Well, it never stops! The California Court of Appeals handed plaintiffs lawyers another favorable holding to use against employers in retaliation lawsuits. The Fair Employment & Housing Act (FEHA) already contains an express provision stating that employers must “take all reasonable steps necessary to prevent discrimination and haraasment.” In drafting this particular section the legislators elected to omit any reference to retaliation claims so, as a result, the court of appeals decided to extend the reach of this statutory provision to include retaliation as its own form of discrimination.

In the Court’s opinion, the Court specifically held that retaliation is different from discrimination when it comes to imposing personal liability on supervisors which means that “a supervisor may be held personally liable for retailiation under a FEHA (California claim for discrimination) claim.” In short, retaliation may be treated as either the same or different from discrimination, depending on which one provides the most “liberal construction” for plaintiffs in suing the employer.

With this decison in mind, you have to understand that once an employee lodges a potentially protected complaint, ANY subsequent job changes in his job assignments or status may be cited as a form of alleged “retaliation.” My best advice is to take all reasonable steps to advise managers and supervisors that they have to leave out emotional knee jerk reactions when an employee complains about any form of harassment whether it is based upon a portected class (race, religion, age, disability, etc.) or sexual harassment. Remember, the employee can loose on a discrimination allegation and still win on a retaliation claim. The Court will look at the perception of the individual, the facts that appear to support that some adverse action was taken, and not consider your intent (just the act that took place).

As always you must understand that documentation plays a key role. If you were consistent with your documentation before and after the employee complained and that documentation is consistent, it goes a long way toward your defense.

As if we need another paid leave! Well get ready, legislation is being introduced in both houses that would guarantee paid sick leave for employees infected by the H1N1 virus or other “flu like illnesses,” where the employee works for a business with at least 15 employees. The legislation is being considered on an emergency basis and if passed as such would take effect 15 days after being signed into law! The good news is the bill, if passed, would be a temporary measure designed principally to combat the H1N1 virus and the leave provisions would automatically expire after two years (yeah, right and if the virus is still around???).

By the way, Senator Chris Dodd, is the key sponsor of the bill in the Senate. It is his stated belief that “families should not have to choose between staying healthy and making ends meet.” The bill, if passed, would allow individuals with the H1N1 flu to stay at home instead of coming to work, while sick, and will make it easier for parents to care for children who must stay home to due to the flu or school and childcare closings. The provisions of the bill would allow employees to earn up to SEVEN PAID sick days to use for:

1. The care for a child who is sick with H1N1 virus or “flu like symptoms;”

2. To care for a child whose school or child care facility is closed because of the spread of contagious illness;

3. Their own issues related to their personal flu like symptoms or care.

The House bill is being referred to as the Emergency Influenza Containment Act and is much better for employers. It is being introduced by California Congress members George Miller and Lynn Woolsey, and limits the leave to 5 days, provides that the leave will only be paid if the employer requires the employee to stay home, and provides for leave only for the employee’s own illness.

Neither of the two bills appears to address paid sick days already being provided by employers. In addition, my concern is that employees may abuse the new bill because the provision includes “flu like symptoms.” Look, we can all agree that employers and employees do not want individuals coming to work that are ill but I do not see the necessity of creating another paid leave when employees already have options such as paid sick days, vacation days, and personal time off (PTO). Once a law is created, although stated to be temporary, it will become a permanent benefit.

I will keep you posted on this one.

The failure to pay back wages are normally a civil issue, not a criminal act. Well, it looks like that might be changing! The U. S. Department of Labor (the big boys!) are looking to punish employers who do not pay back wages. Ask the owners of Southern California Maid Services and Carpet Cleaning Inc. who found out recently that the feds are serious. The DOL have made it clear that they will take employers all the way to jail to enforce back wage orders.

The facts are simple enough. The DOL filed a lawsuit against the owners of the maid service-Sergio Maldonado and Lorenzo Rubio of Rolling Hills Estates. They lost, and were ordered by a California court in August 2007 to pay 3.5 million dollars in back wages and penalties to 385 of their current and former employees. The owners IGNORED the court order (don’t know who advised these guys!) and the DOL decided to file a contempt of order which was granted by the court. On October 30, 2009, the owners were arrested and held for 4 days in a Santa Ana jail. The owners were released following a hearing and again ordered to pay the entire 3.5 million by November 12, 2009.  or face new contempt charges.

Here’s the real kicker. The new Labor Secretary, Hilda Solis, has made it quite clear that she intends to make good on her promise to come down hard on employers who fail to pay properly. To enforce her directives, she has hired 250 new wage & hour inspectors to get judgments, and to enforce those judgments.  California’s Department of Industrial Relations may well follow the DOL’s lead. There is no secret that class action wage & hour lawsuits are running out of control. Employers have got to understand that they have to pay correctly and failure to do so, even by accident, will cost them much more than the wages owed. Please check, and re-check, to assure that all breaks, overtime, and the proper classification of employees (exempt v. nonexempt) are within compliance.  If employers take the time to conduct a self-audit they will not have to worry about the feds, California, or class action lawsuits. If you need help let us know.

As many of you may recall that have heard me speak either in a seminar or as a guest speaker I have always stressed that mangers or supervisors have to “take every complaint seriously!” The Cheesecake Factory learned this lesson the hard way to the tune of $345,000 that they will have to pay six male employees (yes males, not females!) who allegedly were sexually harassed and assaulted by other male employees at one of their restaurants.

The payment settles a lawsuit filed in 2008 by the U.S. Equal Employment Opportunity Commission, which claimed that Cheesecake Factory knew about and tolerated repeated sexual assaults against the six men by a group of other men who worked in the kitchen. The EEOC said the evidence “overwhelmingly showed that the abusers touched the victims inappropriately, made sexually charged remarks and forced the victims into repeated incidents of simulated rape.” Managers, according to the EEOC, also witnessed employees “dragging the men kicking and screaming into a refrigerated room.” Apparently the victims complained to managers, who never stopped the abusive behavior. One victim even called the police but no charges were ever filed.

The Cheescake factory, through their legal spokesperson denied the allegations stating that “Actions of this nature are not tolerated by us.” The consent degree did not assign any liability but the company decided to settle the matter due to the high cost of litigation. In addition to the monetary relief, the Cheesecake Factory will have to train their employees and managers about sexual harassment and they must assign an ombudsperson to field and address complaints about sexual harassment.

What a waste of money! Currently I have done pretty close to 150 seminars this year on AB1825, the mandatory sexual harassment training required by California. For those of you that have already completed the training know that I have been emphasizing that managers cannot ignore complaints or inappropriate behavior. This is a classic example of managers not taking this kind of behavior seriously.

As a final point, if you have not completed the training for this year you have to get it done by December 31. This is the mandatory year. Don’t think that if you had the training anytime last year that you are covered. You are not!!

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.

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.

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.

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!

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.

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.