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What happens when an employer ignores requests from a disabled employee for reasonable accommodation? In one recent case, a $3 million jury verdict was the result.
What happens when an employer ignores requests from a disabled employee for reasonable accommodation? In one recent case, a $3 million jury verdict was the result.
Caltrans analyst, John Barrie, sued his employer for failure to accommodate his severe allergies to chemicals, such as cleaning agents and perfumes. Although Caltrans initially accommodated Barrie, it was informal and not put in writing. Then as management changed, his new supervisor reportedly ignored his requests to maintain the previously-granted accommodations.
Employers have a duty to explore and provide reasonable accommodation to disabled employees. See, Employers Duties to Reasonably Accommodate Worker Disabilities (May, 2015). Additionally, employers have an ongoing obligation to provide reasonable accommodation. Even one improper denial of the accommodation can result in legal liability.
For example, despite Mr. Barrie’s reminders of his condition, a new supervisor evidently moved him to a recently painted location full of fumes.
To make matters worse, Barrie’s management and co-workers allegedly harassed him for making accommodation requests, including repeatedly dousing his workspace in perfume.
The jury concluded that Caltrans stunk at protecting this disabled employee from harassment and retaliation under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and California’s Fair Employment and Housing Act (FEHA). See, California’s Anti-Discrimination Legislation.
Therefore, best practices dictate that an employer should:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
June 28, 2017
All California employers must prominently post certain notices on wages, hours and working conditions. Employers must display these announcements where all employees have access. Failing to inform employees of their rights can subject an employer to penalties.
All California employers must prominently post certain notices on wages, hours and working conditions. Employers must display these announcements where all employees have access. Failing to inform employees of their rights can subject an employer to penalties.
Several California statewide and local notices must be updated by July 1, 2017:
Minimum Wage: Nine municipalities will raise their minimum wage rates effective July 1, 2017: Emeryville, City of Los Angeles, unincorporated Los Angeles County, Malibu, Pasadena, San Francisco City and County, San Jose, San Leandro, and Santa Monica. To download any applicable notice, see Nine California Municipalities are Increasing Minimum Wage on July 1, 2017 (May, 2017).
Industrial Welfare Commission Wage Orders. The California Department of Industrial Relations (DIR) recently published revised versions of each wage order to reflect the statewide minimum wage increases. See, Published Industry Wage Orders Now Reflect Current and Upcoming State Minimum Wage Increases (June, 2017). Employers should ensure they are posting this most recent version of their applicable wage order.
Local Leave Laws: City of Los Angeles’ paid sick leave ordinance, which went into effect last year for covered businesses with 26 or more workers, will apply to all in-city employers regardless of payroll size as of July 1, 2017. Covered employers must download and post the applicable notice from the city website. See also, Bulletproof Los Angeles’s Paid Sick Leave Ordinance? (October, 2016), Businesses Employing 26-Plus Must Implement Los Angeles’ Paid Sick Leave by July 1, 2016 (July, 2016) and City of Los Angeles New Paid Sick Leave Requirements Effective, July 1, 2016 (June, 2016).
San Francisco’s paid parental leave ordinance requires that employers with 35 or more employees begin supplementing California paid family leave on July 1, 2017 and must post notice of that benefit. See Paid Parental Leave Required for San Francisco Employers (November, 2017).
Los Angeles Ban the Box: City of Los Angeles will begin enforcing the monetary fines and penalties under its “Ban the Box” law effective July 1, 2017. Covered employers with more than 10 employees within the city boundaries must post the applicable notice. See also “Banning the Box” in Los Angeles (March, 2017).
Emeryville Fair Workweek Ordinance: Emeryville’s newly adopted Fair Workweek Ordinance sets requirements for scheduling of hours and part time hour assignments for certain retail and fast-food employers. This is so new that the required notice is not yet available. Affected businesses should check Emeryville ‘s official website at http://www.ci.emeryville.ca.us/1136/Fair-Workweek-Ordinance to download the applicable notice once published.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
June 23, 2017
California’s Department of Fair Employment and Housing(DFEH), the state agency responsible for enforcing theFair Employment and Housing Act(FEHA), hasreleased a newemployer guide and an updated sexual harassment brochure to further assist California employers in developing effective anti-harassment programs.
