Discussing Women’s Hormones in the Workplace is No Djoking Matter

Q:     If Novak Djokovic was your employee could you terminate him after he stated men should be paid more money than women and made comments about women’s hormones?

A:     Maybe.  But, it is an interesting question because it pits two employment law principles against one another – equal employment v. concerted activity.  As you may be aware, the men’s world number one tennis player indicated that men deserved more prize money at tournaments because they draw more fans.  He then went on to say:

As I said, I have tremendous respect for what women in global sport are doing and achieving. It’s knowing what they have to go through with their bodies, and their bodies are much different than men’s bodies. They have to go through a lot of different things that we don’t have to go through. You know, the hormones and different stuff, we don’t need to go into details. Ladies know what I am talking about.

As most people are aware, there is significant federal and state law that protects against gender discrimination and harassment.  In compliance with these laws, most employers have policies prohibiting statements that indicate one gender is superior to the other or make reference to one’s gender’s anatomy.  As such,  Djokovic’s statements, particularly the reference to bodies and hormones, would likely fly in the face of these policies and laws.

From an employment law perspective, a question arises as to whether Djokovic would be protected to complain that he (and the rest of the men) should receive more money because (in his opinion) they generate more revenue through fan demand.  Statements regarding “working conditions” are protected under California law and “concerted activity” is protected under Federal law.  “Working conditions” and “concerted activity” both have broad definitions that would certainly protect an employee’s ability to have a platform to discuss why he thinks he is entitled to more money.   It is unclear whether the employer could actually make the changes to the pay structure without violating the law, particularly in light of California’s Fair Pay Act.  Accordingly, this controversy is a good reminder to review our previous blog on California’s new Fair Pay Act that went into effect in 2016.[1]

Of course, all of this is somewhat theoretical because Djokovic is not an employee of the ATP (Associated Tennis Professionals).  That said, his comments certainly did not help his own personal brand.  What is weird, however, is that a sport’s star said something controversial[2], and that he later apologized for it.[3]

[1] https://answersforemployers.com/?s=gender

[2]  http://www.msn.com/en-ae/sport/sport-index/they-said-what-most-controversial-quotes-by-sports-stars/ss-AAgqhNo#image=26

[3] http://espn.go.com/espn/page2/story?page=philbrick/100218

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.

Employees search for the pot of gold – how not to get pinched by an employee’s request for information.

Q:        It seems that I do not have the luck of the Irish this St. Patrick’s Day.  I just received a request from a former employee for his entire personnel file and wage statements.  I am concerned that this employee is searching for gold at the end of a rainbow in the form of a lawsuit against my company.  Do I have to provide this employee his personnel file and wage statements?

A:        Unfortunately, yes.  Pursuant to Labor Code section 1198.5, an employee has a right to inspect personnel files, and Labor Code section 226 requires employers to provide copies of the information required to be contained on wage statements.  In 2013, the Legislature expanded and clarified these inspection rights.  The law now provides that copies of wage information can be in the form of computer-generated information.  An employer must provide copies of the personnel file upon request. Additionally, an employee may designate a representative to receive the information.

As the employer, you have 30 calendar days from the date you receive the request to provide copies of the personnel file pursuant to Labor Code section 1198.5.  But, you only have 21 days from the date of the request to provide copies of the wage information pursuant to Labor Code section 226.  There is a $750 penalty for non-compliance to each statute.

It is likely that your employee may be seeking some green by making this request.  Often these requests precede a demand letter or civil lawsuit.  This is particularly true if it comes from a former employee.  Therefore, upon receipt of such a request, in writing or orally, make sure you contact your employment attorney as quick as a leprechaun to properly comply with these laws.

Happy St. Patrick’s Day from the BMJ employment law team!

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.

 

 

ALERT: A Valley business and a cautionary small business tale

It was recently reported that a local Valley restaurant has been ordered to pay employees $150,000 in back wages and penalties.[1]  This is another cautionary tale of how employment related lawsuits and government enforcement can lead to extensive liability and shudder small businesses in struggling areas.  While the newspaper article seems to suggest that simple steps can be taken to avoid liability for wage and hour violations, this is not always the case.  Even attentive and cautious business owners can get sucked into lawsuits or government enforcement actions.  Indeed, back in 2013 an article in the Huffington Post stated that wage and hour lawsuits had risen 432 percent over the last 20 years![2]

The last three years seem to have shown no signs of slowing down – particularly in California – where wage and hour laws are even more employee friendly than Federal laws.  While some employer errors are obvious and easy to correct going forward, others are not.  The number and technical nature of wage and hour laws make it increasingly difficult for employers to maintain compliance. Perhaps what is even more concerning is that a company does not need to commit an extensive amount of violations to have liability reach six (or even) seven figures.  The large nature of these figures stems from the three year statute of limitations attached to most wage violations.  Furthermore, a violation of one statute usually means that an employer violated other statutes, sometimes for the same exact conduct.  Additionally, penalties are often imposed in addition to back pay.  And, once a violation is discovered, the only way to correct it is to pay the employees for every violation and penalty that took place during the previous three years.

