Last month’s article discussed drug testing of job applicants. This article addresses random drug testing of current employees. “Random” drug testing programs are those where an employer informs employees that they may have to submit to drug testing at any time during their employment, for any reason, or for no reason at all.
Cases upholding random drug testing are limited to those involving employees in narrowly-defined, specific professions in highly regulated industries or where positions are critical to public safety or national security. The rationale is that employees in these fields have less of an expectation of privacy given the nature of their employment. Random drug testing has been upheld for truck drivers, pipeline workers, aviation employees, and correctional officers having contact with prisoners.
The justification needed to randomly test employees is as follows: the intrusion into the employee’s privacy must be justified by a compelling interest. In one case example, where random drug testing was not allowed, the court held that safety was not a compelling reason for testing a computer operator for a railroad company in a non-safety sensitive position, and that her firing for refusing to consent to the test was a breach of the employer’s covenant of good faith and fair dealing.
Unless the employee fits into these narrowly-defined exceptions, random drug testing is not allowed in California. So even though random drug testing is often the most effective program to detect and resolve drug abuse issues at the workplace, chances are that a random drug testing policy at your business would not be legal under California law.
Tuesday, February 23, 2010
Drug Testing of Job Applicants
No employer wants to conduct a drug or alcohol test of an employee. And while such instances are rare, there are times when a business has no choice but to do so. This article will outline some important requirements pertaining to drug tests of job applicants. Next month’s article will discuss drug testing of current employees.
In a landmark case, the California Supreme Court refused to allow the City of Glendale to drug test current employees applying for promotions; however, the court did allow testing of job applicants. The court held that because the testing program was administered in a reasonable fashion as part of a lawful pre-employment medical examination required of every job applicant, it was permissible as to job applicants. The court held that the employer had a significantly greater interest in testing job applicants than current employees seeking a promotion (Loder v. City of Glendate (1997) 14 Cal.4th 846). This ruling holds true even where a job applicant delays submitting to the drug or alcohol test until after beginning work (Pilkington Barnes Hind. v. Sup. Ct. (1998) 66 Cal.App.4th 28, 32).
Be advised that employers may run into problems if only certain job applicants are tested and not others. Selective testing may bring complaints of discrimination. As evidenced by the ruling from Loder case cited above, the safest thing is to either test all applicants or none.
In conclusion, the current cases show that the drug testing of a job applicant generally will be upheld. Yet as will be discussed in more detail next month, the testing of current employees is held to a much higher standard.
In a landmark case, the California Supreme Court refused to allow the City of Glendale to drug test current employees applying for promotions; however, the court did allow testing of job applicants. The court held that because the testing program was administered in a reasonable fashion as part of a lawful pre-employment medical examination required of every job applicant, it was permissible as to job applicants. The court held that the employer had a significantly greater interest in testing job applicants than current employees seeking a promotion (Loder v. City of Glendate (1997) 14 Cal.4th 846). This ruling holds true even where a job applicant delays submitting to the drug or alcohol test until after beginning work (Pilkington Barnes Hind. v. Sup. Ct. (1998) 66 Cal.App.4th 28, 32).
Be advised that employers may run into problems if only certain job applicants are tested and not others. Selective testing may bring complaints of discrimination. As evidenced by the ruling from Loder case cited above, the safest thing is to either test all applicants or none.
In conclusion, the current cases show that the drug testing of a job applicant generally will be upheld. Yet as will be discussed in more detail next month, the testing of current employees is held to a much higher standard.
Thursday, September 24, 2009
Don’t get burned by California’s Heat Illness Prevention Regulations
Whether they work in the fields, at a construction site, or out on the local streets, many Visalia employees work outdoors. Employers may not be aware that there are certain rules that apply to outdoor employees. If you have employees that work outside, then your business is covered by the California Heat Illness Prevention Regulations.
The law defines “outdoor work” broadly. Open areas like agricultural fields, storage yards, and constructions sites clearly constitute outdoor workplaces. Yet outdoor areas adjacent to buildings, e.g., loading docks, are also considered “outdoors” if an employee spends a significant amount of time working in them.
