1. law, govt and politics

HR
SPECIALIST
California
Employment Law
Trusted compliance advice for California employers
In the News …
Liar, liar, pants on fire! That’ll
happen in the microwave
From claiming they need the day to
fix botched plastic surgery to saying
they accidentally boarded a plane,
America’s workers have had some
sitcom-worthy misadventures this
year … or they’ve simply gotten more
creative with their sick-day excuses.
As has become an annual tradition,
CareerBuilder.com asked more than
2,000 bosses to share their employees’ most dubious excuses for calling
in sick. Hilarity ensued, complete with
assertions that an employee missed
work because he or she:
• Needed to “tweak” some plastic
surgery “to get it just right”
• Had been at the casino all weekend and still had money left to play
with on Monday morning
• Woke up in a good mood and didn’t
want to ruin it
• Got stuck in the blood pressure
machine at the grocery store
• Accidentally boarded a plane
• Tried to dry a uniform in the microwave, but it burst into flames.
Unpaid pre-work meetings
cost Shell almost $4.5 million
Shell Oil and refining company Motiva
have agreed to pay $4,460,764 to 2,677
workers after the U.S. Department of
Labor Wage and Hour Division (WHD)
Continued on page 5
California Employment Law is published by
HR Specialist and is edited by Joseph L.
Beachboard, a shareholder with the law firm of
Ogletree Deakins and the former publisher of
the California Labor Letter. In addition to representing management in employment matters,
he speaks regularly before employer groups.
Contact him at (310) 217-8191.
(800) 543-2055
•
www.theHRSpecialist.com
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December 2014
La
Vol. 8, No. 12
Editor: Joseph L. Beachboard, Esq., Ogletree Deakins, Los Angeles
Don’t wait for prosecution: Fire violent worker
H
as an employee been arrested for
threatening behavior involving a
co-worker? You don’t have to wait for
the criminal trial and conviction to
discipline the employee. You don’t
even have to reconsider if the police
drop the charges. What matters is that
you have an honest belief that the em­­
ployee broke company conduct rules
—even if you end up being wrong.
Recent case: LaShaunda worked
as a custodian for the U.S. Postal
Ser­­vice. She was apparently engaged
in a romantic relationship with a coworker. When that co-worker decided
to enter a new business with another
romantic interest, LaShaunda appar­
ently became upset. The two began
arguing at work and continued their
argument into the parking lot and
down the road.
According to the police investiga­
tion, LaShaunda told the co-worker
she was going to tell the other love
interest that she was also having an
affair with him, physically assaulted
the co-worker, spat on his car and
then proceed to send threatening
text messages suggesting she was
going to kill him.
LaShaunda’s supervisor, on learning
about the fight and that LaShaunda
had been arrested, began the termi­
nation process. LaShaunda was then
terminated. Eventually, the charges
Continued on page 2
Court approves settlement in EEOC lawsuit
T
he federal court hearing a sexual
harassment and hostile work
environment case has agreed to settle
the case with a modest payment and
extensive EEOC monitoring to pre­
vent further harassment. While the
payment was relatively small, the com­
pany will now endure regular EEOC
visits to check on its progress.
Recent case: According to the
EEOC, a male manager at Braun Elec­­
tric’s locations in Taft and Bel­­ridge
continually subjected female staff to
a hostile work environment “infused
with explicit sexual comments, ad­­
vances and gestures since 2010.”
The manager allegedly made daily
grotesque remarks about the sexual
fantasies he had regarding his female
subordinates, encouraged them to
kiss and touch each other’s breasts
and asked to commit sexual acts with
them. The agency claimed he would
repeatedly make various explicit sex­
ual remarks or propositions and make
obscene displays.
The EEOC alleged that Braun
management largely ignored reports
of har­­­­­ass­­ment and discrimination
and failed to adequately prevent and
correct the misconduct. Ultimately,
Continued on page 2
IN THIS ISSUE
Beware employees using own cars for work . 2 California labor law updates . . . . . . . . . . . . . . . . . 6
Don't sweat an isolated ageist remark . . . . . . . . 3 Preparing for infectious diseases . . . . . . . . . . . . . 7
How to handle holiday pay and hiring . . . . . . . . 4 The Mailbag: Your questions answered . . . . . . . 8
Business Management Daily
Fire for violence
(Cont. from page 1)
were dropped.
LaShaunda sued, alleging that
her co-worker should have been
fired, too.
