When Off-duty Conduct Clashes With an Employer Policy!

October 27, 2015

It has become increasingly difficult to separate employees’ private lives from their workplace obligations. Technology bleeds into every nook and cranny of our existence, and allows the workplace to stretch beyond the traditional 9-to-5 into a 24/7 relationship. Partly for this reason, 29 states have what are known as off-duty conduct laws — laws that protect employees’ jobs from adverse actions based on their exercise of lawful conduct outside of the workplace. Think smoking, for example. In these 29 states, it is illegal for an employer to fire an employee who smokes away from work. The employer can still prohibit smoking at the workplace, but when the employee is on his or her own private time, the conduct is off limits to the employer. But now, with a number of states passing legalized marijuana the question becomes whether an employer can enforce a zero tolerance policy regarding its use.

Last year I wrote a White paper entitled; Legalized Marijuana: Privacy Rights v. Workplace Rights (if anyone wants a copy just email me at paaerrep@aol.com). In that paper I discussed the employer has every right to enforce its anti-drug use policy even if the use of marijuana is legalized for medical or recreational use. I based that opinion on a U.S. Supreme Court decision (Skinner v. Railway Labor Executives Association) and a California Supreme Court decision (Ross v. RagingWire Telecommunications). Now, all of those happy smokers in Colorado have awaken to the harsh realities! The Colorado Supreme Court recently handed down a decision that the Colorado’s off-duty conduct law did not prohibit the termination of an employee who had used marijuana off-duty (Coates v. Dish Network).

Soon voters in Ohio will be heading to the polls to vote on the statewide legalization of marijuana. Here we go again-maybe! There is also a pending bill (Senate Bill 180) which would would prohibit an employer from taking an adverse action against an employee, without just cause, for that employee’s exercise of a constitutional or statutory right within his or her private real property or motor vehicle.

What types of rights might this bill protect? Well, if marijuana use becomes legal, employers will not be able to terminate an employee for the use of this legal drug outside of work. And while an employer will still be able to fire an employee who is high on the job, SB 180 creates a difficulty in proof. Marijuana stays in one’s system for a month or longer. How will an employer have any drug-testing confidence to fire an employee if a drug screen cannot differentiate between on-the-job use versus off-duty use?

We can debate the merits of off-duty-conduct laws. Some will tell you that employees should have the freedom legally to do what they want, when they want, during their personal time. I think that in a 24/7 world, employees need to hold themselves accountable for their own actions 24/7, and should expect their employers to do the same. Regardless of your opinion on this philosophical issue, we should all agree that SB 180 creates many more problems than it solves, and, in its current form, has no business becoming the law of Ohio. Just my humble opinion. If it does become law then it is easy to see that it could have a spiraling effect in other states. Time will tell.


New Laws That Will Make You Scream Part Two!

October 26, 2015

As I informed you in my last Blog, here are the additional new bills signed into law by Governor Brown. For my non-California readers, I will post an additional blog on Tuesday that will pertain to employers nationally. Meanwhile, here we are!

SB 579 (school activities leave) — This bill expands Labor Code section 230.8, which requires employers with 25 or more employees to provide up to 40 hours of leave per year to employees who are the parent, guardian, or grandparent of a child enrolled in a licensed day care facility or in grades K-12, for purposes of participating in school activities.  This bill expands the scope of covered employees to include step-parents and foster parents, and also expands coverage for absences to include activities related to finding, enrolling and/or re-enrolling a child in school or in day care, and/or attending to child care emergencies and school emergencies.  Finally, the statute no longer requires that a child attend a day care facility in order for an absence to be covered.  The statute now more broadly and generally refers to “day care providers.”  SB 579 also makes some technical changes to California’s kin-care leave law (Labor Code section 233) simply for purposes of conforming to the statewide paid sick leave law that went into effect earlier this year.

Understand, this is a leave of absence without pay and would appear to be in short durations depending on the school activity.

SB 501 (wage garnishments) — This bill generally changes the amount of an employee’s weekly earnings that is exempt from a garnishment order, effective July 1, 2016.  Current law provides that the amount subject to garnishment cannot exceed the lesser of 25% of an employee’s weekly disposable earnings or the amount by which the employee’s weekly disposable earnings exceed 40 times the minimum hourly wage in effect.  Under the new law, the amount subject to garnishment cannot exceed the lesser of 25% of an employee’s weekly disposable earnings or 50 percent of the amount by which the employee’s weekly disposable earnings exceed 40 times the minimum hourly wage in effect.

