California Employer Daily

Blog Post: 4 Months of Pregnancy Disability Leave Just Isn't Enough

Jennifer Carsen, Esq. — Fri, 24 May 2013 13:30:00 GMT

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.

Plain-English compliance for California HR professionals, delivered to you every month—learn more.

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:

Discrimination based on sex, a physical disability, or a medical condition;
Failure to provide reasonable accommodations;
Failure to engage in an interactive process to determine reasonable accommodations; and
Retaliation for exercising her rights under the FEHA.

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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Blog Post: Keeping Drugs and Alcohol Out of Your Workplace: CER Announces an Important Webinar

Jennifer Carsen, Esq. — Thu, 23 May 2013 13:30:00 GMT

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.

You’ll learn:

The various California and federal laws you must consider when developing a drug and alcohol testing program
How to assess your existing program to determine—and fix—potential gaps
Best practices for on-the-job drug and alcohol testing
What should you include in your substance abuse prevention policy
How to make sure that employee privacy rights are properly addressed
The pros and cons of a "zero-tolerance" policy
Testing considerations—pre-employment, routine, random, and following an accident
The legal strategies and remedies you should you consider if you're threatened with a lawsuit

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.

Download your free copy of Questions To Ask In an Interview: Interview Questions For Employers today!

Blog Post: Are You the 'Employer of Choice' for Drug and Alcohol Abusers?

Jennifer Carsen, Esq. — Wed, 22 May 2013 13:30:00 GMT

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:

Nearly twice as many illicit drug users skip 1 or more days of work each month compared with workers who do not abuse drugs.
Drug users are also far more likely to report missing 2 or more workdays in the past month due to illness or injury, compared with workers who do not abuse drugs.

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.

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.

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.

Download your free copy of Questions To Ask In an Interview: Interview Questions For Employers today!

Page: Webinars

Anonymous — Tue, 21 May 2013 18:58:00 GMT

What Not to Wear: How Employers Can Fashion and Enforce a Workplace Dress Code Policy

Monday, June 3, 2013—10:30 a.m. to Noon (Pacific)

Can you ban an employee tattoo even if it's part of a religious practice? Can you ban headwear if it’s part of someone’s personal expression? What about dress codes related to safety rules? Do you allow workers to wear T-shirts with offensive slogans or pictures? Employers today are facing these questions and more as they try on different dress codes to find the right fit.

Although no one has written a eulogy for the business suit just yet, the workplace is much more relaxed than it used to be when it comes to attire. Business casual isn't your parents' business casual anymore.

Learn more »

FMLA/CFRA Certifications: How to Properly Designate Absences and Stop Leave Abuse

Monday, June 10, 2013—10:30 a.m. to Noon (Pacific)

Medical certifications may just be the most effective tool in your arsenal for combating abuse of leave rights under the Family and Medical Leave Act and its California counterpart, the California Family Rights Act. They provide valuable insight into whether a claimed condition qualifies as a serious health condition.

Surprisingly, many employers don’t take advantage of this powerful weapon for combating abuse. As a result, they’re left second-guessing whether an employee’s ailment qualifies them for protected leave.

Learn more »

Management and Discipline: How to Manage Well and Fire Without Fear

Tuesday, June 11, 2013—10:30 a.m. to Noon (Pacific)

One of a manager's least favorite jobs is disciplining employees. The issue is so disliked that many managers will put off the meeting as long as possible, or even forget the transgression happened in the first place. Such avoidance can only hurt your employees and your organization in the long run. You must have an effective discipline and termination strategy in place.

Consider these statistics:

A jury in Jackson County, Missouri, awarded $6.5 million to an ex-police officer who claimed wrongful termination against the Kansas City Board of Police Commissioners. The verdict exceeded expectations of the plaintiff's attorney, who asked the jury for $1.9 million.

A Wyoming jury awarded a short-term employee $550,000 in damages after finding he was fired in retaliation for filing a workers’ compensation claim.

A former Chevron employee was awarded $5.5 million by a San Francisco federal court jury that found the company was liable for retaliation and wrongful termination.

Don't let discipline issues snowball into costly lawsuits. HR professionals need a structured approach for disciplining and firing employees, which includes acquiring necessary documentation that will hold up in court.

Learn more »

Terminations in California: How to Successfully Navigate Legal Minefields

Tuesday, June 25, 2013—10:30 a.m. to Noon (Pacific)

Terminations can be a legal minefield in California, but no employer can totally avoid them. Discharges are necessary for a variety of reasons, including poor performance, budget-driven layoffs, harassment or other egregious conduct, and more. And all discharges should be navigated with the same level of careful consideration and adequate preparation to minimize potential legal liability.

When it comes to terminating, knowing when to terminate employees and how to terminate them are equally important. For instance, while most employment arrangements are at-will, you may have unknowingly created an implied contract for employment, in which case a termination could leave your organization open to a breach-of-contract claim. You can even open yourself up to brand-new legal risks stemming from the way you conduct the termination itself.

Learn more »

Blog Post: How does a vacation policy differ from a PTO policy?

Jennifer Carsen, Esq. — Tue, 21 May 2013 18:22:00 GMT

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.

The difference between vacation time and PTO

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.

Should you have a PTO policy?

An employer structuring a comprehensive leave policy has three types of leave to consider:

PTO without conditions. If the leave is without condition, then it must be treated as vacation time – regardless of what it is actually used for – and all laws that relate to vacation time will apply.
PTO with conditions (such as separate allotments for jury duty, sick leave, pregnancy disability leave, etc.). If the leave is with condition, then none of the "vacation" rules apply and it does not need to be paid out upon termination.
Unpaid leave. If all leaves not covered by law are unpaid, then vacation laws are less of an issue—but employee retention could be a significant issue.

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:

A vacation bank, plus separate banks for other conditional leaves of absence.
One large PTO bank that can all be used without condition.

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.

Blog Post: Social Media Badmouthing, Ownership, Privacy

Jennifer Carsen, Esq. — Tue, 21 May 2013 13:30:00 GMT

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

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…

LEGAL COMPLIANCE

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.

Bias allegations: Learn how to protect yourself from litigious employees (and former employees) and zealous government investigators.
Unions and the NLRB: You don’t need a union, or even the threat of one, to get on the NLRB’s bad side. Learn how the agency’s reach is increasing—and how to stay off their list of targets.
Wage and hour: Clocking in and out … donning and doffing … classification errors … overtime violations. There are just so many ways to get it wrong here. We’ll explain how to make sure you stay out of trouble.

