Sitting Down on the Job? California Supreme Court Gives You Permission

sitting downAre you a California worker who spends the day on your feet, even though a portion of your work is done at a workstation where sitting down would be reasonable?  If so, a recent California Supreme Court decision on seating may impact your work in the future.

2016 California Supreme Court Ruling

The case, Kilby v, CVS Pharmacy, Inc, involved a clerk-cashier who, in addition to stocking shelves and otherwise supporting the organization and cleanliness of the store, was required to run the register and provide customer service.  Kilby was not permitted to sit in the course of the workday.

Kilby maintained that the lack of available seating was in violation of Section 14 of Wage Order No. 7-2001, which provides that seating should be available to employees when they are not engaged in active work and when it does not interfere with the performance of duties.

The court considered the Wage Orders’ seating requirements, noting that it intended for “humane consideration for the welfare of employees” and was designed to provide a certain level of protection for those workers who could reasonably perform at least some of their duties while sitting down. It sided with employees, stating that “overall job duties” must be considered when making a determination as to seating provisions.

Specifically, the court sided with Kilby on three important points:

  • Although an employee’s responsibilities may include a variety of tasks, if even a portion of those tasks can reasonably be performed while sitting, it is incumbent upon the employer to provide seating.
  • The determination as to whether or not seating should exist should be made while considering the way in which the job is typically performed, as opposed to physical attributes and capabilities of particular workers.
  • When an employer determines that suitable seating is unavailable, it is incumbent upon the employer to prove why.

Employer Considerations Under the Ruling

So when are employers expected to provide seating?  The court’s ruling gives employers these factors to consider:

  • Will completing the work while sitting down degrade the quality or effectiveness of the work?
  • Would frequent transitions between sitting down and standing interfere with the quantity or quality of the work?
  • Will providing seating interfere with the completion of other tasks that require standing or moving?
  • Would employers’ objectively reasonable expectations for standing be minimized by providing seating (not just their preference for standing)?
  • Does the physical configuration of the workspace lend itself to employees sitting down?

[Read more…]

Strike! Legal Guidelines to Going on Strike

StrikeStrike! The rumblings in the workplace are growing. Employees feel dissatisfied on a many fronts, and negotiations with management are not going well. Now you hear fellow employees throwing around phrases like “job action,” and “going on strike”. You feel conflicted. Although you support your fellow employees and want to resolve the issues at hand, you worry about the ramifications of participating in a strike. What, exactly, are your rights?

Your Right to Strike

The National Labor Relations Act provides that employees have the right to “…engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 13 of the NLRA specifically calls out striking as a right guaranteed to union workers.  However, under certain circumstances a strike may be unlawful:

  • If the strike is called in support of a union unfair labor practice (such as attempting to force individuals to pay dues when they choose not to);
  • If the purpose of the strike is to attempt to force employers into actions that are normally outside the employee’s range of influence. An example would be if employees wanted their employer to boycott a particular brand or company. It is generally understood that employers have the right to make such decisions, with or without input from employees; but employees may not legally force their will onto employers through a strike;
  • When a no-strike contract exists between employers and workers, it must be adhered to unless it is related to unfair labor practices or unsafe working conditions;
  • Strikes timed to coincide with the end of a contract are not allowed.
  • Strikes that involve illegal misconduct (including blocking entryways, threatening violence, or attacking managers);
  • Picketing, striking, or otherwise organizing a refusal to work in any health care institution without at least 10 days’ written notice to both the institution and to the Federal Mediation and Conciliation Service.

Will I Lose My Job if I Participate in a Legal Strike?

When union workers strike, they are striking for specific objectives which fall into two categories: economic issues and matters related to unfair labor practices. Those in the latter category have stronger rights related to job reinstatement.

Economic Strikers

When individuals go on strike in order to secure better working conditions, hours, or financial remuneration, they are referred to as “economic strikers”. Employers who replace these workers with bona fide permanent workers are not required to discharge the replacement workers when the strike ends. On the other hand, if the replacement workers are not equivalent to the previous workforce, strikers are entitled to be recalled to their previous jobs.

