Sexual harassment is among the most serious of workplace problems. It can be devastating for employees, and can be incredibly expensive and damaging for employers. California recently passed legislation showing the importance of preventing sexual harassment at work. The recently enacted California Government Code section 12950.1 requires that employers comply with certain sexual harassment training rules and procedures.
Which employers must provide training?
This law applies to employers with 50 or more employees. It is not required that all 50 employees be in California.
Who must be trained?
Training must be given to all employees who are employed as supervisors as of July 1, 2005. All employees who become supervisors after July 1, 2005 must receive training within six months of assuming a supervisory position.
Who is a supervisor?
The new law does not define the word “supervisor.” Yet, the Fair Employment and Housing Act defines a “supervisor” as, among other things, one who has the authority to hire or fire, reward or discipline other employees, direct other employees, or exercise independent judgment. This is a broad definition, and whether an employee is exempt or non-exempt for purposes of wages is not controlling.
Employers would be wise in construing “supervisors” liberally - if there is doubt as to whether an employee has a “supervisory position,” the safest bet is to train that employee.
What type of training is sufficient?
The law requires that the training be of the “classroom” variety or other “interactive training.” California’s Department of Fair Employment and Housing has strongly suggested that web-based training is sufficient as “interactive” training. However, if a trainer is not actually present, one should be available to answer questions within two business days after the question is asked. Furthermore, the training must include practical examples dealing with prevention of harassment, discrimination and retaliation.
Who can train?
Three categories of people are qualified to train: (1) attorneys, (2) professors or instructors, and (3) Human Resource professionals or Harassment Prevention Consultants. For each category, the trainers must have two years of experience.
How often must employees be trained?
Employees covered by the law must be trained every two years.
How much training is needed?
If the training is conducted as “classroom training,” the actual time instructors spend teaching must total two hours, excluding breaks. If the training is web-based, it must take at least two hours to complete the course.
What records need to be kept?
The biennial training can be tracked by the individual employee, or by using a “training year” method in which the employer chooses training years for all supervisors. Employers must remember, however, that new supervisory employees must be trained within six months of hire or promotion. A record of who received the training, when it took place and what type, and who gave the training must be kept for two years.
Important final points
Proper training does not completely safeguard employers from sexual harassment lawsuits. Also, failure to provide training does not, in and of itself, make an employer liable for sexual harassment. However, the Fair Employment and Housing Commission can order an employer to give proper training. Yet if employers fail to properly train supervisory employees, a court could find that such violates the state’s public policy, creating even more liability if an employer is sued for sexual harassment. Ensuring that employees are properly trained requires some effort and planning - yet in this regard, an ounce of prevention is clearly worth a ton of litigation.
Wednesday, March 12, 2008
California Employers Free to Say “NO” to Medicinal Marijuana
The controversial Compassionate Use Act of 1996 gave people who use marijuana for medical purposes a defense to certain crimes. However, a recent California Supreme Court case, Ross v. Raging Wire Telecommunications, Inc., held that employers do not have to tolerate an employee’s use of medical marijuana.
In the Ross case, Raging Wire required Mr. Ross - who suffered from back spasms - to take a drug test, in which he tested positive for marijuana use. Raging Wire then fired Mr. Ross, prompting him to file a lawsuit claiming that the company wrongfully terminated him and discriminated against him because of his disability.
Mr. Ross argued that the Compassionate Use Act required the employer to accommodate his disability and thus allow him to use marijuana to ease his back pain. He argued that if it would violate California’s discrimination laws to fire someone who used insulin, it also violated discrimination law to fire an employee who uses other medicine deemed legal by California, in this case medicinal marijuana. The court rejected this argument, finding that the Compassionate Use Act did not actually legalize marijuana, but merely provided a defense to criminal charges in limited circumstances. The court held that the Compassionate Use Act did not give marijuana the same status as any legal prescription drug, and that no state law could completely legalize marijuana for medical purposes because the drug is illegal under federal law.
Finally, the court refused to extend the protection of the Compassionate Use Act into the employment realm, reasoning that marijuana has a potential for abuse and that employers have an interest in whether an employee uses the drug.
