Ask the SAHRA Legal & Legislative Team
Archives

Welcome to the SAHRA's Legal & Legislative Team Archives!

As a condition of using this feature of our Web site, you agree to read and abide by the disclaimer stated at the bottom of this page.

Answer:
If California law, or your employer's policies, require you to investigate a complaint you should do so very thoroughly. In some cases, for example, where the employee making the complaint alleges that he or she has been harassed, it may be necessary to reveal the identity of the complainant to the alleged harasser. In other cases, for example, where the complainant is a third party bystander and only observes a policy violation, it may be possible to conduct a thorough investigation without revealing the name of the complainant. In these cases it may not be advisable to reveal the identity of the complainant to protect against possible retaliation. As you can see, situations vary, so for a complete evaluation of your specific investigation please contact your attorney.

Question:
Is it legal to terminate someone who is on pregnancy disability?

Answer:
It is difficult to answer this question based on the limited amount of information provided. Pregnancy Disability Leave implicates other leaves requirements such as Family Medical Leave and California Family Rights Act as well as various federal and state laws regarding disability discrimination.

In the broad sense, California is an at-will state and unless the employee is contractual or must otherwise be terminated only for cause, she may be terminated at any time. That said, there are many exceptions to that rule. First, you may not terminate an employee on any type of disability because of their disability. Additionally, an employee who takes Pregnancy Disability Leave must be reinstated to the same or similar position when she returns to work unless one of the two following exceptions applies:

(A) That the employee would not otherwise have been employed in her same position at the time reinstatement is requested for legitimate business reasons unrelated to the employee taking a pregnancy disability leave or transfer (such as a layoff pursuant to a plant closure).

(B) That each means of preserving the job or duties for the employee (such as leaving it unfilled or filling it with a temporary employee) would substantially undermine the employer's ability to operate the business safely and efficiently.

Note that it is very difficult to prove that preserving the employee’s position would substantially undermine the employer’s ability to operate the business safely and efficiently. As a result, unless the employee would be terminated due to lay offs or other clearly legitimate reasons, it is best to error on the side of caution.

Question:
I am familiar with the requirements, processes, medical certification, etc. regarding the FMLA/CFRA. Intermittent leave is harder to administer. One of my employees has provided medical certification for intermittent leave. However, it does not include an intermittent leave schedule in order to identify anticipated time off. Without a schedule of planned absences, how would we know if they are in fact related to the FMLA/CFRA or simply abuse?

Answer:
Intermittent leave is a special type of family and medical leave taken in separate blocks of time due to a single qualifying reason. Intermittent leave may be based on the birth/placement of a child or for “medical necessity” as determined by the employee’s health care provider and described in a medical certification. For example, intermittent leave may apply where an employee takes off two days per week over a period of several months in order to undergo chemotherapy treatments. Alternatively, it may be used where the employee is incapacitated or unable to perform the essential functions of the position because of a chronic serious health condition even if he or she does not receive treatment by a health care provider. In such instances, there may not be a planned schedule for the leave.

Either way, all employees requesting family and medical leave, including those requesting intermittent leave, must provide some advance notice regarding the anticipated timing and duration of the leave. The amount of notice depends on how foreseeable the need for leave is. Where medically permissible, employees requesting intermittent leave must attempt to schedule their leave so as not to disrupt the employer’s operations. Courts are reluctant to allow significant unscheduled and unpredictable absences taken at a moment’s notice. The course of action to take will depend upon the certification provided by your employee. In order to ensure the employee’s understanding of his or her obligations, you should provide the employee with documentation regarding notice requirements. This should help assist in providing some advance notice of the employee’s change of schedule and reducing the disruption on your operations.

Question:
Due to the economic downturn, we are considering closing operations at one of our facilities. Do we have any requirement to provide notice to our employees?

Answer:
Both federal and state laws require certain businesses to provide at least 60 days’ written notice to affected employees, public officials and union representatives prior to executing a mass layoff, plant closing, relocation or termination. Whether this obligation exists depends upon the number of employees working for the employer and the number of employees affected by the closure. For additional information, consult the Employment Development Department’s Worker Adjustment and Retraining Notification (“WARN”) link at http://158.96.229.240/eddwarn.htm and the Department of Labor’s WARN link at http://www.dol.gov/compliance/laws/comp-warn.htm.

Question:
We have a problem with employees who are verbally spreading negativity (including comments about the company, management, its practices, etc) to their co-workers. This is damaging morale, attitude and performance. What can we do?

Answer:
Conduct in the workplace that adversely impacts job performance should at least be carefully documented, i.e. date(s), person(s), relevant facts. If the “verbally spreading negativity” results in provable unsatisfactory job performance, then counseling and/or discipline (depending upon the circumstances) would be appropriate.

However, if the comments are justifiable criticism of management and/or its practices, perhaps the employees making the comments should be given an opportunity to propose solutions (consistent with the organization's mission statement and values), but should also be advised not to play the destructive “blame game” anymore.

Question:
I am in the construction industry. If we require an employee to drive 2 hours away for a project, can we pay "travel time/Min Wage" for the time spent in the vehicle? In addition, if they drive 2 hours away, work on-site for 8 hours and then drive home 2 more hours, how will we record the overtime hours...on the min wage or based on regular wage?

Answer:
Travel time from home to work and back is generally not “hours worked” for pay purposes. However, most other travel time* is work time. Pay for other travel time that does not require the employee to use job skills may be at a rate less than the employee’s normal rate of pay, e.g. minimum wage, but is still subject to overtime rules. Travel time counted as work time for less than employee’s normal earnings must also be clearly outlined in writing for all employees in advance.

(*For example, if an employee reports to regular workplace and is then required to travel to another construction site for the day, travel time to the assigned project site must be paid. Visit http://www.dol.gov/DOL/allcfr/ESA/Title_29/Part_785/29CFR785.35.htm for details.)

Note also: party making inquiry may want to seek the advice of own legal counsel to review detailed circumstances before deciding action to be taken.

Question:
Does paying someone 1099 wages, does that mean they are a contractor and should not be treated as an employee or is the difference of a 1099 only that taxes aren't taken out of the worker's paycheck? How long can a company keep the worker as a 1099 before there is a conflict between contractor and employee (if 1099 means contractor)?

Answer:
For federal tax purposes, businesses are required to annually file Form 1099 for workers who are properly classified as independent contractors – as opposed to “employees” – paid $600 or more for their services. Employment taxes do not have to be deducted from earnings of an independent contractor, sometimes referred to as a “1099 worker”.

There is a significant difference between an independent contractor and an “employee”. Many factors are used in determining independent contractor status, and there are major penalties for misclassification. (Visit www.irs.ustreas.gov and www.edd.cahwnet.gov for details.)

Note also: party making inquiry may want to seek the advice of own legal counsel to review detailed circumstnaces before deciding action to be taken.

Question:
Upon notifying an employee that they are being terminated after a due process disciplinary action, does a public agency have to present the employee's paycheck at the time of the formal letter of notification? Or are we allowed to cut the final check at the time of our usual payroll cycle? I need an answer as soon as possible.

Answer:
California Labor Code §201 requires that all wages and accrued vacation earned but unpaid are due and payable immediately to a California Employee at the time of discharge from employment (or layoff) . Generally, a public agency employer would be subject to a “waiting time penalty” if such employee is made to wait until the next regular payday/cycle. (See also Campos v EDD, 132 Cal. App. 3d 961 (1982). )

Note: party making inquiry may still want to seek the advice of own legal counsel to review detailed circumstances and for industry specific information.

Question:
I am a vocational counselor and testify in disability hearings at Social Security. One of the questions that comes up pertains to the level of absenteeism that will be tolerated by an employer. I know the statistics regarding the average number of absences by industry; however, there are no references to what will be tolerated. I thought I would write and ask if your organiztion has information regarding how absenteeism is managed or a "rule of thumb".

What I understand to be the case is that many employers have paid sick leave of 6 days per year while others have personal leave and combine sick time with vacation/holiday pay so that a person has access to paid days for being away from work for whatever reason.

My question becomes one of how many days will an employer tolerate between paid and unpaid time off from work before an emplyee will be terminated?

For instance, if a person averages 2 days per month absence for sick leave and is an otherwise good employee - will that be tolerated or is it too excessive and termination a sure thing?

Please help me clarify this point. If you are unable to answer can you refer me to another source?

Answer:
I am not aware of any "rule of thumb" in terms of employer tolerance for absences, and I am not aware of any resources for such information. The answer depends on each employer's policy(ies) and many other relevant factors, such as reason for absence, length of service, etc.