Unfair Labor Practice Strikers

Unfair labor practices relate to employers who in some way interfere with workers’ rights to unionize or to carry out union activities. This may involve discrimination, retaliation, or punitive measures in association with union activities. A striker in this category is entitled to their job at the conclusion of the strike, regardless of the classification of replacement workers. [Read more…]

Filing Deadline to Sue an Employer in California

Filing DeadlineWhat is the filing deadline to sue an employer in California? Reginald Mitchell worked as a health facilities investigator for the California Department of Public Health until 2011. After he resigned, he filed a complaint with the Equal Employment Opportunity Commission (EEOC). The complaint alleging that he had been subjected to racial discrimination. A copy of his EEOC complaint was also filed with the California Department of Fair Employment and Housing (DFEH), which issued him a right-to-sue notice.

The right-to-sue notice stated that he could bring a civil action against his employer within one year from the date of the letter – September 9, 2011. It also stated that the one-year period would be tolled during the time that the EEOC investigated his complaint.

On September 30, 2013, the EEOC found that there was reasonable cause to believe that Mitchell had been the victim of discrimination. A right-to-sue notice was later issued by the U.S. Department of Justice. Mitchell received the notice on March 21, 2014.

Mitchell then filed a civil action under the California Fair Employment and Housing Act (FEHA) on July 8, 2014. This was 107 days after he received his federal right-to-sue letter. The federal right-to-sue period lasts only 90 days.

Was Mitchell still eligible to file that action? On one hand, his federal filing deadline had expired. But on the other hand, he had been informed by the state of California that he had a year to bring a suit against his employer – and that this time period would be tolled while the EEOC was investigating. And when Mitchell filed his complaint, far less than a year had passed since the conclusion of the EEOC’s investigation.

Can the Filing Deadline Be Extended?

The case of Mitchell v. California Department of Public Health revolved around whether an employee in Mitchell’s situation can file a complaint after the federal right-to-sue period has ended. A California appeals court provided an answer that will please plaintiffs in employment discrimination cases – but not employers.

The court ruled that FEHA’s one-year filing deadline limitation period was tolled while the EEOC investigated, and thus Mitchell’s complaint was timely. The ruling points out that, according to Section 12965 of California’s Government Code, the limitation period can be tolled when the following three factors are met:

  • Concurrent charges filed with the EEOC and DFEH
  • The DFEH defers investigation of the charges to the EEOC, and
  • Charges are deferred to the EEOC and right-to-sue notice issued by DFEH.

The court held that all three of these factors were met in Mitchell’s case. According to the ruling, even though the federal right-to-sue period had expired, the equitable tolling meant that Mitchell’s right to take action under FEHA was still valid on the day he filed his complaint.

The court’s opinion argues that equitable tolling of the FEHA limitation period is in the public interest. It points out that, with equitable tolling, the defendant will receive notice of the claim, and the plaintiff will not have to pursue simultaneous actions based on the same set of facts. It also notes that equitable tolling prevents the costs of duplicate proceedings. [Read more…]

Do Your Employees Have a Right to Sit?

Right To SitThe right to sit. California business owners who require their employees to stay standing throughout the workday may need to rethink their policies. In the case of Kilby v. CVS Pharmacy, Inc., the Ninth Circuit Court of Appeals has ruled in favor of an employee who filed a class action complaint because she and other employees were not allowed to sit down while doing their jobs.

The case dealt with the language of Wage Order 7-2001 of California’s Industrial Welfare Commission. This order contains a provision that all working employees “must be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The Right to Sit

CVS argued that in order to determine whether the nature of the work reasonably permits the use of seats, a court must consider all of the employee’s tasks, and determine whether the position should be classified as a “sitting” job or a “standing” job. The Ninth Circuit disagreed, holding that this type of “all-or-nothing” approach is too strict.

The Court held that if an employee spends a substantial portion of a workday at one location doing tasks that can reasonably be done while sitting down, the employee should be allowed to sit while performing those tasks – even if some of the employee’s other tasks must be performed while standing. According to the ruling, when courts consider whether the use of seats would be reasonable, they must examine the employee’s tasks by subsets based on the location in the workspace in which they are performed.