California’s Department of Fair Employment and Housing (DFEH), the state agency responsible for enforcing the Fair Employment and Housing Act (FEHA), has released a new employer guide and an updated sexual harassment brochure to further assist California employers in developing effective anti-harassment programs.
According to DFEH Director Kevin Kish, “Preventing and correcting sexual harassment in the workplace is not only legally required, but it is one of the best ways that an employer can ensure a healthy and productive workplace for all employees. DFEH is pleased to provide these resources to help employers develop and implement effective policies.”
The May 2017 Workplace Harassment Guide for California Employers describes key elements of an effective anti-harassment program and explains how to conduct and document a fair investigation. For example, the guide advises what to do in “he said/she said” situations when there are no direct witnesses to harassment, and how to arrive at factual conclusions.
The DFEH’s revised brochure now defines the types of sexual harassment and specifically enumerates six actions all California employers must take to prevent and correct harassment:
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
June 22, 2017
California businesses have a well-established duty to provide their employees a“net” ten-minutepaid rest break for every four hours worked, or major fraction thereof (i.e., anything more than two hours of work). (“Net” here means the time an employee spends reaching and returning from his/her rest area does not count in the ten minutes.) For each workday an employer violates this rule, it must pay each affected worker one additional hour of pay at that employee’s regular rate. See,Employee Meal
California businesses have a well-established duty to provide their employees a “net” ten-minute paid rest break for every four hours worked, or major fraction thereof (i.e., anything more than two hours of work). (“Net” here means the time an employee spends reaching and returning from his/her rest area does not count in the ten minutes.) For each workday an employer violates this rule, it must pay each affected worker one additional hour of pay at that employee’s regular rate. See, Employee Meal Periods and Rest Breaks (September, 2016).
However, it has been uncertain whether management could maintain policies requiring workers on such breaks to remain “on-call” for any urgent, earlier return to the job. The California Supreme Court has recently decided such on-call obligations or standard practices are unlawful.
In Augustus, et al. v. ABM Security Services, Inc., security guards claimed their employer violated state law – and thus owed the above additional hours of pay — by requiring them to keep their pagers and radio phones on during rest periods. Even though the guards presented no evidence that any of them actually had rest periods interrupted, ABM lost a $90 million judgment because these workers had to “remain vigilant, and respond when needs arose…” during such breaks.
The California Supreme Court has now upheld that decision, concluding that “California law requires employers to relieve their employees of all work-related duties and employer control during 10-minute rest periods… A rest period, in short, must be a period of rest.” The rest periods must be uninterrupted, and the employer must relinquish any control over how employees spend their break time. Although the court recognized that employers may reasonably reschedule or restart a rest period when occasional unforeseen emergencies intervene, businesses cannot require “on-call” as a policy or regular practice.
Employers should thus consider the following best practices:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
June 19, 2017
The California Supreme Court has clarified some of the requirements for employees’ weekly day of rest while leaving another open to interpretation.
The California Supreme Court has clarified some of the requirements for employees’ weekly day of rest while leaving another open to interpretation.
Labor Code 551 and 552, respectively, provide: “Every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven” and “No employer of labor shall cause his employees to work more than six days in seven.”
What Constitutes “Seven Days” for Triggering the “Rest Day” Requirement? Neither of these sections specifies just what “seven day period” might be involved. The possibilities are: (a) the seven days counting from the start of an employer’s defined workweek (e.g., Monday – Sunday); or (b) any rolling seven-day period.
In Mendoza v. Nordstrom, Inc. (May 8, 2017), the Supreme Court ruled that the Legislature intended to count the seven days on an “employer’s scheduled workweek” basis, finding other places in the Labor Code where “week” and “workweek” are used throughout the overtime statutes to mean a “fixed and regularly recurring period.”
By the court’s rejecting the “rolling seven-day” alternative, a business could thus require an employee to work 12 straight days before getting an entitled rest day, if the day off was the first day in the employer’s first scheduled workweek and the next day off was day seven in the employer’s scheduled workweek immediately following. Such consequences would be most common in retail, restaurant and other industries with sometimes significant schedule fluctuations.
