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Documenting Employee Problems – Who Has The Time!

Documenting Employee Problems

By Leonard Brazil, Esq.

In this ten-part series, Debbie Petito and I plan to share with you, based on our experiences, the top ten most common mistakes employers make that can lead to potential employee lawsuits. In Part One of this series, Debbie shared with you common misconceptions employers have about “at will” employment.

The frustrated employer calls its employment lawyer complaining about and detailing the continued poor performance of an employee and the countless conversations the supervisor has had with the employee which results in no meaningful improvement. The employer concludes by saying, “Surely I can terminate him.”  The attorney requests a copy of the company’s documentation of the history of poor performance.  The request is first met by silence and then the exasperated reply that the company had more pressing matters to address than spending time documenting a personnel file with write-ups.

This is an all too familiar conversation employment lawyers have with clients. Yes, while documenting poor performance or behavior of an employee is time consuming, it is essential.  The failure to document employee problems is often the achilles heel of the employer’s defense against a wrongful termination claim.  It allows an employee to deny being previously disciplined for poor performance, leaving the employer in the uncomfortable position of insisting employee’s poor performance is not fabricated and having to explain the failure to document problems serious enough to justify termination.

Documenting the Problem:  Poor performance, excessive absences or tardiness, insubordination, poor interpersonal skills with coworkers, or other unacceptable employee conduct should be documented in the personnel file.  Such documentation typically occurs in one of two ways–either a written warning given to the employee or a verbal warning followed by a memo or note placed in the employee’s personnel file confirming the details of the verbal warning.  Serious offenses should always be documented by a written warning to the employee.  The employee should be requested to sign the warning notice whereby the employee acknowledges receiving the notice.  If the employee refuses to sign an acknowledgement of receiving the notice, the supervisor should note such refusal on the notice, initial and date it.

Describe Employee Problems Factually:  Documentation of poor performance or employee conduct should be stated in objective terms rather than in a conclusory fashion.  For example, if the employee is working too slowly, describe it factually ( e.g., the employee produces X number of units per hour while the average production of others is Y units per hour).  A warning notice that the employee “works too slow,” “has a bad attitude,” or is “insubordinate” fails to state what the employee actually did or failed to do.  Stick to the observable facts.  Do not speculate as to the reason why the employee is not performing or behaving well.  Stating a belief that the employee’s recent poor performance may be due to some physical problem or that erratic behavior might be due to some emotional instability exposes the employer to a claim that the termination was a result of disability discrimination.

Documenting Complaints of Discrimination, Harassment or Retaliation: Any employee complaint of discrimination, harassment or retaliation must be carefully documented.  An employer is legally obligated to conduct a diligent and good faith investigation into any such complaint.  Inadequate documentation of a harassment complaint not only leaves the company unable to demonstrate the investigation was done diligently and in good faith, it also prevents it from establishing either there was no harassment or that harassment was discovered and the company took effective remedial action in response.  Each step of the investigation and resulting information obtained should be dated and well documented.  Documentation of the investigation should include the identity of the person reporting the incident, the date it was reported, details of the improper conduct, the identity of witnesses, information they provided, dates it was provided, conclusions, if any, reached based on the investigation and any remedial action taken by the company.

In a fast paced work environment, taking time to document employee problems may appear to be low on a company’s priority list. However, the time spent documenting such issues is inconsequential compared to the time and money required to defend a poorly documented wrongful termination claim, not to mention the increased risk of legal liability due to the inadequacy of evidence to defend.


Hope you found the above discussion helpful. In the upcoming posts, Debbie and I plan to share with you additional common mistakes employers make that can lead to litigation. Stay tuned for another conversation on ClarkTalk!!

Thank you for joining us on ClarkTalk! We look forward to seeing you again on this forum. Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Leonard Brazil by email at lbrazil@clarktrev.com or telephonically by calling the author at (213) 629-5700.

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At Will Employment – What Does It Really Mean?