Additional Holdings

CVS argued that courts should accord deference to an employer’s “business judgment” regarding whether tasks should be performed while an employee is standing. The plaintiffs argued that business judgment should not be a factor in the right to sit. The Court held that while employers are allowed to define their employees’ duties, their “mere preference” that an employee perform a task while standing is not a proper factor.

The plaintiffs argued that the physical layout is irrelevant to whether the use of seats is reasonably permitted. The Court disagreed, holding that the layout can be relevant in that it may inform the expectations of what an employee’s job duties will be. However, the Court also held that an employer may not “unreasonably design” a workspace in order to prevent an employee from sitting. (Also, the Court ruled that evidence of seats being used in similar workspaces may be relevant to an inquiry.)

The parties disagreed on whether an employee’s physical characteristics may be taken into consideration of the right to sit. The Court held that the emphasis should be on the nature of the work itself, and not the nature of the employee.

The Court held that there is not a burden on an employee to prove that a particular seat is suitable. The ruling states that the burden instead lies on an employer who argues that there is no suitable seating. [Read more…]

New California Legislation Affects Employee Parental Activity Leave

parental leave activityNew California legislation affects employee parental activity leave. One of the many bills signed into law by Governor Jerry Brown on October 11, 2015 was Senate Bill 579. This bill amended Section 230.8 of the California Labor Code, which allows employees to take leave from work each year to participate in activities related to their children’s schooling or day care. The section, as revised, now applies to foster parents and stepparents, and it allows employees to take leave for a wider range of activities.

The Specifics of the Parental Activity Leave Bill

The basic provisions of Section 230.8 include:

  • Requiring California employers with 25 or more employees at a particular location to allow any employee who is a parent (or a guardian or grandparent with custody of a child) to take up to 40 hours of leave per year in order to participate in activities at their children’s schools and/or day care facilities.
  • An employee may not take off more than eight hours in a calendar month for these school or daycare activities, and the employee must provide his or her employer with reasonable notice.
  • An employee who decides to take leave for these activities must make use of any vacation time, compensatory time off, or personal leave to which he or she is entitled. In addition, if the employee is entitled to time off without pay, then he or she may make use of it for these activities.
  • The employee must provide the employer with written documentation from the school or daycare facility if the employer requests it.

SB 579 has amended the section in a number of ways relating to parental activity, including the following:

  • The term “parent” can now apply not only to a parent or a grandparent, but also to a stepparent, a foster parent, or someone who stands in loco parentis to a child. (“In loco parentis” refers to someone legally standing in the place of a parent.)
  • The term “licensed child daycare facility” has been replaced with the term “licensed child care provider.”
  • The time off may be used to find a school or child care facility, or to enroll or reenroll one’s child in a school or child care facility.
  • The time off may also be used to address an emergency related to a school or a child care provider. The statute explains that the term “emergency” refers to when the child of the employee is unable to remain at his or her school or child care facility. (The possible reasons for this include closure of the facility, behavioral problems, natural disasters, and a request from the school or child care provider that the child be removed.)

[Read more…]

The NLRB Changes Joint Employment Standards

joint employment, joint employment standardsThe National Labor Relations Board (NLRB) has issued a ruling that adopts a new definition of joint employment. The case revolved around a California labor dispute – but the more expansive definition of joint employment laid out in the decision is expected to have a significant effect on labor cases around the country.

The labor dispute case involved Browning-Ferris Industries of California (BFI), which operates a recycling facility in Milpitas, and Leadpoint Business Services, which provides BFI with employees. A union, Sanitary Truck Drivers and Helpers Local 350, sought to represent the sorters, screen cleaners, and housekeepers who work at the facility. The Union argued that BFI and Leadpoint were joint employers of the employees in question.

A regional director of the NLRB issued a decision stating that Leadpoint was the sole employer of these employees. The ruling used the NLRB’s previous definition of joint employment, which focused on whether the employers exercised the right to control workers in a direct, immediate way (rather than a limited and routine way).