HEALTH CARE

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:

Short-term—but pressing—obligations as they relate to “play or pay”
The keys to formulating a successful long-term strategy for your employees’ health benefits
Common missteps to avoid when designing and administering cafeteria plans, and the specific compliance challenges your organization may face
How to create an effective wellness program that won’t create unexpected legal landmines
Best practices for negotiating with vendors to get the best deals on benefit offerings

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:

Everything you need to know about job evaluations
Pay surveys and pay ranges
How to effectively communicate with employees about their compensation and benefits
The keys to effectively incentivizing the behaviors you want to encourage—without breaking the bank
Tips for making employees aware of just how much value they’re receiving from their benefits packages

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:

Marijuana laws, medical and otherwise: What HR needs to know
The details on the recent changes to California’s protections for pregnant employees
The U.S. Supreme Court’s much anticipated ruling on what it really means to be a “supervisor”
The sweeping impact the DOL’s proposed “Plan/Prevent/Protect” (P3) initiative could have on your workplace
The ever-shifting world of same-sex marriage in California, and its effect on your benefits plans
Potential changes to the rules on class waivers in arbitration agreements
And much more—stay tuned for the breaking developments we’ll schedule as they arise!

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.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!

Blog Post: Social Media Octopus—8 Tentacles Every HR Manager Must Master

Jennifer Carsen, Esq. — Mon, 20 May 2013 13:30:00 GMT

Social media—it’s everywhere HR turns. In a recent BLR/HRHero-sponsored webinar, Patricia Trainor and Stephen Bruce, Ph.D., identified eight tentacles that you need to watch out for.

Attorney Trainor is BLR’s senior managing editor, HR; Bruce is editor of the HR Daily Advisor. (BLR is CER’s parent company.)

Tentacle #1—Sourcing and Recruiting with Social Media

It’s clear that social media is rising as a method of recruiting, and some employers are enjoying great success.

However, when you use only one source for finding candidates, there’s always the danger of discrimination charges, especially if protected groups aren’t well represented.

Whatever method you use for sourcing, be consistent in how you treat applicants, resumes, application forms, and interviews.

Tentacle #2—Background Checks on Social Media Sites

There are strong arguments for and against doing these checks, but if you choose to do them, there are ways to minimize your exposure.

The Position Against

First, the position against doing the checks—you’ll find out things you don’t want to know. For example:

Membership in a protected class (for example, gender, race, ethnic background, religion, disability, marital status, or sexual orientation).
Medical information. You might read, for example, “My mom just found out she has breast cancer—I wonder if I’ll get it,” OR “I’m so excited, I just found out I’m pregnant.”
Other information such as attitude toward unions.

Ultimately, the fact that you know this information can work against you in a discrimination lawsuit. As they say, you can’t unring the bell.

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.

The Position For

The position for doing social media background checks—if you don’t do the check, you won’t find out things you do want to know (for example, tendency to violence, racial attitudes, or extreme behavior).

Furthermore, if you don’t do the check, it could lead to a charge of negligent hiring.

And here are a couple of related issues.

First of all, FCRA—the Fair Credit Reporting Act. As you know, if you involve a third party in doing your background check, you’ll need to comply with FCRA’s notification rules.

Another issue is passwords. States are starting to pass laws restricting employers from asking for user names/passwords. Most experts recommend against this anyway.

Site access rules are another danger zone. Sites have access rules that you shouldn’t violate when trying to enter. For example, you shouldn’t try to go in under a false or made-up name or under any false pretenses.

So what should you do?

One solution, of course, is don’t do these checks. But that’s going to be hard to maintain.

If you do check, here are two things you can do that will minimize your exposure.

First, filter—that is, have someone else do the check and filter out unwanted information before reporting to you. You could use an outside firm or use an inside person not in the hiring chain.

Inside or outside, you should provide a list of what you want checked and what you want reported and then be consistent in applying your guidelines.

The second thing you can do is to limit the check to finalists only. By that time, you’ve probably interviewed the person, and you typically know all demographic information like age, race, and gender.

Whatever you decide, train your hiring managers.

Tentacle #3—Productivity Issues

The problem of employees wasting time by overusing social media at work is simply a policy/discipline issue. Plainly put, you can insist that employees work during working hours, and you can discipline them when they don’t.

Unfortunately, as a practical matter, it’s difficult to forbid all social media activity while at work. Employees have not only their work computers but also their smartphones and tablets.

So set your expectations—and then when there is a problem, go ahead and discipline. If you don’t act, you are condoning the behavior. And by the way, all the other employees are watching to see whether you act or not.

Save $100 if you register for CELU before the end of the month. Click here for more.

Tentacle #4—Inappropriate Actions Toward Coworkers

These actions can consist of

Harassment—sexual, religious, etc.
Threats of violence
Teasing and meanness

These actions must be dealt with just as you would if they were on paper or in person. Initiate an investigation and take appropriate actions if the investigation reveals that the actions were contrary to company policy.

In tomorrow’s CED, more social media tentacles.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!

Blog Post: Free Report Friday—Paying Overtime on Bonuses: A Calculation Guide, May 17

Jennifer Carsen, Esq. — Fri, 17 May 2013 13:30:00 GMT

You’re also required to pay additional overtime and double-time wages to include the bonus amount for each overtime and double-time hour worked.

But how to go about this? Our free White Paper Paying Overtime on Bonuses: A Calculation Guide explains, step by step, how to do the math for both incentive-based and non-incentive-based bonuses.

Download your free report now

Remember, it’s Free Report Friday—get your copy of Paying Overtime on Bonuses: A Calculation Guide absolutely free.

Download your copy now.

Blog Post: Handle—or Hand Off to HR? Do Your Supervisors Know the Difference?

Jennifer Carsen, Esq. — Thu, 16 May 2013 13:30:00 GMT

Yesterday’s CED detailed a highly significant report by the National Academy of Public Administration (NAPA) on the importance of supervisors to business.

In a word, they’re critical.

As frontline managers, where the work is actually done, they can either drive productivity or drag it down, the report said. Supervisors have the same power when it comes to retention, no small matter these days. And when grievances or complaints are filed, you can often trace them to supervisory behavior.

What’s the answer? Training and development, says NAPA, even to the same level as you’d train executives. Because, to the folks on the bottom rungs of your organization, supervisors are executives.

But there are some things even the most experienced supervisors should refuse to touch with a 10-foot pole before talking with you in the HR department. Harassment complaints. Disability accommodation requests. Lawsuit threats.