At Will Employment

By Deborah H. Petito, Esq.

All employers—large and small—are governed by a myriad of state and Federal laws with complex legal requirements. Navigating the complicated and ever-changing maze of employment laws can be confusing, and employers may find themselves caught in an employee lawsuit if they aren’t careful to avoid making these common mistakes.

Many employers do not understand the true meaning of “at will” employment. At will employment is defined as the right of the employer or the employee to terminate the employee’s employment at their will for any reason.  In California, Labor Code §2922 provides that all employees are employed at will and specifically states, “An employment having no specified term, may be terminated at the will of either party on notice to the other.”  It seems pretty clear but employers often fail to take other laws into consideration that affect at will employment.

Employers have two basic misunderstandings about at will employment:

  1. They can terminate an employee’s employment at any time for any reason (given the definition this is a valid assumption); and
  2. They can do nothing to change the at will status of an employee.

First, employees always have the right to terminate their employment at will unless they have a contract which provides otherwise in which case they may be giving up benefits under the agreement. Employers cannot force employees to work – slavery was abolished long ago.  Employers on the other hand are restricted by both federal and state law. These laws include: discrimination under the California Fair Employment and Housing Act and Title VII, worker’s compensation, Americans with Disabilities Act, Family Medical Leave/California Family Rights Act, whistleblower laws, and other California and federal statutes that provide rights to employees. Employers cannot terminate employees for a discriminatory or retaliatory reason or because employees have exercised their rights or complained because they were not allowed to exercise their rights under these laws. Employers also cannot terminate an employee for complaining to an outside government agency about the employer’s practices. There are many nuances to each of these laws and employers need to be aware of them before they decide to take action to terminate an employee.

Second, while employees begin their employment as at will employees (unless there is a contract), employers can change the employee’s at will status by its words and actions. Employers may refer to the company as a family operation where everyone “grows old together,” or tell employees they have a “job for life.” These words can change the at will relationship and in the 1980s court decisions confirmed this fact. Also, similar statements in employee handbooks can change the at will relationship. While the owner or management team may be aware of this fact, they often forget to train their supervisors and managers. In California supervisors and managers are the eyes and ears of the employer and can create liability for the employer. Therefore, it is necessary for employers to recognize that fact and train their supervisors and managers not to make such statements.

In order to protect its interests, employers should:

  1. Review terminations of employees carefully and ask themselves:
  • Is the employee in a protected class?
  • Has the employee complained?
  • Did the employee file a workers’ compensation claim?

A careful review may reveal underlying issues. The best practice is to contact your employment attorney and discuss each termination to undercover any potential issues. Upper management also should not blindly accept recommendations from lower management without asking questions. This review, even if it uncovers some potential issues, does not mean that the termination does not occur but it allows consideration of potential claims and may lead to offering severance to avoid future litigation.

  1. Make sure that employee handbooks contain at will provisions which specifically state that the at will relationship cannot be changed except in writing by the owner, president or other high level officer of the employer. Take out progressive discipline from your handbook. You should use it in making decisions but do not commit to using it. There will always be a situation where warnings will not be given before termination and plaintiff’s attorneys will use that provision to show you did not follow your own policies.
  2. Evaluate and terminate employees as soon as performance, attendance or other issues arise. Many employers fail to use the orientation period to evaluate employees. The message is evaluate early and do not keep a problem employee. They rarely get better.

Hope you found the above discussion helpful. In my upcoming posts, I plan to share with the readers practical knowledge and tips on a variety of labor and employment law topics applicable to employers.  Stay tuned for another conversation on ClarkTalk!!

Thank you for joining us on ClarkTalk! We look forward to seeing you again on this forum. Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Deborah Petito by email at dpetito@ClarkTrev.com or telephonically by calling the author at (213)629-5700.

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San Jose “Opportunity to Work” Ordinance

San Jose, California

By Deborah H. Petito, Esq.

