Vacation from Voting?

Q:     Bernie Sanders believes that election day should be a national holiday so that everyone has the opportunity to vote.  Indeed, back in 2015 he introduced a bill that would make the first Tuesday after the first Monday in November during even-numbered years a holiday called “Democracy Day.”  This week, Bernie again tweeted about it.   What is California’s take on this?

A:     Every day is Democracy Day in California!  While not an official holiday, in California, pursuant to California Election Code section 14000, employees are eligible for two hours of paid time off for the purposes of voting ONLY IF they do not have sufficient time outside of working hours to vote.  Employers may require the employee vote at the beginning or end of the employee’s shift to limit disruption.  Employees must give their employees at least three days notice that they want to take advantage of the law.

The Election Code also requires that at least ten days before every state wide election, an employer post a notice to employees advising them of their right to time off under this law.  The notice can be found here – http://www.sos.ca.gov/elections/time-vote-notices/.  Many of the standard employee notification posters purchased from the Chamber of Commerce and like organizations already contain this notice.

I wonder, if Democracy Day became law, would voting increase or decrease?  If you throw in California’s new paid sick leave – employees (with election day flu) could make a nice little four-day weekend of it and hit the coast instead of the polls.  And, as turkey and burgers are already taken, I wonder what would become the traditional Democracy Day meal? Perhaps, quinoa and kale…

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

Can I 86 an employee who acts like a number 7?

Q.     I am a general contractor, and I just finished a building project for a local non-profit veterans group that is going to provide treatment for those who served overseas and are suffering from PTSD. My workers and I have been invited to attend the grand opening and ribbon cutting ceremony.  Because I am proud of the building, the veterans and my employees, I am requiring that my employees attend the grand opening (and of course, paying them to do so).   I am concerned that one or two of my employees will seize on the recent controversy surrounding San Francisco 49ers backup quarterback, Collin Kapernick, and embraced by other professional athletes, and refuse to stand for the national anthem.  In my opinion, this would be insulting to the veterans that the building was built to support and alienate potential developers from using my company in the future.  Can I require my employees to stand for the national anthem?  Can I terminate an employee for not standing up?

A.     I think at some point in the near future, the United States Supreme Court will answer this query for us.  But, in the meantime, an employer must tread carefully.  If an employee is terminated for refusing to observe the national anthem, he might be able to argue that the termination was unlawful.  However, it is unclear how those arguments would be received by U.S. courts at this time.

The most obvious argument would be driven by Labor Code Sections 1101 and 1102.  Labor Code section 1101 states:

“No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employee.”

Labor Code section 1102 states:

“No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.”

Another employee argument may be made under the National Labor Relations Act (“NLRA”).  The NLRA gives employees the right to act together to try to improve their pay and working conditions, with or without a union.  If standing for the national anthem is determined to be a “working condition,” then employees could argue that refusing to stand is a protected “concerted activity.”

The interesting component of Labor Code Sections 1101 and 1102 is that both hinge on the term “political,” while the NLRA hinges on the term “working condition.”  Both terms are difficult to define.   Extreme positions like advocating to over-throw the government have been specifically interpreted not to be “political.”  Such an interpretation may protect an employer that terminates employees that, for example, support jihadist ideologies. But, what about an extreme domestic movement that advocates ignoring all law enforcement directions and refusing to acknowledge their authority?

Another issue to consider is whether an employee can limit the time and place of expression without infringing on an employee’s rights.  What if, instead of kneeling down during the national anthem, an employee wears a t-shirt stating “Make America Great Again” or “I’m with Her”?  Or, instead of  quietly kneeling, the employee was actually disruptive?

Employees do not have a Constitutional right to free speech or freedom of expression at work. The Constitution’s right to free speech only applies when the government is trying to restrict it. Even then, it’s not absolute. So employers are generally free to restrict employee speech, at least while they are at work.  However, an employees’ protected speech under the NLRA is an exception to an employer’s broad rights to restrict both speech and expression at work. Section 7 of the NLRA gives employees the right to discuss wages hours and working conditions and organizing a union.

Furthermore, a private employer should consider the implication of anti-discrimination laws. An employer should ask himself: Is this employee’s speech being restricted or punished because the employee is expressing religious or other beliefs that are different from the employer’s or from co-workers? Are employees of some religions or national origins allowed to express themselves regarding religion or national origin, but not others?

These are all delicate issues in a confusing time, which can make a simple grand opening and ribbon cutting ceremony a powder keg for an employer.