The NLRB’s Reversal on Joint Employment Standards

The NLRB overturned the Regional Director’s decision and found that BFI and Leadpoint are joint employers. The NLRB concluded that it is relevant whether a putative employer has the authority to control the terms and conditions of employment, even if the employer does not actually use that authority. The NLRB’s ruling clarifies that the correct test for whether joint employment exists is “whether one statutory employer possesses sufficient control over the work of the employees to qualify as a joint employer with another employer.”

Under the ruling, entities are considered joint employers if:

  • They are both employers within the meaning of the common law, and
  • They share or codetermine those matters governing the essential terms and conditions of employment.

The factors that the NLRB examined in order to determine the answers to these questions included hiring, firing, discipline, supervision, direction of work, hours, and wages. After considering these factors, the Board concluded that BFI shared and co-determined the terms and conditions of employment, and thus, was a joint employer along with Leadpoint.

Why the Joint Employment Standards Change?

The ruling states that the new standard was previously used by the NLRB and courts for years, and that it is based on the common-law definition of an employment relationship. According to the opinion, the common-law test for an employment is based on the right to control and not on whether that control is exercised.

The ruling argues that the previous standard was significantly narrower than the common-law standard. It also states that, under the old standard, employees could be deprived of their right to bargain effectively simply because there were two employing firms involved in their work arrangements instead of one. [Read more…]

The Public Policy Exception for At-Will Employment

at will employmentIf you ask an employer what “at-will employment” means, there’s a good chance they’ll tell you that it means an employer can fire the employee for any reason they want – or for no reason at all.

This is a very common definition of at-will employment, but it isn’t quite accurate. An employer can fire an at-will employee for almost any reason – but there are exceptions.

The best known of these exceptions is that certain forms of discrimination can be illegal grounds for firing an employee. (In California, these forms include discrimination based on race, national origin, gender, religion, age, sexual orientation, pregnancy status, marital status, genetic information, and disability).

There are other reasons for firing an employee that are prohibited by statute. These reasons include firing an employee for filing a claim for workers’ compensation, or for taking leave that is guaranteed to them under federal or state law, or for engaging in protected union activity.

Another exception is that it is illegal to fire an employee for a reason that is in opposition to public policy. This means that an employee cannot be fired for:

  • refusing to violate a statute;
  • performing a statutory obligation;
  • exercising a statutory right or privilege;
  • reporting a violation of a statute of public importance.

If an employee files a claim against an employer for wrongful termination in violation of public policy, he or she will have to demonstrate that:

  • He or she was an employee of the employer;
  • That he or she was discharged by his or her employer;
  • That the alleged violation of public policy was a motivating reason for the discharge;
  • That the discharged caused the employee harm.

Yau vs. Santa Margarita Ford

A good example of these circumstances can be found in the case of Yau vs. Santa Margarita Ford, Inc. It involved an employee of an auto dealership, who became aware that some of his coworkers were submitting fictitious warranty repair claims. He chose to notify the owner of the dealership about what was happening, and his coworkers responded to the accusation by falsely accusing him of being the mastermind of the scheme. He was later told that he was being fired for alleged warranty fraud, and then was promptly led out of his office by sheriff’s deputies.

The employee filed a complaint against his employer for wrongful termination. He argued that the motivation for his firing contravened public policy set forth in several different laws (such as laws prohibiting criminal conspiracy, theft, fraud and deceit). A California Court of Appeal held that these statutes were statutes of public importance, and that his allegations were properly tethered to the statutes.

Have Your Rights Been Violated?

If you’ve been fired from a job in Sonoma County, Mendocino County or Lake County California and believe that the reason for your firing was in opposition to public policy, don’t let anyone tell you that your employer had the right to fire you “for any reason they wanted.” You may very well have a case against your employer, even if you were an at-will employee.

It may be well worth your time to contact an attorney. Our experienced Beck Law P.C. labor and employment law attorneys in Santa Rosa can evaluate your individual situation, and help you decide how to proceed. Contact our office today for a consultation.

