About me
I'm an employment lawyer. I defend companies when employees sue for harassment, wrongful termination, discrimination and not getting paid correctly. I also advise my clients on how to avoid getting sued in the first place.
I conduct trainings for employees on harassment prevention and maintaining a respectful workplace.
I conduct prompt and thorough workplace investigations.
Contact me at jdebacker@mstpartners.com
In fact, we have a whole group of excellent employment lawyers at McPharlin Sprinkles & Thomas LLP. Look here for more information: www.mstpartners.com
Category Archives: Leaves of Absence
Paid Time Off: It Brings (Some) of Your Workers Back
Yesterday, an article in the New York Times (The Upshot by Claire Cane Miller) discussed paid time off and how government and employer policies can result in more workers with children back in the workforce. Of course, it exposed the rift between employers of low skilled and highly skilled workers – and we could definitely get together over a cup of coffee to break down the socioeconomic issues there. The article also discussed the role of paid paternity leave as a means of relieving maternity leave pressures, and of the growing effect that elder care will play in the coming years. (Even more coffee!)
I was going to cheat and give you a link to the article, but its behind a paywall. Instead, here are some highlights:
As you’ve heard many times, the U.S. is the only developed country not to offer paid maternity leave as part of federal policy. About 59% of workers say that their companies offer them paid leave. While this makes it easy to count money saved where there is no paid leave in the budget, the ultimate effect may be harmful to the companies without paid leave.
After California became the first state to offer paid parental leave with the six week Paid Family Leave program, “new mothers were more likely to return to work, according to a study by Maya Rossin-Slater and Jane Waldfogel of Columbia University and Christopher J. Ruhm of the University of Virginia. One to three years later, mothers of small children were working more and at higher incomes. Paid leave provides job continuity, economists say, so women are less likely to leave the labor force. Paid leave is particularly important for low-income mothers, who more than doubled their maternity leaves in California.”
On the other end of the socioeconomic spectrum, Google found that “postpartum women were leaving the company at a rate twice that of other employees. So Google expanded its maternity leave to five months fully paid from three months partly paid. Attrition decreased by 50 percent.”
For Google, and other places who require a highly skilled workforce, the cost of paid time off was less than the cost of recruiting another highly skilled employee.
Different workplaces, however, have different “cost calculations.” As the article notes, “At low-skilled jobs . . . the calculus shifts, because workers are more easily replaceable. That has led to increased inequality, because high-skilled workers tend to have paid leave while low-skilled ones do not.”
Of course, all the employer-provided paid leave benefits are in addition to the job protections under state and federal law. Many employers –not yours, dear reader, given that you are looking at a blog about employment law, I assume you are on top of this — don’t provide the full protections of those laws. For more information on those laws, please see my prior posts.
Posted in Leaves of Absence
For leaves of absence, be open minded!
Employers can get into trouble in a lot of ways. An easy way to mess up is to “hide the ball” and not let employees know that they might be entitled to a protected leave of absence. It is important to remember that a protected leave of absence is usually just the right to take unpaid time off and then come back to work. It is generally not paid time off, and is generally not meant to be used for a trip to Aruba. Employers should be mindful of all the different types of protected leaves an employee could be eligible to take –and provide information about the protections. Do not wait until an employee uses magic words to ask for the time off (like, “I note that we have more than 50 employees, and I’ve worked here for over 1,250 hours this year, and over 12 months for you in total. . . I’d like to take protected time off under the federal Family and Medical Leave Act and the California Family Rights Act…”).
I have a short chart I use to remind myself of the leaves of absence that can come into play here in California. It is, of course, not intended to replace looking at the actual statute, or talking to your legal counsel! It is just meant to remind you that “there [may be] a protected leave for that!” So. . .click the link at the top of this post, print it out, scribble on it, keep it close at hand, train your managers to look out for situations where leave may be appropriate – in other words, Enjoy!
Posted in Leaves of Absence, Legal Update
So, Where Are We? California’s New Employment Laws for 2014 – and an Extra from SF!
While there will be new cases, and maybe some administrative action — like last year’s December 30 issuance of the pregnancy regulations! — I am on pretty firm footing to say that we know what the new employment laws will be in California. Governor Brown’s deadline for signing bills was October 13, 2013. Below I summarize a few of the new rules you’ll need to be ready for in 2014. The minimum wage increase starts on July 1, 2014. The rest of the new laws will kick in on January 1, 2014.