Nut again! Ag Overtime Bill is Reintroduced

Q:     I thought the ag overtime bill failed?  Why am I hearing about it again?

A:     On April 28, 2016, we posted a blog entitled “Lettuce Get Back to Work” discussing AB 2757 that would change the way agricultural workers are paid overtime.  Currently, agricultural employees are paid overtime after 10 hours instead of 8 hours (which is the standard for most other industries).  In addition, there is currently no daily double time after 12 hours for agricultural workers, which is also standard for other industries.  The argument has always been that the seasonal nature of agriculture makes excluding it from other standard industry rules reasonable.   Many individuals oppose the bill for economic reasons as well. Specifically, opponents argue that this new overtime requirement will drive agriculture out of the state and will lead to greater plantings of less labor-intensive crops, thus hurting the very people an increase in overtime was intended to help.  On the flip side, proponents argue that what is fair for other industries is also fair for agriculture – particularly in light of the difficult nature of farm work.  Nonetheless, on June 2, 2016 the arguments against changing the overtime requirements for agriculture workers failed, but by a very slim margin.

On August 22, 2016, AB 1066, a bill almost identical to AB 2757, passed in the senate, thus setting up another tight vote in the assembly.  AB 1066 allows for the overtime requirements to be phased in over a period of four years, starting on January 1, 2019, meaning that the bill will be in full effect on January 1, 2022.  Unlike its predecessor bill, AB 1066 further provides that employers who employ 25 or fewer employees have an additional three years to phase in the new overtime requirements – thereby not making them mandatory until 2025.

Agricultural employers should note, however, that if the bill is passed, they cannot simply opt out of these overtime requirements by using farm labor contractors.  This is due to section 2810.3 of California’s Labor Code, which imposes liability on a business for a labor contractor’s failure to comply with Labor Code provisions addressing wages and hours (e.g. overtime).

ALERT: Important news for farmers and others that pay, or previously paid, piece-rate – Notice to DIR is now required by July 28, 2016

Q:     What is going on with the lawsuit regarding piece-rate pay?

A:     We have previously discussed the new piece-rate legislation (AB 1513) in an earlier blog. No doubt, many employers (particularly those that have traditionally paid piece rate such as agricultural employers) view this legislation as a piece of what is found on many livestock farms across the Valley.  In short, the AB 1513 legislation resolved a dispute as to whether an employer was required to specifically pay for rest breaks where the employees were being paid piece-rate.  Prior to the legislation, there was a theory that an employer could pay an employee entirely by “piece-rate” so long as at the end of the day (or pay period) the employee made more than the minimum wage once the employer divided the compensation by the number of hours worked.  AB 1513 put that theory to rest and determined that employers must specifically pay for rest breaks and other non-productive time (such as heat breaks) even if the ultimate pay far exceeded minimum wage.

Because the previous “piece-rate” compensation was a fairly accepted and common pay practice, AB 1513 attempted to provide a mechanism for employers that did not specifically pay for rest breaks to avoid uncertainty and extensive liability.  Accordingly, AB 1513 stated that employers could file with the Department of Industrial Relations (“DIR”) and enter an agreement to provide back payments.  If the employer provided notice and made the specified payments, they would then have an affirmative defense against any employee that subsequently filed a claim for a failure to properly pay for non-productive time.  The original date for employers to provide notice to the DIR indicating that the employer was going to make the back payments was July 1, 2016.  The Nisei Farmer league filed a case in Fresno County Superior Court challenging the implementation of the law.  As a result there was a temporary restraining order staying the enforcement of the new law, and thus, staying the requirement to provide notice to the DIR.  On July 25, 2016, the court denied the preliminary injunction further staying enforcement of the new law. The date for employers to provide notice to the DIR is now July 28, 2016.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

Employment Lessons from TMZ

Q:     The Kardashian-West/Swift feud heated up again this week with Kim releasing audio allegedly secretly taken of Taylor and Kanye.  Taylor is upset (like, even more than boy break up upset), and I think she just needs to “Shake It Off.”[1]  I own a business, and I record all my conversations with employees.  But, I  only record them to protect myself from the “Golddiggers[2] who may sue me for wrongful termination, discrimination, or harassment.  I’m not trying to make anyone “Famous,”[3] and I am definitely not trying to be “Mean.”[4]  My recording policy is “Safe and Sound[5] for my business right?

A:    Sorry, but “I Knew You Were Trouble[6] when this question came up!  Both you and Kim, are in violation of California’s privacy protections.  In California, all people have the right to privacy.  Indeed, it is enumerated in Article I, section 1 of California’s Constitution.  This right to privacy is broad enough to encompass the actions of private employers.  Surreptitiously recording another person may be considered a violation of that person’s constitutional rights.

