Seven Deadly Sins of Employment Law

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1 Seven Deadly Sins of Employment Law September 21, 2016 Presented by Rex Darrell Berry Sin Number 1: Hiring Poorly 2 Unacceptable Employment Inquiries Maiden name Questions regarding owning or renting Age Birth date Date of attendance/completion of school Birthplace Requirements that applicant produce naturalization or alien card prior to an offer of employment 3 1

2 Unacceptable Employment Inquiries Religious days observed Questions to indicate applicant s sex, marital status, number/ages of children or dependents Questions regarding pregnancy, child birth, or birth control Questions as to applicant s height/weight Requiring applicant to submit a photograph with an application 4 Unacceptable Employment Inquiries Any inquiry into the applicant s health, medical condition, or mental/physical disability Requiring a psychological/medical examination of any applicant Any inquiry into the employee s general health, medical condition, or mental/physical disability, if not job-related and consistent with business necessity General questions regarding arrest record 5 Unacceptable Employment Inquiries General questions regarding organizations, clubs, societies and lodges Name, address, and relationship of relative to be notified in case of accident or emergency 6 2

3 Social Media Inquiries Under Labor Code 980 (b)-(c) (b) An employer shall not require or request an employee or applicant for employment to do any of the following: (1) Disclose a username or password for the purpose of accessing personal social media. (2) Access personal social media in the presence of the employer. (3) Divulge any personal social media, except as provided in subdivision (c). 7 Social Media Inquiries Under Labor Code 980 (b)-(c) (c) Nothing in this section shall affect an employer s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding. 8 Arrest Inquiries Under Labor Code No employer, whether a public agency or private individual or corporation, shall ask an applicant for employment to disclose, through any written form or verbally, information concerning an arrest or detention that did not result in conviction, or information concerning a referral to, and participation in, any pretrial or posttrial diversion program, or concerning a conviction that has been judicially dismissed or ordered sealed pursuant to law. 9 3

4 Arrest/Conviction Inquiries Under Labor Code The limitations on employers and the penalties provided for in Section shall apply to a conviction for violation of subdivision (b) or (c) of Section of the Health and Safety Code or a statutory predecessor thereof, or subdivision (c) of Section of the Health and Safety Code, or Section 11364, 11365, or of the Health and Safety Code as they related to marijuana prior to January 1, 1976, or a statutory predecessor thereof, two years from the date of such a conviction. 10 Sin Number 2: Failing to Comply with Basic Wage and Hour Laws A. Exempt does not mean salaried 1) Executive exemption 2) Administrative exemption 3) Professional exemption 4) Inside/Outside Salesperson exemptions B. Failing to Provide Compliant Meal and Rest Breaks C. Failing to Provide Compliant Pay Stubs D. Failing to Timely Pay Wages Upon Termination E. PAGA Penalties! 11 Exempt Does Not Mean Salaried The Executive Exemption Executive exemption A person employed in an executive capacity means any employee: 1. Whose duties and responsibilities involve the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; and 2. Who customarily and regularly directs the work of two or more other employees therein; and 3. Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and 12 4

5 The Executive Exemption 4. Who customarily and regularly exercises discretion and independent judgment; and 5. Who is primarily engaged in duties, which meet the test of the exemption. An executive employee must also earn a monthly salary equivalent to no less than two times the state minimum wage ($20/hr*) for full-time employment. * Note the statutory increases for 2017 ($10.50/hr), 2018 ($11/hr) and (1.00/hr per year) 13 The Administrative Exemption Administrative exemption A person employed in an administrative capacity means any employee: 1. Whose duties and responsibilities involve either: 2. The performance of office or non-manual work directly related to management policies or general business operations of his or her employer or his or her employer's customers, or 3. The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof, in work directly related to the academic instruction or training carried on therein; and 4. Who customarily and regularly exercises discretion and independent judgment; and 14 The Administrative Exemption 5. Who regularly and directly assists a proprietor, or an employee employed in a bona fide executive or administrative capacity, or 6. Who performs, under only general supervision, work along specialized or technical lines requiring special training, experience, or knowledge, or 7. Who executes, under only general supervision, special assignments and tasks, and 8. Who is primarily engaged in duties which meet the test for the exemption. An administrative employee must also earn a monthly salary equivalent to no less than two times the state minimum wage ($20/hr*) for full-time employment. 15 5

