“Family” Discrimination-A New Area of Concern

Last year, the Equal Employment Opportunity Commission (EEOC) said it would make “Family responsibility discrimination” an enforcement priority. On the face of it, it appears to be a new protected class category when in fact it is not. The EEOC uses the term as a catch-all for bias claims filed under sex-discrimination laws, if gender is involved in the adverse action. The simple truth of it means that a company/manager is treating women with children differently than men with children.

The EEOC looks for specific behaviors such as:

1. Asking female job applicants about their family yet they do not ask male applicants (an interviewer should never make any inquiry in this area).

2. Giving women with children less-favorable assignments than their male counterparts.

3. Treating women with children less favorably than childless women.

4. Being hard on men who take time off to care for their children.

5. Denying men’s request for family-related leave while approving similar requests made by women.

The other area of concern has to do with caregiving responsibilities. An increasing portion of caregiving goes to the elderly, and this is a trend that is likely to continue as the Baby Boomer population ages. This is a subtle area. Our parents are living longer and may begin to have issues be it physical, or mental. With the large population of Baby Boomers who are continuing to work (longer) they will have the responsibility for “eldercare.” As eldercare becomes more common, workers in the new emerging “sandwhich generation,” (those workers between the ages of 30 and 60) will have to face the responsibilities of caring for their children and their parents.

The EEOC is also looking at the fact that such caregiving activities are more disproportionately associated with women and may even more pronounced with women of color which adds in another protected class.

In general, employers need to be aware that these areas, some obvious and some not so obvious, need to be considered when an employee is requesting time off. We understand that an employer has a business to run, however, these are the types of issues that can cause unecessary liability.

Suspensions-With or Without Pay?? A New Concern!

In the past, employers had an option regarding compensation for suspended employees–pay or unpaid. Most suspensions are for disciplinary reasons and are normally one, two, or three days, and are unpaid. Suspensions that are handed out pending some type of investigation can be paid, or unpaid, and are usually unpaid.  It’s really at the option of the employer–until now!

Apparently the California Division of Labor Standards Enforcement (Labor Board) treats the unpaid suspension like a layoff if an employee is suspended without pay and not given a definite return-to-work date within the same pay period. Their logic is that the employee is legally determined to have been terminated as of the date of the  suspension. As many of you may recall we have constantly preached to limit the number of days for any suspension. The EDD also considers extended suspensions (usually two weeks) as a termination.

According to the Labor Board a suspended employee must be paid all earned wages and benefits (meaning vacation or PTO that has not been used) on the last day that the employee performed services prior to the suspension. The whole issue appears to be whether or not the suspension takes place within the “current” payroll period. With this in mind, if you have to suspend an employee because of an investigation, give the individual a “return-to-work” date within the same pay period. If there is only a day or two left in the pay period merely suspend the person the day after the new pay period begins (if it’s only a day or two away) and be sure to give the return-to-work date (try to keep that date within three days).

If you do not follow the above very closely and the employee files a claim with the Labor Board, the suspension will be deemed to be a termination and any failure to pay all monies owed could subject you to waiting time penalties ( a day’s wage will be owed to a maximum of 30 days).

If you are confronted with the possibility of having to suspend an employee please call and speak with me directly.

A Single Failure To Accommodate A Restroom Break-Employer Liable!

Ya know, I have been preaching and spreading the word about California’s Fair Employment  & Housing Act (FEHA) which makes it very clear that if a manager or supervisor even “perceives” an individual to have a disability they have to engage in an interactive discussion regarding a reasonable accommodation. This is different from federal law which, under the Americans with Disabilities Act (ADA), states that the employee has to request the accommodation.

Well, Albertson’s Grocery store recently found out the hard way that a single incident of failing to accommodate a store employee’s disability by allowing her a restroom was sufficient to support a verdict for failure to accommodate. The facts were simple enough. The employer had previously had a discussion with the employee and agreed that based upon the employee’s disability the employee would be permitted the necessary restroom break. The problem was the employee was granted the accommodation by the human resources representative and the accommodation was never effectively communicated to the store manager. The twist to this case is that the employee had been accommodated and had been able to take her necessary breaks except on one occasion which is the incident that led to the lawsuit. 

The court determined that since the employee had been granted the accommodation the employee did not have to continue with the interactive process by notifying the person in charge at the time that she had been granted an accommodation (in other words she knew but the manager on duty at the time of the incident had never been informed about the accommodation and the employee was not required to discuss it or ask for it).

The Department of Fair Employment & Housing does not excuse the failure to accommodate based on previous patterns of successful accommodation. An employer has an absolute duty to ensure that the manager or supervisor of an employee who has been granted an accommodation is informed of the accommodation (not why because of privacy). The employee does not have to keep requesting it even if there is a change in supervision.

Right now, age and disability claims claims are on the rise. Be careful.

The Feds Change The Rules Regarding “No-Match” Letters!