So assuming your business is covered by these regulations, what are you required to do? Employers must have an effective Injury and Illness Prevention Program (IIPP) which provides first aid and emergency response. All IIPPs must include effective procedures for hazard identification, correction, investigation of employee injuries, and communication with employees about health and safety matters.
Employers must also ensure that employees have adequate drinking water. For employees working in the heat, a minimum of one quart of drinking water per hour must be available to each employee to replace water lost by exertion in the heat.
In addition, the heat illness prevention standard requires employers to provide employees access to an area with shade. Employers must always have the capability to provide shade promptly if it is requested by an employee. The Division of Occupational Safety and Health has mandated that “adequate access to shade includes having shade actually present when the presence of shade is necessary to protect employees from heat illness.”
Non-agricultural employers may provide cooling measures other than shade, if they can demonstrate that the alternative is at least as effective as shade. Such cooling measures include other options such as fans and misting devices where the employer can demonstrate that they are at least as effective as shade at allowing the body to cool.
While these regulations are somewhat technical, and do not apply to all businesses, many Visalia businesses are required to comply with these rules because their employees must work outdoors. Following these guidelines will ensure a safe, productive workplace for outdoor employees, and will eliminate problems down the road.
The law defines “outdoor work” broadly. Open areas like agricultural fields, storage yards, and constructions sites clearly constitute outdoor workplaces. Yet outdoor areas adjacent to buildings, e.g., loading docks, are also considered “outdoors” if an employee spends a significant amount of time working in them.
So assuming your business is covered by these regulations, what are you required to do? Employers must have an effective Injury and Illness Prevention Program (IIPP) which provides first aid and emergency response. All IIPPs must include effective procedures for hazard identification, correction, investigation of employee injuries, and communication with employees about health and safety matters.
Employers must also ensure that employees have adequate drinking water. For employees working in the heat, a minimum of one quart of drinking water per hour must be available to each employee to replace water lost by exertion in the heat.
In addition, the heat illness prevention standard requires employers to provide employees access to an area with shade. Employers must always have the capability to provide shade promptly if it is requested by an employee. The Division of Occupational Safety and Health has mandated that “adequate access to shade includes having shade actually present when the presence of shade is necessary to protect employees from heat illness.”
Non-agricultural employers may provide cooling measures other than shade, if they can demonstrate that the alternative is at least as effective as shade. Such cooling measures include other options such as fans and misting devices where the employer can demonstrate that they are at least as effective as shade at allowing the body to cool.
While these regulations are somewhat technical, and do not apply to all businesses, many Visalia businesses are required to comply with these rules because their employees must work outdoors. Following these guidelines will ensure a safe, productive workplace for outdoor employees, and will eliminate problems down the road.
Thursday, July 30, 2009
What you need to know about reimbursing employee expenses
From time to time, virtually all employees are asked to dip into their own pockets for legitimate business needs. This may take form of filling up the employee’s car with gas after a long drive to meet with a client, or buying office supplies at Staples. How many of you reading this article have asked an employee to pick up a birthday cake or flowers for another employee? So when employees do use their own funds for business needs, what is the obligation of the employer?
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 discharge of his or her duties, or of his or her obedience to the directions of the employer …” As alluded to above, this usually takes the form of mileage, travel, and dining expenses.
How do I reimburse for mileage?
A year ago gas prices were through the roof. Eight months ago gas prices were lower than they had been in years. Fortunately, employers have a guide when reimbursing employers for their mileage. The Internal Revenue Service (IRS) issues a standard mileage rate that fluctuates based on gas and other travel prices. The current IRS standard mileage rate is 55 cents per mile for business miles driven, 24 cents per mile driven for medical or moving purposes, and 14 cents per mile driven in service of charitable organizations. Here’s how the IRS has recently taken gas prices into account when setting the standard rate: the rate was 50.5 cents at the start of 2008, then climbed to 58.5 cents in the second half of 2008, and then came down again to the current rate of 55 cents per mile.
