High Court Clarifies “Day of Rest Rules”!

May 15, 2017

The California Supreme Court issued an opinion in Mendoza v. Nordstrom, clarifying California’s day of rest requirements.  These requirements are set forth in Labor Code sections 551 and 552. Section 551 provides that “every person employed in any occupation of labor is entitled to one day’s rest therefrom in seven,” and Section 552 prohibits employers from “causing their employees to work more than six days in seven.”  However, Section 556 exempts employers from the duty to provide a day of rest “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”  While these provisions do not appear too complicated or hard to follow at first glance, compliance has been challenged in wage and hour litigation, raising several questions of what these provisions technically mean.  Questions that have arisen include the following:

  • What does it mean to “cause” an employee to work more than six days in seven?  Is it enough to “allow” the employee to work seven days in a row, or must the employer require the employee to work more than six days in a row to be found in violation of the statute?
  • Is the day of rest required for any consecutive seven-day work period on a rolling basis, or is it measured based on the employer’s workweek (the definition of which varies from employer to employer and may not match a calendar week)?
  • Does the exemption from the day of rest requirement apply where the employee works 6 or less hours on at least one day during the workweek, or must the employee’s hours be 6 or less every day of the workweek (and no more than 30 for the entire week)?

The California Supreme Court agreed to answer these questions at the request of the Ninth Circuit in Mendoza v. Nordstrom.  Here’s how the Court recently ruled on these issues:

  1. A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.
  2. The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.
  3. An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.

With respect to question (1), the Court held that the seven-day period is based on the workweek as defined by the employer. Thus, if the employer uses a calendar week, then the seven-day period (during which there should be one day of rest) is based on each calendar week.  If the employer defines its workweek differently, then the seven-day period designated by the employer controls.  However, the one-day-of-rest-in-seven provision does not apply on a rolling basis to every consecutive seven-day period.

With respect to question (2), the Court held that if an employee works more than 6 hours on any day of the workweek, the day of rest provision applies.  The Court rejected an interpretation that would exempt employers from providing a day of rest to an employee who works 6 hours or less on just one day of the workweek.  Thus, if an employee’s hours exceed 6 on any day of the workweek, the day of rest requirement will apply.  You now ask, “What if the employee does not work more than 30 hours per week?”  Unfortunately, the Court chose not to clarify whether the day of rest exception for employees working no more than 30 hours per week or 6 hours per day should be read in the conjunctive or disjunctive (because the Ninth Circuit did not expressly ask the Court to answer this particular question).  Thus, left for another day (and more litigation) is the issue of whether the day of rest requirement applies to an employee who works more than 6 hours one or two days of the workweek, but whose total hours for the workweek do not exceed 30. The conservative approach of course, it to provide the opportunity for a day of rest to any employee who works more than 30 hours per week and/or more than 6 hours in any one workday.

Finally, with respect to question (3), the Court held that an employer “causes” an employee to work more than six days in seven if it motivates or induces the employee to do so.  This does not mean that the employer is liable if it simply permits an employee to work more than six days in seven.  “[A]n employer‘s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.”  Based on this interpretation, an employer generally should not affirmatively schedule or require employees to work more than six days in seven, but it is okay to offer employees the opportunity to work more than six days in seven, so long as they are apprised of their entitlement to one day’s rest each workweek and notified that they will not be penalized for choosing to take a day of rest (nor rewarded, apart from being paid their earned wages, for not taking a day of rest).

While the Court’s opinion clarified some issues relating to California’s day of rest requirements, it also left an important one unanswered.  Specifically, California Labor Code section 554 provides an exception from the day of rest requirement where the “nature of the employment reasonably requires that the employee work seven or more consecutive days, if in each calendar month the employee receives days of rest equivalent to one day’s rest in seven.”  There is a lack of guidance on when the “nature of the employment reasonably requires” seven or more consecutive days of work so as to allow accumulated rest days to be taken at a different time during the month, and the Court’s opinion does not shed light on that subject.

