Customer Discriminatory Requests

April 30, 2009

Many of you probably already know the  answer. Although we seek to assist our customers they have to understsnd that the law is not as forgiving as we are. Our employees are who we are and without them we cannot exist as a business. Stand by them! Customer request for preferences should be handled diplomatically but at the end of the day–ignored!

What Happens When Customers Make Discriminatory Requests?

April 27, 2009

This question usually surfaces at some of the seminars that we conduct. The issue, what happens when a customer tells a manager that they do not want a particular employee to assist them because of their race. Unfortunately, it happens, and the employer needs to consider that such requests may discriminatory. I have often told the story about a lady who called into the station because there was a prowler in the neighborhood. The dispatcher sent a deputy to investigate. Upon his arrival he went to the door of the caller and knocked. In turn, she looked out the little doorlike peephole, saw a black face and slammed it shut. She went back to her phone screaming that the prowler was at her door. The dispatcher informed her that the person at her door was the deputy. She refused to open the door because he was black and canceled the call!

Now, in determining whether an employer should comply with a customer request regarding employee preference, the employer should consider whether the request constitutes a “personal bias” against an employee or class of employees protected by law. The law recognizes that an employer may have a business necessity for requiring what would otherwise be considered unlawful discrimination. The question is simple: Does an employer have to comply with a customers discriminatory request??

The answer will be posted later in the week. Check back.

Adjusting Work Schedules to Avoid Layoffs is Legal!

April 20, 2009

We are getting calls from clients asking us if it is legal to adjust hourly employees schedules to avoid layoffs. Absolutely! There’s no contractual (unless it is a Union shop) obligation that prevents you from doing so. Determining how and when to schedule hourly employees, including reducing the number of hours or days worked, is at the employer’s discretion. Just keep in mind you must use an objective criteria when choosing specific individuals.

In addition, consider how a reduction in hours will affect exisitng sick leave, vacation, paid time off, and health insurance policies. An employee’s eligibility is often based on whether employment is full-time of part-time and a reduction in hours may cause a loss of eligibility. Keep in mind you can update your policy to reflect any changes and contact your healthcare provided to ensure compliance with any policies that they may have. Another factor to consider is that the employees may be eligible for unemployment benefits based upon the loss in income. The EDD will make the determination as to the dollar amount.

Finally, if you already have an alternative workweek schedule in place, employers may not reduce the established number of hours and days.  Employers may, however, unilaterally repeal the schedule with reasonable notice to employees. Another option is to propose a different alternative schedule and hold a new election. Keep in mind, reducing the salary of an exempt administrative, executive, or professional employee in connection with a reduction in hours and days may invalidate the exempt status of the employee.

One more consideration. You should keep in mind that it is important to develop a strategy and evaluate how the reduction will affect your employees and your customers. As employee morale suffers, productivity may decrease, which may, in turn, affect customer service. Try to lessen the impact by advising employees that there will be reductions in hours and explain the reasons it is necessary.

No Obligation to Rehire Laid Off Employees!

April 13, 2009

We have noticed that the number of layoff unemployment claims have really begun to dwindle. This could be a sign that the economy is slowing down and beginning to level off. In addition, we are beginning to receive calls about rehiring laid off employees. That’s the good news!

Anyway, there is no legal obligation that you have to rehire employees who had been previously laid off, unless you have specific policies outlining rehiring laid off employees (Union collective bargaining agreements usually do). Keep the following points in mind:

  1.  There is no obligation unless the employer has a contrary policy.
  2. If you made any promises to a former employee, you must comply with that promise because you may have created a contract.
  3. Becareful in the rehiring process that your rehiring preferences do not have a discriminatory impact. Title VII and FEHA guidelines will apply.

Fianlly, you may want to consider rehiring former employees who are reliable and experienced. Keep in mind that training new employees can be costly and former employees that were good may still be available.

Keep plugging away!

The New COBRA Guidelines In A Nutshell!

April 13, 2009

We are getting calls regarding the new guidelines for COBRA. As you probably know, President Obama signed the American Recovery and Reinvestment Act on February 17, 2009. The law gives “Assistance Eligible Individuals” the right to pay reduced COBRA premiums for periods of coverage beginning on or after February 17, 2009, and can last up to 9 months.

Now, to be considered an “Assistance Eligible Individual” and get the reduced premiums, the individual must meet the following guidelines: 

  • The time frame to be eligible for continuation coverage is from September 1, 2008 through December 31, 2009 and elect coverage;
  • To be eligible, the individual must have been “involuntarily” terminated between September 1, 2008, through December 31, 2009;
  • The individual must not be eligible for Medicare;
  • The individual must not be eligible for any other group health plan such as a plan sponsored by a successor employer or a spouse’s employer.

If the former eligible employee was offered, but did not elect, continuation coverage or who elected continuation coverage and subsequently discontinued it may have the right to an additional 60-day election period.

More information is available at:

Administration (EBSA) at 1-866-444-3272 or visit the EBSA website at 

No Compensation For Workplace Gossip!

April 6, 2009

Workplace gossip is an issue that confronts every employer. A court of appeals rendered a decision that basically stated “Don’t expect to engage in an extramarital affair with a coworker and expect to receive workers compensation because you’re stressed out over workplace gossip!”

The facts were simple enough. While working as a bus driver and instructor for a school district, a female engaged in a “not-so-private affair” with a coworker. After the affair ended, she learned from another coworker that her former lover  and several other employees (including another married man she was pursuing) were spreading gossip about her.

At her request, her supervisor and human resources gave instuctions for the gossip to stop but she still filed for workers compensation alleging “cumulative psychiatric injury from a hostile work environment and sexual harassment.”  She was diagnosed with major depression due to personal stresses including “spousal abuse” (I guess her husband was not happy about her behavior!),  marital break-up, and the extramarital affair.

The workers compensation judge denied the claim (I didn’t think they ever denied claims!). The Workers Compensation Appeals Board revesed the decision because the source of the gossip took place at work. On review, the appeals court agreed with the original decision because the employee’s duties merely provided the stage for the injury and played no active or positive role, and the gossip was about the employee’s personal life and not part of the employment relationship.

What should an employer do under such circumstances!

As always take every complaint seriously. While the workers compensation claim was denied, the result might have been different, if after becoming aware of the gossip, the employer allowed it to continue. Second, always conduct a proper investigation and take remedial action action when appropriate, without prejudging the complaining employee. Had the employer not taken the action her claim for hostile work environment and sexual harassment may have survived the appeal.