A common strategy for Plaintiff’s and former employees is to indicate that they worked off the clock.  This is extremely problematic because even companies that keep very good records are left defending a lawsuit that is “employer said versus employee said.”  While ultimately there may need to be legislative changes to ensure that well meaning employers are not put out of business by wage and hour lawsuits, there are some suggestions that employers are encouraged to take.  These suggestions are not fail safe and will not mean an employer cannot still be sued or brought into a government enforcement action for an alleged violation, but they do put the employer in the best defensive posture when one occurs.

  • Make sure your exempt employees are truly exempt:  Simply paying your employee a salary does not mean they are necessarily exempt from overtime and meal breaks.  In order to be exempt, employees must meet both the salary test and the duties test.  Because the salary test is based on a multiple of minimum wage, employers must continually review their exempt employees salaries to ensure compliance.  Currently, in addition to meeting the duties test, an employee must be paid at least $41,600 per year to be an exempt employee.
  • Ensure employees are encouraged to take meal periods/rest breaks:  Often the allegation in a wage and hour case is that employees did not receive their meal and rest period.  Generally Employees are entitled to a meal period every 5 hours and a rest break for every 4 hours worked (or major fraction thereof).  Make sure an employee’s workload does not prevent them from taking their meal and rest breaks.  If an employee misses a meal period, simply pay the one hour pay penalty in the next pay period.
  • Make it easy for an employee to correct their time:  If there is an error on the time clock (or an employee forgot to clock in), make sure there is an mechanism where an employee can easily make sure their pay accurately reflects the time they actually worked.
  • Pay all compensable time:  This concept is getting trickier all of the time.  The increase in use of technology and mobile devices makes it difficult to ensure no work is conducted after the employee leaves the workplace.  To that end, employees should be informed that they are not to conduct work when they are not clocked in and that if they do conduct work after hours, they make sure and record it the next day.  Employers should be very careful about giving non-exempt employees mobile devices or after hours access to the computer system.
  • Be wary of classifying somebody as an independent contractor: Simply calling an individual an independent contractor does not mean that they are one.  Indeed, an individual performing work is presumed to be an employee.  In order for an individual to be properly classified as an independent contractor he or she must meet an extensive test.
  • Keep accurate time records:  Time records and wage statements will be an employer’s main line of defense in a wage and hour action.  Do not automatically deduct meal periods, and be wary of hand written timesheets that always reflect nice round hours.
  • Have policies which accurately reflect the law and have employees acknowledge the same: An employer’s next best defense, other than keeping accurate pay records, is to have strong policies that inform the employees of their rights.  It is more difficult for an employee to claim that the employer prevented an employee from taking a meal and rest break when the employers policies say the exact opposite.
  • Get an employment law attorney involved early:  Obviously prophylactic measures are better than a defense.  It is better not to have a violation than to defend against a lawsuit.  An attorney or HR professional can help set up your business to prevent violations from occurring in the first place.  But, if an employee does make a claim, an attorney’s early involvement can save an employer a significant amount of funds through early resolution.

[1] http://m.hanfordsentinel.com/selma_enterprise/news/selma-leaders-react-to-wage-violations-case/article_832efea5-80ae-5a69-a174-9cc7fd815d25.html?mobile_touch=true.

[2] http://www.huffingtonpost.com/2013/05/14/wage-and-hour-lawsuits_n_3271978.html.

In light of the Zika virus scare, can I require an employee traveling to the summer Olympics in Brazil to get medical clearance before returning to work?

Q:     I have an employee that is planning to visit Brazil for the summer Olympics.  As a huge sports fan, I am very excited for my employee… U-S-A- … U-S-A!  But, as a bone fide germ-a-phobe and an employer that feels responsible for his employees’ wellbeing, I am scared of the Zika virus, which has been largely reported in the host nation.