As you may recall I wrote an article regarding “No-Match” letters (when the Social Security Adminstration sends you a letter that the social security number of an employee does not match their records) well over a year ago. Well, the U.S. Department of Homeland Security has recently announced that they have changed their position and are “officially” dropping the much debated “no-match” rule which, according to them, required employers to fire workers if there was a discrepancy between the worker’s Social Security Number and official government records. I am not sure that I agree with that because the letters they sent specifically stated “do not terminate based upon this letter.”  In fact, we painstakingly went through a step-by-step process on what to do when you receive such a letter. We only recommended termination after the employer exhausted every step and then advised clients to still move cautiously. Now they have stated that the rule imposed penalties on employers “who didn’t fire employees if the discrepancy wasn’t quickly explained.” 

Anyway, they have apparently determined that the rule has caused problems for employers (really?? Duh!) because employers have terminated “legal” employees because of “inaccurate and outdated government record databases.” Now you can really appreciate why I had you take those steps of having them re-check their records. Now this news may sound good, but you cannot let your guard down on following through with each employee/new hire to ensure that they are still legally employable. The Feds still intend to roll forward aggressivly on the whole issue of employers hiring illegal workers. In fact, they have stated that they are planning on hiring more field inspectors to investigate illegal workers.

So what does this all mean? Simple. Instead of them focusing on catching individual workers who do not have valid social security numbers (Because their records are not worth a crap!), they are going to go after employers who “routinely” hire illegal workers. Unfortunately this also means that employers that are doing everything right will have to be “terrorized” by having to go through the immigration inspections conducted by the feds. You may recall that I have also written articles about having the I-9’s completed properly. Well, I am once again stressing the importance of ensuring that they are done correctly. We have had several employers who have been asked by other federal agencies to present their I-9’s for inspection (which means they are all working together). If you need our assistance we conduct I-9 audits. Let us know if you need us to review them and do not assume they are being done correctly!

 

 

Can Employees Choose to Work Instead of Taking A Meal Break?

The answer is “yes” but (there’s always a but!), under limited circumstances. As you may recall, the California Supreme Court is currently considering the scope of employer meal break obligations under state law. The question before the court is whether employers must only provide a meal break, or “ensure” that employees take meal breaks. There is no indication of when the court will be making its decision.

The issue that normally presents itself is that an employee makes a request to work through lunch so that they can leave early. If this is an isolated request I do not see a problem. Making it a normal routine would be a potential liability concern. There are two exceptions.

1. Meal Break Waivers-A non-exempt employee who works a total of six hours or less in a day can waive taking a meal break. An employee who works more than ten hours in a day but less than twelve hours can waive the second meal break. We strongly recommend that such waivers be in writing and signed by the employee. It should be noted that you only have to have the waiver signed one time. Healthcare employees can waive a meal break if they work more than eight hours in a day and sign a revocable written waiver.

2. On-Duty Meal Periods- If the nature of an employee’s work prevents the employee from being relieved of all duties for an uninterrupted 30-minute meal period, the employee can agree to work an on-duty meal period without being owed missed meal period premium pay (this only applies to certain industries, Security Guard companies, Healthcare etc.).  Keep in mind the time employee works during an on-duty meal period is counted as hours worked for the purposes of calculating overtime.

In summary, for an on-duty meal period to be valid it must:

1. Be in writing

2. Be voluntarily signed by the employee before working any on-duty meal period; and

3. must state that the employee can revoke the agreement at any time.

If you have any questions about any of the above please give us a call. The waivers must be done correctly.

Can An Employer Require Medical Exams When An Employee Returns From Leave?

This is a standard weekly question posed by clients. The scenario is always the same. “An employee has been out on a leave (non work-related) due to a medical condition. Can we send the person to our doctor to get a medical clearance to return to work?”

The quick and easy answer is that under both the federal Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), employers cannot require employees returning from leave to submit to a medical examination unless such an examination is “job-related and consistent with business necessity.” You can test employees to ensure that they are capable of performing their essential job functions but it’s easy to blur the line between a “job functions test” and a medical examination. One employer (non-client!) found out the hard way!

A female employee was out on a medical leave of absence for almost two years because of an injury to her knees. When her doctor cleared her to return to work, with permanent restrictions, the employer required her to undergo a “physical capacity evaluation” with an outside occupational rehab specialist to determine which essential job functions she could perform. The specialist required the employee to undergo two days of tests and made in-depth inquiry into her mental, emotional, and physical status. After the tests were completed it was determined that the employee could not perform any essential job function, and the employer terminated her. The employee sued alleging that her employer made her undergo a medical examination that was not job-related and consistent with business necessity. The trial court dismissed the suit. Unfortunately, and once again, the Ninth Court Circuit of Appeals disagreed ruling that the examination given the employee was not a physical capacity evaluation but in fact was a medical examination. The higher court sent the case back down to the lower court to determine if the examination was justified. 

I will keep you posted on the outcome but for now be very cautious about asking, or demanding, that returning employees from a leave of absence take a physical by the company’s doctor. Keep in mind that work related injuries are different. The employee is normally already treating with the company doctor and will obviously get a return to work clearance before returning.