The key question boils down to this: Do your supervisors know what to handle, and what to hand off to HR?

You won’t want to miss our informative, California-specific webinar next week. And bring your supervisors along, too.

Handle or Hand Off? Train Your Supervisors to Head Off Imminent Threats and Loop in HR When Necessary

Monday, May 20, 2013
10:30 a.m. to Noon Pacific

The supervisors on your staff should have a decent working knowledge of human resources best practices—what they can do, what they can’t do, what they should and shouldn’t say. But there’s a fine line between knowing enough, and knowing just enough to be dangerous.

When supervisors “play HR,” they can leave companies vulnerable to embarrassing and costly legal action. This is particularly true when garden-variety issues escalate into more complex territory—especially in California, where the rules are particularly complicated and employee-friendly.

No matter how knowledgeable your supervisors may be, there's always a point at which HR should be brought in. The key is knowing when.

Don't miss our informative webinar on May 20, this coming Monday—and bring your supervisors along, too!—when our expert explains what your supervisors should handle and what they should hand off to HR.

You'll learn:

An overview of how human resources and supervisors can best work together, in a way that is collaborative and constructive
Key red flags that indicate HR backup is needed (protected classes, protected activity, unionized employees, etc.)
Techniques to help you better communicate with supervisors before everyone finds themselves in the middle of something complicated and legally risky
Why ongoing conversations with supervisors are more effective than mandates
How to get beyond easily buried "do’s" and "don'ts" lists and work effectively with your supervisors on management, leaves, discipline, and other important matters
How to ensure managers and HR alike know how to conduct effective, legally sound interviews
What your supervisors can—and can't—restrict when it comes to their employees discussing pay
Nonthreatening ways to teach your supervisors what they know and don't know—so they can accurately assess when HR should be called in
The hot-button situations in which HR should be called in immediately, no questions asked, before any action is taken
And much more!

Don’t miss it—sign up today and claim your spot!

Download your free copy of Training Your New Supervisors: 11 Practical Lessons today!

Blog Post: When Bad Supervisors Happen to Good People: The High Cost of Poor Supervision

Jennifer Carsen, Esq. — Wed, 15 May 2013 13:30:00 GMT

Supervisors are the most important factor in a work unit's performance, says HR trainer Steve Oppermann. They are the driving force that brings excellence—or the dragging force that guarantees mediocrity.

Are your supervisors driving your organization or putting a drag on it?

Even a small supervisory deficiency can result in billions in losses, says Oppermann, an experienced manager, consultant, and trainer. Blogging on the website FedSmith.com, he discussed a report from the National Academy of Public Administration (NAPA) about the "Price of Poor Supervision."

The NAPA report suggests that three key problems develop when supervision is poor:

1. Job performance suffers. As the managers in charge on the frontlines, where the work actually gets done, supervisors are critical to mission accomplishment. The NAPA report concludes that supervisors may be the most important factor in their individual work units’ productivity.

Forget "may," Oppermann says, supervisors ARE the most important factor. When supervision is poor, performance lags and productivity drops off dramatically.

2. Poor supervision drives good employees away. Ever heard the saying, "Employees don't leave companies, they leave managers and supervisors"? If you've got poor supervisors, you've got a built-in “antiretention” tool in your workplace, says Oppermann. All your morale-boosting efforts combined can't blunt the effect of poor supervision.

Watch closely how your supervisors use power, suggests Oppermann. That's a good sign of how well they are doing. (If you discount or downplay supervisor assessments, he notes, you're leaving the door wide open for the "Boss from Hell.")

Do your supervisors know what to handle themselves and what to hand off to HR? They will if they attend our in-depth webinar next Monday. Learn more.

Even if bad supervisors don't actually drive people to leave, there are still problems. Studies have linked employee mental health to the relationship with the boss. One study suggests that rapport with the boss largely predicts incidence of depression and other psychiatric problems. There goes productivity again.

3. Problems that require or attract third-party intervention increase. Supervisory behavior impacts the number of grievances and complaints filed by employees, internal and external. As HR managers know too well, the cost of resolving these issues can be very significant.

What to Do

Executives should consider their supervisory cadre as a driving force for organizational outcomes. "While there are costs involved in starting and maintaining programs to strengthen the performance of supervisors, they pale in comparison to the price paid for inaction," says the NAPA report.

Some recommendations for employers from NAPA:

Give development of supervisors the same level of attention you give to development of executives.
Balance technical competencies with managerial or leadership competencies when selecting and developing supervisors.
Identify potential leaders and develop candidates early on.
Hold executives and managers accountable for managing their supervisors.
Develop an ongoing mechanism, such as an organizational climate survey, for determining the performance and capabilities of the supervisory cadre.
Develop a mechanism for recognizing and rewarding first-line supervisors.

Tomorrow—an invitation to a webinar next week you and your supervisors won’t want to miss.

Download your free copy of Training Your New Supervisors: 11 Practical Lessons today!

Blog Post: Administering a PTO policy in California

Jennifer Carsen, Esq. — Tue, 14 May 2013 18:22:00 GMT

When administering a PTO policy in California, it’s important to understand how the law treats the accrued days in the PTO bank. This matters for California employers since accrued vacation days are treated as accrued wages and must be paid out upon termination. As such, the same rules apply to any PTO time that is the legal equivalent of vacation time.

PTO policy pitfall: Is PTO time vacation time?

"If the employee can take the time off without condition, it is vacation, no matter what it is called." Dan Chammas advised in a recent CER webinar. This means that laws that govern vacation days will apply, regardless of what the employees actually use the time for.

This becomes an issue for employers when they create one big PTO bank that employees are expected to use for every type of leave including vacation days, sick days, jury duty, pregnancy disability leave, holidays, doctor’s appointments, etc. Since this PTO bank is meant to cover every possible type of leave, it is usually a very large bank of days.

"But California is very clear on this. The rule is, in California, is if the employee can use all of it for vacation, then it is all considered vacation. Then the state treats it as vacation wages—even if the employee never uses any of it for vacation." Chammas confirmed.

The key question to make a distinction within the law is this: what limitations does the employer put on the leave bank? If there are no limitations, then it is all vacation for legal purposes. A lot of employers get in trouble this way. However, if the employer places restrictions on the use of the PTO bank (perhaps by designating which portions can be used for which types of leave), then it would be treated differently under the law.