The case also reaffirmed that California law allows employers to require pre-employment drug tests, and that employers are free to take drug use into account in making employment decisions. However, it must be noted that certain types of employee drug testing create legal risks, so employers interested in performing drug tests should first consult with an employment law attorney.
In the Ross case, Raging Wire required Mr. Ross - who suffered from back spasms - to take a drug test, in which he tested positive for marijuana use. Raging Wire then fired Mr. Ross, prompting him to file a lawsuit claiming that the company wrongfully terminated him and discriminated against him because of his disability.
Mr. Ross argued that the Compassionate Use Act required the employer to accommodate his disability and thus allow him to use marijuana to ease his back pain. He argued that if it would violate California’s discrimination laws to fire someone who used insulin, it also violated discrimination law to fire an employee who uses other medicine deemed legal by California, in this case medicinal marijuana. The court rejected this argument, finding that the Compassionate Use Act did not actually legalize marijuana, but merely provided a defense to criminal charges in limited circumstances. The court held that the Compassionate Use Act did not give marijuana the same status as any legal prescription drug, and that no state law could completely legalize marijuana for medical purposes because the drug is illegal under federal law.
Finally, the court refused to extend the protection of the Compassionate Use Act into the employment realm, reasoning that marijuana has a potential for abuse and that employers have an interest in whether an employee uses the drug.
The case also reaffirmed that California law allows employers to require pre-employment drug tests, and that employers are free to take drug use into account in making employment decisions. However, it must be noted that certain types of employee drug testing create legal risks, so employers interested in performing drug tests should first consult with an employment law attorney.
Some Good News from the I.R.S.
With oil prices soaring ever higher, it seems like there is no good news when it comes to filling up at the pump. However, some small relief to the current high gas prices has recently come from a most unlikely source – the Internal Revenue Service. In late November of last year, the IRS raised the standard mileage reimbursement rate for 2008 to 50.5 cents per mile.
According to Labor Code section 2802: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence” of the performance of his or her job duties. Included in these “necessary expenditures” is the cost incurred by an employee in using his or her vehicle for business purposes.
The IRS sets out a standard mileage rate to calculate the costs of operating a vehicle for business purposes. Beginning January 1, 2008, the mileage rate for the use of a car (including vans, pickups or panel trucks) was raised to 50.5 cents per mile for business miles driven. This constitutes a two-cent raise from 2007.
Employers must exercise caution in reimbursing employees for mileage. According to California’s Department of Labor Standards Enforcement, employers must reimburse employees for mileage at the IRS rate in order to comply with Labor Code section 2802. However, according to a recent California Supreme Court case, an employer may negotiate with the employee a mileage rate different from the IRS rate, so long as it fully reimburses the employee. But whenever an employer chooses to reimburse an employee below the IRS’s standard, extreme care should be taken to ensure that the negotiation was fair.
So while employees are not going to get rich from this small IRS increase, employees will no doubt be pleased to hear of some good news from the IRS. As for employers, the 2008 increase, while small, could create some headaches down the road if not followed today.
According to Labor Code section 2802: “An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence” of the performance of his or her job duties. Included in these “necessary expenditures” is the cost incurred by an employee in using his or her vehicle for business purposes.
The IRS sets out a standard mileage rate to calculate the costs of operating a vehicle for business purposes. Beginning January 1, 2008, the mileage rate for the use of a car (including vans, pickups or panel trucks) was raised to 50.5 cents per mile for business miles driven. This constitutes a two-cent raise from 2007.
Employers must exercise caution in reimbursing employees for mileage. According to California’s Department of Labor Standards Enforcement, employers must reimburse employees for mileage at the IRS rate in order to comply with Labor Code section 2802. However, according to a recent California Supreme Court case, an employer may negotiate with the employee a mileage rate different from the IRS rate, so long as it fully reimburses the employee. But whenever an employer chooses to reimburse an employee below the IRS’s standard, extreme care should be taken to ensure that the negotiation was fair.