While the rate usually adjusts each January – as evidenced by the multiple changes in 2008 – employers need to be on the lookout for changes in the IRS mileage rate to ensure that employees are being properly reimbursed.
When do I have to reimburse my employees?
Expense reimbursements are not considered wages. As such, wage laws, such as those regulating the time and place of payment, do not apply to expense reimbursements. Therefore, employers are free to make expense reimbursements on any reasonable schedule. Many employers choose to reimburse employees once a month.
Are expenses due immediately on termination?
There are specific time frames in which employers are required to pay employee wages when the employment relationship is terminated. When an employee is terminated, all wages (including vacation) are due immediately. When an employee quits and gives more than 72 hours notice, all wages are due on the last day of work. When an employee quits and gives fewer than 72 hours notice, all wages are due within 72 hours after notice is given.
Expenses work differently, however. The deadlines described above that apply to final wages do not apply to reimbursement of expenses. Reimbursements can be made at the normal time for payment – and as outlined above, employers are free to create a reasonable schedule for reimbursement of expenses.
In conclusion, the rules regarding expenses are straightforward, and few problems arise in this regard. Nevertheless, employers can save themselves problems down the road by making sure employee expenses are handled properly.
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 discharge of his or her duties, or of his or her obedience to the directions of the employer …” As alluded to above, this usually takes the form of mileage, travel, and dining expenses.
How do I reimburse for mileage?
A year ago gas prices were through the roof. Eight months ago gas prices were lower than they had been in years. Fortunately, employers have a guide when reimbursing employers for their mileage. The Internal Revenue Service (IRS) issues a standard mileage rate that fluctuates based on gas and other travel prices. The current IRS standard mileage rate is 55 cents per mile for business miles driven, 24 cents per mile driven for medical or moving purposes, and 14 cents per mile driven in service of charitable organizations. Here’s how the IRS has recently taken gas prices into account when setting the standard rate: the rate was 50.5 cents at the start of 2008, then climbed to 58.5 cents in the second half of 2008, and then came down again to the current rate of 55 cents per mile.
While the rate usually adjusts each January – as evidenced by the multiple changes in 2008 – employers need to be on the lookout for changes in the IRS mileage rate to ensure that employees are being properly reimbursed.
When do I have to reimburse my employees?
Expense reimbursements are not considered wages. As such, wage laws, such as those regulating the time and place of payment, do not apply to expense reimbursements. Therefore, employers are free to make expense reimbursements on any reasonable schedule. Many employers choose to reimburse employees once a month.
Are expenses due immediately on termination?
There are specific time frames in which employers are required to pay employee wages when the employment relationship is terminated. When an employee is terminated, all wages (including vacation) are due immediately. When an employee quits and gives more than 72 hours notice, all wages are due on the last day of work. When an employee quits and gives fewer than 72 hours notice, all wages are due within 72 hours after notice is given.
Expenses work differently, however. The deadlines described above that apply to final wages do not apply to reimbursement of expenses. Reimbursements can be made at the normal time for payment – and as outlined above, employers are free to create a reasonable schedule for reimbursement of expenses.
In conclusion, the rules regarding expenses are straightforward, and few problems arise in this regard. Nevertheless, employers can save themselves problems down the road by making sure employee expenses are handled properly.
Wednesday, July 1, 2009
A Casual Problem? Implementing an appropriate dress and grooming policy
As far as dress goes, the modern workplace is becoming more and more casual. Suits, ties, and other formal apparel are often the exception at work, rather than the rule. Yet virtually all businesses, especially those where face-to-face customer/client interaction is required, want employees to look their best. As such, California law allows for reasonable requirements concerning employee dress and grooming. There are, however, restrictions.
For one, in California, it is generally unlawful to prohibit women from wearing pants. Moreover, requiring women to wear sexually provocative uniforms can violate FEHA. Other grooming policies may be discriminatory if they create an unusual burden on one gender in terms of expense, time to get ready for work, etc. (Jespersen v Harrah's Operating Co. (9th Cir 2006) 444 F3d 1104).
