Update to Right to Unionize Posting Requirement

The effective date of National Labor Relations Board‘s (NLRB) new requirement that employers post a notice of employees’ right to unionize has been extended to January 31, 2012, instead of the original November 14, 2011 date.  The NLRB states that the postponement was to “allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.” The new requirement has met with much resistance from the business community which fears that the posting requirement will promote unionization among employees.

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Exempt vs Non-Exempt Employee – $17 million Suit for Misclassifying Employees

On September 26, 2011, the California Labor Commissioner filed a $17 million suit against ZipRealty for violations of minimum wage and overtime pay of its real estate agents. The premise for lawsuit is that ZipRealty misclassified its agents as exempt “outside salespersons” when they were in fact non-exempt employees.  The significant fact here is the allegation that the real estate agents spend less than 50% of their time away from the office. If the ZipRealty loses, it would be liable for 4 years of unpaid wages, meal and rest break premiums, unpaid overtime, plus other penalties and interests. Yikes. What is the difference between exempt vs non-exempt employees? We’ll take a look at who qualifies as an exempt outside salesperson. According to Wage Order Nos. 1-2001-16-2001, §2, an outside salesperson is a person age 18 or older who customarily and regularly spends more than half of his or her working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities. What the lawyers will spend a … Continue reading

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Disability Accommodation – The Interactive Process

What is the interactive process and why should I care? If you are a disabled employee, you should care because unless your disability is obvious, it is incumbent upon you to initiate the conversation with your employer regarding your limitations and necessary accommodations. As an employer, California law requires you engage in this thing called the “interactive process” with your disabled employees and failure to do so subjects you to liability separate from the failure to reasonably accommodate itself. Now on to the nitty gritty. The law Both the federal Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) require employers to engage in a “timely, good faith, interactive process” to determine effective reasonable accommodations with an individual who has a known disability or medical condition and requests accommodation.  However, liability exists only if a reasonable accommodation is in fact possible. Since California generally afford employees more protection than federal law, under California law, an employer’s duty to engage in the interactive process with and reasonably accommodate extends to employees and applicants who do not actually … Continue reading

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Hostile Work Environment – Lessons from Project Runway

Let’s do something fun today. Today’s post will discuss 3 reasons why cliquish work environments cost businesses money using last week’s episode of Project Runway appropriately titled “Can’t We All Get Along” as a practical example. The 3 reasons are: 1. Drop in Productivity – Employees who are excluded from the group at large or not considered part of the “in-crowd” at work generally dread coming to work, are less likely to contribute to the company, and the presence of cliques divides the company into groups that usually don’t work well together. This causes a drop in productivity and the company to miss out on some great ideas that excluded employees may have shared otherwise. 2. Individual stress to employees – The cost here is two pronged: a. Employees who are excluded at work generally suffer from stress-related issues such as headaches, hypertension, and other physical manifestations of stress (real or imagined) that lead them to call in sick. Which circles back to the drop in productivity discussed above. b. Should the cliquish work environment rise to one that is … Continue reading

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Cancer as a Disability – $846,000 Award for Failure to Accommodate Employee During Cancer Recovery

The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee who was recovering from cancer. Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007, which required two surgeries and numerous cancer-related outpatient appointments. Although the company immediately granted his two requests for time off for  surgery and recuperative leave, they failed to grant his request for further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Instead, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation that criticized him for insufficient travel.  On February 28, 2008, Mr. Wideman was fired. After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating … Continue reading

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Genetic Information Now Protected from Discrimination

Last week, California’s Governor Jerry Brown passed SB 559, which amends the Unruh Civil Rights Act and the Fair Employment and Housing Act to include “genetic Information” as an impermissible basis of discrimination. “Genetic information” is defined by the law as any of the following information regarding an individual: (i)  The individual’s genetic tests. (ii)  The genetic tests of family members of the individual. (iii)  The manifestation of a disease or disorder in family members of the individual. (iv) any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual. However, an individual’s age or sex is not considered “genetic information.”  But we already know that you can’t discriminate on the basis of age or sex. Some of us may ask, who goes around asking employees for their “genetic information” any way?  SB 559’s declarations noted that this form of discrimination was evident in the 1970s, which saw the advent of programs to screen and identify carriers of sickle cell anemia, a disease that afflicts African Americans.  This … Continue reading

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Employee or Independent Contractor? It’s not just a label.