Question:
We are considering instituting an employee directory with employees photo's displayed. Our initial intent is to have this available to management, HR and labor relations only. We will be utilizing our company security photo and using them for internal purposes only. Do you see any legal issues with this scenario? Are you aware of any other companies that have a similar system? Any insight you can provide would be greatly appreciated.

Answer:
I do not see any legal problems with this from an employment law perspective. Many companies use employee photos for company websites and/or internal employee intranet use. Your intended use appears even more limited and should not present a problem.

Question:
If a person has a medical condition that would qualify as a disability and has intermittent absences - will that person be able to avoid termination by claiming unpaid time off under the Fair Employment and Housing Act for the unplanned absences?

Answer:
It is difficult to answer this question based on the limited information provided. Generally, however, the Fair Employment and Housing Act protects disabled employees (with disability being defined very broadly) from discrimination in employment. The Act also requires covered employers to reasonably accommodate disabled employees and to engage in an interactive process with the employee to determine a reasonable accommodation. A reasonable accommodation can include leave time relating to the disability.

If you are an employer covered by the California Family Rights Act (generally 50 or more employees), the employee also may be eligible for leave, including intermittent leave, if his/her condition qualifies as a serious health condition and the employee otherwise satisfies the conditions for eligibility. You would need to take certain steps to obtain medical documentation and advise the employee of his/her leave rights and then count all of the intermittent leave towards the employee's total leave entitlement. Again, to determine whether the CFRA applies requires additional information.

In short, you should be aware of potential obligations and risks under these two laws, and you may want to consult with an employment attorney on how best to proceed in the circumstances. Other pertinent considerations would be whether you have written policies regarding attendance and absences, how these policies have been applied both generally and specifically to this employee in the past, whether the employee is providing adequate advance notice of his absences, whether he/she has provided medical documentation to you, etc. Even if you determine that you need to take steps to be sure you are in compliance with the FEHA/CFRA, you should be able to do so in a way designed to minimize disruption to your business.

In sum, it is quite possible that the laws discussed above would protect this employee from termination for disability-related absences. It is a fact-specific analysis, however, and you should discuss it in more detail with experienced counsel to determine the best course of action.

Question:
What if an employee who works on one of our state contracts is terminated and the employee refuses to turn in government office keys? I understand we cannot withhold paychecks, but is there something we can do to retrieve the keys because it is a government office?

Answer:
You should send the employee a letter explaining that the employee has a duty to return all company property immediately upon termination of employment, citing to any applicable written policies that were provided to the employee upon hire. Then, explain that the employee has improperly failed to return keys to the location where he/she was assigned to work and that this location was a government facility. Make a final demand that the keys be returned immediately and provide a specific manner and deadline for the return. Tell the employee that if the keys are not returned in the manner and by the deadline provided, you will have no choice but to pursue legal avenues for relief against the employee. I would send the letter certified mail. Hopefully this will secure return of the keys and you will not need to take any further action.

Question:
Please provide reference material (ie..CLC) regarding disciplinary meetings in which an employee in a non-union environment requests that a neutral third party attend (non-employee). Who can this third party person be? What is required on employees and employers behalf?

Answer:
The NLRB has flip-flopped over the years on the issue of whether non-union employees have a right to request the presence of a third party in investigatory meetings that may lead to discipline (known as Weingarten rights). The most recent NLRB position on this issue (based on the NLRB's decision in IBM Corp. in 2004) is that only unionized employees have this right; non-unionized employees do not have the right to have a third party present during such interviews and the employer may refuse such a request. The employer may choose to grant the request for other reasons, but it is not required to do so.

Question:
I have an employee who works in Washington, but reports to our California offices. How far can we go to collect money paid to this employee for relocation if she terminates before our 1 year policy?

Answer:
Whether you can deduct relocation expenses from the employee’s paycheck, and how those deductions may be made, will depend largely upon the agreement between the parties. California Labor Code section 224 prohibits employers from making deductions from an employee’s wages except for statutorily required deductions, such as withholding taxes, or in some cases when a deduction is expressly authorized in writing by the employee. Absent a written agreement, the general rule is that employers cannot deduct debts, including relocation expenses, from an employee’s wages and instead must seek relief through a separate civil action against the employee. Even when a written agreement exists, Barnhill v. Robert Saunders & Co. and several Labor Code provisions substantially limit the circumstances in which wage deductions are permitted, particularly when debts are accelerated and deducted from an employee’s final paycheck. As a result, employers should always consult legal counsel before making non-statutory deductions from an employee’s wages.

Assuming you decide to recover the relocation expenses by filing a separate civil action against the employee, where that lawsuit can be filed is a jurisdictional question that depends upon several factors such as the location of the employee’s residence and the terms of the parties’ employment agreement (if one exists). The claims you may assert, if any, will be largely dictated by the terms of the policy concerning recovery of relocation expenses within one year. To verify the appropriate jurisdiction for your set of facts, and to determine the correct claims to assert, consult legal counsel.

Question:
If an employee's pay is based on base salary AND commissions, do employer's still need to pay the "minimum" exempt salary of 2X the minimum wage if they are guaranteed commissions pay also? If not, what is the minimum base salary they can pay?

Answer:
California Industrial Welfare Commission Wage Orders 4 (Professional, Technical, Clerical, Mechanical, and Similar Occupations) and 7 (Mercantile Industry) provide an exemption from overtime for employees whose earnings exceed one and one-half times the minimum wage if more than half of that employee's compensation represents commissions.

Pay structures vary from employer to employer so for a complete evaluation of whether the employee in question is exempt from overtime please contact your attorney.

Question:
Are time sheets confidential between employee and employer in the state of California? Can multiple employees have one time sheet?

Answer:
Under both California and the Federal Labor Standards Act (FLSA) all employee records regarding wages, hours and rate of pay are to be kept individually for each employee.

California privacy laws regarding employee information are broad. The right to privacy is guaranteed by the California Constitution which protects employee personnel files from improper and unreasonable disclosure. Consequently, an employer should always error on the side of caution and keep all employee information private to the extent possible. Generally, employee time sheets contain the employee’s social security number or employee ID number. Either of those personal identification numbers could be used to gain additional information concerning the employee and should be kept private.

Question:
As a HR Generalist for a private corporation, who advises management of best practices but is not necessarily the decision maker, what types of personal liability am I exposed to in regards to employment actions?

Answer:
The issue of liability is very fact specific and guided by the type of employment action brought. With your reference to “decision maker” we will assume that the question regards decisions to terminate an employee and liability for wrongful termination.

Generally speaking, one who is not involved in the process of deciding to terminate an employee cannot be held liable for wrongful termination. With regard to a person who is involved as a decision maker, their liability is determined by the type of action brought by the employee. The California Supreme Court held in Reno v. Baird (1998) 18 Cal. 4th 640 that non employer individuals are not personally liable for discrimination under the Fair Employment and Housing Act (FEHA) (Gov. Code § 12900 et. seq.) Just this year, the Supreme Court determined in Jones v. The Lodge at Torrey Pines (2008) 42 Cal.4th 1158, that individual employees can not be held liable for retaliation under the FEHA. However, the specific statutory language in Gov. Code § 12940(j) provides that an employee is personally liable for unlawful harassment perpetrated by the employee. (Subd. (j)(3). 

Question:
I am working with a Nonprofit organization and the issue of dress code and tattoos has been brought up. Is there any laws regarding wearing clothing to cover tattoos when dealing with clients or the public?

Answer:
There are no laws granting employees the right to dress in any manner they choose or to display tattoos while at work. An employer may adopt any policies regulating how employees dress at work and whether tattoos may be exposed. However, the rules must equally apply to all similarly situated employees. 

Question:
It is my understanding that there is a California State Disability Insurance brochure that all California employers are required to give all new hires on their first day.  If this is correct, can you give me the document number on that brochure so that I can search for it on EDD's website? 

Answer:
The Employment Development Department (EDD) requires all employers to provide pamphlet DE35, Notice to Employees, to all new employee.  Additionally, employers subject to Unemployment Insurance (UI) State Disability Insurance (SDI) and Paid Family Leave (PFL) are required to provide notice to their employees of the benefits they are entitled to.  New employees of employers subject to SDI must be provided with pamphlet DE 2515 at the time of hire.  Additionally, an employer subject only to SDI must post Form DE1858, which provides notice to employees of claim and benefit information for SDI in a prominent location in plain view.  If you are an employer subject to UI, SDI and PFL you must use form DE1857A instead of DE1858. 