What are the Requirements for the “Low Hours” Exception to the Rule? Mendoza also resolved another ambiguity. Labor Code 556 specifies an employee need not have “one-day-of-rest-in-seven” when his/her total hours of employment “do not exceed 30 hours in any week or six hours in any one day thereof.” The Court rejected Nordstrom’s argument it did not have to give an employee a seventh day of rest if he/she worked less than six hours in any day of the workweek, regardless of how many hours the person worked on other days that week. Instead, the section 556 exception is only satisfied when (a) the employee works no more than 30 hours in a workweek; and (b) no more than six hours on any day during that week.
Still Unclear What Employer Actions Constitute Unlawfully “Causing” a Worker to Work the Seventh Day: The Mendoza decision also addressed with only general guidelines the circumstances when an employer might unlawfully “cause” a worker to miss her/his seventh day of rest under Labor Code 552.
Certainly, an employer cannot force, coerce or pressure an employee to miss that rest day. However, the court left open a grey area beyond that, holding “[a]n employer cannot affirmatively seek to motivate an employee‘s forsaking rest, but neither need it act to prevent such forsaking.”
This seems to mean that a business can allow (or can decline to prevent) an employee to work a seventh day if that worker chooses. However, it leaves open whether merely optionally scheduling, encouraging or providing some reward for working that day – the most obvious being compensating the worker for the labor — might be seen as prohibited “motivation.”
While future case decisions – or legislation – might provide more specific definition, employers are currently left with case-by-case uncertainty on just how much encouragement they can lend to employees working all seven days in a workweek when facing heavy business production or delivery demands. One point is certain however: any time any employee works all seven days, the better management practice is to accurately document the circumstances.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
June 13, 2017
Click here for our more recent article about California Wage Orders (updated June 2, 2017).
Click here for our more recent article about California Wage Orders (updated June 2, 2017).
The California Industrial Welfare Commission (IWC) Wage Orders regulate wages, hours and working conditions. Employers must comply with the IWC Wage Order and California labor laws applicable to their business or industry. For example, IWC Order 1 applies to the manufacturing industry; Wage Order 4, professional, technical, clerical, mechanical and similar occupations; Order 7, the mercantile industry; Order 12, the motion picture industry; Order 15, household occupations; and Order 16, occupations in the construction, drilling, logging and mining industries.
“WHICH IWC ORDER? Classifications” – a pamphlet from the California Division of Labor Standards Enforcement (DLSE), assists employers and employees in determining which IWC Order applies to a business or employee (available online at http://www.dir.ca.gov/dlse/WhichIWCOrderClassifications.PDF).
Each California Wage Order covers regulations on topics such as:
The Industrial Welfare Commission (IWC) provides copies of the 17 California Wage Orders and California’s Minimum Wage Order online at http://www.dir.ca.gov/iwc/wageorderindustries.htm. Every California employer should know the applicable Wage Order for her/his/its business and employees and the regulations regarding wages, hours and working conditions contained therein.
If you have any questions, please contact me or any of our other employment law attorneys. Best, Bob Edwards
The California Industrial Welfare Commission’s (IWC)18 published “wage orders”can be among the most underutilized items in an HR Manager’s toolkit. They are chock full of wage and hour regulations regarding overtime wages, meal and rest periods, record-keeping requirements and other working conditions.
The California Industrial Welfare Commission’s (IWC) 18 published “wage orders” can be among the most underutilized items in an HR Manager’s toolkit. They are chock full of wage and hour regulations regarding overtime wages, meal and rest periods, record-keeping requirements and other working conditions.
California employers must comply with the IWC wage order (or, in some cases, more than one order) applicable to their industry or profession. For example, Wage Order 1 applies to the manufacturing industry; Wage Order 4 to professional, technical, clerical, mechanical and similar occupations; and Wage Order 16 to occupations in the construction, drilling, logging and mining industries.
Each of the 18 wage orders also contains or references regulations on applicable minimum wages.