Now, here is some good news. Below are bills the Governor actually vetoed!

First, the Governor vetoed AB 465, which would have prohibited mandatory agreements to arbitrate Labor Code claims.  Second, the Governor vetoed SB 406, which would have expanded coverage of the California Family Rights Act (“CFRA”) to allow leave to be taken to care for a more broadly defined group of family members.  This would have created a conflict between CFRA and the federal FMLA, potentially resulting in employees being able to take up to 24 weeks of protected leave (12 weeks under the CFRA and 12 weeks under the FMLA) in one year. The Governor’s veto of these bills was very good for California employers.

What Now?

Most of the bills signed into law this term do not require employers to modify or revise personnel policies or practices. A notable exception is AB 1513, which, as discussed above, requires modification of practices relating to piece rate worker compensation and wage statements.  Employers with piece rate workers must review their compensation practices and wage statements to ensure compliance with this new law.  Additionally, employers with 25 or more employees who are subject to California’s unique school activity leave law should review their policies in this regard to ensure compliance with SB 579’s amendment of this law.  Employers are also reminded that they should review paid sick leave policies to ensure compliance with the statewide paid sick leave mandate that took effect earlier this year, including the amendments imposed by AB 304 and DLSE interpretive guidance that already took effect this summer (including a clarification of the rate of pay for sick leave used by non-exempt employees in some circumstances, and interpretive clarification that “24 hours or 3 days” means whichever of the two is greater).  Finally, proactive employers should regularly and continually review wage and hour policies and practices as this area continues to be the hottest area for new claims and lawsuits and SB 588 “ups” the exposure and risk factor by providing for potential individual liability on the part of owners, officers, directors, and managing agents. I cannot stress enough the importance of having wage & hour training especially in light of the additional liability on an individual basis.

Note the podcast this week discusses whether women are paid less than men. Emails loaded with opinions both pro and con were received and discussed! As a reminder you can listen on ITunes at “Listen Up with Jim Potts” or go to our website at www.pottsandassociates.com.


New California Laws That Will Make You Want to Scream!

October 19, 2015

Ok, at the outset I am going to tell you hold on to yourself. There are several new laws in effect that will make you want to scream. These are just a few, and next I will post the others. Here we go!

SB 588 (wage and hour violations) – this bill which was recently signed into law, appears to allow for individual liability for many wage and hour violations (contrary to the holdings of court cases rejecting individual liability). It amends Labor Code section 558.1 to provide that any employer or “other person acting on behalf of an employer” may be held liable for violating or causing to be violated any provision regulating the minimum wages or hours and days of work in any Wage Order, or for violating or causing to be violated Labor Code section 203 (timing of payment of wages), Labor Code 226 (wage statements), Labor Code 226.7 (meal and rest periods), 1193.6 (minimum wage and overtime), 1194 (minimum wage and overtime), or 2802 (expense reimbursement). The statute expressly defines “other person acting on behalf of an employer” to mean a natural person who is an owner, director, officer, or managing agent of the employer. The term “managing agent” means the same thing as it does under California Civil Code section 3294 (which provides for punitive damages in civil actions in certain circumstances).

Can you imagine your managers and supervisors now being personally liable!

SB 588 also greatly increases the power of the Labor Commissioner’s office to enforce judgments for nonpayment of wages against California employers, including by giving the agency the power to issue levies and liens against employer property and to issue stop orders requiring the cessation of business operations on the part of employers who have judgments against them for nonpayment of wages that are outstanding for more than 30 days after the time to appeal has passed (and no appeal is pending).

They will shut you down!

SB 588 also has special provisions targeting the property services and long term care industries, providing for joint and several liability for unsatisfied judgments on the part of parties who contract for these services. The new law defines “property services” to include janitorial services, security guard services, valet parking services, and landscaping and gardening services. This does not extend to such services performed at individual primary residences. The long term care industry refers to skilled nursing facilities, retirement communities, hospices, and similar businesses. The new law requires an employer who contracts to provide such services to provide written notice to the other party to the prospective contract of any unsatisfied final judgments against the employer for nonpayment of wages. However, the failure to give such notice does not provide a defense to joint and several liability. Instead, in the event of an unsatisfied judgment for nonpayment of wages arising from work performed under the contract, both parties to the contract may be held jointly and severally liable for the judgment.