Question:
We have an employee who is a full-time employee, but is currently working part-time, at 20 to 25 hours per week.  On Monday, she attended an all day seminar and dinner which amounted to 10.5 hours.  She worked for approximately 4 hours on Tuesday, Wednesday, and Thursday.  On Friday she did not work at all.  Do we have to pay her for the 2.5 hours of overtime on Monday?

Answer:
Labor Code Section 510 provides that any work in excess of eight hours in one workday and any work in excess of 40 hours in any one workweek shall be compensated at the rate of no less than one and one-half times the regular rate of pay for an employee.  Thus, since the employee worked more than 8 hours in one workday, regardless of the total hours per week, she is entitled to the 2.5 hours overtime.  Section 510 has many exceptions and exemptions.  There are many Wage Orders which apply only to certain professions that provide exceptions to the general rule.  Thus, it may depend highly on the type of work the employee performs and whether a collective bargaining agreement governs the wage and hours the employee is required to work. 

The number of wage and hour lawsuits being filed nationwide is increasing rapidly.  In every case, where you are unsure whether you are required to pay an employee for overtime, you should contact an employment attorney or, at the very least, err on the side of caution and pay the employee the overtime. 

Question:
Please provide the run down on PDL and FMLA.  I have an employee who is pregnant and within the first trimester and now has to go out on PDL as per Dr.'s orders.  I am unsure how to apply PDL, FMLS & CFRA and how to combine them.  If you could please remind me on how to process this I would certainly appreciate it.

Answer:
Generally, CFRA does not recognize pregnancy as a serious medical condition like the FMLA.  As a result, CFRA does not run concurrently with FMLA as it usually would for other serious health conditions.  However, PDL and FMLA do run concurrently.  Thus an employee disabled by pregnancy would be entitled to 4 months of PDL to run concurrently with the 12 weeks of FMLA.  Once FMLA and PDL are used up, then, if the employee’s medical provider determines that she continues to be disabled at the end of PDL, the employer may, but is not required to, allow the employee to use CFRA leave prior to the birth of her child.  Otherwise the employee may take CFRA leaved after the birth of her child for bonding with her child.  The maximum time the employee may take off work for FMLA/CFRA/PDL is 4 months PDL/FMLA and 12 additional weeks of CFRA. 

For more information, you may refer to California Code of Regulations 7291 et. seq. which provides the regulations and examples applying the regulations.

Question: If an employer fails to withhold federal and state income tax, FICA, and SDI on an employee's final paycheck, what are the employer's obligations toward the employee and how would the employer correct the situation?

What additional steps or actions are needed if the error is not caught until the following tax year?

Answer: What you have identified is a tax issue, and not really an employment law issue.  There are various steps that must be taken by the employer and the employee to remedy this situation.  In this circumstance, the employer should consult with experience tax counsel or an accountant to discuss the necessary procedures. 

Question: When addressing or creating a dress code for clothing, (other than transgender) should discrimination between male & female be considered?
Example: tank tops, short dress pants, sandals, etc.

Answer: Employers must be careful when implementing dress codes to ensure there is a legitimate business reason for any differential treatment based on a protected characteristic, including sex.   In most situations, that will include transgender employees.  In other words, if a male employee is dressing as a female, the employee must follow the guidelines for female employees.  Of course, there may be different dress code requirements for men and women depending on the industry.  For example, in a sales organization, men could be required to wear a tie, and women obviously would not be bound by the same rule.   Employers also should be consistent regarding tattoos and piercings.  This can be a tricky area of the law, particularly when religious accommodation issues arise.   Accordingly, you should work with an experienced human resources professional or employment law attorney in drafting your dress code. 

Question: My question relates to worker's compensation.  We have a staff person who left work at 9:20 am and got into a motor vehicle accident at 10:00 am on her way home.  After reporting the accident to us, she claims she was going to work from home, although she did not have permission to do so.  I understand that this will probably end up being a worker's compensation claim.  My question is can we institute a policy that says if you choose to work from home, you are not covered by our workers compensation insurance as we have the necessary tools to work in our office.

Answer: To achieve your goal, a better approach would be to institute a policy that prohibits employees from working at home at all.  If you allow employees to work at home, then your open yourself up to liability for workers' compensation claims.  In other words, employees cannot be required to "waive" their right to file a workers' compensation claim in exchange for working at home.

Question: Is there a California Code which states to the effect that an employer can not count or consider, absences to care for a ill child, as unapproved for disciplinary purposes, other than the FMLA, CFRA? I believe I recall reading this somewhere in the California labor code.

Answer: Labor Code section 233 requires employers to permit employees to use up to one-half of their annual sick leave accrual to care for a covered family member.  This is referred to as "kin care."  Labor Code section 234 provides that employees cannot be disciplined for using "kin care."  You should carefully review both of these sections for additional information.

Question: When an employee submits their resignation with two weeks notice and intent, what is required in order to accept their resignation as of the date they submitted it rather than two weeks from the date it was submitted?

Answer: If an employee resigns with notice, the employer has the right to "accelerate" the resignation by not allowing the employee to work through the notice period (assuming the employee is at-will and not under some form of contract).  One consequence to consider is that the employee will be entitled to unemployment insurance benefits for the period between the date of termination (the employer converted the resignation into a termination by accelerating the notice period) and the initial notice date. In addition, the final paycheck and related documentation is due at the time of termination. In this case, that would be the point at which the employer informs the employee that her services are no longer needed. 

Question: What are the federal and state of California Records Retention Laws for
Personnel Files and Medical Files?

Answer: There are a number of different record retention requirements depending on the type of record.  While not an all inclusive list, here are the requirements for some of the more common employment records:

• Documents in a personnel file generally must be kept for two years.  Payroll records must be kept for four years, and wage records for three years.  I-9 forms must be kept for three years from the date of hire or one year after termination. 

• Employers must keep certain health records related to job injury or drug testing for five years and family and medical leave related records for two or three years (three years if documents relate to leave under the Family and Medical Leave Act and two years if the documents relate to leave under the California Family Rights Act).

• There are a number of other document types with different requirements including:  child labor documentation (three years), employee benefits information (six years or at least one year following a plan termination), and recruitment and hiring records (two years). 

The information contained herein is privileged and confidential.  It is intended for the use of the addressee only.  If you are not the intended recipient, you are hereby advised that any distribution, dissemination, or copying of the contents of this transmittal is strictly prohibited.  If you have received this transmittal in error, please immediately notify the sender by telephone and destroy this transmittal.

Question: Can an employee be disciplined for continuously punching in 3-6 minutes late and punching out 3-6 minutes early when the time clock rounds every 7 minutes to each quarter hour? The time records show the actual minute of the punch but for payroll purposes hours are accounted for on a quarterly hour basis. Due to this rounding, the time records reflect the employee arriving and leaving on time. Can we discipline under this scenario?

Answer: The short answer to your question is "yes."  The rounding practice you have adopted is merely a timekeeping/payroll measure.  It does not preclude you from taking discipline against an employee for failing to report to work on time.  It would be a good idea to include an explanation of this issue in your attendance policy.  That way, employees will be on notice that if they are late to work or leave work early without approval, they will be subject to disciplinary action.

Question: Vacation pay requirements for voluntary quit, what is the California law and should we pay?

Answer: Because vacation is considered a "vested wage," employees must be paid out on separation of employment (whether voluntary or involuntary) for any accrued but unused vacation, PTO or other vacation-type time off
(such as personal holidays). Employees who do not receive such payment
in timely manner are entitled to receive "waiting time penalties" equal to one day's wages for every day the payment is late, up to a maximum of 30 days.

Question: Can an employee elect additional leave under CFRA to bond with a child after exhausting their FMLA/PDL leave of 12 weeks considering they qualify?

Answer: Generally, yes.  The California Family Rights Act and Pregnancy Disability Leave do not run concurrently.  So, assuming the employee has not taken any CFRA leave in the 12-month period (assuming the employer uses a rolling 12-month period), she will be entitled to 12 weeks of "bonding" leave after her disability period ends.  The disability period usually end after six weeks for a regular delivery and after eight weeks for a caesarean.

Question: Communicable diseases and an employer's responsibility:  We were notified today that one of our team members has viral meningitis.  This is a highly contagious disease.  What is our responsibility as an employer?  Is there any precedent or legal requirement to provide medical care to any team member who may have had contact with the infected individual?