San Jose is the next city to pass an ordinance that regulates employers. In what appears to be partially motivated to prohibit employers from hiring part-time employees to avoid providing health insurance under the Affordable Care Act, San Jose has passed the “Opportunity to Work” ordinance. The San Jose ordinance prohibits employers from hiring a temporary employee or employees through staffing agencies before offering additional hours to existing employees who, in the employer’s good faith and reasonable judgment, have the skills and experience to perform the necessary work. This ordinance also requires that the employer use a “transparent and nondiscriminatory” process to distribute these extra hours among existing employees. Employers do not have to provide additional hours to existing employees if it would require payment of overtime.

Employers will be required to post a notice prepared by the City and employers will be required to keep records for any new hire documenting that current employees were offered additional hours. Employers will also be required to maintain records, such as employee work schedules, and any other records the City requires employers to retain.

There are no fines, fees or civil penalties for the first violation. The Ordinance also provides a hardship exemption and small business exemption.

The Ordinance is effective April 6, 2017. As local government becomes more active in the employment area, employers need to keep abreast of local government actions.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about San Jose’s “Opportunity to Work” Ordinance, please feel free to email Deborah H. Petito at DPetito@ClarkTrev.com or Leonard Brazil at LBrazil@ClarkTrev.com, or contact our office at (213) 629-5700.

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2017 Employment Law Update

Employment and Labor Law

By Leonard Brazil, Esq.

Court Decision

When Is a Rest Break Not a Rest Break?

In December 2016, the California Supreme Court published an opinion (Augustus v. ABM Security Services, Inc.) which exposes many employers to an unknowing violation of the rest break law.  Security guards filed a class-action against their employer alleging rest break violations.  The guards were required to keep their pagers and radio phones on during their rest breaks and to respond when the need arose even if they were on their rest break.

The Supreme Court concluded that “[d]uring rest breaks, employers must relieve their non-exempt employees of all duties and relinquish any control over how employees spend their break time.” The Court reasoned that because the guards were on call to respond, if needed, the employer had not relinquished control over the guards during their rest break.  As a result, the Court ruled that the guards’ rest break rights were violated and reinstated a class action judgment of $90 million.  Significantly, no evidence was presented that any of the guards ever had their rest break interrupted by having to respond to a page or call.

Statutes

A. Minimum Wage.  California’s minimum wage increased to $10.50 on January 1, 2017 for employers with 26 or more employees.  Employers with less than 26 employees will be increased to $10.50 on January 1, 2018.  Employers also need to be mindful of city ordinances regulating the pay of employees in specific cities, such as Los Angeles, Santa Monica, San Francisco and San Jose which have established separate minimum wage requirements. Other cities are likely to do the same thereby increasing the burden on employers to keep track of local government wage and hour decisions.

The minimum wage in California will increase to $11 on January 1, 2018 for employers with 26 or more employees and a $1/year thereafter until the minimum wage increases to $15 on January 1, 2022. The increases for employers with less than 26 employees will follow one year after minimum wage increases are imposed on employers with more than 25 employees.  For example, on January 1, 2019, the minimum wage for employers with less than 26 employees will be $12.

B. Marijuana Legalized. California legalized marijuana in November of 2016. Employers are not affected by the new law.  Employees cannot smoke marijuana at work or come to work under the influence even if they have been prescribed marijuana for medical purposes.  Employers can continue to test employees for drug use when they have “reasonable suspicion.”

C. Restrictions on Employment Agreements.  Out of state employers often times have California employees agree to what is referred to as a choice of laws and venue provision––meaning employee claims must be (i) determined under the laws of another state and (ii) filed and litigated outside of California.  Labor Code §925 is a new statute which prohibits employers from including such a provision in an agreement with an employee.

  1. This new statute applies to an employee who “primarily resides and works in California.”  However, the new law allows a choice of law and venue provision in an agreement if the employee is individually represented by an attorney in negotiating the contract.
  2. Employees can collect attorney’s fees if they enforce their rights under this statute which provides a motivation for plaintiff’s attorneys to file lawsuits.