California employers are advised to review their scheduling and pay practices to ensure compliance with California’s day of rest requirements, as clarified by the California Supreme Court.  Employers are further reminded that California has special overtime compensation rules that apply to work performed on the seventh consecutive day of a workweek (time and one half for the first 8 hours of work performed on the seventh consecutive day of the workweek, and double time for hours in excess of 8).

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Trumps Executive Order to Only “Hire Americans” is Misleading!

May 8, 2017

I do not like to publicly speak about politics however, I have been asked on a number of occasions about the impact of President Trump signing into an Executive Order to “Buy American, Hire American. I personally do not have an issue regarding “Buying American” because I think it will help American based businesses. What’s wrong with buying American-made products? Nothing in my opinion!

The portion of the Executive Order I am concerned about is “Hire American.” I can see employers being faced with National Origin discrimination claims when an employer fails to hire anyone that is not “American.” It will not matter that Trump didn’t mean to say “hire American workers only” which could violate Title VII of the Civil Rights Act of 1964 which does prohibit national origin discrimination.

Yes, Title VII still prohibits national origin discrimination. And, no, this Executive Order does nothing to change Title VII’s impact. But the manner in which the White House is promoting this Executive Order could be misleading for some.

If we read the fine print—that is, the actual language of the Executive Order—the doubting Thomas’s out there would learn that Hire American isn’t really “Hire American”, but instead it’s “hire any American citizen or anyone else legally authorized to work in the United States under our current immigration laws.”

But of course with the current political climate there are those pushing to believe that the White House is promoting “Hire American”, which sends a certain signal to certain racist individuals who might use this Executive Order to discriminate on the basis of national origin, or race, or religion. “Trump says Hire American, so I’m not hiring that anyone with a turban, or funny accent.” And that’s the exact type of discriminatory misconduct that Title VII is supposed to protect against.

Employers do not fall for this! Continue following all State and Federal guidelines and keep your hiring practices tight. If President Trump wants stricter borders, and to restrict work visas available to foreign nationals, so be it. Do not get caught up in the messaging and do not let the “haters” out there convince you otherwise.


How Not To Handle Leaves of Absences!

May 1, 2017

Suppose you have an employee who takes FMLA leave for rotator-cuff surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. Or, more accurately the employee’s co-workers saw the photos and ratted him out to management. So, what do you do? Fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave?

What have I constantly told clients about leaves of absence?? In all honesty I do not agree with the Court’s decision but that is the risk this employer ran. In Jones v. Gulf Coast Health Care, the 11th Circuit Court of Appeals concluded that based on these same facts, Rodney Jones was entitled to a jury trial on his FMLA retaliation claim. How did the court reach this conclusion?      1. Temporal proximity: The employer suspended Jones on the day he returned from his FMLA leave, and fired him a few days later. According to the Court, the “close temporal proximity” between the end of Jones’s FMLA leave and the adverse action is sufficient to create a jury issue on the causation prong of his FMLA retaliation claim.      2. Pretext: According to Jones, the only explanation the employer provided him “was that he was being fired for abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page that demonstrated his ability to have earlier returned to work.” Yet, (a) Jones was not told that he had violated the company’s social media policy or that the company believed he had unnecessarily prolonged his recovery to take a vacation; and (b) because the company lacked a policy that required employees to stay at home or refrain from traveling while on FMLA leave, it could not conclude that he had “violated the ‘spirit’ of medical leave—to rehabilitate and recover.” Therefore, because of these “inconsistencies and contradictions” a jury should decide whether the employer’s explanation was a pretext for retaliation.     It is my understanding that the employer advised Jones that it was terminating him for “abusing and misusing FMLA leave by engaging in activities, posted on his Facebook page that demonstrated his ability to have earlier returned to work.” Must it expressly rely on a written policy (social media or otherwise)? Must a company have a policy forbidding employees on FMLA leave from traveling or vacationing? By taking an FMLA leave for one’s own serious health condition, an employee certifies the inability to work, or the inability to perform at least one essential function of the job). If vacation photos posted to Facebook suggest that the employee had recovered and no longer needed to be out on medical leave, how is the employee not abusing his FMLA leave? And how is an employer not justified in firing the employee for this lie?