Answer: An employer's responsibility is to provide a healthy, safe working environment for all of its employees, even if there are no current standards governing the work area or the industry. The General Duty Clause of the Occupational Safety and Health Act (OSHA) (Section 5(a)(1)) addresses this issue. It entitles an employee to "a place of employment which is free from recognized hazards that cause or are likely to cause death or serious physical harm." California law imposes a similar duty on employers. California law also contains a specific regulation addressing blood borne pathogens (section 5193 of Title 8 of the California Code of Regulations--available at http://www.dir.ca.gov/title8/5193.html). Section 5193 has different provisions depending on the employer's industry. It is very important that you review section 5193 and the applicable FAQs (available at http://www.dir.ca.giv/dosh/BloodborneFAQ/html) to determine your specific obligations. 

Of course, all exposures do not result from blood borne pathogens.  Meningitis, for instance, is an airborne pathogen.  In addition, according to the Centers for Disease Control and Prevention, viral meningitis is not considered to be particularly contagious.  That said, one of your key responsibilities will be to reduce the possibility of the disease spreading. This can be accomplished through training and educating the workforce on precautionary methods. It is not clear from your question whether your industry is at risk for this type of exposure due to the nature of your work, or whether this was an unusual occurrence.  Your obligations may differ depending on your industry.

At this point, you should inform employees of the corrective action that you decide to take.  This will help diminish any anxiety employees may be experiencing. Training should be organization wide, and all employees should be required to attend. The Centers for Disease Control and Prevention's website (www.cdc.gov) has information regarding communicable diseases--the types, symptoms and precautions-- as well as resources on training.

For the future, you may want to consider implementing a policy that requires employees to inform you if they pose a direct threat to the safety of other employees. Of course, you must keep employees' health information confidential and ensure that any such policy is in compliance with the Americans with Disabilities Act and California's Fair Employment and Housing Act. Requiring employees to report communicable diseases allows for immediate medical assistance, may stall the spread of the disease and may enable you to track the origin. It also gives you an opportunity to prevent future exposure.

In cases of blood-borne or air-borne pathogen exposure, OSHA states that employers must offer any employees that have been exposed free medical evaluation and treatment by a licensed health care provider.

Question: Our employee suffered a work related injury resulting in the loss of his foot.  For nine months the company has been paying him the difference between his worker's comp pay and his previous amount.  The company hoped that the employee would have returned to limited duty by now.  The employee is now suing the company.  The company has stopped paying the additional money.  The employee is still on the employer's benefit plans.  The company feels, since the employees is suing, he is not coming back to work.  Can the company issue COBRA paperwork and take him off the benefit plans?

Answer: There are various issues involved in this scenario.  The answer to your specific question is that employers are not required to continue paying health insurance premiums for employees with open workers' compensation claims unless they do so for other employees.  For example, if you are subject to the federal Family and Medical Leave Act and the California Family Rights Act, you are required to continuing paying your portion of an employee's health insurance premium for up to 12 weeks.   That means you must pay your portion of the premiums for employees off work due to work-related injuries or illnesses for at least 12 weeks.  You could certainly implement a policy providing that the company will not continue paying the premiums for employees on any leave of absence for more than 12 weeks.  You could not, however, single out only those employees with open workers' compensation claims.  In your case, because you apparently do not have a current policy cutting off benefits after a certain period of time, you should not terminate the benefits of the employee who is suing you until you have such a policy in place, and you apply it to everyone who is similarly situated.

Question: I work for a plumbing/hvac company and I was approached by a manager to see whether a tech could be paid minimum wage when the initial service call required him to go back out to a customer's house to correct the prior service call he performed. I believe the tech would have to be paid at his regular rate, rather than being paid at minimum wage, but just thought I would ask. Thanks.

Answer: An employee must be compensated for all hours during which the employee is subject to an employer’s control, including all the time the employee is permitted to work, whether or not required to do so.  Although there are some exceptions, almost all employees in California must be paid the minimum wage as required by state law. Effective January 1, 2008, the minimum wage in California is $8.00 per hour.  California’s Division of Labor Standards and Enforcement (DLSE) allows the payment of different rates of pay for different jobs as long as the work performed is objectively different.  For example, an employer may, in the absence of a collective bargaining agreement regarding travel-time pay, establish a different rate of pay for travel time that occurs beyond the normal workday, as long as it is not less than the applicable minimum wage.  However, the payment of different wage rates for work performed in the same workweek may affect the employee’s regular rate of pay for purposes of computing the overtime rate.  Even in the case where a different rate may be paid to the employee, the employee must be notified that the different rate will be paid in advance of performing the services.

Because the work in the question presented appears to be objectively the same, different rates of pay would not be proper and, therefore, the tech should be paid at his regular rate for the subsequent service call.

Question: Is it acceptable to ask an applicant:  “How many days were you absent in the last two years?  (Do not include vacation, military leave, medical leave, funeral, jury duty, or any other absence protected by law.)”

Is this acceptable being that it is a question on the application versus a question in an interview setting?

Answer:
The Fair Employment and Housing Act (FEHA) provides in subsection (d) of California Government Code section 12940 that it is unlawful “[f]or an employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any non-job-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation, or any intent to make any such limitation, specification or discrimination.”  Although questions about absences in an application or an interview setting may not be per se illegal under the FEHA, it is not the best practice for avoiding liability under the FEHA for an employer to ask such questions.  Even with the parenthetical information, the proffered application/interview question set forth above assumes that the applicant will be sophisticated enough to know what types of absences are protected by law.  Further, answering this question may require the applicant to divulge personal or private information that may lead to inadvertent disclosure of protected information. 

An alternative method and a better practice for obtaining the same information would be to attempt to determine whether the applicant has ever been disciplined and, if so, to then work backward to find out whether the discipline was related to excessive and/or unexcused absenteeism.

Finally, applicants are protected from unlawful discrimination, harassment, and retaliation regardless of whether they are filling out an application for employment or going through the interview process so that it would not make a difference if the question were posed in either of those scenarios. 

Question: What are the main things to be concerned about if you would want a department to go to a 12-hour work day. (These would be salaried non-exempt individuals.)

 Answer: Under California law, an alternative work schedule is any schedule of more than 8 hours a day which does not include normal payment of overtime.  Implementing an alternative schedule involves many steps and should be done with the assistance of legal counsel.  Here is a summary of the procedures an employer has to follow (California Labor Code section 511):

• The employer must identify a group of employees, such as a shift, department, or physical location that will be impacted by the schedule change.

• The employer must disclose to those employees in writing how the alterative schedule will impact their wages, benefits, hours, and any other working conditions.

• The employer must schedule meetings and give notice to employees that they can attend and ask questions about the alternative schedule. Any employees who do not attend the meetings must get written notice of the proposed schedule and the disclosure sent to their home.

• The employer must hold a secret-ballot election at least 14 days after the meetings to allow the employees to vote on the schedule. It must be approved by at least 2/3 of the employees who will be impacted by the schedule change. The employer must notify the Division of Labor Statistics and Research of the outcome of the election within 30 days.

• The schedule cannot be implemented until at least 30 days after the employees vote to approve the change.

• Any employees who cannot work the new schedule must be accommodated.

Generally, an alternative work schedule cannot exceed 10 hours per day. If an employer wants to have a 12 hour per day work schedule, the employees must be paid an overtime rate for any hours in excess of 10 per day. There is an exception for healthcare employees who work for a healthcare provider.

There are some other things that an employer should consider when implementing a 12 hour work day:

• Eligibility for employee benefits may change if the total hours worked per week is fewer than 40.

• If an employee works more than 12 hours a day, the employer needs to pay them double time.

• Employees rate of pay cannot be reduced as a result of the implementation of an alternative work schedule.

• Employees may have restrictions on their ability to work the new alternative schedule because of religious observance. These employees must be accommodated.

Because this is a complex area of law, an employer should seek legal advice before attempting to implement any changes in their regular work schedule.

Question: What are the record retention requirements for background checks ran on applicants?

Answer: Whether or not an employer maintains its personnel records electronically, the Company’s recordkeeping system should take into consideration, and comply with, applicable federal and state document retention requirements. Minimum record retention periods span from an average of one to eight years for most employment records.  Document retention programs should be structured so as to comply with statutory mandates.

With this understanding in mind, the retention period for background checks should be five years.  A period of three years could be used as a minimum for the majority of the documents, but a five-year threshold creates a better, uniform benchmark. 

In addition, whenever the Company reasonably anticipates litigation, it is required to suspend its routine document destruction procedures and put a “litigation hold” in place to ensure the preservation of relevant evidence.