But the court said that the
supervisor was free to believe that
LaShaunda was the instigator. It
didn’t matter that she wasn’t pros­
ecuted or that the co-worker might
have played more than the innocent
victim. What mattered was that
the supervisor honestly believed
LaShaunda had violated work­
place rules against threats and vio­
lence. (McDaniel v. Donahoe, No.
12-CV-054944, ED CA, 2014)
Final note: The workplace isn’t
a court of law. You don’t have to
have overwhelming proof of who
did what to whom. An honest
belief is enough.
EEOC settlement
(Cont. from page 1)
at least one female employee
was forced to quit as a result of
the allegedly unchecked hostile
work environment. The EEOC filed a federal law­
suit, and the judge agreed to
let the parties settle the case for
a payment of $82,500 to the
women who filed the complaint.
Braun also agreed to retain an
experienced, external equal em­­
ployment opportunity monitor to
review and revise its existing poli­
cies and procedures on discrimi­
nation, harassment and retaliation.
It will also provide annual train­
ing for all staff on employee rights
with respect to gender discrimina­
tion, harassment and retaliation
and provide additional annual
training for supervisory staff on
how to adequately address such
complaints. The EEOC will moni­
tor compliance with the decree
for three years. (EEOC v. Braun
Electric, No. 1:12-CV-01592, ED
CA, 2014)
2
Fast lane to legal liability:
Require employees to use their cars for work
D
o you sometimes require em­­
ployees to use their personal
cars during the workday for jobrelated tasks like going on appoint­
ments, making banking runs or other
errands?
You’re risking liability if the em­­
ployee is in an accident and a jury
decides he was negligent.
Recent case: As he pulled out of
his employer’s driveway in Rancho
Cucamonga, Luis never noticed the
fast-approaching San Bernardino
County Sheriff ’s Department motor­
cycle, even though its lights were
flashing and its siren was blaring.
The resulting crash killed a deputy
sheriff, whose widow and children
sued both Luis and his employer,
Tamco Steel, for wrongful death.
Their legal theory: That while Luis
had been negligent, Tamco was also
liable because Luis was acting in
the scope of his employment at the
time of the accident.
In court, Luis testified that
Tamco required him to have his
car at work so he could visit cus­
tomers for service calls.
Tamco argued that it didn’t
re­quire Luis to have his car available, and that in the 16 years Luis
had been with the company, he had
only used his car for service calls a
few times.
And it said it would have pro­
vided alternative transportation had
it known he was going to use his
own car. Plus, it argued Luis wasn’t
on business anyway; he was heading
home.
The deputy’s family argued that
under the so-called “required vehi­
cle” exception, an employer can be
held liable for an employee’s torts
occurring during a regular commute
if the employer expressly or impliedly
required its employee to use his per­
sonal vehicle for work, giving some
incidental benefit to the employer.
The jury sided with Tamco,
be­lieving that Luis wasn’t really
required to use his car for work.
The employer wasn’t liable. (Lobo
v. Tamco, No. E054523, California
Court of Appeal, 2014)
Avoid liability for workers’ use of their cars
This case dragged on for more than 10 years. How can you avoid protracted
litigation if your employee gets into an accident driving to or from work in his
own car? Establish clear rules against ever conducting business using an
employee’s car.
This case highlights the little-known “going and coming” rule and its
exceptions. The “required vehicle” exception can potentially subject an
employer to liability even during what would be considered the employee’s
commuting time.
In the case of employees who use their personal vehicles in the scope of
their employment—even infrequently—it is important for employers ensure
adequate insurance coverage. Check to make sure the employee is fully
licensed and insured. Then check with your own insurance broker or agent
to make sure you are covered for any accidents the employee may cause.
Don’t rely on the employee’s coverage, which may not cover accidents that
happen while working.
Of course, providing a company car for the employee is the best approach
since you can control the type of insurance, the liability limits and know you
will be covered. You must still ensure that the employee is properly licensed
and hasn’t had a string of past accidents.
California Employment Law • December 2014 www.theHRSpecialist.com
Ban comments about age, national origin,
but don’t sweat isolated incidents
H
ere’s some good news. One
single isolated comment about
an employee’s advancing age or his
country of origin isn’t enough to
sustain a lawsuit claiming age dis­
crimination.
Recent case: Gary frequently
received warnings about his poor
performance. When he was termi­
nated, he sued, alleging he had been
the victim of age and national origin
discrimination.
