30 Tips to Avoid Litigation

January 26, 2015

The following was written by my friend, Art Silbergeld. He has practiced employment law for almost 37 years. These thirty (30) tips should be printed and kept as a reminder. It reinforces many of the issues I have pointed out over the last few years.

I often end up defending companies in employment litigation in federal, state bench or jury trials because they have inadvertently failed to comply with provisions found in the California Labor or Government codes. Plaintiffs’ attorneys, hunting for clients and claims, feed on such employer oversights and seek huge sums in attorneys’ fees, back pay, and other damages, filing costly individual and class actions and claims under California’s Private Attorneys General Act. Here are some guidelines which an employer must follow (or cannot or should not do) that may help protect it from costly lawsuits:

  •  When hiring any new employee, an employer

must provide written notice of the rate and basis

of pay, the regular payday, the location and

phone number of the employer’s office, the paid

sick leave policy, and the name of its workers’

compensation carrier, and notify employees if this

information changes.

  • Do not, in a background check, obtain

consumer credit reports on applicants or

employees for most non-managerial jobs, except

those with access to confidential information or

signatory authority on bank accounts.

  • Do not ask an applicant or employee for a

user ID or password in order to access personal

social media (Facebook, Yik-Yak, etc.) or discipline

or fire an individual who refuses to give that

information.

  • Do not ask an applicant about family

planning.

  • Have employees sign at-will agreements,

agreements to arbitrate disputes, and class action

waivers.

  • Unless scheduled to work under six hours,

allow employees a 30-minute (unpaid) meal period

starting by the end of the fifth hour of work and a

second after 10 hours. Always document time out

for meals.

  • Provide employees a 10-minute paid rest

break for every 3.5 hours of work and distribute a

written policy on this issue.

  • Pay overtime to non-exempt employees, even

those on a fixed weekly or monthly salary. Do not

treat salaried employees as exempt from overtime

just because they get a salary.

  • Be certain that exempt employees consistently

do exempt work more than 50% of their working

time. Pay exempt employees minimum California

monthly salary, higher than the federal standard.

  • Pay out of state employees who come into

California to work, even briefly, at the daily,

weekly and double overtime wage rates.

  • Pay statements accompanying paychecks

must be accurate, listing all information for the

pay period and year-to-date required by the Labor

Code. Hundreds of class action complaints alleging

non-compliance are pending.

  • Have written agreements with commission based

employees.

  • In most cases, pay employees who spend

substantial time before and after work stocking

shelves or putting on and taking off uniforms and

safety gear. Nordstrom settled litigation for $7.650

million after not paying commissioned employees

who worked before and after stores opened.

  • On the day of termination, pay final wages,

including accrued and unused vacation pay or,

if the employee quits without giving 72 hours’

notice, within 72 hours.

  • Do not offset an employee’s debt (loans,

advances) from a final paycheck without written

authorization.

  • Have written rules of conduct. Apply them

consistently.

  • Provide honest performance evaluations.
  • Document the reasons for every employment

separation.

  • Keep pay records for three years and, if asked,

give an employee a copy of his/her pay records

within 21 days.

  • If employing five or more, allow an employee

from day one to take a pregnancy disability leave

of up to 17.33 weeks and continue group health

during that period.

  • Do not retaliate against an eligible male or

female employee who takes family or medical

leave or is absent for other reasons allowed by the

Labor or Government codes.

  • Hold a job open for most employees on leave

and do not decide to fire the employee because the

temp performs better.

  • Allow employees an unpaid leave for jury

duty, to testify on issues of domestic violence,

sexual assault, and stalking, and up to 40 hours a

year to attend children’s school activities.

  • Comply with federal non-discrimination

standards (race, color, gender, national origin,

religion, age) and also with California laws

prohibiting sexual orientation, marital status, and

gender identity and expression discrimination.

  • Prohibit sexual harassment in writing. Take

any claim of harassment seriously, investigate

and, if valid, correct it and, if employing 50 or

more, train all supervisors on issues of harassment,

discrimination, retaliation, and bullying for

two hours every two years. Too often, employee

complaints are not taken seriously, “whiners”

are fired, and expensive litigation and potential

damage to goodwill follow.

  • Prohibit employees from using the company’s

communications system to view or send

communications with pornographic or harassing

content and monitor emails and filter out

offensive content.

  • Affirmatively engage in an interactive

process with individuals who have or are believed

to have a disability to determine reasonable

accommodations that might enable the individual

to perform the essential functions of a job.

Complaints of disability discrimination have

sharply increased.

  • Provide a reasonable accommodation to a

lactating mother, including space (other than a

restroom) for privacy to express breast milk.

  • Do not deny employees who have access to

the company’s electronic e-mail the right to use

the e-mail to communicate with co-workers about

wages, hours and other terms and conditions of

employment and union organizing activity.

  • Begin paid sick leave compliance and accrual

starting July 1, 2015.

Arthur F. Silbergeld, an employment and labor partner with Norton Rose Fulbright, is the author of Doing

Business in California: An Employment Law Handbook (3rd ed.) from which these guidelines are taken.

