Pretext and Age Discrimination

A California Court of Appeal recently upheld an award of $16 million against Staples for age discrimination in a case called Nickel v. Staples. The majority of that award ($13 million to be exact) was in the form of punitive damages, which are meant to punish the defendant for its wrongful conduct. I found the court’s analysis in this case particularly interesting because many employers have a false sense of security that terminating older employees because they generally have higher salaries and cost the company more is a legitimate business decision. However, it’s evidence of that reasoning that justified the large punitive damages award. Workers Who Are Over 40 Years Old Protected from Discrimination Employers with over 5 employees are subject to the Fair Employment and Housing Act’s (“FEHA”) anti-discrimination laws. Government Code Section 12940(a) makes it a wrongful employment practice to discriminate against someone in the terms and conditions of their employment because they are over 40 years old. An easy rule of thumb for employers to remember is: whenever age the motivating factor for an employment decision, you … Continue reading

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Support Animal as a Reasonable Accommodation

New regulations related to the Fair Employment and Housing Act (FEHA) went into effect on April 1, 2016. Among the various additions, which touch on a broad range of discrimination issues in employment, is a discussion about support animals as a reasonable accommodation in the workplace. As a servant to my 3 dogs and lawyer who has worked on dog bite cases, this was of particular interest to me. The new regulations specifically discuss assistive and support animals in the area of disability accommodation and provides that an assistive animal, including support animals, may constitute a reasonable accommodation in certain circumstances. What is an “Assistive Animal”? According to the new regulations, an “assistive animal” is defined as an animal that is necessary as a reasonable accommodation. These include: guide dogs for the visually impaired, signal dogs for the hearing impaired, and trained service dogs that meet the requirements of the Civil Code related to training and licensing. Additionally, a “support dog” or other animal that provides emotional, cognitive, or other similar support to a person with a disability, including, but … Continue reading

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Disability Accommodation

Here’s a common situation, an employee calls in sick and a couple of days later you receive a doctor’s note taking the employee off work for 2 weeks.  If you are an employer with 5 or more employees in California, you are subject to the anti-discrimination provisions of the California Fair Employment and Housing Act (“FEHA”).  If you have 15 or more employees, you are also subject to the Americans with Disabilities Act (“ADA”).  Both laws require employers to find a reasonable accommodation for an employee who suffers a physical or mental disability so that the employee could return to work.  California employers have the added duty to engage in the interactive process in good faith.  The interactive process is simply engaging the employee in a dialogue to understand their restrictions and available accommodations. Why does it matter? From a management perspective, truly engaging in the interactive process and making the appropriate efforts to accommodate a disabled employee shows all your workers that they are valued beyond being merely disposable workers.  From a legal/monetary standpoint, doing it right will prevent … Continue reading

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Politics in the Workplace: Navigating the Landmines

This year’s heated election cycle and last week’s shootings have left nerves raw. I see evidence of this on Facebook every day as “Friends” express their anger, fear, and criticism in memes, status updates, and comment wars. With the parallel existence of our virtual and real lives, these same sentiments are just under the surface in conversations at work and will undoubtedly bubble to the surface, if not explode, at work. As an employer, how do you maintain a cordial work environment, ensure that your employees feel safe and are productive, and also protect yourself from a lawsuit? To help navigate through the rest of this year, California employers should be mindful of 3 main principles when it comes to politics in the workplace. Beware of forcing your politics on your employees. Yes, at this point there is no question that corporations have the right to free speech. However, California law prohibits employers from “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of [their] employees.” (Cal. Lab. Code § 1101.) Additionally, Section 1102 of the Labor … Continue reading

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Overtime Rules for Inside Salesperson Commissions

If your business sells products or services, it is likely that you have at least one inside salesperson who earns commissions on the sales that the inside salesperson makes. If this inside salesperson has the potential to earn a decent amount in commissions, your company may have classified this salesperson as an exempt commissioned employee. This means that you are not paying this person overtime pay for overtime hours worked. If this is the case, you may be incorrectly paying your inside salesperson and exposed to a potential claim for wage theft. Exempt vs Non-Exempt Classification Certain commissioned inside sales employees may be exempt from overtime pay in California if the employee earns more than one-and-a-half times the minimum wage each workweek, and more than half of the employee’s compensation represents commission earnings. (Outside salespeople do not need to meet the minimum salary requirements.) The calculation on the second prong could get complicated where the employee gets a draw on commissions. In addition to the two prongs, in order for an inside salesperson to be exempt from overtime pay, a … Continue reading

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New Overtime Rules Under FLSA Approved – What You Need to Know