This is an administrative pitfall to avoid when setting up a PTO policy—be sure to understand that designating everything as PTO without restriction will have consequences.

PTO policy pitfall: Must accrued PTO time be paid upon employee termination?

The biggest reason that this distinction (whether or not PTO time is viewed as vacation time under the law) matters is because California law says that vacation time is vested wages. In other words, once a leave bank has been identified as vacation, California looks at the time as hours of pay that the employer owes the employee. In other words, accrued vacation is looked at as wages earned by an employee to be paid while he is not working.

California law also states that employers cannot take away vacation wages. In other words, employers cannot reduce the vacation banks of employees once they are accrued. In fact, no "use it or lose it" vacation policies are allowed. Once an employee earns vacation wages, the employer must eventually pay it out—the payout may occur while the employee is on vacation, or at any other time.

If vacation is still accrued and unpaid at the time of termination, then the employer must pay out those vacation wages at that time. (California has a rule that all wages are due on an employee’s final day of employment). This also means that accrued vacation will be paid at the current rate of pay, as opposed to the rate of pay at the time it was earned—so, years of vacation earned at a lower wage rate become much more valuable when paid out at an elevated rate.

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.

Blog Post: Silica, Slip-and-Fall, and More

Jennifer Carsen, Esq. — Tue, 14 May 2013 13:30:00 GMT

Yesterday, we took a brief look at what OSHA is focusing on this year. Today, some more areas you as an HR professional should know about—plus an introduction to a detailed California-specific safety desk reference.

OSHA Standards Based on National Consensus Standards–Signage—OSHA's consensus standard update project is part of a multiyear project to update OSHA standards that are based on consensus standards. OSHA has published a notice of proposed rulemaking concerning a consensus standard addressing signage.

Reinforced Concrete in Construction—OSHA has published a Request for Information (RFI) seeking information about the hazards associated with the reinforcing operation in construction. OSHA believes current rules regarding reinforcing steel and post-tensioning activities may not adequately address worker hazards in work related to post-tensioning and reinforcing steel.

Silica Exposure—OSHA has initiated proposed rulemaking to make the permissible exposure limit for crystalline silica stricter and to require medical surveillance and training for employees.

Slips and Falls, Personal Fall Protective Systems—OSHA has a final rule awaiting action by the OMB that will incorporate personal fall protection systems into the existing general industry rule for Walking and Working Surfaces (29 CFR 1910.23) to reflect new technologies.

Fed/OSHA and Cal/OSHA are very different in key ways. Get the complete, comprehensive rundown in our exclusive report. Learn more here.

Standard Improvement Project, Phase IV (SIP IV)—OSHA's Standards Improvement Projects (SIPs) are intended to remove or revise duplicative, unnecessary, and inconsistent safety and health standards. The agency initiated a fourth rulemaking effort to identify unnecessary or duplicative provisions or paperwork requirements that is focused primarily on revisions to its construction standards in 29 CFR 1926.

Review–Lookback of OSHA Chemical Permissible Exposure Limits—OSHA is developing an RFI seeking input from the public to help the agency identify effective ways to address occupational exposure to chemicals. OSHA believes many of the existing permissible exposure limits (PELs) are outdated and need revising.

Whistleblower Protection Regulations—OSHA proposes to issue procedural rules that will establish consistent and transparent procedures for the filing of whistleblower complaints.

Note on Combustible Dust—This issue was not included in the agenda. There has been no proposed rule drafted, so no new regulation is expected soon.

Cal/OSHA vs. Fed/OSHA: A Comprehensive Guide To the Crucial Differences

Whether you’re a California employer looking to expand into another part of the country or an employer from outside California planning to expand your business into the state, California’s occupational safety and health program and rules are likely to be an issue for you.

California: Not Like Everywhere Else

California is one of 26 states that runs its own OSHA program. In many of these so-called “state-plan states,” the state’s rules mirror the federal rules almost exactly; the state merely holds the responsibility for enforcing them.

California, though, is one of a handful of state-plan states that have created a program that differs in many important ways from federal OSHA’s program, both in administrative and regulatory structure and in regulatory coverage.

Ignorance of these differences can put you at risk for costly government citations—even if you have the best intentions in the world.

Extensive Analysis of the Key Differences Between California and Federal Safety Rules

Our exclusive Safety Management & Compliance Report Cal/OSHA vs. Fed/OSHA: A Comprehensive Guide To the Crucial Differences extensively reviews the differences between Cal/OSHA and federal OSHA that are most likely to affect employers operating in both jurisdictions.

This guide identifies and discusses—in easy-to-read plain English—the differences between Cal/OSHA’s and federal OSHA’s regulations, as well as differences between the two agencies’ approaches to:

Standard structure and applicability
The general duty clause
Injury and Illness Prevention Programs
Recordkeeping and reporting requirements
Hazardous chemicals
Infectious diseases
Permit-required confined spaces
Ergonomics
Heat-related illness
Sanitation
Agriculture
Code of safe practices
Multiemployer worksites
Young workers
Enforcement practices
Required postings
Citations
Appeals
And more!

The Only Guide of Its Kind—Anywhere!

Cal/OSHA vs. Fed/OSHA: A Comprehensive Guide To the Crucial Differences was written by an experienced safety consultant, and we believe it is the only comprehensive resource of its kind out there.

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It’s like having your own personal California safety expert on call 24/7, at a fraction of the cost.

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Don’t delay. Order today and get up to speed on the safety rules—both California and federal—that truly matter to your business.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!

Blog Post: OSHA Regulatory Agenda for 2013 and Beyond

Jennifer Carsen, Esq. — Mon, 13 May 2013 13:30:00 GMT

Even though your focus is HR rather than safety, you need to have a solid working knowledge of what OSHA and Cal/OSHA are up to. Here’s a general overview of what OSHA is focusing on this year.

Annual Survey of Illnesses and Injuries, Electronic Submission—OSHA's proposed rule will require the roughly 80,000 organizations that respond to the agency’s annual survey of injuries and illnesses to submit their OSHA 300 Log and Summary data for the survey in electronic format.

Backover Injuries and Fatalities—Workers across many industries face a serious hazard when vehicles perform backing maneuvers, especially vehicles with an obstructed view to the rear. OSHA is collecting information on this hazard and researching emerging technologies that may help to reduce this risk and may consider rulemaking as an appropriate measure to address this source of employee risk.

