Hired, Fired, and Legally Mired: An Employment Law Blog

Hired, Fired, and Legally Mired:
An Employment Law Blog

Starting July 1, 2017, California Employers Must Provide Employees with Notice of Protections for Victims of Domestic Violence, Sexual Assault, or Stalking.

By: Jessica Coffield • August 15, 2017

Existing law prohibits an employer from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for certain purposes related to addressing the domestic violence, sexual assault, or stalking. As of July 1, 2017, employers with 25 or more employees must now provide written notice of the rights and duties under the existing law. A recent bill amended Labor Code section 230.1 to include employer notice requirements and ordered the Labor Commission to develop a sample form for employers to use to comply. If an employer chooses not to use the form, the notice used must be substantially similar in content and clarity. Whatever form is used must include information explaining an employee’s right to take time off, right to reasonable accommodations, right to be free from discrimination and retaliation, and right to file a complaint.

Although the rights under Labor Code section 230 for employees who are victims of domestic violence, sexual assault, or stalking have not changed, the new notice requirement imparts more responsibility on employers and thus warrants a refresher.

Right to Time Off – Employees who are the victims of domestic violence, sexual assault, or stalking are permitted to take time off to:

  • Seek medical attention;
  • Obtain services from a domestic violence shelter, program, or rape crisis center;
  • Obtain psychological counseling;
  • Participate in safety planning, including temporary or permanent relocation;

The employee must give reasonable advance notice to the extent feasible. Employees may take unpaid leave or use paid time off benefits that may be accrued including vacation, PTO, personal leave, or sick leave.

Right to be Free from Discrimination/Retaliation – An employer may not discharge or in any manner discriminate or retaliate against employees who are the victims of domestic violence, sexual assault, or stalking and who take time off work for one of the purposes outlined above. If any actions are taken against an employee in violation of these sections, the employee is entitled to reinstatement and reimbursement for lost wages and benefits. An employer who willfully refuses to restore an employee who has been determined to be eligible for rehiring by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.

Right to Accommodations – Employers must provide reasonable accommodations which may include “safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement.” (Labor Code § 230.)

Right to File a Complaint – Employees must also be notified of their right to file a complaint with the California Division of Labor Standards Enforcement if the employer discriminates against the employee on any basis discussed herein.

Thoughts on Compliance:

It is important to confirm written notice is provided to new employees on the date of hire and is made available to current employees upon request. It may also be advisable to update your employee handbooks and/or policies to include employee obligations for providing advance notice for time off and outline the manner of providing proof or certification for an unscheduled absence.

If you have questions regarding how to comply with the new notice enactment, contact our employment attorneys to schedule a consultation.

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Is the Tide Turning for Employers? There Seems to be Some Good News on the Horizon.

By: Susan DeNardo • August 8, 2017

The United States Department of Labor (“DOL”) is contemplating changes that may help employers in the future on a few different topics including the salary requirement for employees who qualify for federal overtime. The DOL requested information on July 27, 2017 related to the exemption for employee minimum wage and overtime pay. A request for information is an opportunity for the public to provide information that will help the DOL in formulating a proposal to revise related regulations.

The Fair Labor Standards Act (“FLSA”) requires employers who do more than $500,000 in gross annual sales and engage in interstate commerce to pay their employees at least the federal minimum wage which is currently $7.25 per hour for all hours worked. In general, interstate commerce refers to the sale, purchase or exchange of goods or money, or transportation of people or navigation of water between different states. If the state where the employee resides has a minimum wage higher than $7.25 per hour, then that state’s minimum wage will apply with a few exceptions not discussed here. The FLSA also requires employers to pay their employees premium pay of time and a half for hours worked over forty in seven consecutive days. Some of the law surrounding federal minimum wage and overtime can be found on the United States Office of the Law Revision Counsel’s website including 29 USC 206 and 29 USC 207.