Handling Former Employees Request For Personnel Files And Payroll Records

In any given month, we receive calls from employers whether or not they have to provide former employees with copies of their personnel files and/or payroll records. The easy answer in both situations is “yes.” In reference to personnel file requests it is obvious that the individual may be contemplating taking it to an attorney or their attorney has asked them to get a copy so that he or she may see if there is anything contained in it that may sway them in either a direction to file a lawsuit or to pass on filing. The reason for these requests normally have to do with an allegation of discrimination or wrongful termination. In some cases the attorneys get an authorization from the former employee to make the request.  Under the California Labor Code they are entitled to it and the employer can be fined for not providing it. If you receive such a request and want us to review the file before it is sent just give us a call. As many of you probably already know, under the labor code an employee is only entitled to copies of papers that have been signed by the employee, however, these requests by former employees include copies of the entire file. We review the file to ensure that there is nothing in the file that should not be there (such as I-9’s as an example).

Payroll records request are different and the reason for asking for them normally has to do with a possible wage and hour claim. Honoring these requests are more cumbersome because they can ask for records going back 3 years. These requests can be either verbal (by current employees as well) or in writing. You must grant access to inspect the records within 21 days of the employee’s request. If you do not provide the records you can be required to pay the employee $750.00.

As a final note employers may also receive a subpoena for records (either for a personnel file or payroll records) and it has nothing to do with the employer. They are normally requested because there is some type of litigation going on. Look in the “caption” portion (Smith v. Smith) and look to see who is being sued. Divorces or some other civil litigation are both common for such requests. Don’t worry about those.

House Moves To Extend Unemployment Benefits BY 13 Weeks

Despite predictions that the “Great Recession” is running out of steam, the House (Washington) is expected to pass a bill that would extend unemployment insurance benefits by 13 weeks. The extention would supplement the 26 weeks of benefits already offered by California. Critics of the bill are already weighing in that in their opinion such a measure would be a disincentive to looking for work and that extending the benefits would be at a time when the economy is showing signs of recovery could be counterproductive.

I can tell you that the number of unemployment claims processed by Potts & Associates have been diminishing over the past several months which, for us, is a sign that our clients may have stabilized their respective workforce or have substantially slowed down in laying off staff. Either way it is a good sign on a smaller state and national scale. Hopefully by the end of the year we can all be looking toward a more promising 2010.

Employees Copying Company Files Before Resigning-Court Says Ok!

In another irritating, anti-employer decision, the Ninth Court Circuit of Appeals (covering California) ruled that an employee who copied company files before resigning did nothing wrong! The practice of such behavior is not surprising. It happens more than you may think and with technological advances comes more creative ways for employees to take confidential information away from their place of business. Personal data storage devices and email permits information to be easily transmitted without the employer’s knowledge. Sad but true.

The facts in this case were actually very simple. A former employee had emailed numerous files from his work computer to his personal email account, as well as to his wife’s email account before he left the company. The files that he copied included financial statements, marketing data, and personal information about the employer’s clients. In addition, he used an administrator’s password to access the company’s network after he left the company.

The employer sued arguing that the former employee violated the federal Computer Fraud and Abuse Act, which prohibits unauthorized computer access, or access to computer systems that exceeds authorization. The court ruled that since the employer had given the employee (former) authorization to access company files the employee had done nothing wrong.

Where did the employer go wrong? They failed to have an established policy prohibiting employees from copying company files for personal use or emailing them to a personal email account. Furthermore, how in the world did the employer fail to change the access codes after the employee left?

Now let’s discuss what an employer should do to try and safeguard their confidential information.

1. Have a policy in place prohibiting employees from copying company files for personal use (or emailing);

2. Limit access to highly confidential information to a select few;

3. Change the codes upon the departure of individuals who had access to the sensitive information;

4. Have a selected “IT” person monitor who is accessing the information and note any downloading of files;

5.  Have a policy in place limiting the use of personal data storage devices (or even bringing them to work).

We have clients who prohibit employees from bringing cellphones or other such devices to work. Such policies are not an infringement on their individual rights. Good luck!

Two Newly Enacted California Statutes-Noose Hanging and Sports Betting Pools

According to A.B. 412 any person who hangs a “noose,” knowing it to be a symbol representing a threat to life and for the purpose of terrorizing another, on the property of a school, park, or place of employment can now be punished by imprisonment in the county jail and or/fined up to $5,000! This act is considered a hate crime.

According to A.B. 58 participation in a bet, wager, or betting pool (football season is here!) with another person, or group of persons, who are not acting for gain, hire or reward other than that which is at stake for every participant based on the result of a contest or event, including a sporting event, shall no longer be a misdemeanor nor felony! Yep, that means prior to this change any of you that got in on the office pool for events like the World Series or Superbowl could have been convicted of a misdemeanor or felony! Well that law has been changed. Now, it is only an infraction (like getting a ticket), punishable by a fine not to exceed $250.00 (whew, just in time for the upcoming baseball playoffs. LOL).