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Post Those Posters!

June 30, 2014 By Israel Samuels LLP Leave a Comment

July 1 Alert: if you aren’t displaying a poster that includes the $9.00 state minimum wage effective July 1, 2014, make sure you do so soon.

Mandatory changes to the Workers’ Compensation and Paid Family Leave pamphlets, which you are required to distribute to your employees, also take effect on that date.

Even if you have only one employee in California, you must post and hand out the most current employment notices. Failing to do so can result in costly fines.

Need a source for current posters at a very reasonable price? Call our office to get the name and phone number of the lowest price source we’ve been able to locate.

Does an Employer Need to Ensure That Its Employees Take Meal Breaks?

June 23, 2014 By Israel Samuels LLP Leave a Comment

It is well established in California that all non-exempt employees must be given a meal break if the employee works more than 5 hours in a day. Although there is some ambiguity with respect to whether an exempt employee must be provided a meal break after 5 hours, it is recommended that ALL employees, whether exempt or non-exempt, be provided an unpaid 30 minute meal break if the employee has worked 5 hours in a day.

There is one question that remains. Does an employer have to ensure that the employee take the meal break? Short answer – NO. The employer only needs to advise the employee that taking a meal break is required after working 5 hours.

To cover this, we advise our employers to make the following posting where other notices are posted (see next article).

“This is to remind all employees that if you work at least five hours in a day, you are entitled to a 30-minute unpaid meal break each day and as your employer, we are required to advise you of this.”

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

Medical Exams for Job Applicants

June 16, 2014 By Israel Samuels LLP Leave a Comment

While an employer can conduct non-medical testing, such as background checks and consumer credit checks (if applicable), as part of its hiring practices, any physical examination must be conducted after all the other checks have taken place, as what amounts to the last step in the hiring practice.

The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) not only bar intentional discrimination on the basis of a disability, but both acts regulate the sequence of the employer’s hiring processes, and concludes that a medical
exam can be conducted only after a “real” offer has been made to the individual. A real offer is one which is made after the employer has evaluated all non-medical information (background checks, job testing), analyzed the information, and made the offer.

All testing is invasive of privacy rights; hence the requirement to make an initial offer before investigating an applicant. A medical examination is particularly invasive, however, and many individuals wish to guard their condition/history for fear of losing an opportunity in the event the employer finds out about a medical condition the employer perceives as undesirable.

This “two-step” process helps applicants to determine if they were rejected due to a disability. If the medical examination is the last step before employment and the applicant has passed all other tests/checks, the individual will know if they are being denied employment on medical grounds and can take action accordingly.

Many employers have argued that this two-step process is more costly and time consuming, preferring to send the applicant in for a battery of exams at the same time. Alternatively, employers have argued they review all the non-medical information before considering the medical information. Again, however — both the ADA and the FEHA contain statutes regulating the sequencing of all pre-hire testing, specifying the medical testing must be conducted last.

An employer would have to prove that there were no reasonable alternatives in order to conduct the medical examinations earlier, which is not an easy test under the laws. Nor is it a reasonable argument to claim that conducting the tests all at once is for the convenience of the applicant.

This argument does not justify re-ordering the steps in the hiring process.

Can You Voluntarily Comply With a Law That Doesn’t Apply to Your Company?

June 12, 2014 By Israel Samuels LLP Leave a Comment

Employers with fewer than 50 employees generally are not covered by the Federal Family and Medical Leave Act (FMLA) nor the California Family Rights Act (CFRA).

This means they are not legally obligated to provide the 12 weeks of leave to which employees of larger employers are entitled for baby bonding, or for the employee’s own serious illness or to care for a seriously ill family member.

Some employers in this category “volunteer” to cover their employees in various ways, as if they were covered by the law. But there’s a trap waiting for them (“be a good guy, get punished for it!”): Even an employer that is not covered by FMLA or CFRA may end up having to comply with those laws based on its employee handbook and other communications with employees. Here’s why…

Under a legal doctrine called “equitable estoppel,” if an employee reasonably relies on information provided by an employer that he/she is entitled to take leave under FMLA and/or CFRA, the laws may be enforced even against an employer that is not covered by them or
where the employee was not actually eligible for FMLA or CFRA leave. If employees reasonably rely on their employer’s representation that FMLA/CFRA protections will be provided, several courts have held that an employer may be held to that representation even where it otherwise could have argued it was not legally required to grant the leave.

