Archive | CA Employment Laws RSS feed for this section

Discrimination Protection extended to those “affiliated” with an employee

27 May

As disability discrimination and accommodation claims continue to rise across the country, an appellate court in California may have just helped significantly expand such claims in the future by finding that an employee can maintain a suit for “associational” disability discrimination based on the disability of his son. Castro Ramirez vs. Dependable Highway Express Inc. California Court of Appeals, 2nd District issues April 4, 2016.

The key facts are as follows: The employer knew the employee’s son required a daily dialysis treatment that only the employee could administer. For several years, the employer scheduled the employee so that he could be home at night in time for the dialysis. However, that schedule accommodation changed when a new supervisor took over. The employee was ultimately terminated for refusing to work a shift that would have prevented him from performing his son’s dialysis on time. The appellate court held that the employee could pursue his claims for disability discrimination, failure to prevent discrimination, and retaliation in violation of the California Fair Employment and Housing Act (FEHA), as well as wrongful termination in violation of public policy.

In reaching this conclusion, the court confirmed that under both the California FEHA and the federal Americans with Disabilities Act (ADA), an employee may bring a claim for associational disability discrimination if an adverse employment action was substantially motivated because of an employee’s association with someone who has a disability. The court further expanded the law by holding that the California FEHA also creates a duty to provide reasonable accommodations to an employee who is associated with a disabled person (even though no such duty exists under the federal ADA).

Applying this law to the case at hand, the court found that it can be reasonably inferred that the employer (through its new supervisor) acted proactively to terminate the employee in order to avoid the inconvenience and distraction related to employee’s need to care for his disabled son. The court also stated that the employer stated reason for the termination – employee’s refusal to work the assigned shift – was a pretext because employer’s policies allowed for less severe discipline under such circumstances and because a customer had specifically asked the employee to work an earlier shift (such that there was no legitimate reason for assigning employee to a later shift).

This case presents yet another example of the many nuances that exist with disability discrimination cases. Furthermore, although this decision was technically based upon California law, the conclusions were reached by mostly interpreting federal law. Therefore, many of the concepts raised in this case could apply across the country. As always, it is a good idea to seek legal assistance whenever uncertainty exists related to any disability or accommodation issues

 

INTRODUCTION

When addressing the needs of applicants or employees with disabilities, California employers must be careful to comply with two laws: (1) the federal Americans with Disabilities Act (ADA); and (2) the disability provisions of the California Fair Employment and Housing Act (FEHA). Because decisions relating to accommodation of disabilities are fact-intensive and must be made on a case-by-case basis, employers need to take care to ask questions and determine all of the facts of a situation, and in any difficult instance, consult an experienced human resources advisor or employment attorney, because a violation of an employee’s rights can be both costly and complicated.

WHICH EMPLOYERS ARE COVERED?

The ADA applies to all employers with 15 or more employees. The FEHA applies to employers with five or more employees. Part-time employees are included in determining whether an employer has the requisite number of employees to trigger coverage under these laws.

WHO IS DISABLED?

The key to compliance with the ADA and related FEHA provisions is to understand who is considered disabled. Under the ADA, disabled persons are those who have physical or mental impairments that substantially limit their ability to perform one or more major life activities, such as breathing, walking, working, seeing, hearing, performing manual tasks, caring for oneself, etc. In California, the definition of disability is much broader. People are considered disabled if they are limited in any way in performing a major life activity – they do not have to be substantially limited. People also are considered disabled if they have a history of such an impairment, such as a history of mental illness, or if they are regarded as having such an impairment, someone who is assumed to be disabled even if the assumption turns out to be wrong. . The ADA and FEHA also prohibit discrimination against individuals who are related to or associated with disabled individuals because of that relationship or disability.

When evaluating whether a California employee – or a person who is relying on them for care such as a child, spouse or other close family member and thus “associated” with them for FEHA protection – is limited in performing a major life activity, the employer must base that evaluation on the employee’s (or other person’s) condition without taking into account that person’s use of corrective medication or other corrective medical devices, such as glasses, prosthetics, etc. Because of California’s broad definition of disability, it is important for employers to understand that a large majority of California employees and those associated with them would likely qualify as disabled under state law, even though they would not be considered disabled under the ADA.