Ultimately, it does not matter! Please do not take any action against an employee on leave or coming back from an extended leave. This is just another case supporting my position. It is too risky especially if it goes in front of a jury.

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Comp Time, in-Lieu-of Overtime?

April 24, 2017

Right now, if a non-exempt employee works more than 40 hours in a week (or more than eight hours in one day, in California) you have to pay them time-and-a-half for the extra hours. So if an employee earns $10 an hour and works 45 hours in one week, she receives $400 ($10 x 40) in straight time and $75 ($15 x 5) in overtime pay.

But what if she would prefer to take comp time instead? That is, if she worked 45 hours this week, she’d prefer to work 35 hours next week and take home $800. Right now, in the private sector, this is illegal however the Working Families Flexibility Act of 2017, has now been introduced to Congress which allows for comp time in the private sector, but with a couple of twists.

  1. Employer and employee have to agree.

The manager doesn’t get to unilaterally decide to stop paying overtime and offer comp time instead. Both have to agree, or else it defaults to overtime pay.

  1. Comp time, like overtime pay, is at 1.5 times.

So if your employee works 45 hours this week, she’s entitled to 7.5 hours of comp time. So, what does this mean? If both the employer and the employee agree (more on this in a minute), or if it’s provided in a collective bargaining agreement, the employer can provide “comp time” hours at the rate of one and a half hours for every hour of overtime the employee works. For example, if I work 45 hours this week, instead of five hours of overtime pay, I would get 7.5 hours of comp time put in my bank (5 overtime hours times 1.5 = 7.5 hours).

Use of comp time. If an employee asks to use his or her accrued comp time, the employer must grant the request “within a reasonable period” after the request, as long as doing so will not “unduly disrupt the operations of the employer.”

According to the ACT, there are limits and payout guidelines. The limit on accrued comp time is 160 hours per year. Any comp time not taken by the end of the calendar year (or another year designated by the employer) would be paid out at the employee’s regular rate when the comp time was accrued or at the employee’s current regular rate, whichever is higher. The payout would have to be made no later than 31 days after the end of the “comp time year.” If employment terminates voluntarily or involuntarily, the employer is required to pay out all accrued comp time to the employee.

If the employer gives 30 days’ notice to the employee, it can pay out any accrued comp time that exceeds 80 hours for the year. The employer can discontinue comp time whenever it wants by providing 30 days’ notice to the employees.

This seems like a win for both employers and employees. The employee and manager must agree before the work is performed and the employee must have worked at least 1000 hours before they are eligible for comp time, so the employer and employee have an established relationship. If an employee quits or is fired with time left in her bank, its’ payable upon termination.

Flexibility is always high on the list of things employees want–especially female employees–and this kind of situation gives it to them. Right now, exempt employees have more opportunities for flexibility than hourly paid employees, but this bill could change that. It seems like a great deal for all concerned.

New Immigration Bill: “Fines Between $10,000-$25,000”!!

April 17, 2017

It is no secret that California lawmakers and the Trump administration do not agree on immigration policy.  With the Trump administration stepping up enforcement efforts against illegal immigration, California is trying to thwart those efforts, including through a new bill that seeks to throw California employers into the crossfire. AB 450 (Chiu) would prohibit California employers from providing federal government enforcement agents access to worksites or to employment records (including I-9 forms) without a judicial warrant or subpoena. The bill would authorize the Labor Commissioner to recover civil penalties of between $10,000-$25,000 for employer violations of these requirements.