6 The Professional Exemption Professional exemption A person employed in a professional capacity means any employee who meets all of the following requirements: 1. Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or 2. Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. "Learned or artistic profession" means an employee who is primarily engaged in the performance of: 16 The Professional Exemption 3. Work requiring knowledge of an advance type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time. 17 The Professional Exemption 4. Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above. 5. Who earns a monthly salary equivalent to no less than two times the state minimum wage ($20/hr*) for full-time employment. 18 6

7 The Outside/Inside Salesperson Outside salesperson Any person, 18 years of age or older, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services, or use of facilities. Inside salesperson The employee earns more than 1.5x the minimum wage ($15/hr*); and More than half of the employee s compensation represents commission earnings. 19 Failing to Provide Compliant Meal and Rest Breaks Meal periods An employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than thirty minutes. If the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. A second meal period of not less than thirty minutes is required if an employee works more than ten hours per day, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and employee only if the first meal period was not waived. 20 Meal Breaks: Note! Unless the employee is relieved of all duty during his or her thirty minute meal period, the meal period shall be considered an "on duty" meal period that is counted as hours worked which must be compensated at the employee's regular rate of pay. An "on duty" meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job paid meal period is agreed to. If the employer requires the employee to remain at the work site or facility during the meal period, the meal period must be paid. This is true even where the employee is relieved of all work duties during the meal period. 21 7

8 Failing to Provide Compliant Meal and Rest Breaks: Rest Periods Rest Periods An employer must authorize and permit nonexempt employees to take a rest period that must, insofar as practicable, be taken in the middle of each work period. The rest period is based on the total hours worked daily and must be at the minimum rate of a net ten consecutive minutes for each four hour work period, or major fraction thereof. A rest period is not required for employees whose total daily work time is less than three and one-half hours. The rest period is counted as time worked and therefore, the employer must pay for such periods. 22 Meal and Rest Breaks: How do I do this? In Brinker Restaurant Corp. v. Superior Court, the California Supreme Court set forth specific guidelines relating to meal breaks. The Court clarified that an employer s obligation is to provide the meal break, but not ensure that the employee does no work. According to Brinker, the employer satisfies its legal obligation to provide an off-duty meal period to its employees if it: Relieves the employees of all duty Relinquishes control over their activities Permits them a reasonable opportunity to take an uninterrupted 30- minute break Does not impede or discourage them from doing so 23 Failing to Provide Compliant Pay Stubs Pursuant to California Labor Code Section 226(a), employers must provide the following information to their employees at least twice a month, and at the time of each payment of wages: (1) The gross wages earned by the employee during the pay period; (2) The total hours the employee worked during the pay period (except for exempt employees who are paid a salary and who are not entitled to overtime compensation); (3) The number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis; (4) All deductions from the employee s gross wages; (5) The net wages earned by the employee; 24 8

9 Failing to Provide Compliant Pay Stubs (6) The dates of the pay period for which the employee is being paid; (7) The name and address of the employee and the last four digits of his social security number; (8) The name and address of the employer; and (9) The hourly rates in effect during the pay period, and the number of hours worked at each pay rate during the pay period. 25 Failing to Timely Pay Wages Upon Termination An employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination. Labor Code Sections 201 and An employee who gives at least 72 hours prior notice of his or her intention to quit, and quits on the day given in the notice, must be paid all of his or her wages, including accrued vacation, at the time of quitting. Labor Code Section 202. An employee who quits without giving 72 hours prior notice must be paid all of his or her wages, including accrued vacation, within 72 hours of quitting. 26 PAGA Penalties! Where a specific provision of the Labor Code does not provide for a penalty, the court can assess one of the following penalties: At the time of the alleged violation, if the person does not employ one or more employees, the civil penalty is $500. At the time of the alleged violation, if the person employs one or more employees, the civil penalty is $100 for each aggrieved employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation. Labor Code section