In light of the new rules regarding electronic discovery, an employer that retains personnel files and/or other employment records electronically should address a variety of issues including how and in what format the records are to be created, saved, retrieved, archived and destroyed. In addition, the employer should consider whether personnel records are backed-up on the network and whether procedures are in place to prevent the inadvertent destruction of personnel records in cases where a litigation hold is in place. When storing records electronically, it is important to be mindful of employee privacy concerns. Access to employee records should be limited to employees who have a bona fide reason and need to access those records. In addition, the Company should continue to separate Form I-9s, medical information, background check reports, and investigation records from other documents maintained in employee personnel files.

Question: Can an employer require an exempt employee to use his or her PTO (“paid time off”) or go without pay for full-day absences resulting from jury duty?

Answer: Generally, no.  All employees are permitted to take time off for each full or partial working day they serve on jury duty.  Unless they do not perform any work for the company during an entire week, exempt employees must be paid their regular salary during the time they serve on jury duty.  Consequently, if an exempt employee performs any work during the week, his or her employer cannot require the use of PTO or unpaid time off without risk of losing the exemption and being liable for overtime pay.   If an exempt employee performs no work for the company during an entire week, the use of PTO or unpaid time off may be appropriate at the employee’s election so long is it is consistent with the company’s policies and practices.  However, because the employee may be performing work without the employer’s knowledge, e.g., after hours, from home and/or with the use of a handheld device, there remains a risk in not paying the employee his or her regular salary.  Employers should also consult their own employee handbooks to determine whether the company provides for paid jury duty leave even when the employee does not perform any work during an entire week.

Question: Can a non-exempt employee choose to work through his or her 10-minute rest period.

Answer: Yes, but it is not a good idea.  Employers must “authorize and permit” non-exempt employees to take one paid ten-minute rest period for every four hours worked.  While the duty to provide rest periods is somewhat less stringent than the duty to provide meal periods, the same penalties apply.  Because an employee who chooses to skip his or her rest period may view the voluntary waiver differently in litigation, it is a good idea to require rest periods.  To further minimize the risk of litigation, employers should include a rest period acknowledgement statement with each timecard or timesheet, indicating that the employee was permitted to take all authorized rest periods on each work day for the requisite period of time.  In the event an employee misses a rest period, the employer should consider paying the employee the one-hour wage premium set forth under Labor Code section 226.7.

Question: Is it mandatory for employers to provide terminated employees with a document from the unemployment office to satisfy the unemployment insurance code, section 1089. What is required that the company provide?

Answer: Under section 1089 of the Unemployment Insurance Code, employers must post and maintain in places readily accessible to employees any documents concerning benefits. This includes the EDD's form "For Your Benefit" (DE-2320) and a "change-in-status" form. Here is a link to the EDD 2320 form: http://www.edd.ca.gov/uirep/de2320.pdf. An employer may prepare its own "change-in-status" form, which must include the following: (1) the employer's name; (2) the employee's name; (3) the employee's Social Security number; (4) whether the action was a discharge, layoff, leave of absence or change in status from employee to independent contractor; and (5) the effective date of the action.

Question: Is an employer required to reimburse a work from home employee (with a mail stop at a SAC branch) for travel to the corporate office in the South Bay?

Answer: Assuming the employee is non-exempt, it appears from your question that the employee's regular place of work is home. If that is the case, the general rule is that the employee must be paid for any time traveling on behalf of your organization away from home. There is no "commute" time in this example, because the employee regularly works at home. In other words, you would treat this situation that same as if the employee worked in an office regularly (instead of home) and was required to travel to the corporate office.

Question: We are considering hiring a person who informs us that he has a severe peanut allergy. During the final interview process, he stated that he requires a "peanut-product free" work environment. This is a well-qualified individual and would be a good addition to our staff. As a privately held company, are we required to ban peanuts and peanut products from an employee work area to accommodate one employee? Can we legally consider not hiring this person based on the peanut allergy needs? In addition, what medical documentation are we allowed to require?

Answer: The question here is whether it is "reasonable" to provide a "peanut-product free" working environment. Under California's Fair Employment and Housing Act, all employers (public and private) must provide a reasonable accommodation to applicants or employees with disabilities. Assuming the applicant has a qualifying disability (which he almost certainly does), then the question becomes what steps must be taken to provide the peanut-product free environment. You should engage in an interactive process with the applicant to find out if this simply means telling other employees not to bring peanuts to work, or if more will be required. Part of the interactive process would be obtaining documentation from the applicant's medical provider regarding what accommodation is medically necessary. You would not be entitled to any information regarding the applicant's medical diagnosis, but simply what is required in terms of accommodation. Once you determine what will be required, then you can decide whether doing so would impose an "undue hardship" (i.e., be unreasonable). For most work environments, creating a peanut-product free environment will not be an undue hardship. However, it would be a good idea to consult with your legal counsel to ensure you properly analyze the issue.

Question: Can an owner of a privately held company inquire about medical information regarding employees or family of employees without breaking HIPAA or Privacy laws? Part of our medical plan is self-insured, so I believe that makes us a "covered entity".

Answer: There are various laws that may be implicated by your question. First, it is important to understand there is no universal privacy rule, even for sensitive medical information. Generally, however, employers have limited rights to inquire into the medical conditions of employees and/or their families. For instance, the California Family Rights Act allows employers to obtain a medical certification of an employee's (or the employee's family member's) "serious health condition," but not the actual medical diagnosis. Similarly, the California Confidentiality of Medical Information Act, among other things, restricts the release of certain medical information without an appropriate release. HIPAA provides some limited privacy protections. But, HIPAA only applies to
"covered entities," that is, health care providers, health plans, and what HIPAA calls "health care clearinghouses" (those that transmit payment information electronically). HIPAA only covers employers in a very limited way. Employers may, for example, receive limited medical information when setting group health premiums. Without more specific details about the medical information to which you are referring, we cannot provide any more clear guidance. For this reason, we strongly suggest you contact an attorney with experience in this area.

Question: I have a client who's building is under construction. Because of the construction, several of the employee parking lots are closed. Is there is a law/regulation which states whether the employer can charge their employees for parking, even if they don't have to pay the property management company for the use of this parking lot?

Answer: Under the Labor Code, employees are responsible for their own costs of commuting, including parking. The employer can charge employees for the parking or offer it free as a fringe benefit (which could result in a tax liability to the employee). Whether the employer pays the property management company for the use of the parking lot is irrelevant.

Question: Is severance pay tax as regular income or is it taxed higher like bonus
pay?

Answer: Severance pay is taxed as income at the same rate as other income. It appears your question may pertain to withholdings because a lump sum severance payment may be subject to significant withholdings because most payroll programs assume that the severance sum is annualized when paid in one period. There are payroll systems that can be adjusted to withhold based on the assumption that the severance is a one-time payment. However, the legalities of this practice are something that a tax lawyer or CPA should address.

Question: We have made an offer to a candidate who accepted our position and is looking to start in one month.  They informed my yesterday they will be having surgery for carpal tunnel syndrome next week but it should not effect their start date.  This was not disclosed prior to the making and accepting on the offer.  Do I need to document a pre-existing condition if there is potential that this could have an effect on the duties of the position?

Answer: Yes, you may document the new employee's description of her condition and surgery, but without comment. An employer may not discriminate against employees if they have a disability as defined by state and federal law. Do not file the document in her personnel file. You must maintain a separate confidential medical file, accessible to only those on a need to know basis.  This is to fulfill an employer's duty to protect the medical privacy rights of the employee.

At this point, you may not know if she has a disability. However, I have seen cases where similar comments were made and the employer had a duty to ensure it met is anti-discrimination requirements. To be conservative, before she commences work, you are permitted to obtain the employee's health care giver's opinion of whether or not she has any work place limitations and/or a release to commence work. An employer may not speculate or stereotype that the employee cannot perform the work.

An employer may not require that the employee be 100% released to perform the essential functions of her job. An employer must reasonably accommodate someone with a known disability to perform the essential functions of his or her job. The employee must be qualified to perform the essential functions of the job, either with or without an accommodation.  The health care giver would need to tell you if she has a disability under the California and Federal standard, and have information of her essential job duties (i.e., job description). Our firm has forms describing these definitions.

A job description that identifies the essential work functions (reason why the job exists) in terms of essential duties is important to provide to the health care giver to analyze any work place limitations. The job descriptions should include physical duties and estimated time of such, like 60% typing, and other considerations that consist of the majority of the work performed. For instance if you are a small organization, reliability and dependability may be an essential job functions. If others can do the job, or the job is a minor duty, then you must accommodate the minor functions she cannot perform.