As proof, he claimed that he had
once been called an “old dog,” and
another time had been referred to as
the “crazy Canadian.”
The court tossed out the case, con­
cluding a single arguably offensive
comment wasn’t enough to support
a lawsuit. That was especially true
where, as in this case, the employee
had received disciplinary warnings
T
about poor work and couldn’t show
that others with similar work prob­
lems outside his protected classes
were treated more favorably. Plus,
there wasn’t a long history of namecalling. (McClain v. County of Clark,
No. 12-16888, 9th Cir., 2014)
Final note: Yes, the employer won
in the end, but only after paying
legal fees to defend itself.
Of course, any name-calling at work
should be discouraged. It makes for
an unpleasant work environment and
can escalate without much warning.
Don’t forget that you will soon
need to include bullying as part of
your harassment supervisor train­
ing program. Repeated name-calling
can certainly be considered bullying.
Sensitizing supervisors and managers
to bullying and name-calling should
prevent many lawsuits like this one.
Don’t rely on arbitration agreements
that require class-action waivers
he California Court of Appeal
has yet again ruled against
employers in an arbitration rights
case. This time, the issue was
whether employers can use arbitra­
tion agreements to limit so-called
class- or collective-action claims.
The apparent answer is “no.”
Recent case: Reyna signed an
arbitration agreement when she first
went to work for Apartment Invest­­
ment and Management Co. In it, she
and the company agreed to submit
all employment-related claims to
binding arbitration and that neither
would bring class- or collectiveaction claims. Plus, the agreement
prohibited arbitrators from consider­
ing such claims on their own.
After Reyna was fired, she filed a
representative claim under Cali­­for­­
nia’s Private Attorneys General Act
(PAGA), claiming her former em­­
ployer had violated the Labor Code.
www.theHRSpecialist.com
The former employer requested
­arbitration—and only of her individ­
ual claim.
The trial court sided with Reyna,
holding unconscionable the agree­
ment as it applied to collective- or
class-action waivers.
The employer appealed. Mean­­while,
the California Supreme Court held
that arbitration agreements that waive
representative claims under PAGA
are unenforceable. As a result, the
case will be heard in court, not in
arbitration. Plus, Reyna can repre­
sent others similarly situated in that
lawsuit. (Ybarra v. Apartment Invest­­
ment and Management Com­­pany,
No. B245901, California Court of
Appeal, 2014)
Final note: Be sure to have coun­
sel review your current arbitration
agreement, if you use one. It may
be out-of-date and need revisions to
make it legally binding.
Legal Briefs
Get expert help with
arbitration agreements
If, like most employers, you use an
arbitration agreement to avoid costly
court litigation, put regular consultations with your attorney on your calendar. An expert needs to make sure
that your agreement is as up-to-date
as possible.
Recent case: Erik signed an arbitration agreement covering all aspects
of employment. It didn't, however,
mention class-action arbitrations.
When Erik tried to represent all
others similarly situated in a wageand-hour claim, the California Court of
Appeal considered whether that was
allowed. The court determined that the
agreement didn’t address the question and therefore arbitration wasn’t
allowed. Arbitration can now resolve
Erik’s individual claim. (Network Capital
v. Papke, No. G049172, California Court
of Appeal, 2014)
Unemployment: Track
complaints that led to quitting
You need clear lines of communication so employees can complain about
workplace problems. That can protect
you if an employee quits because of
alleged harassment and then applies
for unemployment benefits. He won’t
be eligible if he never gives you a
chance to fix the problem.
Not using the company complaint
process pretty much means the em­­
ployee didn’t give his employer a
chance, blocking benefits.
Recent case: Abdoulie quit his
job as a commercial designer. When
hired, he received a handbook that in­­
vited workplace complaints. Abdoulie
emailed his resignation, citing his
supervisor’s “foul” language and
“childish tantrums.” Then he applied
for unemployment.
The company said it would have
fixed the problems if had he complained. The court said he wasn’t
eligible for benefits since he never
gave the company a chance. (Man­­neh
v. California Unemployment In­­sur­­­­ance
Appeals Board, No. A140729, Court of
Appeals of California, 2014)
December 2014 • California Employment Law
3
Compliance Corner
Insight from TheHRSpecialist.com
Happy holidays! 8 essential rules for holiday pay and hiring
Q
uestions regarding overtime, holiday pay and sea­
sonal hiring often arise this time of year. Here are
the eight simple rules you need to know to make this
holiday season run smoothly.