The bill would also require employers to provide at least 24 hours’ advance written notice to employees and to the Labor Commissioner of impending immigration worksite enforcement actions (audits or inspections of I-9 forms or other employment records, worksite interviews, investigations, and/or raids). The employer also would have to give the Labor Commissioner access to the workplace and allow the Labor Commissioner to conduct its own investigation(s) — including into unrelated labor standards matters.  In the event a federal immigration agent appears at the worksite without advance notice, the employer would have to notify the Labor Commissioner immediately and provide the Labor Commissioner access to the worksite.  Under the bill, the Labor Commissioner would have the authority to notify affected employees that they have the right to remain silent, the right to speak to a lawyer before answering questions, and the right to speak to his or her foreign consulate. Again, an employer’s failure to comply with these notice provisions would subject the employer to fines of between $10,000-$25,000.

The employer’s notice obligations would continue after a worksite investigation/audit as well, with the employer being required to notify affected employees of the results of the audit within 24 hours.

Finally, the bill would limit an employer’s ability to conduct self-audits related to immigration. The employer would be required to notify the Labor Commissioner (and provide the Labor Commissioner access to the worksite) before conducting a self-audit or inspection of I-9 forms and before checking work authorization documents of a current employee in a manner not required by federal law. The employer of course would be subject to penalties of between $10,000-$25,000 for non-compliance.

The foregoing provisions include an exception for where the employer is “required by federal law” to act in a manner that is contrary to these requirements.  Of course, an employer is not going to know what this means or whether this exception applies in a given situation.  This is a bad bill for California employers, who should not be at the center of what really is a policy battle between California legislators and the federal government. It is of course still early in the legislative process and it is far from clear that this bill will pass both legislative houses and be signed into law.

I will obviously keep you posted!

New Criminal Check Background Law!

April 10, 2017

California has given final approval to regulations governing employer use of applicant criminal history in making employment decisions.  These new regulations take effect July 1, 2017.  The regulations reiterate that employers may not use criminal history information in a manner that has an adverse impact on certain protected classes (e.g. race, national origin, gender). The regulations go on to provide that an applicant or employee bears the burden of demonstrating that the policy of considering criminal convictions has an adverse impact.

The California Legislators have determined that an adverse impact may be established through the use of conviction statistics or by offering any other evidence that establishes an adverse impact. State or national statistics showing substantial disparities in the conviction records of one or more categories enumerated in the Fair Employment & housing Act (FEHA) are presumptively sufficient to establish an adverse impact. This presumption may be rebutted by a showing that there is a reason to expect a markedly different result after accounting for any particularized circumstances such as the geographic area encompassed by the applicant or employee pool, the particular types of convictions being considered, or the particular job at issue.

If the policy or practice of considering criminal convictions creates an adverse impact on a protected class of applicants or employees, the burden shifts to the employer to establish that the policy is nonetheless justifiable because it is job-related and consistent with business necessity (example: a conviction for fraud or theft and the job involves cash handling). The criminal conviction consideration policy or practice needs to bear a demonstrable relationship to successful performance on the job and in the workplace and measure the person’s fitness for the specific position, not merely to evaluate the person in the abstract.

In order to establish job-relatedness and business necessity, any employer must demonstrate that the policy or practice is appropriately tailored, taking into account at least the following factors: (A) the nature and gravity of the offense or conduct; (B) the time that has passed since the offense or conduct and/or completion of the sentence; and (C) the nature of the job held or sought.