This is only a brief statement of some of the issues, as there are a myriad of issues depending on the facts, and situation.

Question: We use “key cards” to enter and exit the building we work in. Is it legal to charge employees a deposit for their first card, and any replacement cards, if we refund the money when employment ends?

Answer: No, it is not legal to charge employees a deposit for the key cards. Employees cannot be charged for tools, equipment, supplies or similar items necessary to perform their jobs, except in rare circumstances. In addition, employers may not charge employees for replacement cards if the loss was unintentional or the result of simple negligence. To recover the cost of replacement, an employer would have to show the employee intentionally lost or destroyed the card, or that the loss was the result of gross negligence. However, even in such cases as intentional or gross negligence, an employer may not deduct the cost of replacement from an employee’s paycheck. Alternatively, an employer may discipline an employee for failing to properly maintain and secure property belonging to the employer.

Question: We have an employee who has returned to work on light duty after a work-related accident. The employee still needs to attend medical appointments related to his injury. Are we required to pay him for the time he is absent due to the medical appointments?

Answer: No. Employees who are still recovering from an industrial injury may be entitled to receive temporary disability payments, which are intended to provide compensation for any wage loss occasioned by the industrial injury. The employer does not have any obligation to pay for time lost due to medical appointments related to the workplace injury.

In addition, employees who have reached maximum medical improvement are not entitled to payment by the employer for time lost because of continuing medical appointments due to the industrial injury. However, if the employee attends a medical appointment at the employer’s request or at the request of the workers’ compensation administrator or carrier, the employee may be entitled to a temporary disability indemnity payment.

Question: Is there a problem with changing someone's schedule while they are out on maternity leave? We have a part-time individual that was working a daytime schedule when she went on maternity leave, but upon returning to work we need to change her schedule to a night shift.

Answer: Under California law, an employee returning from pregnancy disability leave must be reinstated to the same position as she held prior to the leave absent extraordinary circumstances. Changing the employee from day shift to night shift is a significant change in schedule. If she is the only employee affected, she could have a valid discrimination claim. The best practice in this circumstance would be to evaluate carefully why the company wants to change the employee's schedule and determine if there are any alternatives to doing so.

Question: Is there a restriction on the number of consecutive work days an exempt sales consultant may work? Ex: The consultant, a direct employee, works 9 days with 5 days off.

Answer: If the employee is "exempt" (i.e., the employee is exempt from overtime and/or applicable minimum wage requirements), then there generally are no limitations on the employee's work schedule.

Many employers misclassify their employees as exempt, however. They assume that because an employee earns a significant salary or is important to the organization, the employee must be exempt.

Specific requirements must be satisfied before an employee may be properly classified as exempt. This includes the "salary basis" test, under which an exempt employee must be paid a fixed salary equal to at least two times the applicable minimum wage (this does not apply to the outside sales exemption) and a "duties" test, which requires the employee to exercise independent judgment and discretion in the exercise of his/her duties.

Question: We will be laying people off this week. We have a minimum of 3 people over 40 that will be let go and several under 40 that will be let go. Age has nothing to do with the lay-off, it is a business decision. I need to know when we cross the line into potential discrimination?

Answer: When an employer lays off employees, there is always a risk that one or more employees will feel they were unfairly targeted for termination. While there is no foolproof way to avoid such claims, the safest approach is to identify objective criteria for the layoff, such as length of service. An employer that strictly adheres to objective criteria will be better able to defend against a discrimination complaint, whether based on age or any other protected characteristic.

On the other hand, an employer that uses more subjective criteria in determining which employees should be subject to a reduction-in-force, such as performance evaluation scores, for example, may have a more difficult time establishing the legitimate business reason for terminating one employee over another.

There are various other legal issues to consider with layoffs, including whether the employer will offer separation pay, whether employees will be required to sign releases to receive separation pay, and how to handle employee benefits, just to name a few. For that reason, it is important to work with experienced legal counsel on such matters.

Question: How will the minimum wage increase affect my exempt employees?

Answer: Effective January 1, 2007, California’s minimum wage will increase from $6.75 per hour to $7.50 per hour.  In addition to other changes, this increase will affect employer obligations for employees subject to California’s “white collar” exemptions, e.g., the executive, administrative and professional exemptions.  To qualify for these exemptions, employees must perform specific duties.  In addition, they must receive a minimum salary of at least two times the minimum wage.  Thus, beginning January 1, 2007, the minimum salary for “white collar” exempt employees will increase from $28,080 per year to $31,200 per year ($7.50 x 40 hours x 52 weeks x 2).  The minimum wage increase will also affect the salaries of employees subject to the inside sales exemption.  In addition to specific duty requirements, those employees must earn a salary of at least 1.5 times the state minimum wage, or $23,400 per year.

Employers should also be aware that California’s minimum wage will increase again on January 1, 2008, from $7.50 per hour to $8.00 per hour.  As a result, minimum salaries for exempt employees will also increase at that time.

Question: Have there been recent changes in legislation regarding online recruiting?

Answer: Yes.  The Office of Federal Contract Compliance Programs (“OFCCP”), which is the part of the Department of Labor responsible for regulating federal contractors (i.e., employers who do business with the federal government), recently issued a final rule regarding Internet Applicants.  This rule, which became effective February 6, 2006, addresses recordkeeping by federal contractors and subcontractors regarding the Internet hiring process and the solicitation of race, gender, and ethnicity of “Internet Applicants.”  It changes existing rules in three significant ways.

First, the rule defines an “Internet Applicant” (i.e., a job seeker applying for work through the Internet or related electronic data technologies from whom contractors must solicit demographic information) as any individual who satisfies the following four criteria: (1) the individual submits an expression of interest in employment through the Internet or related electronic data technologies; (2) the contractor considers the individual for employment in a particular position; (3) the individual’s expression of interest indicates the individual possesses the basic qualifications for the position; and (4) the individual at no point in the contractor’s selection process prior to receiving an offer of employment from the contractor, removes himself or herself from further consideration or otherwise indicates that he or she is no longer interested in the position.  Second, it prescribes the records contractors must maintain about hiring done through use of the Internet or related electronic data technologies.  Finally, it explains the records OFCCP will require contractors to produce when evaluating whether a contractor has maintained information and conducted an adverse impact analysis pursuant to the Uniform Guidelines on Employee Selection Procedures.

Additional information regarding the OFCCP’s final rule for federal contractors may be found at the U.S. Department of Labor’s Web site: www.dol.gov.

Question: Are California employers required to pay exempt employees during jury duty leave?

Answer: Yes.  California employees are entitled to take time off to serve on a jury so long as they provide their employers with reasonable notice of the need for leave prior to taking the time off.  Employers are not required to pay non-exempt employees for this leave, although employees are entitled to use accrued vacation during this time.  Conversely, employers are required to pay an exempt employee his or her regular salary during the time the employee performs jury duty unless the employee does not perform any work for the employer during an entire week.  Nonetheless, an employer may offset jury fees against an exempt employee’s regular salary without losing the exemption.

Question: If an exempt employee has not yet accrued vacation, but wants to take a personal day off, can the employer deduct from the employee’s salary? Can the employer treat the absence as a debit against the employee’s vacation and deduct from the employee’s final paycheck if he/she leaves before bringing the vacation account back to zero?

Answer: The general rule is that exempt employees must receive their full salary for any week in which they perform any work.  However, deductions may be made from an exempt employee’s salary in limited circumstances, so long as the employee’s salary does not fall below the minimum monthly salary required for the exemption.  (For most exemptions, an employee’s salary must be at least two times the minimum wage.  This value currently amounts to $28,080 per year.  However, California’s minimum wage will be increasing effective January 1, 2007 and again on January 1, 2008.)  One such instance occurs when an employee is absent from work for one or more full days for personal reasons other than sickness or disability.  This exception only applies if the employee performed no work that day.  Thus, if an employee is absent for two full days to handle personal affairs, the employee’s exempt status will not be affected if deductions are made from the employee’s salary for two full-day absences.

As an alternative, an employer may deduct hours from an exempt employee’s vacation account.  If an employee has not yet accrued enough vacation hours at the time he or she is absent, the employer may allow the employee to take an advance on his or her vacation account.  In this situation, the employer should obtain written authorization from the employee in order to deduct the advance from the employee’s final pay check if he or she does not accrue enough vacation to replace the advanced hours.  Without the prior, written authorization, the employer will be unable to deduct this value from the employee’s final pay check.

