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If you have a nondiscretionary bonus plan that is awarded to nonexempt employees at intervals greater than each week (for example, on a quarterly, semiannual, or annual basis), you are required to retroactively calculate the bonus into the employee's "regular rate" of pay.
Pregnant Employee Terminated
Ana G. Fuentes Sanchez was employed as a cleaning agent by Swissport, Inc., from August 2007 until July 14, 2009. On February 27, 2009, she was diagnosed with a high-risk pregnancy and ordered on bed rest. She was scheduled to give birth on October 19, 2009.
Swissport gave Sanchez a temporary leave of absence for 19 weeks, consisting of the time she had available under California's Pregnancy Disability Leave Law (PDLL) and the California Family Rights Act (CFRA). On July 14, 2009, it terminated her after her leaves expired.
Employee Sues for Pregnancy Discrimination, Failure to Accommodate
Two years later, Sanchez sued for discrimination based on sex, physical disability, and medical condition, failure to accommodate, failure to engage in the interactive process, and retaliation. She claimed that she was fired because she requested reasonable accommodations for her pregnancy disability.
Swissport asked the court to dismiss the case because it had provided Sanchez with all the leave mandated by the PDLL and the CFRA. Therefore, it had necessarily satisfied all of its obligations under California's Fair Employment and Housing Act (FEHA).
Sanchez argued that she was entitled to reasonable accommodations for her pregnancy-related disability leave under the FEHA in addition to her leave under the PDLL and the CFRA. Further, she would need only a finite amount of leave because her pregnancy-related disability would end after she delivered the baby.
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The trial court concluded that the FEHA allows employers to fire employees who are unable to return to work upon expiration of leave under the PDLL. Accordingly, the trial court dismissed Sanchez's complaint, and she appealed.
Is Pregnant Employee Entitled to More than 4 Months of Leave?
The FEHA prohibits discrimination in employment based on an employee's disability, pregnancy, or related medical conditions and requires you to provide reasonable accommodation for an employee's known disability unless you demonstrate that the accommodation would produce an "undue hardship."
However, the FEHA doesn't prohibit you from firing an employee with a physical disability who "is unable to perform his or her essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger his or her health or safety or the health or safety of others even with reasonable accommodations."
The provisions of the PDLL are contained within the FEHA. The PDLL provides that in addition to other FEHA provisions that govern pregnancy, childbirth, or related medical conditions, you must "allow a female employee disabled by pregnancy, childbirth, or a related medical condition to take a leave for a reasonable period of time not to exceed 4 months and thereafter return to work."
Under the PDLL, an employee disabled by pregnancy is entitled to up to 4 months of disability leave, regardless of whether it causes an undue hardship on her employer. By contrast, under the broader FEHA provisions, an employee with a disability is entitled to a reasonable accommodation, which may include an unpaid leave of absence, provided the accommodation doesn't impose an undue hardship on the employer.
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Swissport argued that the only remedy for an employee seeking reasonable accommodation of her pregnancy-related disability is 4 months of leave under the PDLL. According to the company, an employee isn't entitled to any additional leave for pregnancy disability beyond 4 months, even if additional leave doesn't cause an undue hardship on the employer.
The appellate court wasn't convinced. According to the court, the plain language of the FEHA makes clear that "its remedies augment, rather than supplant, those set forth elsewhere in the FEHA." The PDLL expressly states: "This section shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this part."
The appellate court reasoned that under the FEHA, a woman disabled by pregnancy is entitled to the protections afforded any other disabled employee―i.e., a reasonable accommodation that doesn't impose an undue hardship on her employer.
Accepting Swissport's argument that the PDLL caps the maximum leave a pregnancy-disabled employee could take at 4 months would "'diminish the coverage' of pregnancy-related disabilities otherwise provided 'under any other provision' of the FEHA―precisely what the PDLL expressly prohibits." The appellate court observed that a finite leave of absence greater than 4 months may be a reasonable accommodation for a known disability under the FEHA.
Thus, the trial court had incorrectly concluded that the FEHA permitted Swissport to fire Sanchez because she was unable to perform her job duties at the time of her termination. Instead, the court should have examined whether she could perform her job with or without reasonable accommodations. Sanchez had alleged that if she had been granted an accommodation of additional leave, she would have been able to perform the essential functions of her job upon her return to work.