Holiday pay rules
Thanksgiving always falls on a Thursday, and this winter,
so do Christmas and New Year’s Day. That means many
companies will be offering three Fridays off to make
three four-day weekends. If your business decides to
close on those days, you may, but aren’t required to, pay
em­­ployees for that time.
Rule No. 1: The Fair Labor Standards Act (FLSA)
doesn’t mandate that employees be paid for holidays.
So nonexempts who normally work 10-hour days can
be paid for eight holiday hours.
Rule No. 2: If nonexempts receive holiday pay and
they also work overtime during a holiday week, don’t
factor the holiday pay into their regular rate calculation
as you figure their overtime rates. Holiday pay is idle time
pay, which is excluded from the regular rate calculation.
Rule No. 3: If you close for a holiday, and you have a
bona fide benefits plan, you can require exempts to take
accrued time off, provided they receive payments equal
to their guaranteed salary. Note: Exempts who have run
out of accrued time must still be paid their full salaries.
Rule No. 4: If you shut down for the week, you
needn’t pay exempts anything. Exempts don’t need to
be paid if they don’t work for a week. They may use
vacation time, if they have it.
Holiday work rules
Businesses that are open must pay their employees. But
you can save on overtime liability by making some changes
to your pay policies. Consider Rules No. 5 and No. 6:
Rule No. 5: You don’t have to include holiday pay in
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the regular rate calculation for nonexempts who work
through a holiday if they receive their regular wages in
addition to the holiday pay. But you can’t credit this
holiday pay against your obligation to pay overtime.
Rule No. 6: If, instead of paying employees their nor­
mal wages plus holiday pay, they exchange the holiday
pay for at least time-and-a-half for holiday work, you can
credit that time-and-a-half premium against your obliga­
tion to pay overtime.
Example: Harry earns $10 an hour. He’s entitled to
Christmas Day as a paid day off.
Option 1: He gives up his holiday and works nine
hours. During the week he works 50 hours. Total pay:
$630: $400 in straight-time pay, $150 in overtime and
$80 in holiday pay.
Option 2: Harry gets double time for the holiday.
Total pay for working nine holiday hours: $180. He still
receives $400 in straight-time pay and $15 for one OT
hour. Total pay: $595. Harry’s employer credits the nine
hours of OT pay against the 10 hours of OT he’s owed.
Holiday hiring rules
Remember, temporary seasonal employees are still em­­
ployees, even if they won’t be on your payroll for very long.
Rule No. 7: Temporary employees must complete
W-4 and I-9 forms, be reported to the state as new hires
and receive W-2s. Tips: Ask to see their Social Security
cards and photocopy them for your records. Use the
Social Security Administration’s Social Security Number
Verification Service to ensure that their names and Social
Security numbers match. Find it online at www.ssa.gov/
employer/ssnv.htm.
Rule No. 8: Finally, temps who consent may be enrolled
in your direct deposit or paycard program; provide them
with appropriate explanatory material.
STAFF
Editor: Joseph L. Beachboard, Esq.,
Ogletree Deakins, Los Angeles,
(310) 217-8191
Contributing Editor: Anniken Davenport, Esq.,
[email protected]
Editorial Director: Patrick DiDomenico
Senior Editor: John Wilcox, (703) 905-4506,
[email protected]
Copy Editor: Cal Butera
Production Editors: Nancy Asman
and Michelle Peña
Publisher: Phillip Ash
Associate Publisher: Adam Goldstein
Customer Service: customer@
BusinessManagementDaily.com,
(800) 543-2055
Vol. 8, No. 12
HR Specialist: California Employment Law (ISSN 1934-1644) is published monthly by
Business Management Daily, 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA
22043-2004, (800) 543-2055, www.theHRSpecialist.com. Annual subscription price: $299.
© 2014, Business Management Daily, a division of Capitol Information Group, Inc. All rights
reserved. Duplication in any form, including photocopying or electronic reproduction, without
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This publication is designed to provide accurate and authoritative information regarding the
subject matter covered. It is sold with the understanding that the publisher is not engaged in
rendering legal service. If you require legal advice, please seek the services of an attorney.
California Employment Law • December 2014 www.theHRSpecialist.com
In the News ...
Fresno eatery settles EEOC
sexual harassment complaint
Sal’s Mexican Restaurant in Fresno
has agreed to settle a sexual harass­
ment complaint filed by a former
hostess. According to the complaint,
the hostess was a teenager when a
male supervisor continually proposi­
tioned her for sexual favors, grabbed
her and required her to give him hugs
and back rubs as part of her duties.