Minimum wage increase over the next two years, beginning with the first increase to $9 per hour on July 1, 2014.
The rate will increase to $10 per hour on January 1, 2016.
Note that the increase in minimum wage increases the minimum amount employers must pay most exempt employees (“no less than two times minimum wage. . . “). If you pay your exempt employees a salary of about $33,280 per year, you’ll need to adjust this next summer to preserve the exempt status.
Fair Employment and Housing Act (“FEHA”) amended to extend protections to military and veterans.
“Military and veteran status” are to be added to the list of protected classes under FEHA in order to increase employment discrimination protections for the 1.8 million California residents who are military members and veterans. This law will not affect other state laws allowing employers to consider military or veteran status for purposes of awarding a veterans’ preference.
FEHA amended to clarify the definition of sexual harassment.
FEHA is now clarified to state that sexual harassment need not be motivated by sexual desire. The new law clarifies the legal standard that had been muddied by the 2011 case Kelley v. The Conco Companies. In that case, the court dismissed claims of same-sex harassment because the plaintiff could not show the harasser was sexually interested in him. This result was absurd, and not particularly helpful to employers trying to make it clear to employees what behaviors are not permitted in the workplace.
With the change, plaintiffs can demonstrate harassing conduct by showing one of the following:
• Sexual intent or desire by harasser to plaintiff.
• General hostility by harasser towards particular sex of which plaintiff is member.
• Through comparative evidence about how harasser treated members of both sexes in workplace.
Overtime compensation for domestic workers.
Employers of domestic employees must pay time and a half for each hour worked over nine hours in one day or 45 hours in one week. The law applies to all employees engaged in “domestic work,” including nannies, housekeepers, and those who provide care for people with disabilities (“personal attendants”).
Paid Family Leave expansion.
Currently, California provides wage replacement of up to six weeks when an eligible worker took permitted time off to care for a seriously ill spouse, domestic partner, child or parent. Under the new law, eligible employees are eligible for wage replacement when taking permitted leave to care for siblings, grandparents, grandchildren, and parents-in-law. As before, the Paid Family Leave is a means for employees to receive wage replacement while on permitted leave. It does not create a protected leave of absence.
And an Extra from San Francisco!
San Francisco’s Family Friendly Workplace Ordinance
Last week, San Francisco passed the Family Friendly Workplace Ordinance. Mayor Ed Lee announced that San Francisco is the first city in the nation to “adopt policies that protect its talented workforce and keep San Francisco a city for the 100 percent.”
If you have employees in San Francisco, you need to be aware of this new law and comply. And if you don’t have employees in San Francisco, I suggest that you at least read the rest of this post for sheer fun: we have seen with many workplace reforms passed by San Francisco, they tend to spread across the state and then the country.
San Francisco’s Family Friendly Workplace Ordinance will give employees the right to request flexible work arrangements to assist with caregiver responsibilities. San Francisco employers will be required to consider and respond to all such requests in a formal manner.
Effective January 1, 2014, the Ordinance will apply to employers and their agents who regularly employ 20 or more employees. Under the rule, employees who have been employed for six or more months and work as little as eight hours per week have the right to request a flexible work arrangement to assist with caregiver responsibilities for: (1) a child; (2) a parent age 65 or older; or (3) a spouse, domestic partner, parent sibling, grandchild or grandparent with a serious health condition. Employees can request accommodations in terms of their hours, schedule, work location, work assignment and the predictability of their work schedule.
The employee’s request must be in writing and must explain how the change will help them meet their caregiver responsibilities. The employer must then meet with the employee and respond in writing within 21 days. If the employer denies the request, it must explain in writing the reason for the denial and notify the employee of his or her right to request reconsideration.
In any written denial of a request for a flexible work arrangement, the employer must be clear as to why it cannot accommodate the request. The employer is required to provide a “bona fide business reason” for the denial, such as productivity loss, a detrimental effect on meeting customer demands, an inability to organize work among employees or insufficient work during the time the employee proposes to work. An employer denying a request also must provide the employee with the text of the Ordinance granting reconsideration rights.
