Obesity Emerging As A Protected Class Group

November 29, 2010

The EEOC is at it again! They recently sued a nonprofit employer because they fired a woman allegedly because of her weight. Quite frankly, she was obese, and had some difficulty in performing her job. According to the EEOC press release, “The filing of this suit sends a strong message to employers that they cannot fire disabled employees based on perceptions and prejudice.”

Admittedly, there have been a number of cases when an employer fired an employee because of his size. One worked for a subway as the person who drove the train. He gained weight over the years and could no longer fit in that tiny compartment. Another one was a bus driver who basically had the same type of problem. These situations are actually becoming hotly contested issues.

Proponents of anti-weight-bias statutes argue that a person’s weight is largely out of his or her control; they point to the low success rate of diets and the role of genetics in determining weight, as well as persistent discrimination against heavier individuals. Opponents, on the other hand, claim that weight is substantively different than fixed characteristics like race and sex, and that obese employees are more costly than other employees due to heightened healthcare costs.

Although this case is still undecided employers need to be aware that disability claims are on the rise and have to be extremely careful. In fact, recent amendments to the federal ADA have broadened the definition of “disability” in a number of ways. California has even stricter guidelines.

As a final note just remember to stay focused on the requirements of the job and always document poor performance. This employer appears to have made comments about the former employee’s weight. Stay away from making personal remarks and opinions.

I will keep you on how this case turns out.

Lawful and Unlawful Payroll Deductions-Are You in Compliance?

November 22, 2010

Surprisingly, we get a significant amount of inquiries regarding payroll deductions. An employer can lawfully withhold amounts from an employee’s wages only when: (1) required or empowered to do so by state or federal law; (2) when a deduction is expressly authorized in writing by the employee to cover insurance premiums, benefit plan contributions or other deductions or (3) when deductions cover health, welfare or pension contributions is expressly authorized by a wage or collective bargaining agreement.  Although a wage garnishment is a lawful deduction from wages an employer cannot discharge an employee because a garnishment of wages has been threatened or if the employee’s wages have been subjected to garnishment for the payment of one judgment.

The ability of employers to deduct amounts from an employee’s wages due to cash shortages, breakage, or loss of equipment is specifically regulated by the Industrial Welfare Commission Orders and limited by court decisions.  In addition, there have been several court decisions that significantly restrict an employer’s ability to offset against an employee’s wages. Balloon payment on separation from employment to repay employee’s debt to employer is an unlawful deduction even where the employee authorized such payment in writing. Taking this one step further just because an employee authorizes a deduction from payroll, if the deduction is for unlawful reasons, it does not matter that the employee authorized it in writing. It is still an illegal deduction.

Other unlawful deductions include:

                Gratuities:  An employer cannot collect, take, or receive any gratuity given or left for an employee, or deduct any amount from wages due an employee based on that gratuity (for our hospitality clients!).

                Photographs: If the employer requires a photograph of an applicant or employee, the employer must pay the cost of the photograph.

                Business Cards: Employers cannot charge the employee for the first set, or any set, of business cards.

                Uniforms: If the employer requires a uniform to be worn by an employee, the employer must pay the cost of the uniform including cleaning (if it needs to be dry cleaned). If you take a deposit it must be put in a separate interest bearing account in the name of the employee otherwise the deduction will be treated like wages.

                Expenses: An employee is entitled to be reimbursed by his or her employer for expenses or losses incurred in direct consequence of the discharge of the employee’s work duties.

                Medical Record: An employer cannot require an employee or applicant to pay for a medical examination or deduct from an employee’s wages the cost of a medical examination taken as a condition of employment or required by any state or federal agency.

                Finally, if you are not sure if a deduction is not lawful please call us! The penalties are very stiff.

Social Networking as Protected Concerted Activity?

November 14, 2010

The impact of social networking sites on our daily lives continues to grow, and their presence in the workplace is impossible to ignore any longer.  Where an employee runs afoul of the employer’s policy, sparks are bound to fly, and in at least one instance, the National Labor Relations Board is taking notice.  Recently, the NLRB gave insight into how an employer’s social-networking policy may be viewed in the future when it issued a complaint against an employer for allegedly terminating an employee for posting a “negative remark about her supervisor on her personal Facebook page.”

While instances of employers taking action against employees who post disparaging comments about their manager is nothing new, it is the NLRB’s other allegation that has drawn the attention of employers nationwide:

“the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission.  Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”

By this paragraph alone, the NLRB has signaled its intention to investigate the very policies that employers adopt in attempting to address the workplace related issues inherent to social networking sites. These policies are necessary to warn employees about what social networking conduct would be acceptable, and it appears that the NLRB will view the issue in a light most favorable to the employee.  The NLRB investigates issues concerning unionized employees under collective bargaining agreements, but even employers with non-union employees should be cautious in taking action against employees who makes disparaging comments about their employer on a social networking site.

Though adopting sensible policies with respect to social networking sites is still the most prudent approach, employers should be cautious in taking any action against employees who make disparaging comments on a social networking site.  I will continue to post developments on this important and evolving topic.

Homeland Security and ICE Announce Record Immigration Enforcement Statistics

November 8, 2010

This week, Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced record-breaking immigration enforcement statistics achieved under the Obama administration–including unprecedented numbers of convicted criminal alien removals and overall alien removals in fiscal year 2010.

Not only have DHS and ICE removed more convicted criminal aliens than ever before, they also announced that they have issued more financial sanctions on employers who knowingly and repeatedly violate immigration law than in history. Employers should be aware that since January 2009, ICE has audited more than 3,200 employers suspected of hiring illegal labor, debarred 225 companies and individuals, and imposed approximately $50 million in financial sanctions.

As you know, over the past year I have been pushing clients to make sure that they are in compliance with the I-9s. Our HR Audits are still finding clients are not fully in compliance. The size of the company does not matter. Every employer is required to have an I-9 on file including one on the owner of the company. Next year the heat from “Ice” is going to be stepped up. State agencies are also reviewing I-9s if for some reason they have to come on to company premises. The common mistakes that we are still finding are I-9s in the personnel files, the date of hire does not appear on the I-9, and over documentation (the employer has filled in all three of the columns. You only need one item from column “A” OR documentation in column “B” AND “C”).

As a final note, if an applicant cannot provide the required information within three days, tell them that they cannot return until they bring it in. DO NOT tell them what documentation to bring in. Give them a copy of the required documentation and let them choose. In addition, do not make assumptions that the process is being done correctly. Physically, double check. There’s too much money at stake.


California Court Says Employer Does Not Have to Ensure Breaks Are Taken

November 1, 2010

While California employers continue to await the California Supreme Court’s decision in Brinker, one Court of Appeals has issued a published decision holding that an employer does not have to ensure its employees take their meal breaks so long as they are provided the opportunity to take them.  The court also denied class certification to a putative class of employees alleging meal break violations.  The decision is Hernandez v. Chipotle Mexican Grill.

Meanwhile, the Brinker case has not yet been set for oral argument before the Supreme Court, which means that a decision is not expected until at least Spring 2011.  That decision is expected to resolve the question of whether California law requires employers to “ensure” meal breaks are taken, or simply provide the opportunity to take them (with no liability if an employee chooses to skip the break or take a short break).  

This case is really good news but we must remain cautious. Please make sure that employees are aware that they are permitted to take breaks. It should be in your personnel handbook and you should place a notice on your bulletin board. If you have field personnel, have them sign off that they understand they are required to take their break. Trust me, you can’t do enough. We are still getting calls from clients who have received letters from attorneys threatening lawsuits even in the face of the Brinker Restaurant case.

I will continue to post developments on this important topic.