Moreover, and perhaps more importantly, in California you can be criminally liable if you  record another individual without their consent.  See California Penal Code section 632.  Not only does the Penal Code provide for possible jail time and fines, it also permits a victim to sue for civil damages.

And, because the evidence would have been illegally obtained, you would likely not be able to use it at any wrongful termination, harassment, or discrimination trial, even in the event that an employee actually sued.

If you are still set on recording the termination meeting, you can do so only if the employee consents to the recording.  It is recommended that the consent be in writing.

Like Kim, you are not “Out Of The Woods[7] with your liability for secretly recording private conversations.  You need to “Begin Again[8] and rethink your policy.

[1] https://en.wikipedia.org/wiki/Shake_It_Off

[2] https://en.wikipedia.org/wiki/Gold_Digger_(Kanye_West_song)

[3] https://en.wikipedia.org/wiki/Famous_(Kanye_West_song)

[4] https://en.wikipedia.org/wiki/Mean_(song)

[5] https://en.wikipedia.org/wiki/Safe_%26_Sound_(Taylor_Swift_song)

[6] https://en.wikipedia.org/wiki/I_Knew_You_Were_Trouble

[7] https://en.wikipedia.org/wiki/Out_of_the_Woods_(song)

[8] https://en.wikipedia.org/wiki/Begin_Again_(Taylor_Swift_song)

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

How to Ride the Heat Wave Without a Wipeout

Q:        I just saw the seven day forecast and there is no relief from the heat in sight!  And, I just read an article that stated that there are real impacts for valley farmers.[1]  What can an employer do to keep  employees’ temperatures and  litigation risks down during this heat wave?

A:        Due to the extensive history of heat related deaths during our Central Valley summers, particularly in the agricultural industry, California has enacted strenuous regulations to ensure that employees are kept safe from the heat. Commonly known as the Cal/OSHA Heat Illness Prevention Standard, these regulations apply to all outdoor places of employment, while certain industries, including agriculture, construction, landscaping, oil/gas extraction, and transportation, are subject to additional requirements for “high heat procedures.”  (See 8 Cal. Code of Regs. § 3395.)

Pursuant to the Heat Illness Prevention Standard, shade is required to be present when the temperature exceeds 80 degrees Fahrenheit. The employer must have one or more areas with shade that can accommodate at least the number of employees on a break at any given time..  These shaded areas must either be open to the air or equipped with ventilation or cooling.  Furthermore the shaded areas must be located as close as practicable to the areas where employees are working.  You must not only allow, but encourage your employees to take “cool-down” breaks, for no less than 5 minutes, as often as needed.  (See 8 Cal. Code of Regs. § 3395 (d).)

When the temperature exceeds 95 degrees, additional procedures are required. (See 8 Cal. Code of Regs. § 3395(e).)  To that end, the employer must ensure that a communication system is set up, such as providing each employee with a cell phone, so that employees at each work site can contact a supervisor when necessary.  The employer must also observe employees for signs of heat illness and remind employees throughout the work shift to drink plenty of water.  One or more employees on each site must be authorized to call for medical services.  Also, the employer must ensure that your employees take a minimum ten minute preventative cool-down rest period every two hours.

Additionally, a new employee must be monitored very closely for the first 14 days of his or her employment, unless he or she has previously worked in similar outdoor conditions at least 10 of the past 30 days for 4 or more hours per day. (See 8 Cal. Code of Regs. § 3395(g).)  All employees must be trained on the risk and symptoms of heat illness, the employer’s procedures for complying with the Heat Illness Prevention Standard, the employer’s procedures for contacting medical services, and the importance of rest and water.  (See 8 Cal. Code of Regs. § 3395(h).)  Furthermore, the employer must have your company’s Heat Illness Prevention Plan available in English and Spanish at an employee’s request.

Lastly, don’t get burned by the new piece rate legislation. Remember, employees that are paid piece rate must be compensated for heat breaks.

As the Central Valley heats up, so does an employer’s risk of liability. Protect yourself with nothing less than 60 SPF, a wide brimmed hat and follow these procedures.  And, as always, contact your employment law attorneys with any questions – don’t let their pasty computer tans fool you – they know how to deal with the heat.

[1] http://abc30.com/weather/high-heat-impacting-valley-farmworkers/1395595/

 

Work Warriors and Medical Inquiries.