This may happen where a small employer (fewer than 50 employees) creates an employee handbook that includes an FMLA/CFRA policy. Alternatively, a large employer (more than 50 employees) that is covered by the FMLA and CFRA might indicate in an employee handbook that
even employees who work at small branch locations (who would not otherwise be eligible) may take family leave.

Another circumstance where equitable estoppel may force FMLA/CFRA liability is where an employee who is not eligible requests family leave and is told erroneously the leave is granted.

Although an employer may want to be “fair” to all employees by providing family leave even to those who are not eligible, promising all the legal protections of the FMLA and CFRA may not be wise. For example, an employer that promises FMLA/CFRA protections to employees even at a small branch location may find itself scrambling to keep the doors open if a large number of those employees all take family leave at the same time with no one to cover their jobs.

Instead, the employer may want to consider offering some alternative version of family leave to ineligible employees, perhaps creating a company policy for a shorter leave with less stringent job return rights than those provided under the laws.

The employer in essence can create its own family leave policy, defining benefits rights and rules for paid time off use during the leave.

Controlling Employee Attire

June 9, 2014 By Israel Samuels LLP Leave a Comment

Can you control what your employees must wear, or prohibit certain attire?

Definitive answer: maybe yes, maybe no. Depends primarily on the employee’s professed religion.

The EEOC has released some “guidance” which may be of help to you, although you’re probably not going to like it.

The key determinative factor is religion-based preference, requirement, or prohibition. If an employee’s religion requires or prohibits specified dress or appearance, the employer typically has little choice but to go along with it.

Examples include wearing religious symbols (a cross hung around one’s neck, or a Muslim hajib), facial hair requirements (typically required of Muslims and Orthodox Jews), and a prohibition against too-revealing attire.

This makes us wonder whether an otherwise qualified Muslim woman who insisted on wearing a hajib (veil) and burka (full-body cloak), based on religious requirements, could not be declined employment as a Hooter’s waitress.

Want to argue that the employee’s religion, which just happens to be Chrijewmusliana, is one you never heard of, and is uncommon, not part of a formal religion, and practiced by only a few people? Sorry, it’s been tried, and failed.

Just about the only clothing policies you can enforce are those that constitute a severe hardship, or are of considerable difficulty or expense, or involve workplace safety, health or security issues.

Finally, what about uniform requirements, or “company image” that you’re trying to establish in a consistent manner? Maybe, maybe not. It’s been tried and failed in a lawsuit involving Abercrombie & Fitch.

Even though Mickey Mouse at Disneyland clearly has to wear the Mickey Mouse costumer (unless he’s the real Mickey Mouse!), it can be a lot harder to pass muster for mandatory compliance with a specified “uniform”, if it conflicts with almost any kind of religious edict.

“Respondeat Superior”

June 2, 2014 By Israel Samuels LLP Leave a Comment

What, you don’t read or speak Latin? Well, let us help.

“Respondeat superior” literally means “Let the master answer.” In the employment context, it might be read more accurately as meaning that “the employer must respond and take responsibility.”

It is a legal doctrine which makes an employer responsible for the actions of an employee, with an important exception: the actions must occur within the course and scope of employment, if the employer is to be held liable.

Now there’s the rub: what does “within the course and scope of employment” mean?

If an employee is running an errand for the company in his own personal vehicle, and is responsible for an accident, is his employer also liable? Generally, “yes”.

What if the employee is just commuting to work, and the same type of accident occurs? The employer is probably not responsible, but it may depend on the specific facts and circumstances.

Compare that with a situation where an employee punches a client. That’s not in the “course and scope of employment,” since you didn’t hire your employee for the purpose of hitting clients, right? Maybe not. What if the punch was motivated by the client’s racially insensitive remark to him, while the employee was on a routine service call?

So, there are good reasons to insist that your own insurance cover such situations. Call your insurance agent now to find out if that’s the case, or if you need additional coverage.

Legislative Action re: Frivolous Lawsuits

May 22, 2014 By Israel Samuels LLP Leave a Comment

Assembly Bill 2095 seeks to limit frivolous litigation regarding itemized wage statements for alleged technical violations that have not injured the employee by awarding attorney fees to an employer who can prove the litigation was filed in bad faith.