D. Sick Leave

  1. There are a number of local jurisdictions which have passed their own sick leave laws.  Currently, these include San Diego, Los Angeles, Santa Monica, San Francisco, Oakland and Emeryville.  These sick leave laws provide greater benefits that the California sick leave law and generally apply if an employee works two hours per week or more in that City even if the employer is not located there.  These laws differ in who is considered a family member, whether sick leave can be accrued or front loaded, as well as in other areas.

Accordingly, employers need to maintain an awareness of changes in sick leave laws in cities where they have facilities or have employees working.

E. Gender Wage Equality (Labor Code 1197.5)

This law was revised and effective January 1, 2016. The law prohibits employers from paying any employee less than an employee of the opposite sex for “substantially similar work, when viewed as a composite of skill, effort and responsibility.”

Additionally, the amendment prohibits employers from prohibiting an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise his or her rights under these provisions.

As of January 1, 2017, the law has been expanded to also prohibit paying an employee less based on that person’s race or ethnicity. It also prohibits an employer from justifying an employee’s salary disparity based on that person’s prior salary.

F. Amendment to Labor Code Section 432.7 – Criminal History of Applicants – Also Known as “Ban the Box.”

The amendment prohibits employers from asking an applicant for employment to disclose, through any written form or verbally, certain information concerning arrests without a conviction, participation in pretrial or post trial diversion programs, or to use such information as a factor in determining any condition of employment, including hiring.

Excluded from the definition of conviction is a judicial adjudication entered by a juvenile court or any other court order or action taken against a person who is under the process and jurisdiction of the juvenile court.  There are also carve outs for health care facilities as defined by Health and Safety Code Section 1250 (dealing with the health of humans).

The City of Los Angeles passed an Ordinance, which is effective January 22, 2017, applies to all employers with 10 or more employees who are located in or doing business with the City of Los Angeles and provides:

  1. Covered employers are prohibited from asking any applicant about their criminal history or requiring disclosure of any criminal history.
  2. After a conditional offer has been made (defined as an offer of employment conditioned on the applicant’s criminal history), the employer can ask the employee about their criminal background, but must then perform a written assessment that links aspects of the applicant’s criminal history with the job duties for the position sought.
  3. If employers decide to deny the applicant the position, they must go through the “Fair Chance Process” which requires written notification to the applicant and gives the applicant five business days to provide information or documentation. Then the employer must perform a written reassessment before taking the adverse action of not hiring the applicant.
  4. There are carve outs for specific jobs, such as police officers or jobs that require use of a gun, or positions for which the employer is prohibited from hiring an individual convicted of a crime, etc.

G. Smoking in the Workplace (AB 7; Labor Code Section 6404.5)

This statute became effective June 9, 2016. Existing law prohibits smoking of tobacco products inside most enclosed spaces at a place of employment.

The new law expands the prohibition on smoking to an owner-operated business which is defined as one where the owner-operator is the only worker–meaning there are no other employees, independent contractors or volunteers working there. The new law also eliminates most prior exemptions that permitted smoking in certain work environments.

H. Janitorial Workers (AB 1978; Labor Code Sections 1420 et. seq)

This bill enacts new record-keeping, registration and training requirements for the janitorial industry. The intent is to protect janitorial workers from wage theft and sexual violence or harassment.

Effective July 1, 2018, an employer must register its business with the Division of Labor Standards Enforcement (“DLSE”) requiring the employer to make various disclosures and meet certain conditions. Thereafter, there are specified dates by which the DLSE and employers must be taken certain steps intended to minimize incidents of wage theft and sexual violence or harassment against janitorial employees.

I. Agricultural Employee Overtime (AB 1066; Labor Code Section 857 et. Seq)

Existing law states agricultural workers who work more than 10 hours per day are entitled to overtime at 1 1/2 times their regular rate of pay. Agricultural employers are also exempt from the requirement to provide one day’s rest in seven worked.