Can I require an employee traveling to the Olympics to get medical clearance before returning to work?  Or, would such a request violate the Americans with Disabilities Act (“ADA”)?  Are there any other options?

A:     The Equal Employment Opportunity Commission (“EEOC”) provides specific guidance regarding permissible actions that an employer may take during a pandemic.  While the guidance is not binding legal authority, it sets forth established ADA principles that are relevant to these types of questions.  The guidance notes that an employer is permitted under the ADA to require an employee who has been away from the workplace during a pandemic to provide a doctor’s note certifying fitness to work.   It is unclear whether this is limited to employees who have been out sick, or if it also includes those who have been traveling.

Note, that the ADA only allows employers to request medical information or order a medical examination when an employer has a reasonable belief (based on objective evidence) that an employee poses a “direct threat” because of a medical condition. That “threat” must be job-related, and the requested medical information must be consistent with a business necessity.[1] Because the Zika virus is not transmitted from person-to-person in casual contact, the ADA standard may not be satisfied in many job settings.[2]  That could change if the employee works in an agricultural seating where certain types of mosquitos are present.

That said, the EEOC guidance also notes, “[i]f the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.”  As such, the employer should check with the CDC and determine if it is recommending that employees stay home after returning from Brazil.  So far, public health agencies have imposed no quarantine on people returning from areas in which the Zika virus has been found.

Like any agency-provided guidance, it does not address all situations.  For example, the EEOC guidance assumes that there is a “pandemic.”  What if the illness is not considered a “pandemic” but just a dangerous situation?  These types of questions can be novel and should be vetted with your employment attorney.  However, reviewing materials like the EEOC’s Guidance on Pandemic Preparedness in the Workplace, the Americans with Disabilities Act, and the EEOC’s Guidance on Disability-Related Inquiries and Medical Examination of Employees Under the Americans with Disabilities Act (ADA), is a good place to start.

In addition to Zika, you may also be concerned if the employee goes swimming![3]

[1] http://www.eeoc.gov/facts/pandemic_flu.html

[2] http://www.cdc.gov/zika/transmission/index.html

[3] http://www.latimes.com/sports/sportsnow/la-sp-sn-water-pollution-2016-olympics-20150730-story.html

Three Super Bowl inspired questions for your halftime discussions.

This is a Super BMJ Employment Answer – Three Super Bowl inspired questions for your halftime discussions.

Q.     After the Super Bowl, can the Broncos fire Peyton Manning for being too old?  Isn’t age discrimination illegal?

A.     Generally, an individual is not in a protected class for age until they are over 40 years old.  Peyton Manning turns 40 on March 24th.  At that point, the Broncos (according to the Age Discrimination in Employment Act of 1967) could not take into account Peyton’s age when making an employment decision.  It would seem the Broncos could not choose a younger quarterback just because he is younger – it would have to be based on other performance factors. (29 U.S.C. §§ 621-634.)  Luckily for the Broncos, Peyton has not reached his golden years just yet, and short arming throws and the inability to throw spirals is not a protected class.  As such, they could probably move on…  It would be interesting, however, if he has a great Super Bowl, and he outperforms his back up in the Fall.  Then what?  Mr. Elway/Broncos, my number is on the blog site.

Q.     Is the expansion of the Rooney rule (a requirement to interview a minority candidate before hiring coaches and executives) to include a requirement to interview women, legal?  Should it be extended for LBGT individuals?  What about players and certain positions on field?

A.     It is illegal for an employer to discriminate against a job applicant for being a member of protected class. (42 U.S.C. § 2000 et seq.)  It is also illegal to base hiring decisions on stereotypes and assumptions about a person’s race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.  The interesting component of the Rooney rule (and its proposed expansion) is that it does not purport to exclude any protected class, but to simply ensure that certain protected classes are always part of the interview pool.[1]  As such, it is likely lawful.  That said, when race or other protected classes are involved it is always tricky.  One could argue that, by specifically including one particular protected class (aka women), this could potentially be to the patent exclusion of other protected classes (aka discrimination).  An interesting case could be made if an organization decided to only interview three people and somebody was excluded from the interview process because they didn’t belong to the protected class that the NFL is trying to promote through this new rule.

On the field, physical size, skill and strength generally determine who gets what position.  This would seem to make it difficult to always include older Americans or women for many positions on the football field. However, it could be argued, that certain stereotypes have persisted in the NFL (even though some of them have been regularly broken as of late) such as a Caucasian quarterbacks/kickers or African American wide receivers.  So far, there are no lawsuits that I am aware of, but if somebody felt they weren’t given a chance because of race or gender despite having the requisite skill set for a certain position, a lawsuit is certainly plausible.