Bloodborne Pathogens—OSHA will review the Bloodborne Pathogens Standard to consider the continued need for the rule; whether the rule overlaps, duplicates, or conflicts with other federal, state, or local regulations; and the degree to which technology, economic conditions, or other factors may have changed since the rule was evaluated.

Confined Spaces in Construction—OSHA has proposed a rule to protect employees from the hazards resulting from exposure to confined spaces in the construction industry. Under the proposed rule, employers would first determine whether there is a confined space at a jobsite.

Fed/OSHA and Cal/OSHA are very different in key ways. Get the complete, comprehensive rundown in our exclusive report. Learn more here.

Cranes and Derricks in Construction, Revision to Digger Derricks' Requirements—OSHA agreed to publish a direct final rule expanding the scope of a partial exemption for work by digger derricks. In the direct final rule, OSHA will revise the scope provision on digger derricks as an exemption for all work done by digger derricks covered by Subpart V of 29 CFR 1926.

Electric Power Transmission and Distribution, Electrical Protective Equipment—OSHA has a final rule awaiting action by the President’s Office of Management and Budget (OMB) that will update the electrical protective equipment requirements for foot protection and aerial lift fall protection for electrical installations.

Infectious Disease—OSHA will review the need for regulatory action to address the risk to workers exposed to infectious diseases in healthcare and other related high-risk environments.

Injury and Illness Prevention Program (I2P2)—OSHA is still shaping a proposed rule that would require employers to develop a formal program to reduce workplace injuries and illnesses through a systematic process that proactively addresses workplace safety and health hazards.

Tomorrow, more on OSHA’s docket.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!

Blog Post: Firing 101: Stop, Listen, and Look

Jennifer Carsen, Esq. — Fri, 10 May 2013 13:30:00 GMT

From a legal standpoint, terminations are the most dangerous actions managers take. Here’s a simple way to help reduce some of the risks.

If you’re like most managers, terminating an employee is the most difficult, or at least the most unpleasant, responsibility you face. You probably want to get it over with as quickly as possible. Don’t think that way. STOP, LISTEN, and LOOK.

First, STOP. From a legal standpoint, terminations are the most dangerous actions managers take. Most big-dollar lawsuits are filed by employees who have been fired. Many of the suits could have been avoided if the managers involved had stopped and taken time to consider the situation carefully.

For all but the most serious offenses—and we’re talking about situations involving gun-brandishing employees or something equally dire—final action does not have to be immediate. You always have time to investigate, reflect, and seek advice.

This can be hard sometimes. For example, employees may have been openly insubordinate or broken important rules prohibiting things like fighting or stealing. Or maybe the latest infraction is “the last straw” in a long string of offenses.

In these situations, you may be tempted to “be a real manager” and “do what has to be done.”

You are angry (and the anger may be justified), but that is not the frame of mind to be in when making critical employment decisions. Acting on the spur of the moment will result in ill-considered actions, irresponsible public humiliation of an employee, or other lawsuit-provoking behavior.

That’s not what you want. When you terminate, you want to be able to say that you evaluated the situation carefully and made a reasoned, rational decision.

Another important for reason for delay is that managers often need help to determine the appropriate action in a given circumstance. For example, managers often aren’t familiar with all the legal issues around terminations. Managers may also be unaware of the significance of protected actions the employee has taken, such as complaining about pay, organizing a union, or requesting leave.

Also, the organization may be planning other personnel actions of which the manager is not aware, such as a reduction in force or a restructuring.

Terminations, leaves, and more—get your copy of the comprehensive, must-have desk reference for California HR professionals. Learn more here.

Finally, it is generally in the organization’s best interest for termination decisions to be made by a group. It shows that a reasoned decision was reached, and it increases the odds that a few years down the road, if you have to go to court, someone who participated in the decision will still be around to testify.

For all these reasons, it is imperative to involve an HR expert to ensure that the situation is handled appropriately.

Also, remember that you don’t have to give up your management rights to delay action. For example, you might say: “I’d like to see you in my office at 3:00 p.m., and we’ll discuss this matter.” “It’s clear that we have a serious problem here. I want to consider our options; I will talk to you tomorrow morning at 9:00.”

Next, LISTEN—give the employee a chance to explain. The employee may have an acceptable explanation. (One newly transferred employee, about to be terminated for excessive tardiness, revealed to HR that she was actually arriving early every morning to train her replacement in her former department.)

Also, giving the employee a chance to explain is an expected element of fairness. Should the employee sue, you don’t want to face an accusation that you “never even gave the poor employee a chance to explain.”

Finally, you would like to get the employee’s explanation on the record so that later on he or she won’t be able to concoct a fictional, but perhaps believable, story for the jury.

Then, LOOK—look at the whole story before making a termination decision.

Here are questions to ask:

Is an investigation in order?
Is termination the typical punishment for this infraction?
Would a lesser punishment (such as a suspension) be more appropriate?
Are there additional factors that might indicate the potential for a retaliation or discrimination claim?

For example: Has the employee in question asked for family leave, become disabled, or announced a pregnancy? Had a talk with Cal/OSHA about safety problems, or made a formal complaint to the EEOC? Those situations require caution.

Get Your 2013 Guide to Employment Law for California Employers Today

You're dealing with, what, a couple of dozen recurring challenges? Like terminations, FMLA intermittent leave, overtime, ADA accommodation, and sexual harassment, to name just a few?

Unless you’re a research superstar, you might not know all you should about the nuances of California’s unique laws. Unlike the federal government, which puts all new regulations into the Federal Register, states publicize them in obscure journals that aren’t widely available. Yet officials still expect you to comply.

Fortunately, tools are available to help you keep up with state laws. One is our fully updated 2013 Guide to Employment Law for California Employers. This valuable desk reference has kept employers apprised of state law and its differences from the federal for years. Here are some reasons they tell us they won’t be without it:

Presents and Compares Federal and State Law on 200 Employment Topics. For each topic, first there’s a plain-English explanation of what you need for federal compliance. Then, right next to the federal, there’s an explanation of what California requires.

Topics Alphabetically Arranged. Pick today’s HR challenge, from “Affirmative Action” to “Workers’ Compensation,” and it’s easily found.

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More than 1,000 pages of reliable, plain-English guidance on key HR issues arranged by topic in an easy-to-use, quick-reference format
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Download your free copy of Paying Overtime on Bonuses: A Calculation Guide today!