In general, any time an employee presents reports a medical need to be off of work, even if only for a few days, there is a reasonable chance that the employee will be considered “disabled” or affiliated with someone disabled and thereby invoking the protections of FEHA.

Advertisements

What are the chances you are in compliance with California employment and safety law?

7 Sep

There are over 44 Federal and California laws which apply to employers in our state. What are the chances you are in violation of one or more of these laws? What are the potential costs of such exposure?
We have some idea from the recent report of the Labor Enforcement Task Force, under the direction of the Department of Industrial Relations, which is a coalition of California State government enforcement agencies that work together and in partnership with local agencies to combat the underground economy. In this joint effort, information and resources are shared to ensure employees are paid properly and have safe work conditions and honest, law-abiding businesses have the opportunity for healthy competition.
ETF focuses on high-risk industries known to frequently abuse the rights of low wage workers such as:
• car wash,
• restaurant,
• manufacturing,
• roofing,
• construction,
• agricultural and
• auto repair businesses.

Members of LETF include:
• Division of Occupational Safety & Health (Cal/OSHA)
• Division of Labor Standards Enforcement (DLSE)
• Employment Development Department (EDD)
• Contractors State Licensing Board (CSLB)
• California Department of Insurance (CDI)
• Board of Equalization (BOE)
• State Attorney General (DOJ)
These groups as a task force last year inspected over 3,000 firms, and found violations of Cal/OSHA, improper classification of independent contractors who really were employees, wage and hour violations, improper rest and meal periods, etc.
Over 40 percent of businesses inspected are found to be out of compliance with all inspecting agencies. . Cal/OSHA inspected 2,495 firms and found 89% out of compliance, levying fines of $4.3 million. The Division of Labor Standards Enforcement inspected 2,858 firms and found 57% out of compliance and issued fines of $22.3 million. Employment Development Department inspected 3,019 firms and found 68% out of compliance and issued fines and tax penalties of $25.6 million. The average fine or penalty was $17, 000 per firm.
So, what are your chances of being out of compliance? Probably pretty good. You can improve your chances by working with a good human resources and safety consulting firm such as Don Dressler Consulting and CalWorkSafety.com. Check out our website at http://www.CalWorkSafety.com.

You Need to Review Exempt and Salaried Employee Status

7 Aug

A client this past week asked me to review the status of a salaried employee for compliance with the exempt or non-exempt rules of California and Federal law. As it turns out, this key employee is primarily a “doer” meaning a person who handles very important actions every day for the company, but has limited responsibilities which involve independent decision making and the exercise of discretion. Not only that, but in earning about $34,000, the person is on the borderline of earning enough to qualify as an exempt employee by the level of their income.
Certainly – by the first of 2016 – this person would earn too little to qualify as exempt from overtime under the new rules being planned by the US Department of Labor under changes announced to the Federal Fair Labor Standards Act. You may have read in the news that the income level under these planned FLSA changes will go to over $50,000 per year.
Salaried or not, exempt from over-time or not, these are big issues for employers in California and involve a lot of lawsuits and lots of money and potential damage claims. Now is the time for every employer to look at every single salaried employee and ask an employment attorney or wage and hour specialist – am I ok? Do it long before January 1, 2016 while you still have time to make changes and correct any problems.
Let us know at Don Dressler Consulting if you need assistance. Our team of HR consultants are here to help. Email us at dondressler1@hotmail.com

Q&A with Don Dressler – Changes in Notices Required for Newly-Hired Employees

7 Aug
Q: Have there been any changes in the pamphlets that all California employers are required to give newly-hired employees?

A: Yes – there have been changes by the EDD in the two pamphlets they issue, the Paid Family Leave material was revised in May 2015 and the State Disability material was revised in June 2015.