Q.     Cam Newton inferred that some people don’t like him because of his race, what is the NFL’s requirement to protect its players from third party harassment such as from fans or sports talk radio?

A.     Employers are generally responsible for ensuring a harassment-free workplace for employees, regardless if the alleged harasser is a co-worker, manager, independent contractor, customer… or fan.  In this case, Newton has remarked that being a black quarterback “may scare a lot of people.”[2]  If those people are fans, and they shout epithets, what could the NFL do?  Or, if radio show hosts pick on him for being African American.  For starters, they are required to take reasonable remedial measures.  It would be easy to eject the offending fans from the stadium and to issue social media responses asserting that they do not tolerate such behavior.  They could also pull endorsements of radio shows/stations.

[1] http://www.huffingtonpost.com/entry/the-nfl-will-implement-a-rooney-rule-for-women_us_56b3a045e4b08069c7a67110

[2] http://www.usatoday.com/story/sports/nfl/panthers/2016/01/27/cam-newton-carolina-super-bowl-50/79414764/

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 employees like the Uber-attacking doctor be fired?

Q:     Recently, a Florida doctor made headlines when a video went viral of her boozy tantrum attacking her Uber driver on a night out.[1]  The doctor has profusely apologized for her conduct and blames a broken heart for the incident.  Unfortunately, her medical training provided no cure for this type of cardiac injury – other than apparently a self prescription for ample amounts of vodka.  Should her career still be on life support even though her conduct occurred outside of the workplace?

A:     Probably, yes.  Simply because an employee’s conduct is off-duty does not mean that it is protected.  Formerly, there was an argument that Labor Code sections 96(k) and 98.6 created a statutory authority for an employee to file a claim if they were terminated for lawful off-duty conduct.  However, the case of Grinzi v. San Diego Hospice Corp (2004) 120 Cal.App.4th 72 held that the Labor Code does not establish a public policy against terminations not otherwise protected by the Labor Code.

That being said, there are still concerns.  Primarily, an employer must make assurances that it treat all employees the same.  If the employer treats one group (e.g. woman, heterosexuals, etc.) different there could be a violation of Title VII or the FEHA.  An employer also cannot terminate an employee based on conduct that is otherwise protected by the Labor Code such as political speech or expressions of sexual orientation.  Here, it would seem a stretch to suggest that her actions were in anyway protected.  Currently, a broken heart is still not recognized as an ADA disability.

[1] http://abc13.com/news/video-uber-driver-attacked-by-miami-doctor/1169501/

Stand-up and clap, or stay seated and scowl: The State of Being an Employer

Q:        Wednesday night, President Obama gave his last State of the Union Address.  Did he provide any insight into potential new laws that will affect employers?

A:        The State of the Union is always great political theatre.  I particularly enjoy when one side of the chamber stands and claps while the other side sits and shakes their heads.  This got me thinking, what if the chamber was full of just employers instead of politicians?  Would, or should, those employers have stood up and clapped or stayed seated and shook their heads?

The stand-up and clap moments – the President stated that he “believe[s] a thriving private sector is the lifeblood of our economy, . . .[and he] think[s] there are outdated regulations that need to be changed, and there’s red tape that needs to be cut.” Well said,…..Hooray!  But, like every great infomercial (er….State of Union Address)….there is more.

The sit and shake heads moments –the President then seemed to suggest more red tape would be added.  To that end, he wanted to “give everyone a fair shot at opportunity and security in this new economy.”  This sounds great, but the “new economy” generally is a euphemism for what is commonly referred to as the “sharing economy.”  As you may be aware, Uber has been the poster company for the “new/sharing economy” and is currently under attack for its designation of drivers as independent contractors instead of “employees.”  As such, the President’s reference to a “fair shot and security” is likely a reference at continuing to limit the ability to classify individuals as independent contractors thereby ensuring more individuals fall under the rubric of labor laws, including overtime.  This would seem to make sense, because it would be consistent with his past administration initiatives.

Additionally, the President noted the “attacks on collective bargaining” cannot go unanswered without hurting working families.  This is seemingly in reference to both strengthening the National Labor Relations Board (NLRB) and a potential disproval of a current Supreme Court case, Friedrichs v. California Teachers Association et al., in which oral arguments were heard on Monday regarding compulsory union dues.  Generally, strengthening “collective bargaining” is not interpreted as pro-employer (i.e. locally – the Gerawen Farming case).