10 Sin Number 3: Failing to Investigate and Remedy Claims of Harassment FEHA Standards for Harassment Harassment can include such conduct as asking for sexual favors, touching, or offensive language. Not all conduct in the workplace is illegal harassment. Generally, the conduct must be so severe or pervasive that it alters the terms and conditions of employment. The California Department of Fair Employment and Housing (DFEH) states that harassment is defined to include: Verbal harassment, such as epithets, derogatory comments or slurs Physical harassment, such as assault or physical interference with movement or work Visual harassment, such as derogatory cartoons, drawings or posters 28 Failing to Investigate and Remedy Claims of Harassment Who are your Supervisors? Supervisor means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Govt. Code sec (t). 29 Failing to Investigate and Remedy Claims of Harassment Are you Compliant with Manager Training? California employers with 50 or more employees must provide sexual harassment prevention training to all supervisors in California. Training must take place within six months of hire or promotion and every two years thereafter. The minimum employee count of 50 includes part-time and temporary employees, including those who are hired through temporary staffing agencies, and independent contractors. Because the law does not specify that the 50 employees must be within the state, it applies to California employers with 50 employees total, including those outside the state

11 Sin Number 4: Mishandling Leave of Absence Issues FMLA/CFRA Requirements Family Medical Leave Issue Requirement Covered Employees 50 or more employees. Maximum amount of leave A maximum of 12 weeks of leave in a 12- month period. FMLA also provides 26 weeks of leave for an employee who is the spouse, son, daughter, parent or next of kin for a covered military servicemember who requires care. 31 Mishandling Leave of Absence Issues Family Medical Leave Issue Employee eligibility Reasons for leave Requirement Employees are eligible if employed at a worksite with 50 or more employees in a 75-mile radius. Eligible employees must also have worked for you for 12 months and 1,250 hours in the 12 months prior to the need for leave. An employee can use FMLA and/or CFRA in the following circumstances: The employee s own serious health condition (FMLA/CFRA) A qualifying exigency relating to a close family member s military service (FMLA only) Up to 26 weeks per 12-month period to care for an ill or injured servicemember (FMLA only) 32 Mishandling Leave of Absence Issues Family Medical Leave Issue Requirement Reasons for leave, cont. Pregnancy-related disability (FMLA/CFRA) Bonding with a newborn, an adopted child or a child placed in foster care with an employee (FMLA/CFRA or CFRA only) Caring for a family member (parent, child, spouse) with a serious health condition (FMLA/CFRA) Caring for a registered domestic partner with a serious health condition (CFRA only) 33 11

12 Mishandling Leave of Absence Issues Family Medical Leave Issue Employer responsibilities Requirement When you learn that an employee is absent for any reason that may qualify as FMLA/CFRA, you should send a notice to the employee designating any time off related to the absence as FMLA/CFRA. There are also requirements for posters and notices, including notices relating to eligibility. Employers are prohibited from interfering with the exercise of FMLA/CFRA rights. 34 Mishandling Leave of Absence Issues Family Medical Leave Issue Ending the employment relationship before the leave expires Requirement The employee has no greater rights than if he/she were not out on leave. The right to reinstatement would end if the employment relationship ends. However, employees on FMLA/CFRA are protected from retaliation for taking leave. 35 Mishandling Leave of Absence Issues The Requirement to Reasonably Accommodate a Disability The term reasonable accommodation includes, but is not limited to: Providing personal assistants or attendants to help a qualified individual with a disability perform an essential job function Making existing job facilities used by employees readily accessible restrooms, or reserving parking spaces) Job restructuring/essential functions Part-time or modified work schedules Intermittent Leave Etc

13 Sin Number 5: Making Exceptions to Your Policies and Procedures Consistency Non-Discrimination No Good Deed Goes Unpunished. 37 Sin Number 6: Alcohol at the Office Party What could possibly go wrong? 38 Sin Number 7: Terminating Poorly The Investigative Checklist Timely Payment of Wages A Separation Agreement? 39 13

14 Terminating Poorly Separation Agreements for 40+ Year Old Employees The OWBPA provides that a waiver of an individual s rights under the ADEA must be knowing and voluntary. The statute specifies that, at a minimum, a release must: Be written in a manner calculated to be understood by the employee; Refer specifically to rights and claims available under the statute; Not waive prospective claims; Provide consideration in exchange for the release beyond something of value the employee is already entitled to; Advise the employee, in writing, to consult with an attorney; Give the employee at least 21 days to consider the agreement; Give the employee at least seven days to revoke the agreement. 40 Thank You! For more information about our Labor and Employment Law Practice, please visit us at Booth #25 in the exhibit hall! Questions? Contact: Rex Darrell Berry at rberry@kmtg.com or Chelsea Tibbs at ctibbs@kmtg.com 14