Effective January 1, 2017, agricultural employers are no longer exempt and cannot require employees to work more than six days in seven. The new law will phase in increased over time requirements for agricultural employees over a period of four years beginning January 1, 2019.

J. Single-User Restrooms (AB 1732; Health & Safety Code Section 118600)

  1. Effective March 1, 2017, all single-user toilets in any business establishment, place of public accommodation, or state or local government agency must be identified by signage as all-gender toilet facilities and designated for use by no more than one occupant at a time, or for family or assisted use. “Single user toilet facility” means a toilet facility with no more than one toilet and urinal with a lock.

K. Employment Protections for Victims of Domestic Violence, Sexual Assault or Stocking (AB 2337; Labor Code 230.1)

Existing law prohibits an employer with 25 or more employees from discharging or discriminating against an employee who is a victim of domestic violence, sexual assault or stalking for taking time off from work for specified purposes.

Effective July 1, 2017, employers must also inform, in writing, each employee of such rights at the time of hire or at any other time upon request of the employee. The Labor Commissioner must develop and post on its website a form an employer may use to comply with this notice requirement.

L. Itemized Wage Statements (AB 2535; Labor Code 226)

Existing law requires an employer to provide employees with an accurate itemized statement in writing which discloses certain information related to hours worked and wages paid. The new law clarifies that employers are not required to include in itemized wage statements the total number of work hours by an exempt employee.

M. Minimum Wage Violations (AB 2899; Labor Code 1197.1)

Under existing law, employers who pay less than the required minimum wage are subject to a civil penalty and damages. The new law requires that, prior to an employer appealing a Labor Commissioner’s decision to a court, the employer must post a bond with the Commissioner equal to the total amount the Commissioner ordered the employer to pay, excluding penalties.  The bond must be in favor of the employee and is forfeited to the employee if the court enters judgment against the employer and the employer fails to pay the amount owed within 10 days from entry of judgment.

N. Unfair Immigration Practices (SB 1001; Labor Code 1019.1)

Under existing law it is unlawful for an employer to require an employee to provide more or different documents then are required under federal law, or to refuse to honor documents provided which, on their face, reasonably appear to be genuine. The new law permits applicants or employees to file a complaint with the Division of Labor Standards Enforcement and recover a penalty of up to $10,000 against the employer.

 O. Revisions to the Regulations Governing the Fair Employment and Housing Act (“FEHA”). 

In April 2016, California Regulations were amended to require employers to specifically list all of the bases of discrimination prohibited by FEHA.  For example, an employer’s Equal Employment Opportunity Policy must list each such protected classification.

Employers are also required to amend their discrimination, sexual harassment and retaliation policies to include specific provisions regarding their complaint and investigation procedures.

For most employers, if their employee handbook’s discrimination, sexual harassment and retaliation policies have not been updated since April 2016, those policies are probably not compliant with the amended regulation.

 P. New I-9 Form Must Be Used By Employers

  1. U.S. Citizenship & Immigration Services (“USCIS”) has revised and issued a new I-9 Form effective November 14, 2016. Employers are required to begin using the new I-9 Form on January 22, 2017.
  2. Employers are required to have every new employee fill out Section 1 of the I-9 Form on their first day of hire and Section 2 of the I-9 Form within three (3) days of their hire.
  3. Employers must retain I-9 Forms while the employee is employed and for at least one year after the employee leaves the employer.
  4. Applicants should not be requested to fill out an I-9 Form until they have been offered employment.
  5. Employers can be penalized if they fail to have employees fill out I-9 Forms and if they fail to retain the completed I-9 Forms. Employers can also be penalized for failing to properly fill out the I-9 Form.
  6. The form can be filled out in hard copy or on the computer and printed. Employers can ask to see and copy documents which support an employee’s right to work in the United States.  The best practice is to copy those documents and maintain them with the I-9 Form.
  7. Employers are subject to audit and should keep I-9 Forms in a file separate from employee personnel files. The file containing the I-9 Forms can then be handed to the government agent for review and there is no reason to review the employees’ personnel files.
  8. The USCIS has an Employer Handbook online to assist employers with their obligations.
  9. The new I-9 Form is available on the USCIS website at https://www.uscis.gov/i-9.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the new employment laws, please feel free to contact Leonard Brazil by email at lbrazil@clarktrev.com or Deborah Petito at dpetito@clartktrev.com or telephonically by calling the author at (213) 341-1359.