Another sit and shake your head moment came when the President made reference and commitment to such legislative aims as paid leave and raising the minimum wage.  In this regard, perhaps the President is simply jealous of California.  As you are aware, California recently enacted a new law in 2015 that gives all employees up to 3 days or 24 hours of paid sick leave and minimum wage just went up from $9.00 to $10.00 on January 1, 2016.

Finally, as we have learned, President Obama is not afraid to use his executive order power to further his agenda. So, it would not a be a surprise to see additional actions, like his proposal to increase the salary minimum for exempt employees to $50,440.00.

As we have seen in the past decade, we predict 2016 will have no shortage of employment laws to make employers sit, shake their heads, and in some instances, want to curl up in the fetal position and cry. Nonetheless, as our economy improves we hope 2016 is your best employment year yet, and you have many reasons to stand-up and clap.

Identity Crisis: BMJ’s 2015 Employment Law Review

Here at the BMJ team, we are on the forefront of employment law developments.  As we wrap up the end of our year, it seems to be confirmed –we nailed it.

A recent story on CNN claims that “Identity” is the Dictionary.com 2015 word of the year.   http://www.cnn.com/2015/12/08/living/word-of-the-year-dictionary-com-feat/index.html

This development is not surprising to us.

See our blogs on identity:

Rachel Dolezal: http://wp.me/p67Lhq-1d and

and Caitlyn Jenner:  http://wp.me/p67Lhq-c

as well as our interview on Central Valley Today.  http://www.yourcentralvalley.com/story/d/story/racial-identity-vs-human-race/34097/lb2i6Z4b_UCOmDkLKXOmKQ

This is the first year with our new BMJ Employment Answers’ format.  As you are aware, in 2015 we began to identify as bloggers.  In 2016 we are rolling out our cool new twitter handle, @BMJemployment.  Follow us today!  We hope our new Twitter following will be as successful as our blog, which has now been viewed in over 30 countries worldwide!

That’s a wrap for us in 2015.  May your holiday season be merry and bright and your new year be free from legal fights.

-The BMJ Employment Answers Team

Will USC get hammered by Coach Sarkisian’s lawsuit?

Q:        This week Steve Sarkisian, USC’s former head football coach, filed a lawsuit claiming that he was wrongfully terminated.  As you may recall, Sarkisian  was fired shortly after USC’s Athletic Director, Pat Haden, indicated that Sarkisian was placed on indefinite leave and was “not well.”   It has been widely reported that Sarkisian has a substance abuse problem, and specifically, a problem with alcohol.  This was seemingly confirmed by Sarkisian going to rehab, and now, by this lawsuit.  This begs an interesting question – is it possible that USC violated the Americans with Disabilities Act (“ADA”) or other laws that protect those with disabilities by terminating Sarkisian?

A:        Well … it is complicated, but there is certainly a possibility.   As you may recall, a similar situation was covered in one of our previous blogs about “Johnny Football,” who coincidentally is getting a start this Sunday.  (See http://wp.me/p67Lhq-3g )

As a threshold matter, a person that uses illegal drugs, or abuses legal drugs, is not considered “disabled” pursuant to the ADA.  However, alcoholism is a covered disability under the ADA so long as the alcoholic is qualified to perform the essential functions of the job.  Like any disability, pursuant to the ADA (or the Fair Employment and Housing Act), an employer is required to reasonably accommodate an employee who suffers from alcoholism.  Leave can be a form of accommodation.

But, here is where it gets a little confusing.  On one hand, an employer can take an adverse employment action, including termination, against an employee whose use of alcohol adversely affects job performance or conduct.  Additionally, an employer may also take an adverse employment action if a person is under the influence at work.  On the other hand, Title 2 CCR section 7294.0 states that an employer has an obligation to engage in a “timely, good faith interactive process” when the employer “becomes aware of the need for an accommodation through a third party or by observation.”  So, even if the employee doesn’t say anything, if the employer is aware from some other source that the employee has an impairment that is interfering with his or her ability to perform his job, the employer is required to initiate the process.

Ultimately, whether USC violated federal or state law is an issue of timing and a variety of other facts.  While early reports that Sarkisian was intoxicated at games and/or practices seemingly support the termination, this doesn’t negate USC’s obligation to engage in the interactive process if the disability was obvious.  As a result, it could be possible that USC is not liable for wrongful termination, but is liable for its failure to engage in the interactive process and provide an accommodation, such as a leave, to Sarkisian.