Accordingly, Sanchez stated valid claims under the FEHA for:
In short, an employee who is fired because she is unable to return to work because of her pregnancy disability may have a valid claim under the FEHA, even if she has exhausted her 4 months of leave under the PDLL. Sanchez v. Swissport, Inc. (California Court of Appeal, Second Appellate District, 2/21/13).
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Most drug and alcohol abusers seek work—and some may be filling out applications in your lobby right now. What are the legal, workable, and effective ways to keep them out?
As we reported in yesterday's CED, most abusers of drugs and alcohol are in the workplace, but they aren't doing you any favors by being there. Studies show greater absenteeism, poorer health, and probably poor effort and output.
Well, it gets worse. According to the federal Occupational Safety and Health Administration (OSHA), between 10 percent and 20 percent of workers who die on the job test positive for alcohol or other drugs. In fact, industries with the highest rates of drug use also are those at highest risk for occupational injuries, such as construction, mining, manufacturing, and wholesale.
Although OSHA does not require drug-free workplace programs, one look at the statistics shows that they are a sensible—many would say necessary—step for any business to take. (Laws do require federal contractors to have drug-free workplace programs, and there are also requirements for companies in the transportation industry.)
Set up a drug testing program that is legal, workable, and effective. Attend a special CER webinar on May 30 to find out how. Can’t attend? Pre-order the CD. Read more.
The data show that there’s real benefit in substance abuse testing programs, especially in conjunction with company-provided employee assistance programs. Together, they reduce the risk of substance-related problems at work—as well as reduce the ever-present risk of lawsuits relating to sticky ADA/FEHA, FMLA/CFRA, and workers' compensation issues. But they must be implemented properly.
Join us on May 30 for a 90-minute webinar when our expert—an experienced California employment law attorney—will discuss how to craft an effective substance abuse policy and a testing program that is simple, accurate, and legal.
We strongly recommend that you attend this valuable session, or if May 30 is not convenient, that you pre-order the CD of the session. Learn more.
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A recent study shows that most illicit drug users and heavy alcohol users are employed. That means they’re possibly working for you. If you are not testing, you're likely an "employer of choice" for all the wrong reasons.
Ah, the joys of drug testing. Nothing quite like trying to ferret out users of the Whizzinator (the popular drug-test-defeating device that delivers heated synthetic urine). It's no surprise that many HR managers would rather not deal with drug and alcohol issues. After all, you've got productivity issues to deal with, right?
But think about this: Maybe drugs and alcohol are your productivity issue.
According to a study completed by the U.S. Substance Abuse and Mental Health Services Administration (SAMSHA), drug and alcohol users really drag a business down.
"Employees who use drugs miss work more often, are less healthy, and are more prone to harming themselves and others in the workplace," the study reports. Drug-using employees are also more likely to change jobs often … not a problem, unless you’re their next employer in line.
Some key facts:
Also, although the study didn’t measure it, it’s not much of a stretch to guess that the drug users' work product is probably less than stellar even when they do show up.
You say you like the company of abusers? Well, there’s a surefire way to attract them: Don’t test! The study reports that current drug users were far more likely to work for employers that did not conduct drug or alcohol testing programs than those that do.
Only about 30 percent of the respondents reported working for employers that conduct random drug tests. Consequently, SAMSHA encourages all employers to adopt drug testing programs.
But that's not as easy as it sounds. Who will you test? Under which circumstances? Random? On suspicion? Which drugs are illegal? Who does the testing? What kind of test? What action will you take if someone tests positive? Re-test? Terminate? Refer to your EAP?
Done wrong, workplace drug and alcohol testing can generate more problems than it solves. Learn to do it right at CER’s May 30 webinar. Or pre-order the CD if you can’t attend. Either way, your satisfaction is assured. Click for info.
The bottom line is that drug testing is daunting. Most employers need professional help to get started. We've got it with an all-new webinar that we'll brief you on in tomorrow's CED.
Click here for info on the upcoming webinar.