There are 4 leaflets required to be given to every new employee at the time they are hired or start work.  All are available for download from state agencies, or you can purchase copies of these materials from the California Chamber of Commerce.  Here are the latest versions of these required materials:

1. Paid Family Leave pamphlet (revised May, 2015) – Available at:

2. California Disability Insurance Provisions (Revised June 2015) Available at:

3. Sexual Harassment, the facts about sexual harassment (Revised 2014) Available at:

4. Time of Hire Pamphlet for Workers’ Compensation – from CA Department of Workers’ Compensation (Revised July 2014) (You can also obtain material from your workers’ compensation insurer.  If you use a Medical Provider Network, and should do so to maintain medical control over work injury claims, a separate notice and pamphlet are required, both available from your workers’ compensation insurer. )  Available at:

When an employee is going on sick leave or at termination, you should also provide:

For Your Benefit – California’s Programs for the Unemployed (last revised in 2013)

Available at: http://www.edd.ca.gov/pdf_pub_ctr/de2320.pdf

Please don’t hesitate to contact us at Don Dressler Consulting and CalWorkSafety.com for help with any employment law or safety compliance questions.

-Don Dressler

Update on Paid Family Leave Laws

25 Jun

We are 1 week away from California’s start of our new Paid Sick Leave Law, which applies to all employers. (July 1, 2015) If you still have not written a paid sick leave policy or modified your company’s previous sick leave or Paid Time Off policy – NOW is the time to do so. Send us an email and we can help. You also need to revise the written notice you provide all new hourly employees, and we strongly suggest you use the same type notice for newly hired salaried employees. Let us know if you need help with that notice as well. You can contact us by email at dondressler1@hotmail.com
Oregon has become the fourth state, after Connecticut, California, and Massachusetts, to mandate that employers provide their employees sick leave benefits. Subject to certain exceptions, Senate Bill 454, signed by Governor Kate Brown on June 22, 2015, applies to all private-sector employers, regardless of the location of the employer’s primary place of business. The law goes into effect January 1, 2016.
Under the new law, private employers throughout the state are required to implement sick time policies that meet or exceed the law’s minimum benefits. Employers with operations outside of Portland and who have at least 10 employees working in the state will be required to provide employees up to 40 hours of paid sick leave per year. Employers with Portland operations and who employ at least six employees anywhere in the state will similarly be required to provide up to 40 hours of paid sick leave benefits. The California law, by contrast, applies to all employers, even those with only 1 employee, but only requires a maximum of 24 hours (3 days) of paid sick leave a year.

Which Employment Laws Apply to You – in 2015?

28 Dec

Use the following chart as a guide to determine which labor laws apply to you based on the number of employees you have.

Law/ Requirement All Employers: 1 or more employees

Child Labor ✓
Disability Insurance ✓
Domestic Violence/Assault Victim Leave ✓
Employee Safety (Cal/OSHA-including written safety plan)✓
Fair Employment and Housing (FEHA) ✓
Immigration Reform and Control Act (IRCA-requires I 9 forms) ✓
Independent Contractors ✓
Jury Duty leave ✓
Military Service/USERRA ✓
New Employee Reporting ✓
Paid Family Leave ✓
Paid Sick Leave (effective July 1, 2015) ✓
Posters and Notices (including written notice at time of hire to hourly employees, notices or fliers on workers’ compensation, sexual harassment, disability insurance, paid family leave to all new employees, notices to employees when starting leave of absence and at termination.)✓
Privacy ✓
Sexual Harassment ✓
Smoking in the Workplace ✓
Unemployment Insurance ✓
Unpaid time off to vote ✓
Wages and Hours ✓ (note: there are many details involved just in wage and hour requirements including payment, overtime and recordkeeping.)
Workers’ Compensation ✓

Additional laws if you have 2 or more employees:
Cal-COBRA (health insurance continuation) ✓
Eligible for small group health insurance coverage ✓

Additional laws if you have 4 or more employees:
Discrimination and Foreign Workers ✓

Additional laws if you have 5 or more employees:
Discrimination Laws (State-FEHA) ✓
Pregnancy Disability Laws ✓