For more information, contact (213) 892-9235 or arthur.silbergeld@nortonrosefulbright.com

NOTE: The podcast this week discusses “Breaks for Smokers!” Go to http://www.pottsandassociates.com or iTunes (look for Listen Up with Jim Potts).


Temporary Worker Initiative-Are you prepared?

January 19, 2015

The Occupational Safety and Health Administration (OSHA) has launched the Temporary Worker Initiative (TWI) to focus on preventing injuries and illnesses among temporary workers. OSHA recently released a policy memorandum addressed to its field staff reminding them of the agency’s long-standing enforcement policy for temporary workers. The memo specifically attempts to clarify the responsibilities of staffing agencies relative to the duties of host employers and to provide guidance on when inspectors should open an investigation.  

Defining temporary workers, joint employers

OSHA defines temporary workers as “workers hired and paid by a staffing agency and supplied to a host employer to perform work on a temporary basis.” In practice, the staffing agency usually controls a worker’s paycheck and sends the worker to the host employer’s workplace; the host employer assigns particular tasks to the worker and supervises worksite operations.

For those reasons, OSHA considers host employers and staffing agencies “joint employers,” a legal concept recognizing that “in some situations, the key attributes of the traditional employer-employee relationship are shared by two or more employers.” Consequently, each employer bears responsibility for compliance with legal and regulatory requirements.

Clarifying joint employer responsibilities

The policy memorandum indicates that the obligations of the staffing agency and the host employer will vary depending on workplace conditions. To determine the exact responsibilities of both parties, OSHA engages in a “highly fact-specific analysis.” As part of its inquiry, OSHA compliance officers are directed to review any contracts between the staffing agency and the host employer to determine if the parties have purposefully allocated certain burdens necessary to safeguard employee well-being. A contract may not discharge an entity of its obligations under the Occupational Safety and Health Act (OSH Act), however.

The host employer is typically charged with the responsibility of discovering any potential hazards at the jobsite and complying with specific workplace requirements. The staffing agency should usually ensure that it adequately trains workers in preparation for their specific assignment and doesn’t shuttle employees off to unreasonably dangerous worksites. OSHA advises both parties to assess the job assignments to identify and eliminate potential safety threats before entering into a joint employer relationship.

Communication is key

If a temporary worker is injured at a host employer worksite, the host employer should inform the staffing agency of the injury. The staffing agency, in turn, should follow up with the host employer on what remedial measures were implemented.

Similarly, if a staffing agency learns of a temporary worker’s injury, possibly through a workers’ compensation claim, it should inform the host employer that it must take preventive measures before additional workers are injured. Dialogue to strategize the prevention of future injuries should also occur after a worker is injured.

Staffing agency inspections

If a temporary worker is or could be exposed to a serious hazard, or if the staffing agency doesn’t attempt to learn of the conditions at the host employer’s workplace, the OHSA compliance officer is directed to initiate an inspection of the staffing agency. In all other instances, area OSHA directors may decide, based on the evidence found during the inquiries, whether to open an inspection of the staffing agency.

When a temporary worker is exposed to a safety violation, the compliance officer should make inquiries into the staffing agency’s actual or constructive knowledge of the worksite’s hazards — i.e., whether the staffing agency knew or, with the exercise of reasonable diligence, could have known about the hazards. The officer is directed to review factors such as:

(1) The terms of the contract between the staffing agency and the host employer;

(2) The interaction and communication between the staffing agency and the host employer; and

(3) The staffing agency’s contact with its temporary workers (specifically, whether the workers have had any complaints and if so, whether they notified the employers of their concerns).

As a reminder, the issue of “joint employers” extends not only to OSHA but to the Labor Board, EEOC and other state and federal agencies.


The Top Ten Federal Issues to Watch Out For in 2015

January 12, 2015

2014 was a pretty tough year for the Equal Employment Opportunity Commission (too bad!). But that doesn’t mean employers can relax. Managers and supervisors have to stay focused and vigilant with maintaining a healthy non-discriminatory working environment.

So what should you be watching out for in 2015?

Here’s the top ten list of key upcoming EEOC developments:

  1. the Affordable Care Act’s encouragement to develop wellness programs to help contain medical costs versus the EEOC’s focus on the “voluntariness” of participation Conciliation obligations of the EEOC prior to filing suit – The U.S. Supreme Court’s upcoming ruling on the nature and extent of the EEOC’s obligations during the conciliation process
  1. Employer obligations involving pregnant workers –An employer’s obligations involving pregnancy leave under the Pregnancy Discrimination Act based on the upcoming ruling by the U.S. Supreme Court in Young v. UPS, as well as the nature and extent to which the courts will obligate employers to make reasonable accommodations to pregnant workers under the Americans with Disabilities Act (ADA)
  1. EEOC challenges to hiring barriers –Various cases involving hiring barriers, including the impact of the Fourth Circuit’s decision in EEOC v. Freeman involving the use of criminal history in the hiring process, as well numerous cases of alleged intentional discrimination in the hiring process involving race, national origin, age and sex discrimination
  1. Scope of reasonable accommodation under the ADA –The courts’ approach to required accommodation under the ADA, including whether the courts will begin to challenge required attendance on the job based on cases such as EEOC v. Ford Motor Company, currently pending before the Sixth Circuit
  1. Required accommodations involving religion – The scope of reasonable accommodation involving religious discrimination based on the U.S. Supreme Court’s upcoming decision in Abercrombie and whether an individual has to make a specific request for an accommodation in circumstances where an employer arguably has enough information to believe there may be a potential conflict between the individual’s religious practices and employer policies 
  2. EEOC challenges to wellness programs – The manner in which the courts will reconcile in such programs
  1. Nature and extent of rights of LGBT workers under Title VII – The nature and extent to which courts adopt the view of the EEOC and expand the rights of LGBT workers under Title VII, despite the absence of legislation to cover sexual orientation and sexual identity
  1. Challenges to releases and/or arbitration programs –Challenges to employer releases by the EEOC in litigation similar to EEOC v. CVS  (in which the EEOC’s claim was dismissed on technical grounds based on the failure to conciliate prior to filing suit) and/or arbitration programs to the extent the EEOC believes such employer documents allegedly interfere with access to EEOC processes
  1. “Directed investigations” under the Equal Pay Act (EPA) and Age Discrimination in Employment Act (ADEA) and related litigation –Potential broad-based investigations of alleged equal pay violations under the EPA and/or age discrimination under the ADEA without a charge of discrimination even being filed against an employer, based on the EEOC’s authority to conduct “directed investigations”, and
  1. Scope of permitted pattern or practice litigation against employers – Continued pattern-or-practice litigation by the EEOC, including harassment litigation, and the extent to which a lawsuit by the EEOC will be limited based on the scope of its investigation and/or the failure to identify purported victims prior to bringing suit.

I will keep you posted on each of these throughout the year.

NOTE: California employers remember that California law disability laws are stricter than federal law.

PODCAST: We are discussing “body odor” and its impact on employees! What can you do? Listen Up! www.potsandassociates.com or go to ITunes.


FMLA Leave for Headaches??

January 5, 2015

An employee’s doctor determined that the employee’s excessive work schedule during periods in which he worked overtime was one of the main factors that triggered his headaches. Therefore, he limited the employee’s work to no more than eight hours per day, and he also prohibited overtime. Permanently. These restrictions were provided on an FMLA certification form.

The employer told him that he needed to submit medical certificate in order to take FMLA leave, but it made one thing clear: if the certification confirmed the employee could not work overtime, he would have to resign or seek disability retirement. As the story goes, the employee’s certification confirmed that he could not work OT.  Not a single hour of it.  The employee later resigned after the employer could not locate another position for him. He later filed an FMLA lawsuit.

The Court Ruling

The court ruled in favor of the employee and here’s why:  The FMLA does not require a complete incapacity to work but rather permits leave to be taken intermittently or on a reduced leave schedule when “medically necessary. As a result, the court determined that the employee could take “prophylactic” FMLA leave because his doctor opined that he could come to work when he is required to work certain excess hours.

Insights for Employers

There are two takeaways here:

  1.  There is NO undue hardship argument available under the FMLA. The employer’s loss in this case is a reminder that the FMLA can have brutally harsh results for employers. As we see above, the FMLA presumes that it will cause employers hardship — as in this situation, when an employee is excused from essential functions of the job, these tasks fall directly to other employees and can create havoc on an employer’s operations.  That’s the unfortunate reality of the FMLA. If we were in an ADA situation [for instance, if the employee had exhausted FMLA leave and was seeking additional leave under the ADA], we could make a case for undue hardship: other employees have been required to take on the duties of the absent employee; even more overtime will need to be paid out; managers have been required to cover certain tasks, leaving voids elsewhere; projects have been deferred because of inadequate staffing; and morale has been adversely impacted.

However, we are unable to make the same undue hardship argument under the FMLA. Why should that be?  If the Department of Labor ever asked for my opinion [which, of course, it won’t] on how to improve the FMLA regs, adding the “undue hardship” provision is one suggestion I’d offer.  Of course, we would need to balance such a defense between the rights of employees and employers, but the concept should be in play, even in FMLA situations.

  1. Don’t forget that the FMLA and ADA may BOTH apply to a request for leave or reduced work schedule.When an employee requests FMLA leave for his own alleged serious health condition, an employer is well advised to initiate the ADA’s interactive process to evaluate whether the employee may require a reasonable accommodation in addition to FMLA leave. If an employee’s leave request implicates both the FMLA and the ADA, the employer must analyze its obligations under each act. Keep in mind: the employee is entitled to the benefits of whichever law provides the employee with the greater protection. For the reasons stated above, the FMLA offers more protection in this instance.

For California employers please keep in mind that under California law employers are held to even stricter guidelines involving the interactive process required by the Fair Employment & Housing Act.

Note: The Podcast this week is discussing whether employers can force employees to retire! http://www.pottsandassociates.com