The Department of Labor recently approved changes to the overtime rules under the Fair Labor Standards Act (FLSA) that will have a significant impact on California employers and workers. According to the Department of Labor, the new rules will affect over 300,000 California workers who will either be entitled to overtime pay or receive raises to maintain their exempt employee status. Here are some answers to commonly asked questions about the new rules. Who is affected by the new rules? Employees who are exempt from minimum wage and overtime pay protections under the executive, administrative, and professional (EAP) exemption and the highly-compensated employee (HCE) exemption of the FLSA. (Learn about exempt vs non-exempt employees.) The FLSA covers a majority of workers. Details on who is covered by the FLSA are available from the Department of Labor. What are the changes made by the final rule? In addition to meeting the duties test, in order to meet the EAP exemption requirement, the employee must receive a salary of at least $913 per week or $47,476 annually. HCEs must receive $134,004 annually … Continue reading

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New Proposed Overtime Rules – Potential Effects on California Employers

There has been much discussion about the Department of Labor (DOL)’s proposed changes to federal overtime rules under the Fair Labor Standards Act (FLSA). California employers may have mostly ignored the federal overtime rules because California’s rules are more protective of employees and have a higher threshold for overtime exemptions. However, if these rules go into effect, California employers will have to make some adjustments. Failure to properly classify employees as exempt vs non-exempt and follow overtime rules could be costly for employers. What Are the Proposed Changes to Federal Overtime Rules? Under FLSA regulations, an employee is exempt from the right to overtime pay if s/he meets the following 3 requirements: Paid on a salary basis regardless of the number of hours worked; Receives a salary of at lease $455/week or $23,660/year; and Satisfies the duties tests for exempt employees (executive, administration, professional, computer, and outside sales regulations). The DOL proposed increasing the salary threshold from $455 per week to $970 per week ($50,440) annually. The salary threshold for the highly-compensated employee exemption would increase from $100,000 to $122,148 per … Continue reading

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Employee Handbook: Your First Line of Defense

Many business owners, managers (other than human resources professionals), and employees view employee handbooks as pesky hindrances to flexibility and growth.  The contrary is true, and knowing when and how to use your handbook could save your business from hours of lost productivity, low morale, and expensive lawsuits. Solutions to 3 Common Issues Await in Your Handbook  1.  Time Off/Leave Requests Your employee handbook could guide you through the following analysis: Does the employee have a right to time off? You are likely familiar with common requests for leave due to illness,pregnancy, disability, and jury duty.  However, you may not be aware of lesser-known leaves such as those for victims of domestic violenceor for alcohol rehabilitation.  Thus, when the leave request is uncommon, check your employee handbook to confirm whether the employee is entitled to time off. Whether and what type of documentation must the employee provide? Is the time off paid or unpaid? Does the request for time off trigger your duty to engage in the interactive process? Does the request for time off trigger your duty to accommodate? Although … Continue reading

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Independent Contractor Misclassification

A few days ago, Uber agreed to pay up to $100 million to settle class-action lawsuits in California and Massachusetts claiming that its drivers are employees not independent contractors. Paying out $100 million is by no means the end of this story. The settlement does not affect other drivers’ ability to sue on the same grounds nor does it preclude the Labor Commissioner from determining that individual drivers are in fact employees (which it has done in at least one case). The U.S. Department of Labor also recently issued a formal interpretation of the federal Fair Labor Standards Act as it pertains to the classification of independent contractors. This advisory opinion signaled the intention of federal regulators to scrutinize independent contractor classifications and treat most workers as employees. Most companies do not have enough independent contractors to be subject to class action lawsuits worth $100 million, but how will a $1 million lawsuit or even a $100,000 lawsuit affect your business? If your company uses independent contractors, here are some steps you could take to minimize your exposure: Closely examine … Continue reading

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Victim of Domestic Violence Leave

Women make up just under half of the U.S. labor force (46.8% according to the U.S. Bureau of Labor Statistics).  Thus, ensuring that women are safe, healthy, and productive is imperative to your business and the country’s economic growth. Yet, every 9 seconds, a women in the U.S. is beaten or assaulted. A greater proportion of women are victims of domestic violence but men suffer from domestic violence as well. In fact, in 1 year, more than 10 million women and men are physically abused by an intimate partner in the United States. (National Coalition Against Domestic Violence). In an effort to protect victims of domestic violence the California legislature have enacted laws to protect employees who are victims of domestic violence. Do You Know Your Legal Obligations to Your Employees? Non-discrimination: All employers are prohibited from discharging, discriminating, or retaliating against an employee: Who takes time off to appear in court pursuant to a subpoena or court order. (Lab. Code § 230) Because of the employee’s status as a victim of domestic violence, sexual assault, or stalking, if the … Continue reading

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