AB 970 (Labor Commissioner enforcement power) — this bill expands the Labor Commissioner’s enforcement authority to extend to violations of local wage ordinances (e.g. minimum wage ordinances in effect in many California cities). It also provides for Labor Commissioner authority to investigate claims for failure to reimburse expenses and to issue awards for any amounts due to an employee in unreimbursed expenses.

AB 1513 (piece rate workers) — This bill imposes new burdens on employers with piece rate workers. First, it requires that the itemized wages statements provided to piece rate workers separately state the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, along with the total hours of other nonproductive time, the rate of compensation, and the gross wages paid for that time. The statute defines “nonproductive time” to mean all time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece rate basis. Finally, the statute requires that these employees be compensated for rest and recovery periods and other nonproductive time at specified minimum rates, separate and apart from the piece rate compensation. This statute is very technical and any employer with piece rate workers should carefully read its provisions. AUTMOTIVE DEALERSHIPS LOOK OUT! I will be doing a special blog just on this one by the end of the week.

AB 1509 (protected activity by a family member of an employee) — This bill expands certain non-retaliation provisions of the Labor Code that currently prohibit retaliation against an employee for making certain complaints (e.g. wage complaints) or for opposing practices reasonably believed to be unlawful. This bill expands the non-retaliation provisions to protect employees from retaliation where a family member of the employee (rather than the employee directly) engaged in the protected activity.

So, let’s see if I understand this one. Mary complains about her wages.  Two weeks later her brother Bob gets a written warning for some violation of company policy and now Bob comes after the employer to argue that he was retaliated against because his sister (or cousin, mother, Aunt, niece,) complained about her wages??

These new laws are going to open the door to more litigation. Plaintiff attorneys are going to be in “hog heaven” and employers are going to have to step up and stop putting training on the back burner. We are going to have to get managers and supervisors (not to mention owners) trained on wage & hour laws. There is no choice. The California Legislature is making it clear they intend to protect the rights of employees. Unfortunately they have been pushed to these measures do to some bad or misinformed employers, managers and supervisors.


Sick Leave Update & FMLA Leave When Spouses Work for the Same Employer

October 12, 2015

Paid Sick Leave – “24 Hours or 3 Days”

This is not newly signed legislation, but an update on a new opinion letter recently issued by California’s Department of Labor Standards Enforcement (“DLSE”).  As all California employers should know, California passed legislation last year that required all California employers to begin providing paid sick leave to employees beginning in July of this year.  The statewide law requires that employers provide a minimum of 24 hours or 3 days of paid sick leave to employees.  Employers can choose to “frontload” this paid leave at the beginning of an employee’s anniversary year, calendar year, or year beginning July 1; or employers can allow employees to accrue paid sick leave at the rate of one hour for every 30 hours worked, with an allowable cap on accrual of 48 hours or 6 days.  This seems straightforward enough (particularly for employees who work a standard full-time schedule of 8 hours per day/40 hours per week), but in practice it has led to much confusion.  One area of confusion involves employees who do not work a standard 8 hours per day/40 hours per week schedule – in other words, employees who work regular schedules of more than 8 hours per day pursuant to an alternative workweek schedule (“AWS” — which generally involves a 4/10 or 9/80 schedule), and employees who work part-time schedules (e.g. 6 hours per day).  It is not clear from the statutory text whether the employer is required to provide 24 hours of leave to these groups of employees, or whether the employer is required to provide 3 days of leave to these employees (which would be 18 hours of leave for the part-time employee and 30 hours of leave for the 10-hour per day employee working an AWS).

The DLSE has issued a new opinion letter clearly stating that in the DLSE’s interpretation, the statute requires employers to provide the greater of 24 hours or 3 days to employees (under the frontload method).  This means that a part-time employee working a regular schedule of 6 hours per day would be entitled to 24 hours of paid sick leave (even though this is more than 3 days of leave for this employee), and an employee working an AWS of 10 hours per day would be entitled to 30 hours of paid leave (even though this is more than 24 hours of leave for this employee).