 

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New I-9 Form Required

Signing Contract

By Deborah Petito, Esq.

U.S. Citizenship & Immigration Services (“USCIS”) has revised and issued a new I-9 Form effective November 14, 2016. Employers are required to have every new employee fill out Section 1 of the I-9 Form on their first day of hire and Section 2 of the I-9 Form within three (3) days of their hire.  Employers must retain I-9 Forms while the employee is employed and for at least one year after the employee leaves the employer.  Applicants should not be requested to fill out an I-9 Form until they have been offered employment.  Employers can be penalized if they fail to have employees fill out I-9 Forms and if they fail to retain the completed I-9 Forms.  Employers can also be penalized for failing to properly fill out the I-9 Form.  The form can be filled out in hard copy or on the computer and printed.

Employers are prohibited from discriminating against employees because of their immigration status. Employers should ensure that all employees are required to fill out an I-9 Form and should carefully review each form to ensure it is properly and fully completed.  Employers can ask to see and copy documents which support an employee’s right to work in the United States.  The best practice is to copy those documents and maintain them with the I-9 Form.

Employers are subject to audit and should keep I-9 Forms in a file separate from employee personnel files. The file containing the I-9 Forms can then be handed to the government agent for review and there is no reason to review the employees’ personnel files.

Employers are required to begin using the new I-9 Form on January 22, 2017. Employers should make sure they review the instructions and other documents available from USCIS so that they understand their obligations: www.uscis.gov/i-9.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about the new I-9 form, please feel free to contact our Labor & Employment attorneys Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

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California Drivers Must Soon Drop The Phone

By David S. Olson, Esq.

California law presently prohibits a person from driving a motor vehicle while using an electronic wireless communications device “to write, send, or read a text-based communication,” which the Vehicle Code defined as “using an electronic wireless communications device to manually communicate with any person using a text-based communication, including, but not limited to, communications referred to as a text message, instant message, or electronic mail.” California courts, following the language of the legislation, refused to expand the prohibition on cell phone usage while driving beyond emailing, instant messaging, and texting.

California employers, who may be held liable for injuries caused by employees driving for business purposes, should be aware of an expansion of the prohibition on cell phone usage that will take effect on January 1, 2017.  The new law now generally prohibits anyone from driving “while holding and operating a handheld wireless telephone or an electronic wireless communications device unless the wireless telephone or electronic wireless communications device is specifically designed and configured to allow voice-operated and hands-free operation, and it is used in that manner while driving.” This expansion will now presumably preclude a broad range of cell phone operations while driving, including checking maps and online surfing.

While the penalties for violating the law–$20 for a first offense and $50 for each subsequent offense–are not severe, the legislative history is clear that the law is aimed at preventing and reducing deaths and injuries caused by distracted driving.  Violations of the law would be admissible in lawsuits.  As such, employers should both educate employees who may drive for business purposes on the significant change in the law and take reasonable steps to ensure compliance with the new law by employees during such trips.


Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog. If you have any questions about the new expansion of the California law relating to cell phone usage while driving that will take effect on January 1, 2017, please feel free to contact David Olson by email at dolson@clarktrev.com or telephonically at (213) 629-5700.

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Employees Can Claim Disability Discrimination Even If They Do Not Have A Disability

By Deborah H. Petito, Esq.

One of the most difficult areas for employers is how to handle employee requests for reasonable accommodations based on disability. Employers are required to accommodate an employee who is disabled.  There is a recent California case which requires employers to accommodate employees who associate with disabled individuals even if the employee is not disabled.