I received an interesting response to my last post on the correlation between the unemployment rate and discrimination charges, which lead me to this blog post. A reader suggested that employers could protect themselves by not having any employees and hiring only independent contractors.  Yes, there are many benefits to hiring independent contractors as long as they are truly that – independent.  However, misclassification of independent contractors when they really are employees is common.  This mistake has costly consequences for employers. Below are 3 costs to employers who misclassify independence contractors: Unpaid taxes.  Should the IRS audit your business and reclassify one or all of your workers as an employee, you now owe the IRS employment taxes, the employer’s share of FICA taxes, and federal unemployment taxes, which were not paid because the misclassified worker was treated as an independent contractor.  Additionally, the employer would be liable for penalties and interest for failure to pay the taxes and failure to file payroll tax returns. Meal and Rest Break Premium Pay.  A worker classified as independent contractor probably did not receive … Continue reading

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Unemployment Rate Stays at 9.1% – What This Means for Employers.

Today the U.S. Bureau of Labor Statistics reported that the number of unemployed persons remains at 14.0 million and the unemployment rate held at 9.1 percent (in California, it’s even higher at 12.4%). The rate has shown little change since April. The number of long-term unemployed (those jobless for 27 weeks and over) was about unchanged at 6.0 million in August and accounted for 42.9 percent of the unemployed. Among the major worker groups, the unemployment rates for adult men (8.9 percent), adult women (8.0 percent), teenagers (25.4 percent), whites (8.0 percent), blacks (16.7 percent), and Hispanics (11.3 percent) showed little or no change in August. The jobless rate for Asians was 7.1 percent, not seasonally adjusted. Why this matters for employers: 1. Statistics show that historically, there has been a near direct correlation between the unemployment rate and the number of discrimination charges filed with the Equal Employment Opportunity Commission (EEOC).   Data from U.S. Bureau of Labor Statistics.  The graph took a while to create but you are free to use it with the following credit “Law Office … Continue reading

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New Notice Requirement for Employers: Employees’ Right to Unionize

The National Labor Relations Board has issued a Final Rule requiring most private-sector employers to post a notice to employees of their rights under the National Labor Relations Act (NLRA). Here is a quick Q&A for employers. Who has to post this new notice? All private-sector employers (including labor unions) subject to the National Labor Relations Act. The new notice requirement does not apply to agricultural, railroad and airline employers or the U.S. Postal Service for the time being. What does the notice say? Under the NLRA, you have the right to: Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment. Form, join or assist a union. Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions. Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union. Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints … Continue reading

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California Workplace Leave for Organ Donation and Bone Marrow Donors

Earlier this month, the Governor approved a new senate bill amending and clarifying California law on organ and bone marrow donation leave.  Here is a quick summary: •         Employers with 15 or more employees must provide paid leave to employees undergoing organ or bone marrow donation procedures. •         Employee requesting leave must provide employer written verification that s/he is a donor and that it is medically necessary. •         Employees are entitled to the following paid leave in a one-year period: – Organ donation – up to 30 business days (not calendar days) – Bone marrow donation – up to 5 business days. •         Employees on leave must be treated as actively working.  The leave provided may not be considered a break in service for purposes of salary adjustments, sick leave, vacation, paid time off, or seniority. •         Organ and bone marrow donation leave is in addition to FMLA or Moore-Brown-Roberti Family Rights Act and cannot be taken concurrently. •         Employers may require that the employee take earned but unused sick leave, vacation, or paid time off: – Organ donation – … Continue reading

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