If an employer uses the accrual method for paid sick leave, employees simply accrue 1 hour for every 30 hours worked. However, the employer can impose a cap on accrual of 6 days or 48 hours.  The DLSE’s employee-friendly interpretation affects the accrual cap as well, meaning that whether the cap is 6 days or 48 hours depends on the employee’s regular schedule (i.e. an AWS employee working more than 8 hours per day would have to be allowed to accrue 60 hours of paid sick leave and a part-time employee working 6 hours per day would be allowed to accrue 48 hours of paid sick leave).

The FMLA Marriage Penalty: When Spouses Work for the Same Employer

One FMLA rule that tends to fly under the radar is the amount of FMLA leave available to married couples who work for the same employer.

Under 29 CFR 201(b), married couples in this situation can be required to share a combined 12 weeks of FMLA leave in two circumstances:

  • To bond with their new child; or
  • To care for their own parent with a serious health condition.

The actual regulation states it like this:

Spouses who are eligible for FMLA leave and are employed by the same covered employer may be limited to a combined total of 12 weeks of leave during any 12-month period if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth, or for placement of a son or daughter with the employee for adoption or foster care or to care for the child after placement.

Plenty of employers understand that the spouses split 12 weeks of FMLA for bonding time, but plenty more employers forget that the FMLA sharing also occurs when one or both of the spouses care for a parent.

The Marriage “Penalty”

The slightly absurd reality here is that none of the above rules apply if Mike and Carol were not married. Notably, the DOL has acknowledged that this provision does not apply to unmarried couples. Although this looks like a penalty against married couples, the DOL did not mean for these rules to do so.  Actually, the purpose of allowing employers to limit time off like this was intended to encourage employers to hire married couples, thereby reducing the burden on those employers if their married employees decided to have children.

Not sure whether that’s playing out in reality but there it is!


Reasonable Accommodation and Common Sense Can Be a Winning Combination!

October 5, 2015

Using common sense when an employee asks for a “reasonable accommodation” could save employers time, money and possibly a lawsuit.

The old saying is that common sense isn’t so common seems to hold true in many employment discrimination lawsuits. Wouldn’t it seem to be common sense to allow an employee to periodically sit for short periods during the day as a reasonable accommodation? Apparently one company didn’t think so.

In a recent lawsuit filed by the Equal Employment Opportunity Commission (EEOC) the employer was unwilling to provide a stool as an accommodation when the only requirement was that the employee be permitted to use the stool 15 minutes out of every hour. She worked at a kiosk in a mall and had informed her employer (after returning from a medical leave of absence) that she suffered from degenerative disc disease. The employer told the employee that they wanted her to stand all day and rather than allow the employee to sit for the requested time the employer fired her instead. Did that make any sense at all?

To me there almost has to be more to the story than just this lapse in common sense, perhaps there is a back story we don’t know. Regardless this lapse in exercising common sense has cost and will continue to cost the company a great deal of money.

Let me note in fairness to the EEOC, that they had tried and failed to reach a settlement through the conciliation process but the company refused (another dumb decision under these circumstances). In response, the EEOC filed a suit seeking back pay, front pay or reinstatement, compensatory damages and punitive damages for the employee, as well as injunctive relief. The outcome is pending but I will bet dollars to donuts that any decision rendered by the court will not be favorable for the employer.

Look, those of you that have been reading my Blog for any amount of time know my thoughts on providing reasonable accommodations and/or firing someone who is either on a medical leave of absence or just returning from one. My first thought when reading about this case was did the HR person or executive who made this decision stand for their entire work shift? Doubtful! I also have shopped in enough malls and have seen these very carts to know that there are not lines of people waiting for service to the point that the employee would not have a chance to sit down occasionally.  So what is the big deal in providing a stool for an employee? If you have ever stood for eight hours on a concrete floor you know what it can do to your back, knees, and feet. Even someone without any disability would need a break from that.

The lesson

The lesson in this for everyone is stop and think before you act in a way that is going to be perceived as discriminatory. If a simple accommodation can keep a good employee working and help avoid the perception of discrimination wouldn’t it be a good measure to exercise common sense and provide that simple accommodation? If nothing else put yourself in the employee’s shoes and ask “What would I like the company to do for me?” and when you answer that question apply it to the circumstances being presented to you. It just might keep you out of trouble.