She claims the restaurant took
no action when she complained of
the harassment. Ultimately, she felt
compelled to quit. Then she got in
touch with the EEOC, which found
reasonable cause to believe discrimi­
nation had occurred.
Without admitting liability, Sal’s
agreed to a two-year conciliation
agreement under which it will hire a
third-party consultant to help create,
revise and implement procedures to
address and prevent discrimination
and harassment in the workplace. The
restaurant will provide all employees
with live training on their rights and
responsibilities with respect to work­
place discrimination and harassment.
Shell’s ‘unpaid’ overtime
(Cont. from page 1)
determined the companies failed to
pay workers for required pre-shift
meetings.
Because the companies did not
consider the time compensable, they
never tracked the hours, resulting in
unpaid overtime. The investigation
centered on Shell and Motiva operations in California and four other
states. Shell is part owner of Motiva.
Both companies required employees to attend meetings before they
began their 12-hour shifts. WHD
investigators determined that the
meeting time was compensable.
Note: Generally, whenever an em­­
ployer requires nonexempt employees
to attend a function, the employees
are on the clock and must be paid.
Consult with your attorney if you
expect employees to attend a meeting or function without being compensated for the time.
www.theHRSpecialist.com
­
Contractor can’t plaster over pay violations
A plastering company in Ceres has agreed to patch things up with 208 current
and former employees following a U.S. Department of Labor Wage and Hour
Division (WHD) investigation. The employees of Ace Commercial Plastering will
receive $131,953 in back pay, the amount WHD concluded the company had
sanded off their paychecks.
Ace’s practice of not paying the prevailing wage and misclassifying employees violated several federal laws, including the Davis-Bacon and Related Acts,
the Contract Work Hours and Safety Standards Act and the Fair Labor Stand­­
ards Act. WHD found the employer failed to keep proper records of hours
worked and did not pay overtime in cases where it was required.
Another layer of issues: Employers such as Ace Commercial Plastering that
perform work for the government must know all the applicable contracting
regulations. That’s because a government investigation in one area can wind up
exposing all sorts of other problems.
Ace apparently misclassified some workers as independent contractors. That
means the IRS, as well as state and local taxing authorities, will be looking to
see that Ace deducted and remitted the proper payroll taxes for its workers.
The money paid to settle this set of violations may be a precursor to another
round of payments.
It must also establish a system to
track and monitor complaints.
Note: This is a run-of-the-mill
har­­assment case with one impor­
tant difference that may have saved
the restaurant thousands of dollars:
In­stead of fighting the investigation
tooth and nail and waiting until the
EEOC filed suit, the employer set­
tled during the conciliation process.
Always consult with your attor­
ney about legal strategy. Once the
EEOC concludes that discrimination
or harassment likely took place, your
problems won’t go away on their own.
EEOC sues FedEx for bias
against hearing-impaired staff
Shipping giant FedEx faces an EEOC
lawsuit alleging that it systematically
fails to accommodate deaf and hear­
ing-impaired employees.
The suit alleges that FedEx refuses
to use sign language interpreters when
employees request them and fails to
provide closed-caption training films
during applicant tours of facilities and
initial training. The suit also alleges
the company does not provide any
interpretive services during meetings.
If true, FedEx would be in viola­
tion of the ADA.
The suit demands that FedEx
provide vibrating scanners instead
of ones that beep, and seeks installa­
tion of flashing lights on dangerous
equipment.
The EEOC asserts that FedEx has
consistently refused to provide these
accommodations to package handlers
and job applicants in California and
15 other states.
IKEA announces 17% boost
in its minimum wage
Swedish ready-to-assemble furniture
maker IKEA will soon give a pay raise
averaging $1.59 per hour to its low­
est-paid U.S. employees. The move,
affecting about half the company’s
workforce of 11,000, will raise IKEA’s
average minimum wage to $10.76.
The company arrived at the new
hourly rate using the MIT Living
Wage Calculator, which takes into
consideration housing, food, medical
and transportation costs plus annual
taxes in each of the company’s 38
locations in the United States.
IKEA says using the MIT formula
demonstrates a commitment to pay­
ing a living wage. The company
claims the wage increase will not
result in higher prices or reduced
hours. It says other operational effi­
ciencies will fund the raises.
