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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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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Computer Fraud Prevention: How to Protect Your Company’s Information

In today’s business environment, companies live and die by the information and data you possess.  Your company’s confidential information is probably housed on a network that is accessible by some, or all, of your employees.  Are you doing enough to protect your company’s data from computer fraud leaving with an employee and winding up with a competitor? The Computer Fraud and Abuse Act (CFAA) The CFAA is a federal law that makes it illegal to “intentionally access a computer without authorization or exceed[ing] authorized access, and thereby obtain[ing] . . . information from any protected computer.”  18 U.S.C. § 1030(a)(2).  Although commonly used to prosecute criminal hackers, the CFA is valuable to employers for the following reasons: 1) the CFAA captures a broader range of conduct than does a traditional trade secrets claim (it doesn’t require a showing that the accessed information rises to the level of a trade secret); 2) the CFAA is one of the few independent causes of action an employer can use to pursue a federal cause of action relating to such theft; and 3) the CFAA … Continue reading

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Wage Claim Process in California

In California, workers who believe that they are owed wages, overtime, or vacation pay may file their claims in court or with the Labor Commissioner. Claims filed with the Labor Commissioner are adjudicated by the Division of Labor Standards Enforcement (DLSE) and is a much more informal process. If you recently received a Notice of Claim and Conference from the DLSE, here is an overview of what the process normally looks like. Worker Filed a Claim. The process began with an employee (plaintiff) filing a DLSE claim form alleging that his/her employer (defendant) failed to pay wages or other compensation owed to the plaintiff. After the claim is assigned to a Deputy Labor Commissioner (deputy), he or she will determine, based on the circumstances of the claim, how to proceed. Within 30 days of the filing of the complaint, the deputy will notify the parties as to which of the following actions the DLSE will take as to the claim: referral to a conference; referral to a hearing; or dismissal of the claim. Not all cases will go to a … Continue reading

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Year-End Bonus: What You Need to Know

It’s time for reviews, year-end bonus, and raise determinations. I thought this would be the perfect time to get a better understanding of bonuses. What is a Bonus? A bonus is something “extra” that an employer provides to employees without the obligation to do so. Nevertheless, they are considered wages and are governed by state and federal wage and hour laws. Why give Bonuses? As an employer, employee bonuses are a great idea if you could afford it. Although money is not the only motivator in employee performance, it is nevertheless an effective motivator. More importantly though, a bonus demonstrates your appreciation for your employees’ hard work and performance throughout the year. Different Types of Bonuses Bonuses may either be “earned” or “discretionary.” A business may have a compensation plan that incentivizes employees with a bonus of they hit a certain yearly sales goal, work a certain number of hours in a year, or based on the company’s profits for the year. When there is a criteria that an employee has to meet, then employees earns the bonus when they … Continue reading

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