The Ordinance allows eligible employees to make two requests per year. However, an employee may make additional requests following the birth of a child, the placement of a child through adoption or foster care, or an increase in the employee’s caregiving duties for a family member with a serious health condition.
The San Francisco’s Office of Labor Standards Enforcement (OLSE) will be responsible for enforcement of the Ordinance. The OLSE intends to publish mandatory posters providing employees notice of their rights under the Ordinance. Employers will be required to post notices in English, Spanish, Chinese and any other language spoken by at least 5% of employees at that site. The OLSE also will manage compliance with the Ordinance through employer audits and handle claims of retaliation or interference with employees’ rights under the Ordinance. Accordingly, employers are required to maintain documentation of employee requests for 3 years.
Okay – you got all that? More to come!
Summer! Fun! Employment Law Update All Day Training June 27!
Please join me as I moderate and present at the Employment Law Update in California training in San Jose on June 27, 2013. My partner Anne Stromberg and Marc Jacuzzi of Simpson, Garrity, Innes and Jacuzzi, P.C. will be talking about the following:
* Hiring, Counseling and Terminating Employees
* Wage and Hour Law Update
* FMLA, ADA, FEHA and Workers’ Compensation
* Sexual and Other Unlawful Harassment in the Workplace
* Harassment Investigations
The training will be at the San Jose Airport Garden Hotel (1740 North First Street in San Jose). 6.50 hours of HRCI credit are available – and there is also MCLE, CPE and CPP/FPC credit.
To sign up/ register, please click here.
March Madness!?!?!?!
Okay, not really madness (and the NCAA might come seek royalty fees from me now that I’ve used the term), but there are some employment law matters that you need to be on top of this month.
Form I-9
On March 8, 2013, the United States Citizenship and Immigration Services (USCIS) issued a new Form I-9 for use in verifying employment eligibility in the U.S. You can get the new Form I-9 here.
Start using the new form now. There is a grace period through May 7, 2013, but you’re busy, and it would not be good to forget. Also, be sure to get the new form in the hands of any staff that fill out Form I-9s at hiring.
The new Form I-9 is only for new hires, or if you need to reverify certain ID documents. Generally, you must reverify if evidence of employment authorization (List A or List C documents) expire. For reverification, an employee must present unexpired documentation from either List A or List C showing he or she is still authorized to work.
As a reminder, employees must complete Section 1 of the form at the actual beginning of employment. The employer must complete Section 2 within three days of starting work.
FMLA Poster
On February 6, 2013, the U.S. Department of Labor issued new final Family and Medical Leave Act (FMLA) regulations that take effect on March 8, 2013. Most of the new regulations relate to the FMLA’s military leave provisions, but they also make other minor changes and clarifications. The regulations also require covered employers to post a new, updated poster by March 8, 2013.
All covered employers are required to display and keep displayed a poster prepared by the Department of Labor summarizing the major provisions of The Family and Medical Leave Act (FMLA) and telling employees how to file a complaint. The poster must be displayed in a conspicuous place where employees and applicants for employment can see it. A poster must be displayed at all locations even if there are no eligible employees.
You can download a copy of the new FMLA poster here.
Human Trafficking
We’re still waiting for the model notice from the California Department of Justice addressing human trafficking. Effective January 1, 2013, new Civil Code § 52.6 requires certain specified businesses to post a notice, on or before April 1, 2013, containing information about organizations that provide services to eliminate slavery and human trafficking. The notice must be posted at those businesses that have general public premises licensees under the ABC Act, “adult” businesses, airports, rail stations, bus stations, truck stops and roadside rest areas, emergency rooms and urgent care centers, farm labor contractors, private job recruitment center, and businesses that offer massage or bodywork services for compensation.
Many businesses will be required to put up the notice — I’ll keep you updated when we get the language the DOJ wants. And nothing prevents you from posting information now about Freedom House or other organizations dedicated to eliminating trafficking and helping survivors.
Posted in Leaves of Absence, Legal Update
Can a job duty be “essential” if the employee rarely has to do it? Yes!
I’ve presented a few “2013 Employment Law Updates” this month, and wanted to share with you some of the cases and rules that audiences have been most interested in talking about. This first article is to remind employers of the importance of accurate job descriptions.