Does your company use a PTO policy or a vacation policy? In California, it matters more than it might seem because of the way the law treats vacation days as accrued wages. So be careful if you’re switching to a PTO policy—be sure you understand how the law will treat the accrued days.
How is vacation different from PTO in California? Understanding this difference can be the key to staying out of legal trouble when administering your PTO plan. Let’s start with vacation time:
"Vacation is a term of art in California. When it’s used, that word means a very, very specific thing. It doesn’t mean that you’re traveling in the Bahamas. It doesn’t [even] mean that you’re on vacation in the traditional sense that you’re gone . . . The only point of vacation is that it’s paid time off that can be taken without condition." Dan Chammas explained in a recent CER webinar. Without condition means that it can be taken for any reason or no reason. Accrued vacation time is also the equivalent of accrued wages owed under California law.
Vacation also typically means paid time off that the employee can take at his or her discretion. This does not mean that employees can take vacation whenever they want, however. Employers can insist that employees give reasonable notice of vacation and that the vacation fits in with the schedule. But it does mean that once the vacation time is accrued, no further conditions must be met for it to be taken.
PTO, on the other hand, may encompass more than just vacation days. Chammas confirmed: "PTO is broader than vacation. PTO is any time an employee is being paid while away from work and not working. So, basically, it’s any paid leave."
Another way to think of it is that vacation is PTO, but PTO may not necessarily be vacation. In fact, vacation is a subset or an example of PTO. Here are some examples of non-vacation PTO: pregnancy leave, disability leave, jury duty, holiday pay, or sick leave.
An employer structuring a comprehensive leave policy has three types of leave to consider:
The employer can also determine which employee classifications are entitled to vacation/PTO. For example, the employer could differentiate PTO policies for full-time employees, part-time employees, and temporary employees.
In general, employers typically structure their leave policy as either:
The first option may be the smarter administrative PTO policy because only the vacation bank has to be paid out upon termination. There’s less financial risk for the company. In this case, each of the other PTO banks that can only be used in specific circumstances (sickness, jury duty, pregnancy, etc.) need not be paid out upon termination. While this is better financially if the employee is terminated, it requires extreme diligence in recordkeeping. Another downside is that employees tend to like it less and will see it as a benefit loss compared to a PTO bank that is unconditional.
The above information is excerpted from the webinar "Paid Time Off in California: Strategies for Effectively and Legally Managing Your Program." To register for a future webinar, visit CER webinars.
Daniel B. Chammas, Esq., is a partner in the labor and employment practice group in Venable’s Los Angeles office. He has extensive experience defending employers in wage and hour class actions and other employment disputes, from actions for unpaid wages and sexual harassment claims to wrongful termination litigation and racial discrimination complaints.
Yesterday’s CED covered the first four tentacles of the Social Media Octopus. Today, four more tentacles—plus an invitation to the only California HR conference you need to attend this year.
The eight tentacles come from a recent BLR/HRHero-sponsored webinar featuring Patricia Trainor, J.D., and Stephen Bruce, Ph.D. Attorney Trainor is BLR’s senior managing editor, HR; Bruce is editor of the HR Daily Advisor. (BLR is CER’s parent company.)
[Go here for tentacles 1 to 4.]
Tentacle 5—Inappropriate/ Negative Actions Toward the Employer
Release of “trade secrets” and other proprietary data is a major worry for many employers. Remember, you have to treat these data as secret yourself. Some courts have determined that information that is available to the public through Internet searches and other means isn’t protected.
Also, you may want to revise preemployment agreements regarding trade secrets and proprietary information such as customer lists.
Put in your policy, and have employees sign, an agreement concerning company equipment, company accounts, and company information.
What about badmouthing the company or the boss? This is a very frustrating situation because there are two legal issues that employers face when they try to restrict employees who rave and rant online:
First, there are state legal off-duty activity laws. Although these laws were generally passed to protect smokers, many of them are broadly worded and social media activity could be protected.
Along with this come NLRB issues, that is, that many discussions online are protected activity, particularly if they fall under the guise of talking about terms and conditions of employment.
Tentacle #6—NLRB Issues
After lots of guidance, the NLRB issued its first decision on a social media policy and not surprisingly found the policy infringed on NLRA Section 7 rights. In the case, the company’s policy prohibited statements on social media that “damage the Company, defame an individual, or damage any person’s reputation.” At a minimum, your social media policies should state that nothing in the policy is intended to restrict employees’ rights under the NLRA.