So while employees are not going to get rich from this small IRS increase, employees will no doubt be pleased to hear of some good news from the IRS. As for employers, the 2008 increase, while small, could create some headaches down the road if not followed today.
Military Spouse Leave
Recently, Governor Schwarzenegger signed Assembly Bill 392 into law, effective immediately, creating a new leave of absence right for spouses of military personnel while the military spouse is on leave from active duty. The law allows for 10 days of unpaid time off.
Which employees are eligible?
To be eligible, the employee must have a spouse who is on active duty for any of the Armed Forces, National Guard or Army Reserves, in an area of military conflict. Leave will only be provided during: 1) periods of declared war, or 2) periods of deployment of the National Guard or Reserves.
Only employees who work an average of 20 or more hours per week are eligible.
Which employers are affected?
This new law applies to private and public employers with 25 or more employees.
What does an employee have to do?
In order to take the leave, the employee must give notice to the employer no later than two business days after receiving an “official notice” that the military spouse will be on deployment leave. The employee must also notify the employer of an intent to take the time off work during the spouse’s deployment. In addition, the employee must provide written documentation certifying that the spouse will be on leave from deployment during that time.
Employers should proceed carefully
The law creates some potential hazards for employers. First, the law does not address whether employers have flexibility in demanding that the ten-day leave be taken in such a way that will best facilitate the business’ needs. Therefore, employers should be as flexible as possible when employees request this leave. Second, taking such leave does not affect the employee’s right to any other leave or benefit. Third, it does not appear that there are circumstances under which an employer would be allowed to deny an employee’s request for leave - all the more reason for employers to be flexible and careful. Finally, this law prohibits any sort of retaliation against an employee who requests or takes such leave.
Which employees are eligible?
To be eligible, the employee must have a spouse who is on active duty for any of the Armed Forces, National Guard or Army Reserves, in an area of military conflict. Leave will only be provided during: 1) periods of declared war, or 2) periods of deployment of the National Guard or Reserves.
Only employees who work an average of 20 or more hours per week are eligible.
Which employers are affected?
This new law applies to private and public employers with 25 or more employees.
What does an employee have to do?
In order to take the leave, the employee must give notice to the employer no later than two business days after receiving an “official notice” that the military spouse will be on deployment leave. The employee must also notify the employer of an intent to take the time off work during the spouse’s deployment. In addition, the employee must provide written documentation certifying that the spouse will be on leave from deployment during that time.
Employers should proceed carefully
The law creates some potential hazards for employers. First, the law does not address whether employers have flexibility in demanding that the ten-day leave be taken in such a way that will best facilitate the business’ needs. Therefore, employers should be as flexible as possible when employees request this leave. Second, taking such leave does not affect the employee’s right to any other leave or benefit. Third, it does not appear that there are circumstances under which an employer would be allowed to deny an employee’s request for leave - all the more reason for employers to be flexible and careful. Finally, this law prohibits any sort of retaliation against an employee who requests or takes such leave.
Rest Breaks in the Workplace
Employers must provide non-exempt employees (employees eligible to receive overtime) rest breaks of at least 10 minutes for each four hours worked. An employer must also provide a meal break of at least one half-hour for every work period more than five hours. During the meal break the employee must be relieved of all duty and must be free to leave the premises. A second meal break is required if the employee’s work day is longer than 10 hours. Yet if an employee’s shift is six hours or less, the employee can choose to not take the meal break.
California Labor Code section 226.7 provides that if an employer fails to provide employees with these meal and rest breaks, the employee is owed “one hour of pay” for each missed break.
With respect to the penalty, rest breaks and meal breaks are different. With rest breaks, the employer is required to authorize and permit all employees to take the rest periods. An employer is not required to pay for the missed rest break if the employee, who was truly allowed and authorized to take the rest break, freely chooses to forgo it.
Meal breaks are different, however. According to the Labor Commissioner: “The employer has an affirmative obligation to ensure that workers are actually relieved of all duty, not performing any work, and free to leave the worksite.” In sum, it is the employer’s duty to allow employees to take rest breaks, and to ensure that employees take meal breaks.