December 2014 • California Employment Law
5
In the Spotlight
What’s new in California employment law in 2015
A
new year is coming and with it,
a slew of changes courtesy the
California Legislature. December is
a good time to review your policies
so they comply with the law. We’ve
broken it down by general subject
matter to make it easier.
New leave laws
Mandatory sick leave: Effective
July 1, 2015, California employers
must provide employees with one
hour of paid sick leave for every 30
hours worked as part of the Healthy
Workplaces, Healthy Families Act of
2014. This amounts to a minimum
of three paid sick days per year.
Your existing paid time off (PTO)
policy will comply with the new law
if it is equal to or more generous
than the law. Employers without
a PTO policy should consider for­
mulating one, since the law permits
employers to cap leave use and
accrual, among other options.
First responders: Employers are
already prohibited from discharging
or discriminating against employees
for taking time off to perform emer­
gency duties as a volunteer firefighter,
reserve peace officer or emergency
rescue worker. A new law (AB 2536)
expands that list to include officers,
employees or members of disaster
response organizations sponsored
or requested by the state.
The law required employees to
inform their employers when they
become designated as emergency res­
cue personnel and again when they
are deployed. Update your written
policies to include this category.
New mandatory training
Anti-bullying training: Currently,
California employers with 50 or more
employees must provide harassmentprevention training to supervisors.
Under a new law (AB 2053) the
training must also include training
on how to prevent “abusive con­
duct” or bullying.
Abusive conduct may include
6
“repeated infliction of verbal abuse,
such as the use of derogatory remarks,
insults, and epithets, verbal or physi­
cal conduct that a reasonable person
would find threatening, intimidat­
ing, or humiliating, or the gratuitous
sabotage or undermining of a per­
son’s work performance.” The law
provides that a single act does not
constitute abusive conduct, unless it
is especially severe and egregious.
Anti-bullying training can be incor­
porated into your existing two-hour
training obligation.
Injury prevention: The California
Occupational Safety and Health Act
imposes safety responsibilities on em­­
ployers and employees, and requires
employers to develop and maintain an
effective injury prevention program.
By July 1, 2016, specific types of
hospitals (including general acute
care hospitals and acute psychiatric
hospitals) must adopt workplace vio­
lence prevention plans as a part of a
general injury and illness prevention
plan. The goal: to protect workers
from aggressive and violent behavior.
Expect regulatory details to be devel­
oped in 2015.
Discrimination law coverage
Internships: Unpaid interns are now
covered by all the same Cali­­for­­nia
anti-discrimination laws that cover
regular employees. (AB 1443) Add
interns to list of workers covered by
your anti-harassment policies, and
address this in your harassment-­
prevention training.
Advise interns of their rights and
instruct them to complain about any
misconduct to a designated company
representative.
Injunctive relief: Everyone, includ­
ing employees, who claim civil rights
violations can now sue for injunctive
relief, essentially asking the court to
force an institution or employer to
change a practice that violates civil
rights. (AB 2634)
Immigration status: Employers are
now prohibited from using immigra­
tion status to retaliate against workers
who exercise their rights under the
California Labor Code. (AB 2751)
The new law also requires that if the
employer is fined the $10,000 pen­
alty for a violation, the employee—
not the state—receives the money.
In addition, the law clarifies that
employees can’t be punished for up­­
dating personal information in their
employment files unless the updates
correct past misrepresentations about
education or criminal history. This
gives employers latitude to discipline
employees who make false statements
unrelated to immigration status.
When employees make changes to
immigration-related documents, take
care to avoid violating the anti-retali­
ation provisions of the law.
Undocumented workers’ driver’s
licenses: Employers aren’t allowed
to discriminate against workers with
drivers’ licenses issued to undocu­
mented workers. (AB 1660) This
amendment to the Fair Employment
and Housing Act states that discrimi­
nation against individuals possess­
ing this type of license is a form of
“national origin” discrimination.
The bill prohibits employers from
requiring someone to present a
driver’s license, unless required or
permitted by law. Employers may
require employees to possess a driv­
er’s license, if required for work.
The new law specifies that it does
not alter an employer’s obligation to
comply with federal immigration law.
Child labor: It just got more
expensive to violate the California
Labor Code when the victim is a
minor who subsequently suffers
retaliation. The Child Labor Pro­­tec­­
tion Act has been amended to autho­
rize treble damages. Also increased
are civil penalties for Class “A” vio­
lations (typically, placing children
in hazardous jobs or dangerous set­
tings) involving a minor; now they’re
$25,000-$50,000, up from the pre­
vious $5,000-$10,000.