Blog Post: Q&A on the intersection of PDL, FMLA, and CFRA leaves

Jennifer Carsen, Esq. — Thu, 09 May 2013 17:05:00 GMT

California employers administering a leave of absence – be it for PDL, FMLA, or CFRA leave – have to be sure they understand which laws apply in any given circimstance. For example, which of the laws cover baby bonding time? Can that time be taken intermittently? What happens when an employee out on PDL has the baby but hasn’t been released from PDL yet—which leave is in effect at that point?

In a recent CER webinar, Allen Kato answered all these questions and more. Here’s a sample of the questions and answers that hit squarely at the intersection of PDL, FMLA and CFRA leave administration.

Q. Under FMLA, can employees take baby bonding time intermittently?

A. Under FMLA, yes. There is a right to have baby bonding time off and in theory that could be intermittent. However, in California, that FMLA time will probably be running at the same time as PDL and/or CFRA. After FMLA is exhausted, most employees are going to have CFRA time off left—and they’ll have a fresh 12 weeks in many of these cases. At that point, CFRA would state that they could have 2 occasions of intermittent leave and otherwise it needs to be in longer increments.

Q. Can CFRA start if the baby has been delivered but the doctor has not released the employee from PDL?

A. At the point that the baby is born, that’s when the CFRA starts. At that point, if the PDL has not been exhausted and the employee is still disabled, then there may be a gap where some of the time is covered by both PDL and CFRA (in which case they could run concurrently).

Q. Is it a good practice to start the CFRA leave paperwork early, if, after 88 days of Pregnancy Disability Leave (PDL), an employee is still not released to work by the healthcare provider?

A. If I’ve understood correctly, the individual has gone through the PDL, but the baby is not yet delivered—and the question is whether or not to start the CFRA. My answer would be no. CFRA does not cover pregnancy disability. It does cover care for the newborn. To cover that gap (the time between when the PDL runs out and when CFRA would kick in), the employer should consider the need for additional disability leave under the Fair Employment and Housing Act (FEHA). That’s how to proceed.

If it is still considered to be a reasonable accommodation to afford that employee an additional leave time for the disability, then that’s the way to go—provide that leave as long as it’s not an undue hardship to the company. At the point that the baby is delivered, now the employee is eligible for CFRA.

Q. Do employees using PDL leave have to provide documentation from a doctor stating that they need to be out? Or does the employee set the amount of time that they stay out with a new infant?

A. For the PDL, that portion must be supported by a doctor’s certification—the same way FMLA certification would be required.

Q. Does CFRA leave to care for a child apply to fathers as well as mothers?

A. It applies to the father as well. The one exception is if the parents both work at the same company—in that case, the total time off can be restricted to 12 weeks in total, not 24.

The above information is excerpted from the webinar "FMLA/CFRA Certifications: How to Properly Designate Absences and Stop Leave Abuse." To register for a future webinar, visit CER webinars.

Allen Kato is an attorney in the Employment Practices Group of Fenwick & West LLP in San Francisco. His practice concentrates exclusively on representing management in equal employment opportunity, wage and hour, wrongful termination, privacy, unfair competition, and trade secret matters, and litigating individual and class action lawsuits before courts and agencies.

Page: Special Guides

Anonymous — Thu, 09 May 2013 15:40:00 GMT

2013 Guide to Employment Law for California Employers

This newly revised and updated resource is a must-have for every California employer. Use this tool to answer your tough California and federal employment law questions in an authoritative, one-stop reference.

Learn more »

How To Comply with California Wage & Hour Law—HR Management & Compliance Report

Newly-Revised Guide to California Wage & Hour Law! How To Comply with California Wage & Hour Law covers everything you need to know to stay in compliance with the state's complex and ever-changing rules, laws, and regulations in this area.

Learn more »

How To Comply with California and Federal Leave Laws—HR Management & Compliance Report

A California Employer's Guide to Complying with State and Federal Leave Laws for Sick, Injured, and Disabled Workers.

Learn more »

California Employee Handbook Template—HR Management & Compliance Report

101 Must-Have Policies—Fully Editable and Customizable for Your Workplace!

Learn more »

The Complete Guide to HR Recordkeeping in California—HR Management & Compliance Report

Our HR Management & Compliance Report, The Complete Guide to HR Recordkeeping in California, covers everything you need to know, from soup to nuts. Best of all, it's designed specifically for employers in California.

Learn more »

Workers' Compensation in California: A Complete Guide for California Employers

Our latest HR Management & Compliance Report, Workers' Compensation in California, covers everything California employers need to know about workers' comp laws, rules, policies, and processes. It's everything you need to know for successful management of your company's workers' comp program.

Learn more »

Blog Post: Can Denying a Raise Be Retaliation Under the ADA?

Jennifer Carsen, Esq. — Thu, 09 May 2013 13:30:00 GMT

When we think of retaliation, it’s usually in the context of an employee who has been disciplined or terminated after exercising some protected right. But what about an employee who is denied a pay raise after doing so?.

An example of a potential ADA violation would be an employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest who requests reasonable accommodation. Her supervisor then tells the employee’s coworkers about her medical condition.

The employee tells the supervisor she intends to complain to HR about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.

There’s likely a double violation here: (1) As the ADA prohibits retaliation or interference with an employee’s exercise of his or her rights under the statute, the denial of the raise would likely be considered impermissible retaliation, and (2) because the ADA prohibits disclosure of confidential medical information, the disclosure would also be a violation.

What are some examples of other employment decisions that may violate the ADA and involve applicants or employees who experience domestic or dating violence, sexual assault or stalking?

The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault, or stalking. For example:

An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.
An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, coworkers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.

Are your compensation practices designed to attract and retain the very best performers? Find out at our webinar next Thursday.

The ADA may require employers to provide reasonable accommodation requested for an actual disability or a "record of" a disability. An actual disability is a physical or mental impairment that substantially limits one or more major life activities (which include major bodily functions).
A "record of" a disability is a past history of a substantially limiting impairment. An impairment does not need to result in a high degree of functional limitation to be "substantially limiting." Examples of situations in which reasonable accommodation should have been considered:

An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it "applies leave and attendance policies the same way to all employees."
In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its "no transfer" policy.

Compensation Strategy for the Stars: Tips for Engaging and Retaining Top Performers

Hopefully your pay practices don’t discriminate against employees who exercise protected rights—but do they do everything possible to attract and retain star workers?

The cost to recruit and hire a replacement for an employee—let alone a top performer—can be staggering, and losing top performers can have a tremendous adverse effect on your operations and overall ability to meet business goals.