A recent California case, Murphy v. Kenneth Cole Productions, has expanded liability for employers in this respect. In recent years, unpaid breaks were considered a “penalty,” meaning that employees could only go back one year to recover missed breaks. However, the California Supreme Court held that missed breaks are actually a form of “wages,” meaning that employees can now go back three years.
California Labor Code section 226.7 provides that if an employer fails to provide employees with these meal and rest breaks, the employee is owed “one hour of pay” for each missed break.
With respect to the penalty, rest breaks and meal breaks are different. With rest breaks, the employer is required to authorize and permit all employees to take the rest periods. An employer is not required to pay for the missed rest break if the employee, who was truly allowed and authorized to take the rest break, freely chooses to forgo it.
Meal breaks are different, however. According to the Labor Commissioner: “The employer has an affirmative obligation to ensure that workers are actually relieved of all duty, not performing any work, and free to leave the worksite.” In sum, it is the employer’s duty to allow employees to take rest breaks, and to ensure that employees take meal breaks.
A recent California case, Murphy v. Kenneth Cole Productions, has expanded liability for employers in this respect. In recent years, unpaid breaks were considered a “penalty,” meaning that employees could only go back one year to recover missed breaks. However, the California Supreme Court held that missed breaks are actually a form of “wages,” meaning that employees can now go back three years.
Tuesday, March 11, 2008
Family Medical Leave Act - Can You Take Time Off to Care for a Sick Family Member?
To be eligible for leave under the Family Medical Leave Act (FMLA), an employee must 1) have worked for the employer for at least 12 months – the time need not be consecutive; 2) have worked for the employer for at least 1,250 hours in the past 12 months; and 3) work for an employer that employs 50 or more employees at the worksite or within 75 miles of the worksite. FMLA leave is most often taken to care for a newborn child, to care for a family member (child, parent, or spouse) with a serious health condition, or in situations where an employee has a serious health condition. A “serious health condition” is an illness, injury or condition that involves either inpatient care or continuing treatment by a healthcare provider. An employee may take up to 12 workweeks of family leave in a 12-month period either all at once, or in small increments.
So if you were to seek FMLA leave, you would be eligible if the family member is a child, parent, or spouse, and your employer meets the above requirements.
FMLA leave is generally unpaid, although you may be able to substitute sick or vacation leave. Some employers require employees to use vacation or paid time off for family leave. An employer may require employees to use accrued sick pay during family leave, but only if the leave is for the employee’s own serious health condition. However, your employer may have a provision providing compensation during FMLA leave; check your Employee Handbook.
Yet you may have other avenues. California recognizes “kin care,” in which an employee can use sick leave to care for a sick child, parent, spouse, or domestic partner. It applies to small employers and does not require a serious illness. Here an employee may use one half of his or her annual sick leave allotment, once it is actually accrued. Finally, some companies offer short-term disability programs to care for a family member, where an employee can earn all or part of his or her salary. In conclusion, while each employer may offer varying benefits, there are many options available to California employees who need to care for sick family members and may need wages as well.
So if you were to seek FMLA leave, you would be eligible if the family member is a child, parent, or spouse, and your employer meets the above requirements.
FMLA leave is generally unpaid, although you may be able to substitute sick or vacation leave. Some employers require employees to use vacation or paid time off for family leave. An employer may require employees to use accrued sick pay during family leave, but only if the leave is for the employee’s own serious health condition. However, your employer may have a provision providing compensation during FMLA leave; check your Employee Handbook.
Yet you may have other avenues. California recognizes “kin care,” in which an employee can use sick leave to care for a sick child, parent, spouse, or domestic partner. It applies to small employers and does not require a serious illness. Here an employee may use one half of his or her annual sick leave allotment, once it is actually accrued. Finally, some companies offer short-term disability programs to care for a family member, where an employee can earn all or part of his or her salary. In conclusion, while each employer may offer varying benefits, there are many options available to California employees who need to care for sick family members and may need wages as well.
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