The FLSA exempts from both the federal minimum wage and overtime laws employees employed in a bona fide executive, administrative, or professional capacity, and expressly delegates to the Secretary of Labor the power to define these terms through regulation. As cited to on the DOL’s website, these exemptions have been defined for over 75 years using three criteria; including, (1) the employee must be paid on a salary basis; (2) the employee must receive at least a minimum specified salary amount; and (3) the employee’s job must primarily involve executive, administrative or professional duties. See 29 CFR part 541

One of the more recent changes by the DOL occurred in 2016 and set the standard salary at a level, that if implemented, would exclude from exemption the bottom 40 percent of salaried workers in the lowest-wage census region of the United States, which would result in an increase from $455 per week to $913 per week.  Among other things, the new standard salary level would mean an increase in persons eligible for minimum wage and overtime pay. The DOL also established a mechanism for automatically updating the salary level every three years. The effective date of these changes was December 1, 2016; however, because of recent litigation in the Fifth Circuit Court of Appeals the DOL has solicited information from the public to determine what the minimum salary level should include.

To find additional information on this topic or respond to the Department’s request for information go to www.dol.gov. The 60-day comment period to respond to the DOL’s request for information ends on September 25, 2017 according to their website.

If you have questions regarding minimum wage or overtime laws, please contact our office to speak to one of our helpful employment law attorneys.

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Keeping Your Private, Private & Your Public, Public.

By: Corey Day • August 1, 2017

“What do you mean public record, it’s in my private e-mail account?” If you work in an office subject to the California Public Records Act (CPRA), be prepared to hear this sentence uttered repeatedly in the coming years. The California Supreme Court recently determined that public business conducted by a public employee through that employee’s personal (and private) account is subject to CPRA requests. The CPRA allows the people of California to request public records (with some limitations) from public agencies. While often used to increase transparency as required by a functioning democracy, this process is often used by Plaintiffs as a means of obtaining documents before filing a lawsuit.

In San Jose v. Superior Court (full opinion in the link) the Plaintiff requested documents from the City concerning redevelopment plans for its downtown; specifically, e-mails and text messages sent or received on private electronic devices used by the mayor, two city council members, and their staffs. In response, the City released communications made using public telephone numbers and e-mail accounts but did not release communications to or from employees’ personal accounts. The Court determined that it doesn’t matter how public business is conducted, using a private account doesn’t limit the scope of the CPRA. Therefore the City was ordered to produce the documents (if any existed) from the employees’ personal accounts. The Court went on to note that while the information must be produced, that does not grant a public entity or the public at large unlimited access to public employees’ private accounts. Rather, the employee (when properly trained) may conduct their own search of their personal accounts.

Ok, I definitely want to comply with the law but I don’t know the definition of “public record”?

Why thanks for asking hypothetical Public Entity Supervisor! Generally any record kept by an officer because it is necessary or convenient to the discharge of his official duty is a public record. Unfortunately, whether a writing is sufficiently related to public business will not always be clear. The San Jose Court used the following example:

“Depending on the context, an e-mail to a spouse complaining “my coworker is an idiot” would likely not be a public record. Conversely, an e-mail to a superior reporting the coworker’s mismanagement of an agency project might well be.”

The Court identified several factors to be used in identifying whether a record is public including: (1) the content itself; (2) the context in, or purpose for which, it was written; (3) the audience to whom it was directed; and (4) whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.

Alright I get it, it’s complicated… how do I stay on the right side of the law?

First things first, eliminate the risk. A public entity should have policies and procedures in place (and enforced) that require employees to only use their entity-provided accounts to conduct public business. In a pinch, a real dire emergency, a public employee can CC their entity account on any business conducted from a private account. Then when it comes to answering the CPRA request itself, you can have your employees confirm that they knew of the public business policy and have conducted all business according to it. Now is a great time to go forth and revise your employee handbook.

Ok I’m really trying to get around to revising my employee handbook, but don’t have the time (and sometimes my employees don’t follow my current handbook anyway), how do I make sure my employee’s conduct a proper search?

Unfortunately the Court did not lay out a failsafe method but it did make some helpful suggestions on compliance.

So you have a CPRA request and have reason to believe that documents within the scope of the request may be stored in an employee’s private account, what to do. First, as discussed above, your employees must be trained on how to distinguish between a public record and their private documents. Second, each employee must search their personal accounts and separate the public records from their private documents. Third, if they find a document that may be potentially responsive but they believe to be private they must lay out sufficient information in an affidavit (a written statement under oath) such that a reviewing court can make a final determination. Finally, they should turn over unaltered copies of all of the public records. Phew, that wasn’t too bad.

If you have concerns about whether your office’s procedures comply with this new clarification of the CPRA or wish to receive training on how to conduct a proper search for public records, please contact our helpful employment attorneys.

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