Additional laws if you have 15 or more employees:
Americans with Disabilities Act (ADA) ✓
Discrimination Laws (Federal-EEOC) ✓
Organ and Bone Marrow Donors’ Leave ✓

Additional laws if you have 16 or more employees:
Civil Air Patrol Leave ✓

Additional laws if you have 20 or more employees:
COBRA (health insurance continuation Federal) ✓

Additional laws if you have 25 or more employees:
Alcohol/Drug Rehabilitation opportunities allowed✓
Domestic Violence Leave✓
Illiteracy Accommodations ✓
Military Spouse Leave ✓
School Activities Leave✓

Additional laws if you have 50 or more employees:
Affirmative Action (government contractors) ✓
Affordable Care Act (national health insurance reform) ✓
Family and Medical Leave (FMLA & CFRA) ✓
Mandatory 2-Hour Supervisor/Manager Sexual Harassment Training -CA (every 2 years) ✓
Volunteer Firefighters- leave for training ✓

Additional laws if you have 75 or more employees:
WARN Act (plant closings-mass layoffs, notices required) ✓

Additional laws if you have 100 or more employees:
Equal Employment Opportunity Reporting (EEO-1)✓

For more information on these various laws and how they apply to your business, or to discuss a safety and employment law audit, contact: Don Dressler Consulting, 2030 Main Street, Ste. 1300, Irvine, CA. 92614. Ph: 949-533-3742. E-mail: DonDressler1@hotmail.com

Website: http://www.Don Dressler.com and http://www.CalWorkSafety.com

For 2015 – Employee Policies to Review

13 Dec

I encourage you to take fresh look at your employee policies or Employee Handbook, or have an employment attorney or human resources professional review them for you, because there are some important areas of change for 2015.
1. Equal Employment Opportunity – take the time to list all of the protected classifications in your handbook . The California Fair Employment and Housing Council is considering amendments to its regulations regarding California discrimination laws, including a requirement that employers list all “protected classes” or basis for discrimination in a written policy. This is a good idea as it helps protect the employer and educated your managers and supervisors. The list
would be: race, color, national origin or ancestry, religion including religious attire and religious related hair styles, beard, etc., sex (including pregnancy, childbirth, breast feeding and related medical conditions), physical and mental disability, age (40 and older), genetic information and privacy of medical records, marital status, sexual orientation and identity including gender expression, veteran status, medical condition including AIDS/HIV, political activities or affiliations. Also protected are whistle blower status, protection from being required to give access to Social Media sites, protection from denial of family and medical care leave, and protection from unfair immigration related employment practices.

2- Anti-Harassment Policy – also take the time to clearly state it is against company policy for anyone to engage in abusive behavior to one of your employees. In the past, most anti-harassment policies focused on sexual harassment or perhaps also prohibited harassment based on other “protected classifications” of employees covered by equal employment laws. In 2015, employers are expected to train supervisors and managers on how to prevent abusive behavior in the workplace. Since it is very clear that abusive behavior is harmful to productivity, causes employee turnover, and is undesirable in the workplace, now is the time to clearly state it is also against company policy.
3- Other Policies. Of course our team at Don Dressler Consulting suggests an annual review of employee policies and handbooks, particularly now with so much activity at both the California and Federal level affecting employee benefits and human resources. A key example is the coming July 1, 2015 California law requiring paid sick leave for all employees. Don’t be mislead by the July 1, 2015 effective date! New employment posters including reference to this law are required as of Jan. 1, 2015 as are notices to new hired “hourly employees” based on the Labor Code Section 2810.5 notice.(The Wage Theft Protection Act). Please notice that we recommend a different format with additional information to protect your company rather than you just using the “official” form from the CA Department of Industrial Relations.
Every single client I have worked with on how to adapt to this new paid sick leave law has had to change their existing policies – and no company has the same problems as another. Allow yourself time to learn about this new law, how it affects you and what it will cost. We can help you design a policy to meet your needs and comply with the law.
If we can help with these or other human relations, safety or workers’ compensation issues, contact our team at Don Dressler Consulting. Email me at dondressler1@hotmail.com.