New Law – Request for Disability and Religious Accommodation a Protected Activity

Yesterday (July 16, 2015) Governor Brown signed AB 987 into law, making it an unlawful employment practice for an employer or other covered entity to retaliate or otherwise discriminate against a person for “requesting” an accommodation for physical or mental disability or religious belief or observance, regardless of whether the request was granted. Doing so would constitute disability discrimination and/or religious discrimination. This bill was introduced in response to the Court of Appeal’s decision in Rope v. Auto-Clor System of Washington, Inc. (2013) 220 Cal.App.4th 635, where the court found no authority that a request for accommodation, without more, supports a FEHA retaliation claim).  The new law now provides that legal authority. New Law Makes REQUESTING Disability and Religious Accommodations a Protected Activity   Existing law requires an employer to provide reasonable accommodation of, among other things, a person’s disability and religious beliefs and prohibits discrimination against any person because the person has opposed any practices forbidden under the act or because the person has filed a complaint. This new law takes it a step further and prohibits an employer from retaliating or … Continue reading

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Are Your Employees Using Cell Phones for Business?

Personal Cell Phone Use is a Reimbursable Business Expense in California? Yes. Even if an employee has a unlimited plan? Yup. A California appellate court held in Cochran v. Schwan’s Home Service, Inc. that employers must always reimburse employees when they are using cell phones for business when that use is mandatory. This is true even if the employee has an unlimited cell phone plan and does not incur any additional expenses because of the business usage. Colin Cochran worked as a customer service manager for a food delivery provider. As part of his job, he used his personal cell phone to make business calls but the company did not reimburse him for the use of his phone. Cochran filed a putative class action lawsuit against his employer on behalf of 1,500 customer service managers.   The court of appeal agreed that failure to reimburse the cell phone use, even if the employee did not incur additional expenses, violated Labor Code Section 2802(a). The court did not specify how much an employer must pay an employee for his or her cell phone … Continue reading

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Are Electronic Signatures Valid?

Many have asked “are electronic signatures valid?” The answer is YES. Section 1633.7 of the California Civil Code states that an electronic signature has the same legal effect as a handwritten signature.  The problem is proving who signed that electronic signature in court. Technology has made it so easy to sign our lives away with merely the click of a mouse.  It’s so easy that most of us don’t read the documents nor do we remember if we clicked our agreement.   But what happens when you as an employer wants to use that electronic signature as proof of an agreement?  Are you able to establish in court that this particular employee clicked the mouse that caused the electronic signature to appear?  If your answer is “no” or “probably not” you may have wasted the money you paid an attorney (or Google) to draft that arbitration or confidentiality agreement that a court will not enforce. Just last week, my favorite California Court of Appeal issued an opinion in Ruiz v. Moss Bros. Auto Group, Inc. upholding the trial court’s finding that Moss Bros., … Continue reading

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How to Prevent Sexual Harassment

You’ve probably heard the quote “prevention is cheaper than cure” and the same holds true for sexual harassment claims in the workplace.  If you’re looking ahead and wondering how to prevent sexual harassment, sexual harassment prevention training, is the way to go. If you are a California employer with 50 or more employees, you are subject to a law commonly known as AB1825.  This law mandates sexual harassment training for supervisory employees every two years.   The law was enacted in 2005, which makes 2015 a re-training year.  Even if you are a smaller employer, a modified training program will go a long way to preventing sexual harassment in the workplace. Basic Provisions of California’s AB1825 Two Hours of Sexual Harassment Training Every Two Years The deadline for the first round of AB 1825 training was December 31, 2005. Thereafter, employers must provide two hours of training to each supervisory employee every two years. 50 or More Employees AB1825’s sexual harassment training requirements apply to organizations that regularly employ 50 or more employees. (Independent contractors and temps are included in the … Continue reading

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Paying Employees for On-Call or Standby Time in California

Having employees on-call or on standby allows you to serve your customers 24 hours a day. A great business model if you are paying your employees correctly but could have expensive consequences if you don’t. Failure to properly pay employees could be considered “wage theft” in California. Are you paying employees correctly? In California, an employer is obligated to pay the wages of a non-exempt employee for all time that the employee is under the control of the employer. The predominant factor in determining whether employees are under an employer’s control is their ability to engage in personal activities. The information below applies to your non-exempt employees but whether you are classifying employees correctly is another matter. Let’s assume that you did. Are your employees under your control and entitled to pay? Employees are required to be on-call or on standby at the work site. Yes.  They are under your control and must be paid for that time even if they are just watching Office Space, taking a nap, or on Facebook, waiting for something to happen. Employees are on-call or on … Continue reading

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The Basics – Paying Employee Commissions Part II