Demonstrating that a policy or practice of considering conviction history in employment decisions is appropriately tailored to the job for which it is used as an evaluation factor requires that an employer either:

(A) Demonstrate that any “bright-line” conviction disqualification or consideration (that is, one that does not consider individualized circumstances) can properly distinguish between applicants or employees that do and do not pose an unacceptable level of risk and that the convictions being used to disqualify, or otherwise adversely impact the status of the employee or applicant, have a direct and specific negative bearing on the person’s ability to perform the duties or responsibilities necessarily related to the employment position. Bright-line conviction disqualification or consideration policies or practices that include conviction-related information that is seven or more years old are subject to a rebuttable presumption that they are not sufficiently tailored to meet the job-related and consistent with business necessity affirmative defense; or

(B) Conduct an individualized assessment of the circumstances and qualifications of the applicants or employees excluded by the conviction screen. An individualized assessment must involve notice to the adversely impacted employees or applicants (before any adverse action is taken) that they have been screened out because of a criminal conviction; a reasonable opportunity for the individuals to demonstrate that the exclusion should not be applied due to their particular circumstances; and consideration by the employer as to whether the additional information provided by the individuals or otherwise obtained by the employer warrants an exception to the exclusion and shows that the policy as applied to the employees or applicants is not job-related and consistent with business necessity.

Regardless of whether an employer utilizes a bright line policy or conducts individualized assessments, before an employer may take an adverse action such as declining to hire, discharging, laying off, or declining to promote an adversely impacted individual based on conviction history obtained by a source other than the applicant or employee (e.g. through a background check), the employer must give the impacted individual notice of the disqualifying conviction and a reasonable opportunity to present evidence that the information is factually inaccurate. If the applicant or employee establishes that the record is factually inaccurate, then that record cannot be considered in the employment decision.

Importantly, under the new regulations, even if an employer successfully demonstrates that its policy or practice of considering conviction history is job-related and consistent with business necessity, adversely impacted employees or applicants may still prevail on a FEHA claim if they can demonstrate that there is a less discriminatory policy or practice that serves the employer’s goals as effectively as the challenged policy or practice, such as a more narrowly targeted list of convictions or another form of inquiry that evaluates job qualification or risk as accurately without significantly increasing the cost or burden on the employer.

These new regulations, along with recent EEOC guidance and the increasing number of city ordinances restricting the use of criminal history information, are a good reminder for employers to review their practices to ensure that their use of criminal history information complies with applicable law.

Workplace Posters: An Overview

April 7, 2017

We receive a number of calls regarding the required postings. As you know, State and federal laws require that all employers have posters conspicuously placed in the workplace.

What posters are you required to post? There are a number of them and the list is getting longer! Keep in mind there are some variables depending on the size of your business. The safe bet, post them anyway.

  • Employee Polygraph Protection Act (all employers)
  • Employee Rights for Workers with Disabilities/Special Minimum Wage (all employers with disabled workers employed under special minimum wage certificates)
  • Equal Employment Opportunity is the Law (all employers with 15 or more employees, and all federal contractors and subcontractors with contracts of $10,000 or more)
  • Equal Employment Opportunity is the Law Supplement (all federal contractors and subcontractors with contracts of $10,000 or more)
  • E-Verify Participation and Right to Work (all employers participating in E-Verify)
  • Fair Labor Standards Act (all employers)
  • Family and Medical Leave Act: Your Rights Under the FMLA (all employers with 50 or more employees in 20 or more workweeks in the current or preceding calendar year)
  • Federal Minimum Wage for Contractors (all employer who contract with the federal government)
  • Notification of Employee Rights Under Federal Labor Law (all federal contractors and subcontractors)
  • OSHA Job Safety and Health: It’s the Law (all employers)
  • OSHA Form 300, 300A, and 301 (most employers with 10 or more employees)
  • Uniformed Services Employment and Reemployment Rights Act: Your Rights Under USERRA (all employers)
  • State Minimum Wage (all employers)
  • State poster: The Industrial Welfare Commission Order (very critical). This postings is by State & industry.

Finally, states have their own additional posting requirements and must post on unemployment, workers’ comp, minimum wage, child labor laws, workplace violence, and fair employment practice laws. Please check your local jurisdiction. The good news is that all of these posters are available for free from state and federal agencies. Just make sure they are posted conspicuously.