October 26, 2009
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.
October 19, 2009
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!
October 11, 2009
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.
October 5, 2009
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.