Recently, the California Department of Industrial Relations (DIR) updated all but Wage Order 14 (agricultural workers) and Wage Order 17 (miscellaneous) to include the 2017 and 2018 state minimum wage rates increases. See, California’s Gradual Increases in Minimum Wage, to Reach $15.00 Per Hour by January 1, 2022 (April, 2016).
After determining which wage order(s) apply to a business and its employees, employers must post the most recent version(s) at the workplace or on the job site where employees can read it/them easily.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
June 2, 2017
Under federal law, employers have the responsibility to verify the identity and employment authorization of their employees through the Form I-9 (Employment Eligibility Verification).
Under federal law, employers have the responsibility to verify the identity and employment authorization of their employees through the Form I-9 (Employment Eligibility Verification).
On November 14, 2016, the U.S. Citizen and Immigration Services (USCIS) published a revised Form I-9, allowing employers to download and save it as a PDF, fill in the blanks electronically, and then print the form for their records.
On April 6, 2017, the USCIS announced a glitch had occurred with this on-line form between November 14 and 17, 2016 causing social security numbers entered in Section 1 of the form to print incorrectly. For example, 123-45-6789 entered on that on-line form would appear on the printed form as 123-34-6789.
Any employer who downloaded the form during those three days may still be unknowingly printing incorrect social security numbers. Affected employers can and should fix this particular glitch as follows:
It is important for employers to fix any errors as soon as possible, as penalties for failure to complete this form correctly range from $216 to $2,156 per infraction.
See also, Checking Worker Immigration Status (Oct, 2016) and New Changes on Employment Eligibility Verification Form I-9 (May, 2016).
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
May 31, 2017
California’s Home Care Services Bureau (HCSB) licenses and oversees Home Care Organizations (HCOs) that provide employee caregivers to private clients. See:You Snooze, You Lose(April, 2016) andHome Health Care Organizations Last Chance to Continue Operations After June 30, 2016(June, 2016).
California’s Home Care Services Bureau (HCSB) licenses and oversees Home Care Organizations (HCOs) that provide employee caregivers to private clients. See: You Snooze, You Lose (April, 2016) and Home Health Care Organizations Last Chance to Continue Operations After June 30, 2016 (June, 2016).
In its May, 2017 webinar, the HCSB confirmed that unannounced inspections of HCO administrative offices are in progress. HCSB analysts – the HCSB staffers assigned to specific HCOs – conduct these inspections. As a word for the wise, the three most common problems analysts reportedly encounter are: (1) no licensee or designee is present or office closed during stated business hours; (2) training is not documented; and (3) forms are not complete.
An HCO is required to specify on its licensing application the individual licensee as well as any other person(s) who can act as representative or “designee” in the absence of the licensee. See Application Instructions for a Home Care Organization License. To accommodate such unannounced inspections, the HCSB requires an owner/licensee or a designee to be on the HCO’s office premises and available during all office hours that the HCO stated in its application.
Thus, in advance of any such sudden visit from the state, an HCO should: (a) verify those listed on its application as licensee(s) and designee(s) along with office hours stated; and (b) ensure it has at least one of these people present and the office open during those hours. Changes in designated persons or office hours are possible but require notification to the HCSB.
Notably, if an HCO is not open to the public more than eight consecutive hours on any day during a month or is open by appointment only, an analyst will notify the HCO’s contact person at least two hours before arriving for an inspection. That HCO must then have its licensee or a designee at the office at the appointed time to meet with the analyst.
The HCSB’s recent webinar also reported that analysts are frequently finding Home Care Aide (HCA) training has been done but the training logs are out-of-date. The solution is of course obvious, with records updated and maintained as current before any analyst shows up to inspect.
As for incomplete forms, HCOs should be using the HCO inspection checklist to prepare for an inspection. The HCO needs to ensure that it has all specified forms ready to provide to the analyst. The time to check for that is before the analyst arrives. These should be final versions of each form, not drafts.
The HCSB also advised in that webinar that it has proposed application/registration fee increases to meet rising expenses. If approved, the HCA fee will go from $25.00 to $50.00 every two years while the biannual HCO fee will go from $5,165.00 to $5,803.00.
For further information, contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
May 25, 2017