Prior to this recent California case, employers could focus on the employee’s disability and whether or not the employee could be accommodated. Now employers must be aware that an employee can also request a reasonable accommodation to care for a third party who is disabled with whom the employee is associated.  It is unclear whether that disabled person needs to be a family member as required by the family and medical leave laws.  The first California appellate case on this issue, Luis Castro-Ramirez v. Dependable Highway Express, was decided in 2016.  The employee administered dialysis to his son.  The employee’s original schedule allowed him to be home at night to do so.  However, a new supervisor changed his schedule and terminated him when he refused to work the new schedule.  The Court of Appeal held that the employee could bring claims for disability discrimination and retaliation even though he was not disabled.  The Court of Appeal specifically held that “FEHA creates an associational disability discrimination claim” because “’physical disability’ . . . include[s] ‘. . . that the person is associated with a person who has, or is perceived to have, any of those characteristics.’”

There are no hard and fast rules about reasonable accommodations or time limits on the length of a disability leaves based upon an employee’s serious health condition or the need of an employee to care for a third party with whom the employee is associated. The length of a leave depends on a number of circumstances, including the level of the employee’s job (how hard it is to have another employee perform their job duties), the size of the employer and whether or not the employer can show that there is an undue hardship in allowing an extended leave.  Other reasonable accommodations also depend on the specific request and its effect on the employer.  Employers who do not understand the law either deny the reasonable accommodation,  terminate the leave too early and open themselves up to a disability discrimination lawsuit or let employees have unlimited leaves of absence which causes operational issues, particularly when the employee wants to return to work.

The Castro-Ramirez case is a classic “bad facts make bad law” case. However, the effect is that employers are faced with whether to grant a leave as an accommodation to those employees who request leaves not only for their own disability but also to take care of a disabled third party, who is not necessarily related to the employee, who has or is perceived to be disabled.  This is a significant broadening of the protections under the Fair Employment and Housing Act.  It remains to be seen how broadly associational disability discrimination will be integrated by future court decisions, but for now employers must entertain a leave of absence requested by an employee to care for another disabled person.

To avoid claims of disability discrimination, employers should:

  1. Train supervisors and managers regarding what constitutes a disability and that the disabled person does not have to be the employee.  Supervisors are often the first person to hear that an employee needs or would like an accommodation.
  2. Make sure they understand how to engage in the interactive process and how to evaluate accommodations to determine if they are “reasonable.”

The best advice in this area for employers is to consult their employment counsel before taking action because the employment laws overlap and have different requirements. Some employers do not want to pay the fees for a legal consultation, but a small investment now may avoid a huge legal headache.


Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions about disability discrimination, including associational disability discrimination, the interactive process or reasonable accommodations, please feel free to contact Deborah Petito by email at dpetito@clartktrev.com or Leonard Brazil at lbrazil@clarktrev.com or telephonically by calling the author at (213) 341-1359.

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New Minimum Hourly Rates for Exempt Computer Software and Licensed Physicians and Surgeons

By Deborah H. Petito

The minimum hourly rates for computer software professionals and licensed physicians and surgeons was announced by the Department of Industrial Relations (“DIR”). Effective January 1, 2017, the rates are as follows:

Physicians – $77.23 per hour. Previously, the hourly rate was $76.24 (the DIR does not set monthly or annual minimums for physicians and surgeons.

Computer Software Professionals – $42.39 per hour, $7359.88 per month and $88,318.55 per year. Previously, the rates were $41.85 per hour, $7,265.43 per month and $87,185.14 per year. A computer software professional must meet the following criteria in order to be exempt under the professional exemption:

  • The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.
  • The employee is primarily engaged in duties that consist of one or more of the following:
  • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
  • The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications.
  • The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
  • The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of the exemption.