Paying employees on a commission basis makes a lot of economic sense for employers and employees in many instances.  However, the fact that wages earned on commission are contingent upon numerous factors makes it fraught with labor law landmines and failure to properly pay employees’ commissions could constitute “wage theft” in California.  I previously discussed the basics of paying employees a commission.  In this part, we will examine a few more common issues with commission pay in California. 1.  What if a commission only employee earns no commission in a given pay period? California labor law requires that every employer pay each employee at least minimum wage for all hours worked in a payroll period.  If the employee is a non-exempt employee and works overtime, s/he is also entitled to overtime pay, even if she failed to “earn” any commissions in that period. 2.  Are all commission employees exempt from overtime? No.  The default rule in California is that employees are entitled to overtime pay and meal and rest breaks unless they fall under certain exemptions.  There is an exemption … Continue reading

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April Edition of the Employment Law Blog Carnival

I am delighted to host this month’s edition of the Employment Law Blog Carnival but was tearing my hair out trying to choose a theme.  I finally settled on a non-religious Easter traditions theme. Growing up in a Buddhist country like Thailand very few people celebrated Easter so I just didn’t get the whole Easter bunny that laid colorful eggs thing.  I am taking this opportunity to do some research on the non-religious Easter traditions here in the United States. According to the University of Florida’s Center for Children’s Literature and Culture, the origin of the celebration — and the origin of the Easter Bunny — can be traced back to 13th-century, pre-Christian Germany, when people worshiped several gods and goddesses.  The Teutonic deity Eostra was the goddess of spring and fertility, and feasts were held in her honor on the Vernal Equinox.  Her symbol was the rabbit because of the animal’s high reproduction rate.  Spring also symbolized new life and rebirth; eggs were an ancient symbol of fertility. Speaking of fertility and reproduction, Steve Peltin at Washington Workplace Law … Continue reading

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The Basics – Paying Employee Commissions

Happy New Year, and may 2012 be a year full of innovation, success, and happiness for you and your business.  With the new laws that went into effect this month, employers have been (or should be) busy reviewing and revising their employee handbooks, offer letters, and employment policies to ensure compliance with the new California laws.  Since you are knee deep in the process, I will spare you another post on the new laws that go into effect in 2012. Instead, we’ll do a Q&A on the basics of paying employees on commission.  Also, by January 2013, commission-based employment agreements for services provided in California must be in writing. 1.  Who could be paid on commission? Employees who are involved in selling a product or service; AND Commission earnings are a percentage of the price of the service or product sold; AND Employees’ sales duties must not include making the product or rendering the service. 2.  Is it o.k. for employers to deduct commissions paid from future commissions? It is permissible for an employer to have a commission policy that provides that … Continue reading

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Could UPS Have Saved $96,000 with a Well-Written Job Description? Maybe

The end of the year is fast approaching, which means that it is time for California employers to evaluate their policies and procedures to ensure compliance with new California laws that go into effect in January 2012.  While you’re cleaning house, don’t forget to review each job description at your company. Here’s why. Last month, United Parcel Service (UPS) was ordered to pay more than $96,000 in damages after the company fired an employee because of her disability.  The Fair Employment and Housing Commission (Commission) determined that UPS unlawfully terminated the employee who was able to perform the essential functions of her job. UPS hired the employee in question in 1997 primarily as an Operations Management Specialist.  Her essential duties were to handle customer calls and complaints on shipments.  Although she occasionally located packages in a warehouse, handling packages was not part of her job.  In 2007, the employee had knee surgery and took a leave of absence to recover.  She continued to carry out the essential customer service functions of her job.  She had some restrictions, such as limited standing, … Continue reading

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California Pregnancy and Parental Leave Laws

A few weeks ago I discussed a new California law requiring employers to continue providing benefits to employees on pregnancy leave.  Since then, I have received questions on parental rights in California.  In response, today’s post will discuss 3 bodies of law that affect California employees’ parental leave rights. California’s Pregnancy Disability Leave (PDL) California Family Rights Act (CFRA) Contractual Rights California’s Pregnancy Disability Leave (PDL) California Government Code section 12945 makes it unlawful for an employer to deny reasonable leave, up to four months, to a female employee who is disabled by pregnancy, childbirth or related medical conditions. The leave may be intermittent (e.g., for doctor’s appointments or sporadic episodes of pregnancy related disability) up to a total of four months. The employee shall be entitled to utilize any accrued vacation leave during this period of time. The employee has a right to reinstatement to the same or substantially similar position.  If the employee requests that the guarantee to reinstatement be in writing, the employer must do so. (Cal. Code, Regs., tit. 2, § 7291.9, subd. (a).)  However, an … Continue reading

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