Question: Can an employer deduct from an exempt employee’s vacation or PTO account for partial day absences?

Answer: Yes, for absences of four or more hours.  Prior to 2005, the Division of Labor Standards Enforcement (“DLSE”) took the position that, because California law considers accrued vacation time to be vested wages, employers could not make deductions from an exempt employee’s accrued vacation or PTO account for partial-day absences.  However, in July 2005, a California court rejected the DLSE interpretation in Conley v. PG&E (2005) 131 Cal. App. 4th 260.  According to the court, under partial-day absence policies, “exempt employees do in fact receive all of the paid time off they have earned — they must simply use that accrued vacation time to make up for partial-day absences.”  Thus, all these policies do is “regulate the timing of exempt employees’ use of their vacation time, by requiring them to use it when they want or need to be absent from work for four or more hours in a single day.”  As a result, California employers may now deduct time from an exempt employee’s vacation or PTO account for partial-day absences.

However, there are a few caveats to the Conley decision.  First, an employer still cannot deduct from an exempt employee’s salary for partial-day absences even when no vacation or PTO leave is available.  Second, Conley specifically defined the term “partial-day absence” to exclude absences of less than four hours in one day.  Thus, while this is still subject to some debate, it appears that the DSLE interpretation remains in effect for absences amounting to less than four hours per day and, therefore, vacation and PTO cannot be deducted for those absences.

Question: We have employees who drive from Home to their first appointment each day using their own vehicles. They then drive home from their final appointment each day. The locations of their 1st/last appointments are different each day. A location can be one mile from home or 50 miles from their home. What, if any, travel time is an employer required to pay for travel time to and from home since there is no "normal" commuting time.  What if they are required to be available by cell phone while driving?

Answer: There is no simple answer to this question. An employer’s obligation to pay for travel time will vary from employer to employer based on the specific facts of each situation.

Under the basic definition set out in all of the Industrial Welfare Commission Wage Orders, “hours worked” means the time during which an employee is subject to the control of an employer, and includes all of the time the employee is permitted or suffered to work, whether or not required to do so.

The general rule for commuting is that travel time by employees traveling between home and work is not counted as “hours worked.” This is true whether the work is at a fixed location or at different job sites “within a community.” When an employer instructs an employee to travel more than a reasonable commuting distance in reporting to a job site, the hours in excess of “reasonable commuting time” may be counted as hours worked.

The Labor Commissioner has indicated that travel time to a job site within a “reasonable proximity” of an employee’s regular work site is not compensable. The term “reasonable proximity” was defined in light of several factors: 1) the nature of the employment; 2) the type of industry, and, if available, evidence of any industry standard); 3) the terms of any agreement between the parties and whether those terms are reasonable; and, 4) the rate of pay involved.

If an employee is required to be available by cell phone, whether or not engaged in travel, it may be considered hours worked if it is considered “controlled standby.” Again, the determination must be made on a case-by-case base and is highly fact specific.

QUESTION: I would like to know if two very different companies would be considered as one Company under FMLA guidelines if they are both divisions of one parent company.  Under current FMLA regulations a company with less than 50 employees is not required to grant FMLA; however, if they have another facility within 75 miles that has more than 50 employees, then both are subject to FMLA law.   One filter manufacturer, located in South Sacramento, has 22 employees, is named PUROLATOR Advanced Filter Group, Inc, dba Filter Products, Inc (FPI) and produces filters for wineries, breweries and pharmaceutical companies. The other filter manufacturer, CLARCOR Air Filtration Products, Inc., (CLC Air) dba PUROLATOR, is located in North Sacramento, has 100 employees and produces filters for commercial and residential use.  Both of these companies are separate divisions of our parent company, CLARCOR, Inc.   Under agreement at CLARCOR, Inc.'s Corporate Headquarters, I am the HR Supervisor at the North Sacramento Plant and provide "unofficial", though regular assistance to the other Company for HR related matters.

In the past, FPI has never granted FMLA leave.  I have only recently begun to provide HR service at FPI and am currently auditing HR policies, procedures, and administrative practices.  In the process, I discovered that the FMLA policy may need further scrutiny and possibly updating.  For obvious business reasons, we do not want to grant FMLA leave if we can avoid it; however, we do want to be in compliance with extant regulations and avoid any future liability that we may have, if in the future, a disaffected employee contests our decision not to grant FMLA, PDL or other CFRA leaves. I have read the relevant regulations and still have questions. I have no access to any precedent-setting legislation that would specifically define the parameters for a completely separate company.  After reading the Department of Labor's Single Enterprise definitions it seems that they are subject to interpretation and I believe a case could be argued either way in our situation.  Could you please help me with this one?

ANSWER: As stated in your question, employers are only required to comply with the FMLA if they employ 50 or more employees within a 75 miles area. The definition of employer, however, may be expanded to include multiple entities under the "joint" or "integrated" employer analyses.  In those situations, the employees of all entities will be counted in determining employer coverage and employee eligibility under the FMLA.

Based on the information provided, it does not appear that the "joint employer" analysis applies to your situation.  That analysis is generally only applicable where one employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek.  However, the "integrated employer" analysis may apply.  To determine whether two entities are integrated, courts examine the following factors: (1) common management, (2) interrelation between operations, (3) centralized control of labor relations, and (4) degree of common ownership/financial control.  See 29 C.F.R. § 825.104(c)(2).  Although all four factors must be considered, courts place more emphasis on control of labor relations.  Integrated employment has been found where a parent company and subsidiary: shared the same officers and nearly identical directors; stated a similar corporate purpose; had their principal places of business or corporate headquarters at the same address; used the same registered agent; and allowed employees to transfer between the two entities. 

QUESTION: I have an employee who is a service technician (making multiple service calls in a day).  He is provided with a company vehicle which he takes home every day to enable him to make emergency repair calls and also leave directly from his home to service calls.  Must we pay this employee drive time for driving between calls?

ANSWER: California law requires employees to be paid for all hours worked.  Your question seems to be focused on whether drive time from one call to another must be compensated (as opposed to time spent "commuting" from home to the first call).  The short answer is generally "yes."  The central issue is whether the employee is "subject to the control" of the employer.   It does not make any difference whether employees are traveling in company-owned vehicles.   You should note there are some interesting issues involving commute time, depending on whether the employees work at a fixed location or travel to different locations.  

QUESTION: Is it legal to ask applicants (on an application) if they have ever been fired or asked to resign from a position?

ANSWER: Employers may legitimately inquire as to whether an applicant has been fired or asked to resign from a prior position so long as all candidates for a particular position are included in the inquiry, and the employer is consistent in its consideration of the applicants' responses to the inquiry.

QUESTION: My position has been dissolved, throughout the company worldwide. They told me I have two choices, (1) demotion with a pay cut or (2) quit. Is that legal and do I have any other options? I can’t afford to take a pay cut.

ANSWER: Under California law, if you are an "at-will" employee (that is, you do not have an employment contract), the company generally can change the terms and conditions of your employment with or without notice, and with or without a reason, at any time. Based on the facts you have provided, if you do not accept the demotion and accompanying pay cut, you are effectively resigning from the organization.  You may be eligible for unemployment insurance benefits, however, depending on the situation.

QUESTION: Under California Law, please explain the different between salaried "non-exempt" and salaried "exempt" employees. 

ANSWER: The method of payment, either hourly or salary, has no bearing upon whether employees are properly classified as exempt or non-exempt employees.  The appropriate method of classifying employees requires an in-depth analysis of the actual job duties performed by the employee.  Employers bear stiff penalties for misclassification of employees as exempt, including back payment of overtime and penalties for missed meal and rest breaks.  Employers are advised to consult with legal counsel before classifying employees as exempt.

QUESTION: Are you able to dock the pay of a salaried exempt employee? What if the exempt employee has no/not accrued sick/vacation or PTO? 

ANSWER: The general theory behind exempt employees is that they work at a higher level than non-exempt employees and use their judgment to determine the hours required to get the job done.  That said, employers may experience situations in which it appears that an exempt employee is taking advantage of their exempt status by absenting themselves from work on a regular basis without reporting any sick, vacation or PTO time.  A new case Conley v. PG&E specifically addressed this question.  In the case, PG&E engaged in a practice of deducting from exempt employee's PTO balances for absences of four hours or more.  The employee challenged the deductions arguing that he was losing a "vested right" in his accrued PTO.  The Court of Appeal found that PG&E's policy did not violate California's salary basis test because PG&E employees were not forced to forfeit any vested rights, rather it merely regulates the timing of exempt employees' use of their PTO by requiring them to use it when they want or need to be absent from work for four hours or more in a single day.  If an employee has no vacation or PTO balance and performs no work during the day, a deduction may be made for an entire day.  Deductions may not be made for poor performance.  Finally, employers may make deductions from salary and/or benefits (sick leave) for hours taken as intermittent or reduced family leave, without affecting the exempt status of the employee.