Also, remember that the Department of Labor’s Final Rule on exempt employees is effective December 1, 2016 and requires that all exempt employees be paid at least $46,467 annually in order to be exempt. This is higher than current California law (except in some cities where the minimum wage is higher. You can read more on this topic in my blog article posted in May. Will Your Exempt Employee Still Be Exempt?


Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  You should certainly consult legal counsel of your choice if you need assistance in determining whether or not an employee is exempt or whether they are being paid appropriately.  If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Debbie Petito dpetito@clarktrev.com or Leonard Brazil lbrazil@clarktrev.com by email at or telephonically by calling the author at (213) 629-5700.

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Employers Cannot Deprive Employees of Access to California Courts or Law

By Deborah H. Petito

A new statute has been added to the Labor Code (§925) which prohibits employers from requiring employees to agree to a provision requiring them to bring claims arising, either in court or before an arbitrator, in a jurisdiction other than California. The new statute also prohibits an employer from requiring employees to agree to a provision which deprives the employee of the substantive protections of California law in any lawsuit or arbitration.  This means that employers cannot require employees to sign employment agreements, including arbitration agreements, confidentiality agreements, etc., which state that the matter will be adjudicated in another state or that the law of another state will govern any litigation or arbitration dispute.

This new statute applies to an employee who “primarily resides and works in California.” While the statute does not differentiate between the level of the employee, it does exclude contracts when the employee is individually represented by legal counsel in negotiating the terms of the contract.  This will generally mean a higher level employee.  While the law does not apply to contracts where the employee is individually represented, there are no guarantees that a California court will uphold a legal challenge to such contracts so they should be cautiously approached.

There are teeth in the new statute which provides that any contract requiring the employee to adjudicate his or her claims in another state or apply another state’s laws is voidable by the employee and provides that a court may award attorney’s fees to an employee who enforces his or her rights. The dreaded attorney’s fees language – a motivation for plaintiff’s attorneys to file lawsuits.

Presumably, if another state has the same substantive law in a given area, the employer could designate that other law would apply but in the employment area, chances are that California’s laws are tougher.  This is an area where legal counsel should be consulted.

This new statute is effective January 1, 2017 and applies to any contract entered into, modified or extended after that date.

Thank you for joining us on ClarkTalk!  We look forward to seeing you again on this forum.  Please note that the views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.   If you wish to consult with the author of this post or another attorney at Clark & Trevithick, please contact Deborah H. Petito by email at dpetito@clarktrev.com or telephonically by calling the author at (213) 629-5700.

 

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Computer Services Provider Not Liable For Member Ratings

By David S. Olson, Esq.

In a decision issued on September 12, 2016, Kimzey v. Yelp! Inc., the Ninth Circuit Court of Appeals upheld a federal district court’s dismissal of a Complaint against Yelp! Inc.  The Complaint sought to hold Yelp responsible for negative reviews posted on http://www.Yelp.com about the plaintiff’s locksmith business.  The plaintiff alleged that Yelp created and developed content, including by way of its star-rating system that assigns businesses overall star ratings based on Yelps’ user’s ratings.

While noting that the plaintiff’s contention had “superficial appeal,” the Ninth Circuit relied on Section 230 of the Communications Decency Act (CDA) in affirming the dismissal of the Complaint. That Act immunizes providers of interactive computer services against liability arising from content created by third parties.  The Ninth Circuit rejected the contention that Yelp’s star rating system transformed Yelp into an author as the Yelp star-rating system relied on rating inputs from third party reviewers, which Yelp then simply reduced into a single, aggregate metric.  The Court stated that Yelp’s star-rating system is a neutral tool operating on voluntary inputs and thus protected under the CDA.

Thank you for joining us on CIarkTalk! We look forward to seeing you again on this forum.  Please note that views expressed in the above blog post do not constitute legal advice and are not intended to substitute the need for an attorney to represent your interests relating to the subject matter covered by the blog.  If you have any questions, please feel free to contact the author by email at dolson@clarktrev.com or telephonically by calling (213) 629-5700.