Q:     Cleveland Cavalier forward Kevin Love was out for last night’s NBA finals game against the Golden State Warriors. In game 2, Harrison Barnes elbowed Love in the head and then Love appeared to suffer from concussion type symptoms.  Love has indicated that he is “frustrated” by the Cavalier’s decision to keep him out of the game.  As an employer, what can you do if you suspect an employee is prevented from performing based on a medical condition?  Is it legal to ask an employee about a suspected medical condition and seek medical certification that the employee is capable of performing his/her job?

A:     The EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act answers this precise question.

 Generally, [an employer may ask] a disability-related inquiry or [require a] medical examination of an employee [. . . so long as it is] “job-related and consistent with business necessity” [and] an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.”

Sometimes this standard may be met when an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.

In Kevin Love’s situation, it is likely playing against the Warriors with concussion like symptoms would pose a direct threat to himself thus making any inquiry into his medical condition reasonable. Then again, the Warriors are a direct threat to anybody they play.  Go Warriors.

Working Overtime to Keep Up with the New Rules for Overtime

Q:        ALERT:  Is there a new law regarding who must be paid overtime?

A:        Sort of – it is actually not a law, but rather a new regulation promulgated by the Department of Labor (“DOL”) without congressional action.  The new rule amends the existing regulation that sets forth who is entitled to overtime pursuant to the Fair Labor Standards Act (“FLSA”).

As an initial matter, all non-exempt employees are entitled to overtime pursuant to the FLSA – and this new regulation does not change that fact – it only redefines who is eligible to be classified as “exempt”. The former rule provides that an employee can be exempt if he or she earns twice the minimum wage and passes a “duties test.”  The former FLSA regulation adopted the minimum wage in the state where the employee worked to set the salary minimum needed for the exemption.  Accordingly, in California, in order to be exempt pursuant to the FLSA, an employee generally needed to earn at least $41,600.00 per year ($10 (minimum wage) x 40 (hours per week) x 52 (weeks per year) x 2).

California has its own rules pertaining to who is exempt – but, until the new FLSA regulation it always mirrored the FLSA overtime salary threshold. In other words, prior to the new regulation both California and the FLSA utilized a “double the minimum wage” standard.

On May 18, 2016 the DOL raised the salary threshold amount needed to be considered exempt under the FLSA. The FLSA regulation is no longer based on a “double the minimum wage” standard. Pursuant to the new regulation, the minimum salary to be classified as an exempt employee is now $47,476.00 per year.  The new regulation also establishes a mechanism to automatically increase that amount every three years.  The new rule also redefines the  “highly compensated exemption” that had a reduced duties test if the employee made $100,000.00 per year.  The new regulation increases the salary threshold for the “highly compensated” exemption to those making a minimum of $134,004.00 per year.

The new regulation takes effect on December 1, 2016.

There are some interesting aspects of this new Federal regulation that will need to be watched carefully in California. Based on the new regulation, there may now be a difference between those that qualify as exempt under California law and those that are exempt under federal law.  Specifically, those that make between $42,600 and $47,476 could be treated as non-exempt for the purposes of federal law but exempt for the purposes of California law.  This is important because the FLSA only provides overtime for employees who work over 40 hours in a week while in California, non-exempt employees receive overtime for working over 8 hours in a day OR working over 40 hours in a week.  Additionally, pursuant to the FLSA, there is no entitlement to meal and rest breaks while the California Labor Code makes them a requirement for all non-exempt employees.  As such, unless the California rules are amended, or until California overtime rate increases so that “double minimum wage” exceeds the amount cited in the new FLSA regulation, employers could face a situation in which the salary threshold for daily overtime and meal and rest breaks is different than the threshold for weekly overtime.  That said, it is expected that California, and its current legislative makeup, will quickly adapt to provide the most overtime and employee benefits as possible.  And, even if they don’t, with the rising California minimum wage (set to hit $15 in 2022), it will be a short lived discrepancy.  It would also not be surprising if California takes the position that it must follow the more stringent federal regulation even for the purposes of  California overtime even if California does nothing to amend it own regulation.  As such, caution is needed.

