s initiative and ability to land a job –- whether by falsified proof of work authorization or by an employer’s willingness to look the other way – does not then strip that person from this state’s protections from workplace discrimination under the Fair Employment and Housing Act (FEHA).

In Salas, a seasonal worker sued his former employer for FEHA disability discrimination and retaliation, alleging the company did not have the right to refuse to rehire him for a new season and accommodate his disability. He had worked for Sierra Chemical for four seasons, presenting an I-9 and social security card each time. During the last season, he had injured his back twice and had filed for workers’ compensation. The next season, Sierra said it would rehire him when he received a doctor’s release for full duty. It only learned of his undocumented status late in the lawsuit and then asserted it was immune from any FEHA liability because the rehiring, in retrospect, would have violated the above federal law.

The Court rejected the employer’s position. Mr. Salas was able to raise disability discrimination as the basis for Sierra Chemical’s failure to rehire him because consideration of his documented or undocumented status was not a factor in that decision. On the other hand, if Sierra Chemical had been diligent enough to determine Mr. Salas’s status and to have declined his re-employment on that basis, then he would have had no chance of bringing the FEHA claim. The decision turned on Labor Code 3339, created by the 2002 passage of Senate Bill (S.B.) 1818, providing all California workers the “protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law . . . to all individuals regardless of immigration status who have applied for employment, or who are or who have been employed, in this state."

Mr. Salas’s FEHA rights were not entirely unaffected by his undocumented status. The Court also ruled that Mr. Salas had no right to collect lost wages resulting from any Sierra Chemical disability discrimination from the point that the employer learned he was barred by federal law from acquiring further employment in the U.S.

The employer lessons learned from this decision thus include:

(1) Do not hire workers who cannot satisfy the federal I-9 requirements;

(2) In California’s FEHA, any undocumented worker (whether that status is suspected or actual) is entitled to the protections against unlawful workplace discrimination, harassment and retaliation accorded to all employees; and

(3) On any later discovery that a worker is not (or no longer) eligible for employment under federal law (because of false documentation or any other reason), a California employer is prohibited from continuing that employment. However, because of the potential of a FEHA claim under the Salas guidelines, that employer should promptly obtain legal advice on how to promptly terminate that relationship.

For assistance with any questions on these subjects, you can contact our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.

The best handling for workplace theft is to prevent it in the first place. Suspected or alleged employee thievery – and an employer’s twin obligations to protect the group against an actual thief and to protect the accused from false charges — is a delicate challenge. A company’s much more straightforward task is to implement policies and security measures designed to deter the criminally tempted.

Yet, stealing can occur regardless. A clearly written and regularly updated employee handbook should thus include standards and rules for conduct, reporting, investigation, fair hearing and discipline that discourage as well as address such alleged bad behavior. Company executives as well as policy must promote the purpose of reporting and investigation: to maintain a safe, just and trusting work environment. It is leadership’s responsibility to ensure that staff are not altogether intimidated out of raising a theft or other crime problem to management. Leadership must also assure that employees are not reduced to apathy from unfair procedures that prevent the full airing of accusations and discourage justice.

California and many other states maintain “employment-at-will” as the presumed working relationship between employer and workers. “At will” means that either side may end the relationship at any time, with or without advance notice and with or without any reason for the termination.

However, “at will” employment is not any manager’s or worker’s license to treat fellow employees harshly or unfairly. While an employer may fire someone for no reason, that company may not terminate for an unlawful reason. Thus, if management lets someone go for an unsubstantiated accusation of theft, the incident could lead to an action for defamation by the accused against the company as well as the individual accuser. If management summarily fires an employee for having mistakenly reported an innocent co-worker’s embezzlement, that now-former employee might well have a claim for unlawful retaliation over the incident.

In the face of alleged workplace theft, it is thus a good idea for management to consult with a skilled employment lawyer for guidance on the conduct of an impartial investigation and on any ensuing steps for discipline or termination.

There is no California law requiring a business to pay its employees for time off work, whether for vacation, holidays, sick time, or any other reason. However, employers do commonly have policies and plans that provide such compensation. Once a company opts to provide any such benefits, California does have applicable law depending on just what sort of “time off” is involved.

California defines “vacation pay” as a form of wages that an employee earns (“accrues) as the working year progresses. For example, if an employer has a policy granting a worker two weeks of paid vacation per year, that employer will have earned half of that benefit (one week of paid vacation) after having worked six months of that year. This means that a business must on termination pay an employee all of his or her accrued but unused vacation pay (no “use-it-or-lose-it”).

On the other hand, California defines “sick leave” as a non-accruing benefit. For example, a company policy that specifies four paid sick days per calendar year obligates the business to pay that benefit only to the extent that an employee actually uses it in that year. Come the next calendar year, the potential benefit renews but it does not accrue (mount-up) over time. Thus, sick pay in California is “use-it-or-lose-it.

Some employers opt to combine sick leave and vacation benefits into a single time block commonly referred to as “paid time off” or “PTO.” Such policy permits the employee to choose when and for what purpose he/she will utilize the allotted paid time away. However, California requires that all such PTO time is an accruing, earned throughout the year” wage-benefit. Thus, as with a straight vacation policy, an employer must pay pay an employee on termination all of his or her accrued but unused PTO (again, no “use-it-or-lose-it”).

There is much more to a sound vacation pay or PTO policy on which a knowledgeable employment lawyer can help. For instance, a company’s written rules can (and should) define a maximum limit for such accrued benefit, after which the employee must actually take such paid time off before he/she can resume earning such vacation pay or PTO. Otherwise, a company could face an employee leaving after, say, 20 years of service with a legitimate claim for immediate payment of an equivalent duration of accrued vacation that the person never bothered to take in all those years. See, “Vacation Pay in California, No Picnic for Employers Who Don’t Know the Rules.”

A company’s required uniforms for its workforce can provide a more professional image and an espirit de corps and comradery among employees. While the federal law permits employers to require workers to finance their own mandatory uniforms under certain circumstances, California requires businesses to foot the bill.

The U.S. Fair Labor Standards Act allows employers to make wage deductions for mandatory uniforms as long as those deductions don’t reduce employees’ regular pay below the federal minimum wage of $7.25 per hour.

On the other hand, the California Labor Code section 2802 specifies that if an employer requires that an employee wear a uniform, the employer must pay the cost of that uniform.

An experienced employment law attorney can help guide business owners and human resources managers through further fine points on this issue.

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.

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)

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.”

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).