Pregnancy Leave in California

pregnancy leave, pregnancy leave in california, labor lawLooking for information on pregnancy leave in California? Pregnant employees are protected by the Family and Medical Leave Act (FMLA), a federal law that guarantees medical leave for eligible workers. (The FMLA also guarantees medical leave for workers in other situations, such as when an employee’s spouse, child or parent has a serious health condition).

Most employers are familiar with the provisions of the FMLA, particularly the requirement that eligible employees must be permitted to take up to 12 workweeks of leave in a 12-month period for the birth of a child, and for caring for the child during its first year of life. (The requirement also applies to employees who adopt children or become foster parents, who are eligible for the work leave within one year of the placement of a child.)

Unfortunately, some California employers are unaware that pregnant employees also have protections on the state level. The California Family Rights Act (CFRA), which provides many of the same protections as the FMLA, is just one of the state laws that provides benefits for workers who are pregnant, and/or have new additions to their families.

California Pregnancy Disability Leave Act

Under California’s Pregnancy Disability Leave Act (PDLA), an employee can take up to four months off from work due to medical conditions related to pregnancy, with a guarantee that their job will be protected. This leave time can be taken intermittently – meaning that an employee does not have to take all of this leave time at once. Another important element of this legislation is that an employee who is taking pregnancy disability leave is entitled to continue receiving any health benefits that they typically get through their employer.

Workers are eligible for pregnancy disability leave if they work for employers with five or more employees. Many employees who are ineligible for the protections of the FMLA and the CFRA are covered by the PDLA.

Family Temporary Disability Insurance

California also has a program that provides temporary insurance benefits to workers who take leave for certain family-related reasons – including employees with new children. The provisions of the program, which is called Family Temporary Disability Insurance (FTDI), are laid out in Section 3301 of California’s Unemployment Insurance Code.

FTDI allows eligible workers to receive up to six weeks of wage replacement benefits if they take time off from work to care for a child who was born within the past year, or for a child who was placed with them via adoption or foster care. The amount received per week is based on the employee’s salary.

Responding to Pregnancy Leave Discrimination

If you are pregnant, or recently had a child, and your employer has denied you the rights to which you are entitled under federal or California law, it is important that you seek legal advice as soon as possible. The employment and labor law attorneys at Beck Law P.C. in Santa Rosa have handled many cases over the years dealing with the rights of employees with families. You can call or email our office today to schedule a consultation.

Is It Discriminatory to Fire an Employee for Substance Abuse?

fire and employee for substance abuseIs it discriminatory to fire an employee for substance abuse? Most employers and employees would probably agree that it’s reasonable to fire an employee for getting drunk on the job. But what about firing an employee because you learned that she belongs to Alcoholics Anonymous?

Under both the Americans With Disabilities Act (ADA), and California’s Fair Employment and Housing Act (FEHA), the latter would be considered a form of employment discrimination. It is discriminatory to fire an employee (or subject an employee to any adverse employment action) because of the employee’s alcoholism and/or drug addiction. However – and this is a very important “however” – these statutes only apply if the employee is in recovery. They do not apply if the employee is currently abusing drugs and/or alcohol.

Past Substance Abuse vs. Current Substance Abuse

Generally speaking, these statutes prohibit employment discrimination that is based on an employee’s past substance abuse. This may sound simple and straightforward – but like so many aspects of the law, it can get rather complicated.

For example, can an employee be fired for legally using medical marijuana? What if an employee fails an employer’s drug test, and then applies for a position later? What if an employer finds out that an employee used drugs a few weeks ago – does that count as current substance abuse? Or could the employee argue that he’s now in recovery, and he was fired for his past substance abuse? These are the kinds of issues that federal courts, and California courts, have been trying to resolve for years.

Medical Marijuana: While California allows the use of medical marijuana, the language of the FEHA makes it clear that it does not prohibit employers from discriminating on the basis of medical marijuana use. The ADA does not protect the use of medical marijuana, either.