Maintaining top talent is a complex task, but one surefire way to see top performers walk out your door is to commit cardinal (yet common) compensation mistakes. You simply can't ignore the fact that every organization, at every size, should have an effective compensation strategy in place that's geared toward keeping top talent engaged.

Do you? If not, you won't want to miss our informative webinar on May 16—next Thursday! We'll provide participants with a framework for developing a compensation strategy built around rewarding stellar performance so you can take a proactive approach to keeping top performers engaged and rewarded in a meaningful way—rather than begging your stars to stay when they're halfway out the door.

You'll learn:

How to identify who the top performers within your organization really are
The key factors to consider when developing a compensation strategy that seeks to not only retain top performers but also attract new leaders for your organization
Why it’s so important to pay attention to your specific market and particular job types when developing your compensation strategy
Why setting your merit budget based on general trends may be a mistake, and how to successfully find and use market-based data that’s more focused
Examples of rewards and recognition that grab—and hold—top performers’ attention and loyalty
How to ensure that the goals you set for employees in your incentive plan design are effectively tied to overall business objectives
How to strike the optimal balance between maintaining pay equity and fairly rewarding stellar performance
Communication tactics for fostering a culture of transparency so your employees will clearly understand the value they’re getting for their contributions
Whether it's worth it to offer a star employee more money when he or she is about to jump ship: how to calculate your future return on investment after accounting for the potential cost to recruit, hire, and train a comparable replacement

Don’t miss it—sign up today and claim your spot.

Download your free copy of Paying Overtime on Bonuses: A Calculation Guide today!

Blog Post: Can You Forbid Discussions of Salary and Pay?

Jennifer Carsen, Esq. — Wed, 08 May 2013 13:30:00 GMT

Much as most employers would like to impose a ban on discussion of pay—not to suggest that there are embarrassing inequities in your pay structure—it’s not legal because the NLRB (National Labor Relations Board) says it interferes with Section 7 rights.

It’s all part of NLRB’s new expansive view of its role.

For insights about the overly aggressive NLRB and the recent court decision concerning the legitimacy of President Obama’s recess appointments, we spoke with Patricia Trainor, BLR’s senior managing editor, HR (BLR is CER’s parent company).

“There’s a very interesting situation at the NLRB now: A court has ruled that Obama’s interim appointments were invalid, so any actions the board has taken may be invalid as well,” says Trainor.

The administration disagrees, no surprise, and the NLRB says it is going to do business as usual. So the situation is uncertain at the moment. In any event, it’s helpful for HR managers to review what the NLRB has been up to.

Section 7 Rights

In recent years, the NLRB has taken an expansive view of Section 7 rights, says Trainor. Section 7 of the NLRA includes the right to engage in concerted activities “for the purpose of collective bargaining or other mutual aid or protection.” Importantly, Section 7 applies to all employees, whether unionized or not.

Some Recent Rulings

Trainor offers the following examples of Board decisions:

Internal investigations. The Board has said that a generalized concern about the integrity of an internal investigation is insufficient to justify asking employees to refrain from discussing the investigation (which employers commonly do to encourage witnesses to come forward and cooperate).

The Board’s rationale: The request impacts Section 7 rights. An individualized assessment has to be made to determine if any witness needs protection, evidence is in danger of being destroyed, there’s a danger that testimony will be fabricated, or there’s a need to prevent a cover-up.

Are your compensation practices designed to attract and retain the very best performers? Find out at our webinar next Thursday.

Off-duty access. The Board has narrowed the circumstances in which employers can limit off-duty access to the workplace. Off-duty access policies have to balance the rights of employers to control access to their property with employees’ right to communicate with coworkers at the workplace on their own time regarding the terms and conditions of employment.

So, for example, an employer can’t say “you can come to the workplace during nonwork time for a social event, retirement party, etc., but you can’t come during nonwork time to talk with coworkers.”

Social media. After lots of guidance, the NLRB issued its first decision on a social media policy and, not surprisingly, found the policy infringed on Section 7 rights. Specifically, the policy prohibited statements on social media that “damage the Company, defame an individual or damage any person’s reputation.”

“One thing that struck me about the ruling,” says Trainor, “was that the Board did not distinguish in its analysis between defamatory and the arguably ambiguous ‘damage.’” However, the order itself referenced only the “damage” as violating Section 7. Key for the Board, there was no language restricting application of the policy.

Postings that criticize management. The NLRB affirmed an ALJ’s ruling that five nonunion employees were unlawfully discharged for social media postings that criticized management.

Courtesy policy. A court found a “Courtesy Policy” in an auto dealership’s handbook violated Section 7. The policy stated: “Everyone is expected to be courteous, polite, and friendly to our customers, vendors, and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity.”

Although this seems like a reasonable policy for a car dealership, Trainor says, the Board ruled that the employees could reasonably interpret the policy as forbidding protected activity. And nothing in the policy or handbook limited its application.

Handbook disclaimers. The Acting General Counsel issued a complaint alleging unfair labor practice based on a handbook “at-will” disclaimer. An ALJ followed suit in another case. The problem? The disclaimers essentially said the at-will relationship could not be altered. Therefore, employees could reasonably interpret them to mean that they could not alter the at-will relationship through unionization.

Fortunately, the Acting General Counsel then found two (seemingly similar) disclaimers were lawful. He also said the law was unsettled in this area, so stay tuned for additional guidance on that issue.

Download your free copy of Paying Overtime on Bonuses: A Calculation Guide today!

Blog Post: Can You Ask Applicants About (Religious) Schedule Conflicts?

Jennifer Carsen, Esq. — Tue, 07 May 2013 13:30:00 GMT

Yesterday, , we found out that veganism might be a religion. Today, religious schedule conflicts and accommodation.

The EEOC guidelines state that an employer's use of inquiries that tend to reveal an employee's or applicant's religious beliefs violates Title VII, unless the employer can show there was no discriminatory effect or that the inquiries were justified by business necessity.

Therefore, employers should not ask applicants or employees whether they are available for work on a specific date or time. The guidelines suggest that an employer state the normal work hours for a job and—after making it clear to the applicant that there is no requirement to disclose religion-related absences needed during the scheduled hours—ask the applicant whether he or she is otherwise available to work those hours.

Then, after a job offer is made, but before the applicant is hired, the employer can inquire about the need for a religious accommodation (29 CFR 1605.3). Where the employee is unable to work the normal hours for the job because of religious beliefs, the employer must offer a reasonable accommodation, unless it would cause the employer an undue hardship.

What Is an Undue Hardship?