Yet a grooming policy that differentiates in some respects between men and women does not, by itself and without any further showing of disparate treatment, constitute sex discrimination. In Jespersen v Harrah's Operating Co., the employer terminated a female casino bartender for refusing to comply with the employer's grooming policy, which (1) required women to wear makeup, (2) allowed women to have long hair, while men had to have short hair, and (3) prohibited men from having painted fingernails. The court held that the grooming policy did not impose an unequal burden on women. While the employer's policy contained sex-differentiated requirements regarding each employee's hair, hands, and face, and while those individual requirements differed according to gender, none on its face placed a greater burden on one gender than the other.
Employers must also reasonably accommodate employees in implementing grooming standards that conflict with an employee's religious beliefs and practices (Bhatia v Chevron U.S.A., Inc. (9th Cir 1984) 734 F2d 1382, 1383). In Bhatia v. Chevron U.S.A., Inc., the employer required employees to shave any facial hair that prevented them from achieving a gas-tight face seal when wearing a respirator. Mr. Bhatia, a machinist, informed his employer he could not comply with the requirement because he was a devout Sikh, and his religion proscribed the cutting or shaving of any body hair. Mr. Bhatia was suspended, and eventually accepted a transfer to a janitorial position at reduced wages. The employer refused to promise it would return Mr. Bhatia to a machinist position if equipment were developed that could be used safely with a beard. The court found that while Mr. Bhatia had established a case of religious discrimination, the employer showed that it made good faith efforts to accommodate his religious beliefs, and that further accommodation would have caused it undue hardship.
In conclusion, employers must ensure that supervisors correctly administer dress and grooming policies, and that the policies themselves do not violate the rules discussed above. It is also important to make sure that such policies do not disproportionately impact one group or gender more than another.
For one, in California, it is generally unlawful to prohibit women from wearing pants. Moreover, requiring women to wear sexually provocative uniforms can violate FEHA. Other grooming policies may be discriminatory if they create an unusual burden on one gender in terms of expense, time to get ready for work, etc. (Jespersen v Harrah's Operating Co. (9th Cir 2006) 444 F3d 1104).
Yet a grooming policy that differentiates in some respects between men and women does not, by itself and without any further showing of disparate treatment, constitute sex discrimination. In Jespersen v Harrah's Operating Co., the employer terminated a female casino bartender for refusing to comply with the employer's grooming policy, which (1) required women to wear makeup, (2) allowed women to have long hair, while men had to have short hair, and (3) prohibited men from having painted fingernails. The court held that the grooming policy did not impose an unequal burden on women. While the employer's policy contained sex-differentiated requirements regarding each employee's hair, hands, and face, and while those individual requirements differed according to gender, none on its face placed a greater burden on one gender than the other.
Employers must also reasonably accommodate employees in implementing grooming standards that conflict with an employee's religious beliefs and practices (Bhatia v Chevron U.S.A., Inc. (9th Cir 1984) 734 F2d 1382, 1383). In Bhatia v. Chevron U.S.A., Inc., the employer required employees to shave any facial hair that prevented them from achieving a gas-tight face seal when wearing a respirator. Mr. Bhatia, a machinist, informed his employer he could not comply with the requirement because he was a devout Sikh, and his religion proscribed the cutting or shaving of any body hair. Mr. Bhatia was suspended, and eventually accepted a transfer to a janitorial position at reduced wages. The employer refused to promise it would return Mr. Bhatia to a machinist position if equipment were developed that could be used safely with a beard. The court found that while Mr. Bhatia had established a case of religious discrimination, the employer showed that it made good faith efforts to accommodate his religious beliefs, and that further accommodation would have caused it undue hardship.
In conclusion, employers must ensure that supervisors correctly administer dress and grooming policies, and that the policies themselves do not violate the rules discussed above. It is also important to make sure that such policies do not disproportionately impact one group or gender more than another.
Friday, June 5, 2009
The pros and cons of Progressive Discipline
Employers walk a fine line when it comes to disciplining their employees. On the one hand, employers want to give their employees the opportunity to improve performance problems. On the other, employers want to make sure that they don’t alter the “at-will” employment relationship and create problems if the employee is unable to improve. And straddling this line is the “progressive discipline” policy.