Earlier this month, a California Appeals Court held that job duties that an employee does not regularly perform can still be essential to the position. This means that if an employee cannot perform a rarely-needed, but still essential, function of his job, his employer does not need to accommodate him by excusing performance of that essential function.
In Lui v. City and County of San Francisco, a veteran San Francisco police officer (Lui) suffered a heart attack and could no longer perform physically strenuous work.
The job description for a police officer, even one performing administrative work, includes physically strenuous tasks, such as pursuing fleeing subjects and making forcible arrests.
Since Lui could not perform the physically strenuous tasks of chasing after suspects, or working in physically strenuous conditions, he could not perform as a police officer. The Police Department offered to transfer him to a vacant “non-sworn officer” position, but Lui declined and retired. He then filed suit alleging disability discrimination. Among other claims, he argued that in an administrative position, it was not really essential that he be able to perform the strenuous duties.
Under state and federal disability discrimination laws, an employer may terminate an employee whose disability makes him unable to perform the essential duties of his job, even with reasonable accommodations. To determine whether an employer’s claim that certain job duties are “essential functions,” a court may take into account factors such as the employer’s judgment, written job descriptions, the amount of time spent performing the functions, the consequences of not requiring the employee to perform the functions, the terms of a collective bargaining agreement, work experiences of past employees, and the current work experiences of employees in similar jobs.
In Lui, the Court disagreed with Lui and found that the requirement that police officers working in administrative positions to be able to perform physically strenuous duties was an accurate reflection of essential functions of the position. The Court noted that the City had shown that the number of officers available for duty in the streets had substantially decreased. In addition, the City demonstrated that all of its sworn officers, including those in administrative positions, must be able to respond to large-scale, infrequent emergencies such as demonstrations, earthquakes and mass celebrations (Go Giants! Go 49ers!). Based on these factors, the Court found that the ability to perform all the duties of a police officer, including the ability to engage in strenuous tasks such as making arrests, pursuing suspects and responding to emergencies, are essential for all police officer positions. Lui could not perform the strenuous activities required of a police officer, so the Department was not required to accommodate him by relieving him from those duties.
While the facts and circumstances in Lui are unique, this case helps employers understand what makes a function “essential” to a job. The case should also serve as a reminder for every employer to regularly review the essential functions of each position and confirm the accuracy of the related job description. To explain to the Court what the Police Department had determined were essential functions of the police officer position, the City produced the job description, which stated that the ability to perform the physically strenuous activities applied to officers on the beat as well as on a desk.
The value of a well-crafted, accurate job description cannot be underestimated when resolving a wide variety of employment issues, including accommodation of employees, performance assessments, and wage and hour classification questions.
Posted in Leaves of Absence, Legal Update
Dear Employees: Vote for Our Candidate, or Else . . . ?
In the news this week was a story that candidate Mitt Romney suggested to small-business owners that they might want to encourage their employees to vote for him.
Here in California, I generally caution all employers against suggesting a position on a candidate or a proposition. The reason is that while employers are free to express their opinions, they cannot demote, suspend, or terminate an employee for lawful conduct, during nonworking hours, away from the employer’s premises. “Lawful conduct” includes voting in an election – for your candidate or their candidate. If an employee is disciplined or terminated shortly after an election in which the employer took a strong, public position with employees, the employer may have given the former employee the basis for a lawsuit.
California law also bars termination of employees for engaging in political activities, becoming political candidates, or following or not following a particular course or line of political action, as long as it’s not advocacy of violent revolution.
And remember, California employees can take protected time off of work, if necessary, to vote in a statewide election.
Posted in Leaves of Absence, Legal Update
Upcoming presentation (10/17 in Modesto): Leaves of Absence in California
On October 17, 2012, I’ll be giving a program called “Leaves of Absence in California: why cases are brought, what you can do to prevent them, and what changes are coming to the rules”
The program starts at about 2:30, but it is a part of a whole day of great HR topics at the Central Valley Human Resources Management Association’s 2012 Fall Workshop. Here’s a link with all the details:
http://cvhrma.shrm.org/events/2012/10/2012-annual-fall-workshop-expo
California Employment Law Blog 