Undue hardship may be claimed by an employer in situations where accommodating an employee's religious practices would require more than ordinary administrative costs. Undue hardship also may be shown if changing a bona fide seniority system to accommodate one employee's religious practices denies another employee the job or shift preference guaranteed by the seniority system.

Factors to be considered in determining whether an accommodation is an undue hardship include:

The size and nature of the business
The type and cost of the accommodation required
Notice of the requested accommodation

An assumption that many more people with the same religious practices as the person being accommodated may also need accommodation is not evidence of undue hardship (29 CFR 1605.2).

Employees’ religious beliefs can also come into play when it comes to leave requests. Get all the details on California’s leave laws here—just updated! Learn More

Options for reasonable accommodation include flexible arrival and departure times, floating or optional holidays, flexible work breaks, use of lunch time in exchange for early departure, staggered work hours, and permitting an employee to make up time lost due to the observance of religious practices.

May a Standard for Dress Be Set?

Sometimes an employee dresses in a manner that does not comport with the look that the employer wants to convey to the public. To comply with religious beliefs, a male employee may want to wear a beard or a female employee may want to cover her head.

Employers may need to accommodate the dress and grooming habits based on a religious practice or belief, unless the employer has a policy against the dress or grooming habits that is justified by a business necessity. For example, an employer is not required to accommodate long robes or skirts in an industrial plant where loose clothing may get caught in moving machinery.

Similarly, an employer need not accommodate untrimmed beards or flowing hair if the business is a restaurant or hospital, and it can be proven that the employee's practice presents a health or safety risk.

How To Comply with California and Federal Leave Laws—Just Updated!

To stay on top of your obligations, you need current, complete info on the web of state and federal leave laws that apply to you in California—as well as clear explanations of how they interact with one another.

That’s why we’re thrilled to offer you our comprehensive, newly updated HR Management & Compliance Report: How To Comply with California and Federal Leave Laws.

It covers everything you need to know to stay in compliance with both state and federal law in one of the trickiest areas of compliance for even the most experienced HR professional.

This information-packed 122-page guide, written by an experienced California employment lawyer, features in-depth coverage of all the topics you need to know about in an easy-read, quick-reference style:

Overview of California and federal leave laws
Pregnancy and parental leaves
Required notices
Employee notifications of illness, injury, or disability
Responding to leave requests
Computing leave entitlement duration
Medical exams and inquiries
Reinstating and terminating employees
Leave for military members' families
Avoiding leave-related bias claims
And much more!

Order your copy now—100 percent risk-free.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!

Blog Post: Is Veganism a Religion?

Jennifer Carsen, Esq. — Mon, 06 May 2013 13:30:00 GMT

If you thought the Church of Body Modification was stretching the bounds of religious accommodation, now we’ve got veganism to contend with, at least in one courtroom.

A recent case in Ohio shows how far religious accommodation may be heading, says BLR legal editor Joan Farrell (BLR is CER’s parent company).

In the case, a customer service rep in a hospital was fired for refusing to take a flu shot. The employee said that because the vaccine was grown in chicken eggs, accepting the vaccine would violate her veganism dietary rules.

The employee claimed her veganism is a moral and ethical belief that is sincerely held with the strength of traditional religious views and therefore protected under Title VII.

To bolster her case, she offered an essay titled “The Biblical Basis of Veganism.” The court denied summary judgment for the employer, saying it found it “plausible” that the plaintiff subscribed to veganism with a sincerity that equated a religious view.

But the court also said the employer could justify its mandatory vaccination program by providing evidence of the nature and extent of the plaintiff’s contact with patients and of the risk her refusal would pose. (The hospital had accommodated her request to forgo the vaccination in the past.) Chenzira v. Cincinnati Children's Hospital Medical Center (S.D. Ohio, December 27, 2012).

We don’t know how this case will turn out, but either way, it’s an important reminder to all employers to train managers to respond carefully and respectfully to any request for religious accommodation, no matter how far-fetched it might seem.

What Is a Religious Practice?

According to the Equal Employment Opportunity Commission (EEOC) guidelines, religious practices include traditional religious beliefs, moral and ethical beliefs, and beliefs that individuals hold “with the strength of traditional religious views” (29 CFR 1605.1). Religious discrimination also includes discrimination against an individual because he or she is an atheist.

The fact that an individual's beliefs are not espoused by any religious group or are not accepted by the religious group to which the individual professes to belong will not determine whether the belief is a religious belief. However, beliefs are not protected merely because they are sincerely held. According to the EEOC, religion typically includes ultimate ideas about "life, purpose, and death." (And diet, apparently.)

Employees’ religious beliefs can also come into play when it comes to leave requests. Get all the details on California’s leave laws here—just updated! Learn More

What Does the Law Require?

Federal law under Title VII of the Civil Rights Act of 1964 (Title VII) prohibits religious discrimination by employers with 15 or more employees (42 USC 2000e-2). Under Title VII, it is unlawful to discharge or otherwise discriminate against or harass applicants or employees on the basis of religion. In addition, Title VII requires that an employer provide reasonable accommodation for an employee's religious beliefs or practices, unless it would cause the employer an undue hardship.

Employers are also prohibited from discriminating against an individual based on his or her association with a person of a particular religion. For example, it is unlawful to discriminate against an employee who is a Christian because he or she is married to a Muslim.

Harassment Is Prohibited

Harassment in the workplace based on an employee's religious beliefs violates Title VII when the harassing conduct creates a hostile work environment.

According to EEOC guidelines, employers must provide a workplace that is free of harassment based on religion. They may be liable not only for harassment by supervisors but also by coworkers or by nonemployees (e.g., customers or vendors) under their control.

Employers should clearly communicate to all employees, preferably through a written policy, that harassment such as verbal or physical abuse directed toward any religious group is prohibited.

An employer should have effective, clear, and well-disseminated policies and procedures for addressing complaints of harassment and should train managers to identify and respond effectively to harassment even in the absence of a complaint.

Retaliation Is Also Prohibited

It is unlawful for an employer to retaliate against an individual for opposing discriminatory practices, or for filing a charge, testifying, or participating in an investigation, hearing, or other proceeding under Title VII.

Exemptions

Title VII permits religious corporations, associations, educational institutions, or societies to hire only individuals of a particular religion to perform work connected with the organization's activities.

In tomorrow’s CED, religious accommodation requirements.

Download your free copy of How To Survive an Employee Lawsuit: 10 Tips for Success today!