What is a progressive discipline policy?
A progressive disciplinary policy is one based on incremental levels of discipline, which usually includes: (1) oral warnings for the first infraction; (2) written warnings if the misconduct persists; and eventually (3) suspension or termination for subsequent infractions.
When and how should it be used?
Progressive discipline is typically used to correct less serious forms of performance deficiencies or misconduct – e.g., absenteeism, performance deficiencies, tardiness, abusive language, horseplay, sleeping or loafing on the job, personal use of company equipment, and other less severe forms of performance deficiencies or misconduct. Progressive discipline should not be used in instances of severe misconduct – assault, theft, falsification of work records, willful damage to property, or divulging confidential information.
Documentation is a key part of any progressive discipline policy. Supervisors should be required to document each step of the process. The employee's immediate supervisor should discuss each disciplinary step with the employee to assure that the employee understands the basis for discipline and the consequences of subsequent infractions.
What risks does a progressive discipline policy create?
While strict progressive-discipline policies encourage "fairness," many employers believe that a progressive discipline policy should be avoided, because (1) it is inconsistent with a truly "at-will" employment relationship, and (2) it creates too many litigation risks.
In essence, the employer that adopts such a policy establishes a standard for its own conduct. Consequently, any failure to observe the policy could be viewed by a judge or jury as improper.
The more detailed a policy is, the greater the risk that a mistake will be made in the course of dealing with a disciplinary problem. One approach for handling disciplinary matters is to include an at-will disclaimer at the end of the progressive discipline policy, permitting the employer to skip any step in the discipline process.
Eventually, each employer must decide for itself if the risks of a progressive discipline policy outweigh the rewards.
What is a progressive discipline policy?
A progressive disciplinary policy is one based on incremental levels of discipline, which usually includes: (1) oral warnings for the first infraction; (2) written warnings if the misconduct persists; and eventually (3) suspension or termination for subsequent infractions.
When and how should it be used?
Progressive discipline is typically used to correct less serious forms of performance deficiencies or misconduct – e.g., absenteeism, performance deficiencies, tardiness, abusive language, horseplay, sleeping or loafing on the job, personal use of company equipment, and other less severe forms of performance deficiencies or misconduct. Progressive discipline should not be used in instances of severe misconduct – assault, theft, falsification of work records, willful damage to property, or divulging confidential information.
Documentation is a key part of any progressive discipline policy. Supervisors should be required to document each step of the process. The employee's immediate supervisor should discuss each disciplinary step with the employee to assure that the employee understands the basis for discipline and the consequences of subsequent infractions.
What risks does a progressive discipline policy create?
While strict progressive-discipline policies encourage "fairness," many employers believe that a progressive discipline policy should be avoided, because (1) it is inconsistent with a truly "at-will" employment relationship, and (2) it creates too many litigation risks.
In essence, the employer that adopts such a policy establishes a standard for its own conduct. Consequently, any failure to observe the policy could be viewed by a judge or jury as improper.
The more detailed a policy is, the greater the risk that a mistake will be made in the course of dealing with a disciplinary problem. One approach for handling disciplinary matters is to include an at-will disclaimer at the end of the progressive discipline policy, permitting the employer to skip any step in the discipline process.
Eventually, each employer must decide for itself if the risks of a progressive discipline policy outweigh the rewards.
Wednesday, April 29, 2009
Conducting an effective termination meeting
An unfortunate part of doing business is occasionally having to terminate employees. Regardless of the reason for the termination, employers must be careful in how terminations are carried out. A substantial number of lawsuits filed by former employees arise because of how the termination took place, not why it took place. One good practice to ensure that terminations are handled properly is to conduct a termination meeting.