Labor Code Section 226 sets forth eight categories of information that must be included in an itemized wage statement provided to the employee. The intent and purpose of this information is to notify the employee of who his/her employer is and how the wages were calculated. Failing to include required information in the wage statement can subject the employer to litigation.

Despite the good intentions of this section, there has been a recent trend by plaintiffs’ attorneys to abuse it and file litigation for “ticky tack” violations that do not result in any harm to the employee.

A notable example of this abuse is Elliot v. Spherion Pacific Work, LLC, 210 WL 675574 (2010), in which an employee alleged a cause of action under Labor Code Section 226 because the employer used a truncated name on the wage statement. Specifically, the employer’s name on the wage statement was “Spherion Pacific Work, LLC,” instead of Spherion’s legal name, “Spherion Pacific Workforce, LLC.”

The employee did not allege that this truncated version of the employer’s name misled her, confused her, or caused her any injury. Although the court ultimately dismissed the lawsuit, the employer incurred unnecessary legal costs and attorney fees to have the case dismissed.

AB 2095 seeks to discourage such bad faith litigation by awarding an employer attorney fees if the lawsuit is proven to be frivolous, unreasonable or without foundation.

Although AB 2095 will not eliminate all cases that lack merit, it will certainly dissuade the filing of some frivolous cases. Any reduction of bad faith litigation will allow employers to devote more financial resources to growing their business and growing their
workforce.

AB 2095 recently passed the Assembly Labor and Employment Committee 6-1. We hope that’s a sign that it will eventually become law.

Legislative News Re: Prop 13

May 21, 2014 By Israel Samuels LLP Leave a Comment

The Legislature is once again trying to modify Prop 13 so that school districts can impose a higher parcel on commercial property than on residential property (ref: SB 1021). The legislation also has the potential, as currently written, to be applied in a discriminatory and unfair manner.

As with other types of split-roll parcel taxes, businesses, large and small, will have no realistic choice except to pass them on to tenants, who, will in turn, need, in many cases, to pass on all or a major part of the cost to their customers.

Just a few days ago, on May 5, the Senate adopted the bill by a vote of 21-15, so it now goes to the Assembly for consideration. All but 3 Democrats voted “yes”, while those 3 joined a 100% “no” vote from the Republican side.

So, it seems likely that the Bill may adopted in the Assembly, in which case Governor Brown is sure to sign it. One can only hope that enough members will “see the light” before final adoption, to prevent this economic- and job-killing law from becoming law!

When Can You Terminate An Employee Who Was Injured On The Job?

May 15, 2014 By Israel Samuels LLP Leave a Comment

The short legal answer is “It depends!”

First, as a rule of thumb, if one of your employees is injured on the job, you should contact your worker’s compensation insurance carrier and your corporate counsel. One question that typically gets asked by employers is, “How long do I have to keep the job open for the injured worker and when can I terminate the worker’s employment?”

The Labor Code §132 CA states that an employer cannot discriminate against an employee who is making a worker’s compensation claim. However, the Labor Code also states that an employer does not have to create a position for an injured worker that doesn’t exist. In other words, if your employee gets injured on the job and cannot return to do the duties he/she was hired to perform, the employer does not need to create a new position. An employer must keep the position open for a “reasonable” amount of time before advising an injured employee that there is no suitable position available to accommodate his/her work restrictions.

Bottom line, an employer does not need to keep open a position for an injured worker on disability forever.

Nonetheless, we recommend consulting with your attorney should an employee be injured on the job before any action is taken with respect to his/her employment.

Meal Breaks for Exempt Employees

May 12, 2014 By Israel Samuels LLP Leave a Comment

Section 512 of the California Labor Code provides that an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per
day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.

Also, an employer may not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived. The code section makes no differentiation between exempt and nonexempt employees.

What if you fail to provide for such meal breaks, or don’t insist that your employees in fact take them?

Labor Code Section 226.7 provides, as a penalty, that the employee is entitled to one hour’s additional pay for each day on which such a break is not provided for, but only if there is an order of the Industrial Welfare Commission requiring such pay.

Guess what? The IWC order dealing with this subject has such an order, but it applies only to non-exempt employees. The weird result is that you are required to provide for a meal break for exempt employees, but there’s no penalty if you fail to do so. Golly, the law can be downright strange sometimes!

Our recommendation: provide meal breaks for your exempt employees, and require that they use them, just as you do for non-exempt employees. You can never tell when some bureaucrat or judge will decide that the law should be interpreted differently.