California Employment Law • December 2014 www.theHRSpecialist.com
Nuts & Bolts
Replace Ebola panic with solid plan to deal with epidemics
If disease panic spreads,
T
beware ‘Ebola strikes’
he threat of an Ebola outbreak
has dominated the news for
months. With the possible exceptions
of health care-related organizations,
it’s unlikely that most employers will
ever have to deal with the disease.
However, it’s a timely reminder
that even relatively common maladies
(such as the flu) can wreak havoc on
business operations.
THE LAW Employers must con­
stantly balance their business needs,
individual employee rights and col­
lective employee rights. When infec­
tious diseases such as influenza (or
Ebola) threaten a workplace, employ­
ers need information to keep their
businesses running while respecting
individual employee rights and pro­
tecting the workforce from infection.
Several federal laws affect how
employers may collect information.
The ADA governs what questions
employers may ask in preparing for
emergencies.
The FMLA requires employers
to provide unpaid leave to eligible
employees for clearly delineated rea­
sons that may or may not come into
play if an epidemic disaster strikes.
Major outbreaks could require
National Guard or reservist deploy­
ments, forcing employers to cover
for highly trained personnel. Many
states require employers to allow first
responders time off to help when
disaster strikes.
HOW TO COMPLY After the Sept. 11
terrorist attacks, the EEOC loosened
rules on the questions employers
may ask employees without violating
the ADA. Employers may ask about
an employee’s medical condition as
long as the inquiry’s purpose is to
plan for an emergency.
Employers may inquire if employ­
ees are planning to or have recently
traveled to Ebola-affected West
African countries or have had con­
tact with anyone who has and, if so,
whether they are experiencing any
symptoms.
www.theHRSpecialist.com
Potentially, some workers may refuse
to work with employees whom they
believe have been exposed to the
Ebola virus.
The Occupational Safety and Health
Act (OSHA) may protect “Ebola strikers” under its whistle-blower provision. Similarly, the National Labor
Relations Act may also afford them
some protection.
Employers, however, should make
sure they do not ask in a way that
may reveal a disability. The ADA bars
such inquiries.
The U.S. Department of Home­
land Security has instituted a policy
of taking passengers’ temperatures
as they disembark from flights from
the affected countries. Employers may
elect to take employee temperatures
also, but doing so without some legit­
imate reason to believe the employee
has been exposed most probably vio­
lates the ADA.
Rather than knee-jerk temperaturetaking, employers should develop a
policy detailing who has their temper­
ature taken and when. This approach
shows the employer is complying
with the ADA’s “business necessity”
requirement.
Leave and quarantine
Employees who may have been ex­­
posed to Ebola and report symptoms
should contact their doctor immedi­
ately. They should not come to work.
Employers, of course, cannot quar­
antine employees, but they may place
an exposed employee on leave until
he or she is in the clear. Ebola is
generally considered to have 21-day
incubation period.
Employers should follow guidance
from the Centers for Disease Control
(CDC) when determining the length
of ebola-related leaves (see www.cdc.
gov/vhf/ebola/).
Leave for quarantine or actual
Ebola illness may also be leave under
the FMLA. Of course, only eligible
employees may take FMLA leave.
Check your state’s family leave laws,
and any paid sick leave laws that
apply to your operations.
Leave policies
Review your leave policies to ensure
that they allow you enough flexibility
to deal with unusual medical emer­
gencies.
For example, refusing to allow an
employee to come to work on the
suspicion they are infectious could
violate the ADA. The law specifically
bars employers from “regarding”
employees as disabled when they are
not. As a practical matter, though,
employers that pay employees for the
time off and allow them to return to
work with no penalty are less likely
to find themselves in court.
Telecommuting
Allowing exposed workers to telecom­
mute may be an option depending on
the specific job and its essential duties.
Your telecommuting policy should
specifically name which jobs are eli­
gible for telecommuting.
Some positions may require some
in-person attendance that could
potentially be worked around during
the period that an employee may be
infectious.
Staying on top of it
Ebola and other infectious diseases
present unique challenges to employ­
ers. Free flow of information is key.
First, you must know if an employee
is at risk for exposure. Second, you
must monitor the changing landscape
by constantly seeking updated infor­
mation from the CDC and other
health organizations.