Social Media for California Employers: How to Reap the Benefits and Avoid the Risks—exclusively at this fall’s California Employment Law Update conference. Learn more.
Tentacle #7—Privacy Issues
There is little case law addressing the monitoring by employers of employees' social networking posts. However, the few cases in this area suggest that courts will be reluctant to uphold an invasion of privacy claim (whether based on the federal Constitution or state common law) when an employee voluntarily posts information on a public site.
Again, there is the issue of off-duty activity laws, as well as not requiring passwords and not trying to falsely enter a website.
Tentacle #8—Ownership Issues
Finally, there’s a very interesting issue now around who owns social media data. For example, say an employee has all your customer contacts on his or her LinkedIn page. When the employee leaves your employ, can he or she take that contact information? Can you prevent it?
The social media arena is constantly changing, the law is slow to catch up, and there are many grey areas. Having a policy, signing agreements, and training users will help to minimize your exposure.
Social media and all eight of its tentacles—just one more daily challenge. In HR, if it’s not one thing, it’s another. But we’ve got you covered with the in-depth conference exclusively for California employers.
Don’t Miss the 8th Annual California Employment Law Update Conference—Now Being Offered in Two Convenient Locations!
San Francisco: Oct. 9-11
Anaheim: Oct. 23-25
San Francisco: Oct. 9-11
Anaheim: Oct. 23-25
Our intensive program delivers rock-solid, bottom-line value with practical guidance for overcoming the latest HR challenges in California.
Join us this fall, and learn the latest on…
The state Fair Employment and Housing Commission was abolished as of January 1, but this doesn’t mean your legal compliance obligations have gotten any easier. Far from it, in fact: The new seven-member Fair Employment and Housing Council is zealously committed to enforcing employee rights, and the Department of Fair Employment and Housing (DFEH) is now authorized to prosecute cases directly in court and collect both attorneys’ fees and costs.
Even the best-intentioned employers can make devastating missteps when it comes to compliance with the full array of antibias laws—particularly in California, where you have the employee-friendly protections of state law to worry about. Now’s the time to get prepared.
Following the 2012 election, both Obama and “Obamacare” are here to stay—and the countdown to the 2014 individual mandate is on. That’s why you need to get your house in order now, in 2013. If you have 50 or more full-time-equivalent employees, that includes deciding if you’ll “play or pay” pursuant to what’s considered perhaps the most contentious of all the Affordable Care Act (ACA) provisions.
You won’t want to miss our up-to-the-minute healthcare update. We’ll cover the following and much more:
COMPENSATION AND BENEFITS
A well-organized pay program is more important now than ever before, in the wake of the Great Recession. Merit budgets are smaller, compensation programs are challenged, and you simply need to do more with less. We’re also seeing philosophical changes occurring at the highest levels of government with respect to the idea of “pay for performance,” such as demands for aggressive approaches to reducing the wage gap between men and women.
To keep up with other employers, as well as to attract and retain top talent, it's a must for you to be up to date on the latest trends so you can remain competitive. We’ll explain:
EMPLOYMENT LAW HOT TOPICS
We’ll give you the real skinny on the latest HR-related developments that are keeping you up at night: wage and hour conundrums … “BYOD” (Bring Your Own Device) dilemmas … drugs in the workplace … guns in the workplace … and so much more:
Don’t miss your chance—sign up for CELU before the end of the month, and save $100 on your registration. Get the full details here—we hope to see you this fall.
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The employment laws in California are some of the strictest in the nation.
It's no secret that we live in the most litigious society in history. And that companies like yours are a favorite target for the media, attorneys, courts, disgruntled employees, and even job candidates.
California workers are particularly prone to complain about the company that employs them.
California Employer Advisor, our award-winning HR advisory newsletter, will introduce you to all aspects of the continually changing state and federal laws governing your relationship with your employees.
Not only do we report on the important laws, management practices, and cases that impact your business, we also outline pragmatic, actionable ideas to help ensure full compliance, avoid lawsuits, and protect your company from financial losses