Discrimination Based on Previous Failure of an Employer’s Drug Test: The Court of Appeals for the Ninth Circuit (which includes California) ruled on this issue in the case of Lopez vs. Pacific Maritime Association. The case involved a man who applied for a job in 1997, and was given a drug test. He failed the test, and wasn’t hired. In 2004, after becoming sober, the man applied for a job with the same employer, and was rejected because of the drug test he failed in 1997. The employer had a “one strike” rule, meaning that it refused to hire anyone who had ever failed a company drug test.

The Court ruled that the employer was within its rights to reject the applicant. The ruling held that the discrimination was based on his failure of the drug test, not his drug addiction itself.

How recent “current” drug use can be: The Equal Employment Opportunity Commission has clarified that the ADA has no specific rule regarding how much time must elapse before an employee’s substance abuse can be considered “past” substance abuse. These matters must be decided on a case by case basis. However, substance abuse that has taken place less than a month ago is generally considered to be current.

Ensuring Compliance

If you are an employer, and you ask your employees if they have ever been treated for substance abuse, you may be violating both state and federal law. If you have any concerns that you may not be in full compliance with the ADA and the FEHA, you may wish to speak to an attorney. The employment and labor law attorneys at Beck Law P.C., in Santa Rosa, will be able to answer your questions. You can call or email our office today.

Department of Labor Policies on Same-Sex Spouses and the FMLA

same-sex spousesSanta Rosa labor and employment law attorney blog. Department of Labor policies on same-sex spouses and the FMLA. On February 25, 2015, the U.S. Department of Labor issued a final rule regarding the recognition of legally married same-sex couples under the Family Medical Leave Act (FMLA). It allows an eligible employee who has been legally married to a same-sex partner to use FMLA leave to care for their spouse – regardless of whether they live or work in a state that recognizes same-sex marriages. If you run a business that operates in any states that do not currently recognize same-sex marriages, it is important that you take note of this change in policy.

The final rule, which went into effect on March 27, 2015, is based on the Supreme Court’s decision in United States vs. Windsor. The Windsor ruling held that it was a violation of the Fifth Amendment to restrict the federal definition of marriage to include only heterosexual couples.

Prior to the Windsor ruling, employees who were covered by the FMLA were only able to take leave to care for their spouses if their marriage was recognized by the state in which they resided. As a result of the Final Rule, the current policy of the Department of Labor is based on the laws of the state in which the marriage was performed.

For example, let’s say a man was legally married to another man in California in 2014, and then he and his husband moved to Texas, where they both currently live and work. Under the old policy, if the man’s husband became ill, the man would be unable to take FMLA leave to care for him, because Texas does not currently recognize same-sex marriages. Under the new policy, the man would be eligible to take leave under the FMLA, because the laws of California (where same-sex marriages are currently recognized) would determine his eligibility, rather than the laws of Texas.

FMLA and the Rights of Same-Sex Spouses

The FMLA allows eligible employees to take 12 workweeks worth of leave during a 12-month period under the following circumstances:

  • The birth of a child, and caring for a child within one year of the child’s birth;
  • The placement of a child with the employee via adoption or foster care, and caring for a child within one year of the child’s placement;
  • Caring for a spouse, child, or parent with a serious health condition;
  • The employee having a serious health condition; or
  • Any qualifying exigency arising from an employee’s spouse, child or parent being a covered military member on active duty.

The FMLA also allows 26 workweeks worth of leave in a 12-month period if an employee’s spouse, parent or child is a servicemember with a serious injury or illness.

As a result of this final rule, eligible employees who are legally married to same-sex spouses will be allowed to take FMLA leave for any of the reasons above, regardless of which state they live in. These employees are also entitled to take FMLA leave to care for their spouses’ children.

Another result of the rule is that an employee will be able to take FMLA leave to care for a same-sex spouse of their parent.

Questions About Same-Sex Spouses and Employee Leave

If you have any questions about your company’s policies on same-sex spouses and family leave, you should seek the advice of an attorney. The Beck Law P.C. Santa Rosa labor and employment law attorneys can address your concerns. You can call or email us today.

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.