With wage and hour lawsuits on a dramatic rise, there is no doubt that this new regulation will create confusion and will increase the pool of plaintiffs eligible to make wage and hour claims. This likely means overtime for plaintiff’s attorneys.  If you have questions related to this new regulation and its effects on your business, you should call your employment attorney.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Lettuce Get Back to Work

Q:     I run a custom farming operation where we often need our employees to work over 8 hours in a day during our busy seasons. Most of our employee’s understand that the short window of harvest means a relatively short season of long hours. However, I heard that a bill was introduced in Sacramento with a strong likelihood of passing which would impose much stricter overtime requirements for farm workers.  Tell me it is not sow![1]

A:     You heard correctly. On April 6, the Assembly Labor & Employment Committee passed AB 2757 which seeks to “phase-in” overtime requirements for agricultural workers over the next four years, beginning in 2017. The impacts of this bill are feared to increase labor costs associated with farming and the agricultural industry. First, AB 2757 would require agricultural employers to pay overtime premium pay (at a rate of 1.5 times an employee’s regular rate of pay) to their employees after 8 hours in any work day, and 40 hours in any work week.[2]  Currently, the operative wage order for farm workers only requires daily overtime if the employees works more than 10 hours.  Second, it would require premium pay at the rate of two times the employee’s regular rate of pay for any work after 12 hours in a day. Currently, there is no double time for farm workers.  Furthermore, AB 2757 will repeal the agricultural exemption from the “one days’ rest in seven” requirement in the Labor Code, requiring agricultural employers to provide employees at least one day off each work week even during peak season.

Proponents characterized AB 2757 as “clean-up” legislation righting decades of unfair exclusion of farm workers from the right to 8-hour work days and 40-hour work weeks.[3] The Farm Bureau and a broad coalition of employer groups opposed the bill, arguing that the legislation will actually reduce farm workers’ income as affected employers will elect to have employees work 8 hours per day and avoid overtime premium pay, rather than the current practice of paying workers at their regular rate of pay for as many as 10 hours a day for as many as 6 days a week during busy harvest periods when enough work is available to work those hours.[4]

The farming interests argue the current law was meant to account for the variable nature and seasonality of farming.

AB 2757 passed the committee by a 5-2 party-line vote and was referred to the Assembly Appropriations Committee. Here, at Baker Manock & Jensen we will continue to track the bill as well as others that affect Valley businesses.

[1] http://www.dictionary.com/browse/sow

[2] http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201520160AB2757

[3] http://www.leginfo.ca.gov/pub/15-16/bill/asm/ab_04510500/ab_486_cfa_20150411_153203_asm_comm.html

[4] http://www.farmbureauvc.com/new/assets/pdf-forms/friday-review/friday-review-4-8-2016.pdf

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

 

I am woman, hear me score.

Q:    I read in the paper this morning that the U.S. Women’s National Soccer Team has filed a claim with the EEOC against the U.S. Soccer Federation, demanding equal pay. If male sports teams are the ones bringing in all the revenue, can female athletes really support the argument that they deserve the same pay?

A:     It seems very possible. First, it has been reported that the women’s soccer team has actually generated more money than the men’s team, exceeding the men’s revenue by $20 million in 2015.[1] Second, the Equal Employment Opportunity Commission (“EEOC”) is a federal agency that has been progressive in addressing workplace discrimination. The EEOC’s latest interpretations of the Fair Labor Standards Act (“FLSA”) and the Equal Pay Act (“EPA”), indicate a likely victory for the women’s team.

Under the EPA and FLSA, male and female employees must be paid equal wages for substantially equal jobs. Specifically, when a job performed under similar working conditions requires equal skill, effort and responsibility, an employer cannot discriminate between employees on the basis of sex by paying unequal wages.[2]  Similar, but even stricter, rules apply under California’s new Fair Pay Act (“FPA”), where the requirement applies even when the employees work at different sites or have different titles.[3]

The EPA permits wage differentiation where the pay is measured by quality or quantity of production, or under a seniority and merit system, provided sex plays no part in the wage differential.[4] However, as the women’s team brings in more revenue, and has had far more victories than the men’s team, the U.S. Soccer Federation would be hard-pressed to argue that a wage differential based on the difference in “quality” or “skill” between the two teams had nothing to do with sex. As such, it seems unlikely that the EEOC would accept a merit system defense. It appears that the U.S. Soccer Federation anticipates as much, based on a statement it released on March 31, stating that its “efforts to be advocates for women’s soccer are unwavering,” and it is committed to negotiating a new collective bargaining agreement for the women’s team at the end of 2016.

Accordingly, the U.S. Women’s National Team’s recent success may have won them not only a shiny World Cup, but higher paycheck, too.

[1] http://www.cnn.com/2016/04/01/football/uswnt-lawsuit-pay-parity/index.html?eref=rss_latest

[2] (29 U.S.C. § 206(d)(1).)

[3] (Cal. Lab. Code § 1197.5.)

[4] See footnote 2.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.