QUESTION: What can a company do if an employee either damages or loses tools that have been issued?

ANSWER: This is impacting production schedules when an employee does not have tools necessary to perform their job.  An employer that requires specific tools or equipment to enable an employee to perform their job, must provide (pay for) the items and pay to maintain them.  No deductions may be made from an employee's wages for normal wear and tear on tools or equipment.  Employees whose wages are at least two times the minimum wage may be required to provide and maintain hand tools and equipment customarily required by their trade or craft.  (See section 9 of the wage orders and compliance provisions of the California Labor Code beginning at section 400.  These provisions are extremely onerous and exclude power tools.)  This provision, however, does not apply to apprentices or protective equipment and safety devices.  With a signed written authorization employers may deduct from an employee's current paycheck for lost or unreturned equipment.  With a second signed written authorization, employers may deduct from an employee's final paycheck for lost or unreturned equipment.  No deductions may be made at any time for normal wear and tear. 

QUESTION: If a company has 550 employees, at what point do obligations under the
WARN Act apply in case of a lay-off?

ANSWER: By way of background, the federal Worker Adjustment and Retraining Notification Act ("WARN") requires covered employers planning a "plant closing" or a "mass layoff" to provide affected employees and specified government agencies at least 60 days written notice. An employer under the federal WARN Act is defined as any business enterprise that employs: (a) 100 or more full-time employees; or (b) 100 or more employees who in the aggregate work at least 4,000 hours per week. "Plant closing" is defined as a permanent or temporary shutdown of a single site of employment or one or more facilities or operating units within a single site of employment if the shutdown results in an employment loss for 50 or more employees during any 30-day period. A "mass layoff" is defined as a workforce reduction that is not the result of a "plant closing" and results in an employment loss at a single site of employment during any 30-day period for: (a) at least 500 employees; or (b) at least 33% of the total employees at the site who comprise at least 50 employees.

California employers must also comply with the provisions of the California WARN Act. Under the California Warn Act, covered employers must provide all affected employees and specified government agencies at least 60 days notice of a "mass layoff", "relocation" or "termination".  The California WARN act applies to any person or business entity that owns and operates a covered establishment, which is any industrial or commercial facility that employed 75 persons or more persons within the past 12 months. Under the California Warn Act, "mass layoff" is defined as a layoff of 50 or more employees during any 30-day period due to lack of work or funds. "Relocation" is defined as removal of all or substantially all of the employer's industrial or commercial operations at a covered establishment to a different location at least 100 miles away. "Termination" is defined as a cessation or substantial cessation of industrial or commercial operation in a covered establishment.

Since the California WARN Act is different in some material respects from the federal WARN Act, employers should carefully review both acts for a full understanding of the notification requirements. Employer liability for violation of WARN (State or Federal) can be substantial.

QUESTION: AFFIDAVIT Forms

ANSWER: An affidavit is a written statement under oath. It is one of several ways to take the testimony of a witness or party. The other two methods are by deposition and by oral examination in the presence of the court. An affidavit form can be tailored for the user's needs.

QUESTION: What are the potential liability issues around company cellular telephone with cameras? More and more company are offering the next generation of camera cellular telephone and we may be forced in accepting these type of cellular telephone in our workplace. How are companies protecting potential liability (taking pictures of confidential information at work, customer, vendor, or competitor locations)? Can a company require its employees to sign a release or have a writing policies around the use of camera phones both from the authorized expense and security / liability perspective? Is there something more that should be considered in this type of release?

ANSWER: Excellent question. With the advancement of cell phone technology, not only is a release and/or policy permitted, but all employers should consider adding such a policy in order to protect confidential information.

QUESTION: I realize that an employer can not discriminate against an applicant for prior worker's comp claims; however, can you request that information on a employment application?

ANSWER: No. This would be an illegal inquiry and an employer should not attempt to inquire into this information from an applicant or any of the applicant's referral sources.

QUESTION: "Make-Up" time, is it the law that a) the time must be approved in advance, and b) that the authorization form must also be signed by the employee's supervisor in advance? What has occurred in our organization is that the employee has either forgotten or neglected to obtain the necessary paperwork ahead of time. When the timesheet gets to payroll, the employee then 'checks with the supervisor' who approves it at that time.

ANSWER: The employee does not have to submit the written request before the time is missed, but must submit the request before the makeup time is worked. If the company does not police this, then it may be held liable for overtime on the day the makeup time is worked, to the extent the employee works more than 8 hours in one day, or 40 in a week.

I suggest that the company develop (and follow!) a clear policy on makeup time that mandates submission and approval of the makeup time request before the makeup time is worked. If the employee fails to comply, then he or she should be disciplined in accordance with company policy. It is similar to the situation where an employee fails to seek authorization to work overtime, and works it anyway. The overtime must be paid, but the company can discipline the employee for failing to comply with company overtime policy.

It should also be noted that the employer always has the right to refuse to permit the makeup time. Therefore, the employer may place conditions on the use of makeup time(such as the timely submission of a request), and is perfectly within its rights to refuse approval of the time where the employee fails to comply with the conditions of the program.

QUESTION: A long term (30 year plus) white male employee over the age of 50 requested FMLA for a severe personal medical issue. At the end of his FMLA eligibility, he was not able to return to work and his position was filled. At this time, he is unsure if and when he will be able to return, but expects to be placed by the Company. Is the Company legally required to accommodate him upon his readiness to return? What does the ADA say about this situation? The time lapse between the end of his FMLA eligibility and his return could be more than six months.

ANSWER: If the employee qualifies as being disabled under either federal (ADA) or state (FEHA) law, then the Company is required to engage in the interactive process with the employee to see whether a reasonable accommodation is possible. Your question asks what the Company must do, if anything, to accommodate the employee upon his readiness to return. The Company, however, is missing an important point -- if the employee is disabled, then the Company must engage in the interactive process now. So, the real question seems to be whether granting additional leave to this employee is a reasonable accommodation.

The EEOC takes the position, and most courts agree, that granting additional unpaid leave is a form of reasonable accommodation if the employee expects to return to work. For example, EEOC's Enforcement Guidance opines that an "employer must modify its 'no-fault' leave policy" to provide additional leave unless another accommodation "would enable the person to perform the essential function of his/her position" or "additional leave would cause an undue hardship." Note, however, that the courts consistently have ruled that employers are not required to grant indefinite leave (i.e., open-ended leave with no expected return date).

This begs the question, how much additional leave must the employer grant? Unfortunately, there is no bright-line answer. Because the ADA/FEHA require an interactive process between the employer and employee, employers must analyze the issue on a case-by-case basis, taking the employee's particular circumstances into consideration. We strongly recommend that you involve your outside counsel at this stage of the interactive process, as experienced counsel will be able to help you avoid the many traps for the unwary. (Generally speaking, for most employers, granting additional unpaid leave time between 30 to 180 days will be sufficient.)

As for accommodating the employee upon his return, the ADA provides that the employer must allow the employee to return to the same position (assuming that there was no undue hardship in holding it open) if the employee is still qualified (i.e., the employee can perform the essential functions of the position with or without reasonable accommodation). If it is an undue hardship to hold open an employee's position during a period of leave, or an employee is no longer qualified to return to his/her original position, then the employer must reassign the employee (absent undue hardship) to a vacant position for which s/he is qualified.

Disclaimer: This question and answer feature is not intended for seeking or obtaining legal advice. Any information appearing on this Web site in response to submitted questions is intended for general informational purposes only. SAHRA does not advocate, endorse or otherwise encourage you to take any particular employment action, to adopt any particular practice, to revise any HR programs, or to rely in any manner whatsoever based in whole or even in part upon information contained on this Web site. You should ALWAYS contact competent legal counsel prior to acting on any information discussed here. Information here should not be construed as legal advice, nor should it be used to resolve legal problems.

Top

Sacramento Area Human Resource Association
950 Glenn Drive, Suite 150
Folsom, CA 95630
Phone: 916-451-9031
Fax: 916-451-9150
E-mail: info@sahra.org