Employers may wish to consider the following steps in planning and carrying out a termination meeting. First, arrange for the meeting with the employee as soon as possible after the termination decision has been made. Waiting too long can allow rumors to spread and misinformation to get out which can make the process more difficult. Second, arrange the meeting at a time and place that will ensure privacy and minimize interruptions. Third, to minimize conflict between the employee and supervisor, consider having someone other than the employee's immediate supervisor conduct the termination meeting, such as the Human Resources manager or the employee's department manager. Fourth, it is a good idea to have a second manager or supervisor attend the termination meeting and serve as a witness to what was said or done at the meeting, but not otherwise actively participate.
The person conducting the termination meeting should briefly state the issues that precipitated the meeting, taking time to review previous discipline that supports the termination. Be sure to give the employee accurate and true reasons for the termination – reasons given to the employee that are later proved incorrect will substantially undermine the employer's defense if the employee sues the employer.
Be matter of fact, yet respectful to the employee. Do not allow the meeting to become argumentative. If the employee becomes argumentative or threatening, terminate the meeting and leave the room. Perhaps most importantly, be brief. Try to finish the meeting in less than 15 minutes. At the conclusion of the meeting, hand the employee a letter of termination, and briefly explain its contents. Be sure to provide the employee with a copy of the Employment Development Department (EDD) "DE 2320" pamphlet entitled "For Your Benefit," which informs employees of unemployment benefit rights.
Finally, unless there is a real fear of theft or destruction of company property, the employee should be allowed to privately gather personal items and leave the premises. Employers who require that the terminated employee be "escorted" from the building or monitored while cleaning out his or her desk could increase their risk of a lawsuit. Remember, it’s often “how” a termination is carried out that causes problems, not “why.”
This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler, Koch, Degn & Gomez LLP (bta@thecalifornialawyers.com). For specific employment law advice or other legal assistance, contact Gubler, Koch, Degn & Gomez LLP , (559) 625-9600, 1110 N. Chinowith St., Visalia, CA 93291 (www.thecalifornialawyers.com). Read Mr. Abbott’s blog on employment law issues at http://work-law.blogspot.com.
Employers may wish to consider the following steps in planning and carrying out a termination meeting. First, arrange for the meeting with the employee as soon as possible after the termination decision has been made. Waiting too long can allow rumors to spread and misinformation to get out which can make the process more difficult. Second, arrange the meeting at a time and place that will ensure privacy and minimize interruptions. Third, to minimize conflict between the employee and supervisor, consider having someone other than the employee's immediate supervisor conduct the termination meeting, such as the Human Resources manager or the employee's department manager. Fourth, it is a good idea to have a second manager or supervisor attend the termination meeting and serve as a witness to what was said or done at the meeting, but not otherwise actively participate.
The person conducting the termination meeting should briefly state the issues that precipitated the meeting, taking time to review previous discipline that supports the termination. Be sure to give the employee accurate and true reasons for the termination – reasons given to the employee that are later proved incorrect will substantially undermine the employer's defense if the employee sues the employer.
Be matter of fact, yet respectful to the employee. Do not allow the meeting to become argumentative. If the employee becomes argumentative or threatening, terminate the meeting and leave the room. Perhaps most importantly, be brief. Try to finish the meeting in less than 15 minutes. At the conclusion of the meeting, hand the employee a letter of termination, and briefly explain its contents. Be sure to provide the employee with a copy of the Employment Development Department (EDD) "DE 2320" pamphlet entitled "For Your Benefit," which informs employees of unemployment benefit rights.
Finally, unless there is a real fear of theft or destruction of company property, the employee should be allowed to privately gather personal items and leave the premises. Employers who require that the terminated employee be "escorted" from the building or monitored while cleaning out his or her desk could increase their risk of a lawsuit. Remember, it’s often “how” a termination is carried out that causes problems, not “why.”
This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler, Koch, Degn & Gomez LLP (bta@thecalifornialawyers.com). For specific employment law advice or other legal assistance, contact Gubler, Koch, Degn & Gomez LLP , (559) 625-9600, 1110 N. Chinowith St., Visalia, CA 93291 (www.thecalifornialawyers.com). Read Mr. Abbott’s blog on employment law issues at http://work-law.blogspot.com.
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