Another wrinkle is that Haden allegedly placed Sarkisian under some type of “last chance agreement.”  In other words, Sarkisian signed an agreement prohibiting him from using alcohol and subjecting him to immediate termination if found intoxicated. There is not a lot of authority regarding these types of “last chance agreements” and the cases seem to be somewhat contradictory.  This makes sense, because in California, terminating an employee for refusing to participate in an employer-mandated alcohol treatment program has been found to violate an employee’s constitutional right of privacy.  Meanwhile in federal courts, last chance agreements have generally been upheld.  (See i.e., Pettus v. Cole (1996) 49 Cal.App.4th 402; Longen v. Waterous Co (8th Cir. 2003) 347 F.3d 685.)

In the end, these are shakey, not stirred, situations.  An employer considering terminating an employee for alcohol abuse must look to both federal and state law for guidance and proceed carefully to avoid getting smashed with a lawsuit.

We made our list. You should check it twice. Here is our BMJ holiday employment checklist.

Q:     The Holidays can be a gift to Plaintiffs’ attorneys and disgruntled employees.  Are there any strategies that an employer should utilize so that this holiday season employers can enjoy the man with a red suit and not a New Year’s lawsuit?

A.     Yes. Here is our BMJ Holiday Employment checklist.  Check it twice.

○The Holiday Party

Just because the employees are offsite (or onsite after hours) does not mean they are not subject to sexual harassment rules and laws.  Parties can cause employees to be merry, but they should not be too merry…or …well…just plain naughty.  To that end, employers should remind employees to keep dress appropriate and their behavior nice.FullSizeRender

Also, employers should think carefully before serving alcohol at their holiday parties.  Not only may it facilitate inappropriate comments (and lawsuits in the new year), it may also lead to other more dangerous situations, like drinking and driving.  To limit exposure, employers who still want to serve alcohol may want to limit employee alcohol intake by issuing drink tickets, employing private bar tenders (who check IDs and refuse to serve people who have had too much), and closing the bar early.  Also, employers should offer rides or reimbursement for Uber or taxis.

Finally, employers should not require (or strongly suggest) that employees attend the party if it is outside working hours.  If it is considered a requirement, then it is compensable time, and an employer will need to pay their employees for attending.

○Holiday Pay

California does not require paid time off for holidays or additional wages for employees who work on holidays.  If an employer does pay a holiday premium and employees work overtime, the premium does not need to be calculated in their overtime rate.  In other words, premium holiday pay is not considered part of the “regular rate” of pay.  Indeed, an employer is allowed to credit the time and one-half premium pay on holidays against the overtime otherwise owed to the employee.  Additionally, small holiday gifts or discretionary holiday bonuses are not  included in the “regular rate.”

Also, please note that if an employer does provide a paid holiday off (e.g., it provides 8 hours of pay and the employees are not required to come to work), this paid holiday off does not count as time worked to determine whether an employee worked more than 40 hours for the purposes of overtime.

○Gift Cards

Some employers like to give gift cards to their employees during the holidays.  These may be deemed taxable income if the gift card can be considered a cash equivalent under Treasury Regulations section 1.132-6(c). The IRS considers a gift card to be a cash equivalent if it provides for the purchase of general merchandise, as opposed to being used to redeem a specified item.

○Volunteering

While this is the time of year we all want to give back, remember that “volunteer work” is only allowed without contemplation of pay for individuals who volunteer for a nonprofit or like organization.  In other words, an employer must be careful if their company is partnering with a charitable organization and their employees seek to donate their time.  If an employer is directly involved in giving, the employer should take care to also give its employees their pay if the employees are providing their time to the charitable cause.  Also, if the employees’ children want to help out (once school is out) you may run into child labor law issues.

○ Religion in the Workplace

The California Fair Employment and Housing Act prohibits religious discrimination of any kind.  But, this is tricky because the law does not permit prohibiting all forms of an employee’s religious expression.  As such, employers need to walk a delicate line.  That said, employers should be wary of religious-themed décor and other forms of displays and expressions that discuss religion.

○ Payday falls on a holiday

An Employer’s established payday sometimes falls on a holiday.  The Civil Code defines “holidays” (which includes every Sunday).  If payday falls on a defined holiday, pay may be provided on the next business day following the holiday.

From everybody at the BMJ Employment Law Team – Happy Holidays and a lawsuit free New Year!