New Traffic Law-$754 fine, 3 points & Mandatory Court Appearance

January 25, 2010

Effective January 1, 2010 California has enacted the “Move-Over” law specifically designed to protect police officers who are parked on the side of the road, or freeway, and other parked emergency vehicle personnel from being run over by motorists not paying attention. The new law brings stiff penalties, a $754.00 fine, 3 points on your license, and a mandatory court appearance.

Employers have to understand the impact on them as well. Employees who drive company vehicles, or their own vehicles for company business, must be informed that any fine incurred as a result of this new law is completely their libility and will not be paid by the company. This is consistent with any moving violation which attaches to the driver and not to the vehicle.

Let’s take this one step further. An employee, on their day off, gets cited for this new law and now has 3 three points added on their license (and what if they already had 1 or 2 points!) and their job duties include driving a company vehicle (making deliveries, demonstration drives, etc.). The three points could dramatically alter the status of their license (suspension or loss depending if they had an other points) thereby rendering them incapable of performing their duties. In addition, the 3 points alone could send up the insurance premiums that the employer pays or the insurance company could inform the employer that they will no longer provide insurance coverage on that individual. Now what??? And by the way, if you terminate the employee because they can no longer drive, the EDD has previously determined that under the above circumstances the employee is eligible for unemployment because the behavior that caused them to loose their job was not work related. Yep!

Okay, what should you do? For those of you who do not already have a policy in place, immediately put one out  (which they will sign) explaining that they understand that as a condition of continued employment they must keep their drivers license in good standings and if they fail to do so, they could be subject to disciplinary action up to and including termination.  You can also create a form for the new hire packet and include the policy in your handbook the next time it is revised

Keep point: You can not make them pay for the increase in premium so please do not ask!LOL 

For more information:

Employers By Law Have To Give The Reason For Termination In Writing

January 19, 2010

Whenever an employer discharges, lays off, or places an employee on leave of absence, the employer must give the employee a written notice regarding the change in status.  The notice must contain, at a minimum, the employer’s name, the employee’s name, the employee’s social security number, the date of the action, and whether the action was a discharge, a layoff, or a leave of absence. Significantly, the notice need not address the reason for the change in status.  As an example, if you are terminating an employee for theft, you are not required to commit that to writing.

Employers should be very careful when providing a reason for a termination decision.  It can be tempting to blame the decision on factors outside the employee’s control, such as a slow-down in business, when the real reason is poor performance or misconduct.  If litigation follows, the employer will want to rely on the poor performance as the true reason.  However, at that point it will look like the employer either lied in the termination notice, or is now lying regarding the misconduct.  Either way, the employer will have lost all credibility and will be at a significant disadvantage in the litigation.  Therefore, the employer should either (1) give the true reason at the time of discharge, (2) give no reason at the time of discharge; or (3) give a reason that is sufficiently broad and vague that the employee is satisfied, but that will not preclude a more precise explanation later. This information can be found under 22 Cal. Code Regs. section 1089-1 (d)(2) and Cal. Unemployment Ins. Code section 1089.

We have electronic separation reports available for your use. If the employee refuses to sign it give them a copy anyway. If they refuse to accept it mail it to their last known address and make a note that it was mailed. Do not worry about sending it certified.

L.A. Leads New York, Chicago In Abuse Of Low-wage Workers

January 10, 2010

I recently came across a study by UCLA that found widespread violations of minimum wage and overtime laws in Los Angeles County. The study focused on low-wage workers who, when surveyed, stated that they had experienced some form of pay-related workplace violation and almost one in three reported being paid less than minimum wage and 80% reported not being for overtime. Furthermore, it was also reported that employees had been forced to work off the clock, not receiving proper meal breaks, and some had been forced to work despite having a workplace injury. Those working for restaurants also offered that employers or supervisors illegally pocketed all or part of their tips.

The report is part of a larger study (over a 5 year period), released last year, that examined the predicament of low-wage workers in Los Angeles, Chicago and New York. The study also suggests that low-wage workers in Los Angeles County seldom benefit from workers’ compensation. The study offers that the reason for the pervasiveness of the abuses is that certain industries have embraced business strategies that involve widespread violations of labor laws. Proponents of immigration restrictions argued that the very presence of so many illegal immigrants creates a climate of exploitation.

These type of studies draws the attention of the Department of Labor Standards Enforcement and although all employers do not engage in this type of behavior it forces the DLSE to aggressively go after employers. I continue to press the issue that employers have to ensure that they are in compliance with the wage and hour laws. On a weekly basis we are investigating labor board claims and finding employers are STILL in violation. You need to check and re-check your policies and do not assume that your managers and supervisors are following policy. In addition, they have to understand that employees may agree to a practice that is illegal but after they leave they will file a claim everytime.

Employer Liable When Employee Is Enroute To The Doctor?

January 5, 2010

Do you think it is obvious that an employer should not be held liable for injuries suffered by an employee as a result of running a stop sign outside of work hours?  A California Workers’ Compensation judge apparently did not think so.  In Esquivel v. WCAB, an employee who worked in San Diego and was receiving regular medical treatments in the San Diego area for an industrial injury decided to travel to Los Angeles some 130 miles away to visit her family.  Shortly after leaving Los Angeles to drive back to San Diego to attend a medical appointment the employee ran a stop sign, caused a collision and sustained serious injuries as a result.  She sought worker’s compensation benefits for the injuries caused by the car accident, contending that because she was on her way to a medical appointment for an industrial injury, her employer bore responsibility for the further injuries (albeit unrelated) she sustained en route to her appointment.  The workers’ compensation judge agreed with the employee and found that the motor vehicle accident injuries were a compensable consequence of the employee’s existing industrial injuries. 

The employer rightfully sought reconsideration from the Workers’ Compensation Appeals Board and the Board agreed with the employer, reversing the award of additional benefits.  The WCAB held that the accident occurred too remotely from the employee’s home and doctor’s office to hold the employer responsible for the risk of that injury.  The employee appealed from the WCAB order.

On appeal, the California Court of Appeal agreed with the WCAB and held that the employee’s injuries occurred outside the reasonable geographic area of her employer’s compensability risk.  To be clear, the court did not hold that an employer is never liable for injuries sustained by an employee en route to a medical appointment for an industrial injury.  To the contrary, the court held that an employer bears the risk and responsibility for new injuries an employee suffers while en route to or from a medical appointment within a “reasonable geographic area.”  The court explained that there is no “bright line” test for what constitutes a “reasonable geographic area” and that it must be determined on a case by case basis.  However, on the facts before the court, the employee was, for purely personal reasons, some 130 miles away from her work, her residence, and the location of her medical appointments at the time of her car accident.  The court held that in these circumstances, the injury was clearly outside the reasonable geographic area the employer could have assumed risk for.

Interestingly, the court did not address the employer’s additional argument that the employer should not have been liable for the employee’s injuries (regardless of where they occurred geographically) because the injuries were caused by the employee’s own fault in running a stop sign (according to the CHP report of the accident).  What are we missing here?