Online resource
Preparing for a pandemic
For general guidance on measures
to take to safeguard your workplace
from disease pandemics, see www.
theHRSpecialist.com/flu.
December 2014 • California Employment Law
7
The Mailbag
by Joseph L. Beachboard, Esq., Ogletree Deakins, Los Angeles
Can we make worker pay for broken merchandise?
Q
One of our employees dropped a case of expensive
merchandise while stocking the shelves of our store.
It caused a loss of several hundred dollars. Can we
deduct the cost of the merchandise from his paycheck?
A
No, in California, an employer cannot legally deduct
from an employee’s wages for losses due to an acci­
dent or mistake.
Under California Labor Code, an employer can lawfully
withhold amounts from an employee’s wages only when:
•Required or empowered to do so by state or federal law
•A deduction is expressly authorized in writing by the
employee to cover insurance premiums, benefit plan
contributions or other deductions not amounting to a
rebate on the employee’s wages
•A deduction to cover health, welfare or pension contri­
butions is expressly authorized by a wage or collective
bargaining agreement.
Otherwise, an employer cannot engage in “self-help”
and make deductions from wages.
There is one exception: When the loss is caused by the
employee’s dishonesty, willful act or gross negligence, the
employer has the right to deduct the loss from the employ­
ee’s wages. However, if the employer is unable to prove
that the loss was caused by the employee’s dishonesty or
willful or grossly negligent act—which may be tough to
prove—the employer will be in violation of the Labor Code.
How does California’s plant closing law work?
Q
Our company is going to have lay off a large number of employees. Are we required to give notice
to the employees?
A
If your company is a “covered establishment—defined
as any industrial or commercial facility that employs, or
has employed within the preceding 12 months, 75 or more
persons—then you need to provide notice under the Cali­­
fornia Worker Adjustment and Retraining Noti­­fi­­ca­­tion
(WARN) Act.
Under California Labor Code Section 1401, “An em­­
ployer may not order a mass layoff, relocation, or termi­
nation at a covered establishment unless, 60 days before
the order takes effect, the employer gives written notice
of the order.”
This notice must be given to the employees of the
covered establishment affected by the order and to Cali­­
fornia’s Employment Development Department, “the
local workforce investment board, and the chief elected
official of each city and county government within which
the termination, relocation, or mass layoff occurs.”
The employer must give employees notice of a plant
closing, layoff or relocation of 50 or more employees
within 30 days.
8
The act defines “mass layoff” as a layoff during any
30-day period of 50 or more employees at a covered
establishment. “Termination” is defined as the cessa­
tion of industrial or commercial operations in a covered
establishment. “Relocation” is the removal of all indus­
trial or commercial operations to a different location 100
or more miles away.
How should we pay nonexempt telecommuter?
Q
I recently allowed one of my hourly employees to
telecommute full time. What actions must I take
to ensure proper payment of her wages?
A
If the employee is nonexempt, it is crucial for both
of you to maintain precise records of her work hours,
including meal and rest breaks. You must determine how
you will monitor these hours and breaks, and also how
wage payment will be made. Mail or direct deposit may
be more fitting for telecommuters.
You should also have a policy regarding off-the-clock
work and unauthorized overtime.
Is California WARN different than the federal law?
Q
As a California employer, am I required to follow
the same 90-day aggregation rule that the federal
WARN Act follows?
A
No. Under the California WARN Act the aggrega­
tion period for mass layoff is 30 days. In California,
an employer must give its employees 60 days’ notice,
in writing, of a mass layoff, termination or relocation as
described above, if any occur during a 30-day period,
regardless of actions during the prior period.
The California definitions of these triggering events,
however, differ from federal law.
The federal WARN Act’s aggregation rule holds that
employment losses for two or more groups at a single
site within a 90-day period, each involving less than the
minimum number of employees to qualify as a plant
closing or mass layoff, but in the aggregate exceeding
the minimum number of employees, will be considered
a mass layoff or plant closing unless the employer can
demonstrate that there were two separate and distinct
actions and there was no attempt to evade the WARN
Act requirements (29 U.S.C. Sec. 2102).
Joseph L. Beachboard is a shareholder with the
law firm of Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., in its Los Angeles office. In addi­
tion to representing management in a variety of
employment matters, he speaks regularly before
HR and employer groups. You can contact him at
(310) 217-8191 or [email protected].
To submit your question to California Employment Law, email
it to [email protected].
California Employment Law • December 2014 www.theHRSpecialist.com