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Thursday
Dec292016

Employer Responsibilities re Mental Health Conditions

Wage and Hour Defense Attorney

 

by Sue M. Bendavid & Tal Burnovski Yeyni

 

The Equal Employment Opportunity Commission recently issued a “User-Friendly Document” explaining the rights of job applicants and employees with mental health conditions. In doing so, the EEOC has confirmed that individuals with such conditions are protected from discrimination and harassment.

Employment Law Mental Health Disability

As noted, employers cannot fire, deny a job, deny a promotion or force an employee to take leave because of a mental health condition (there are exceptions when employees pose a “direct threat” to safety or cannot perform their jobs). The guidelines remind employers of the obligation to provide reasonable accommodations that would enable employees perform their jobs.

In our work advising and counseling employers, we often encounter employers who struggle with how to properly respond to disabled employees.

Whether it is an employee’s injury, mental health condition or stress, employers face confusion as to their legal obligations. Since failure to communicate and/or accommodate may sometimes result in costly litigation, we are providing a few basic guidelines to assist employers when facing similar issues.

Do not discriminate against employees with a mental or physical health condition:

Employers do not have to hire or retain employees in jobs they cannot perform, or employ people who pose a “direct threat” to safety (based on objective evidence, not merely myths and stereotypes). However, firing an employee or rejecting an applicant with a disability (whether physical or mental) is prohibited, unless the employee or applicant cannot perform the job with reasonable accommodation.

For example: Jane notified her employer she was depressed and needed two weeks off. Her employer believed depression was not a “real disease” and rejected Jane’s request without further discussion. When Jane failed to show up because of her condition, her employer fired her for unpermitted absence.

The employer’s actions in this scenario were potentially unlawful. When Jane gave notice of her mental condition and asked for accommodations in the form of time off, her employer was required to engage in an “interactive dialogue” (explained below) rather than rejecting her request for time off and then terminating her employment.

Even if you don’t believe an employee’s health condition and request for accommodation are legitimate, you must at least engage in an interactive dialogue. Under some circumstances (e.g., if the need for an accommodation is not obvious), you can ask the employee to provide reasonable medical documentation to confirm the existence of the disability and the need for reasonable accommodation.

Timely engage in “interactive dialogue” with the employee, even if the employee does not “officially” ask for accommodations:

This can be tricky. Under California law, an employer is required to initiate the interactive process when: (1) the employee requests an accommodation; or (2) the employer otherwise becomes aware of the need for an accommodation through a third party or by observation.

For example: Robert was cleaning a window when he fell off a ladder and hurt his hand. Emily, Robert’s supervisor, witnessed the incident. The next day, Robert came back to work with bandages on his hand. Robert never asked for an accommodation but was struggling with his usual manual tasks. As Robert never asked for an accommodation, Emily assumed Robert did not require one.

Emily assumed wrong. Since Emily witnessed the incident and saw Robert’s bandages she was on notice regarding his possible need for accommodations. Even if Robert did not need accommodations, it was Emily’s duty, as the employer, to engage in the interactive process with Robert to determine whether accommodations could be provided.

Even if the employee is not eligible for protected time off under the Family Medical Leave Act or California Family Rights Act, consider time off as reasonable accommodation:

Family and medical leave laws generally cover employers with 50 or more employees. However, even if you are not a covered employer, you may be large enough and must consider whether protected time off can be provided as a reasonable accommodation (See also 2 CCR 11065(p)(2)(M)).

Don’t rely on the undue hardship defense:

Generally, employers are not required to accommodate a disabled employee or applicant if the accommodation would cause an “undue hardship” to the employer. The term “undue hardship” generally means an accommodation that is unduly costly, extensive or substantial, or that would fundamentally alter the nature of the business’s operation. (See definition and factors to consider in 2 CCR 2 11065(r))

However, employers are advised to use the “undue hardship” defense narrowly and only when the accommodations might place extensive financial burden or would prevent the ongoing operation of the business. Further, employers should engage in the interactive dialogue before concluding an undue hardship exists.

For example, an applicant with a severe vision impairment applies for employment with a small market that has only four other employees. The applicant requires assistance to work the register by having another employee present at all times. The business in question would not have to provide the accommodation if, for example, it could not afford the cost of the additional staff or could not afford the cost of remodeling to accommodate two employees at the same time. (From California Department of Fair Employment Housing guidelines).

Keep an employee’s mental or physical health condition confidential:

Medical information that employers obtain regarding the medical or mental conditions or history of an employee or applicant must be maintained in separate medical files and kept confidential. The employee’s medical information may be discussed only under the following circumstances:

1. Supervisors and managers may be informed of restriction(s) on the work or duties of employees with disabilities and necessary reasonable accommodations; and

2. First aid and safety personnel may be informed, where appropriate, that the condition may require emergency treatment; and

3. Government officials investigating compliance are to be provided relevant information on request. (See 2 CCR 11069(g))

Document, Document, Document:

We cannot emphasize this enough. A little documentation can go a long way.

When you meet with an employee as part of the interactive process, prepare a written summary of the meeting and indicate the reasonable accommodation options discussed. If you decide to grant the employee’s request, document that as well. If you deny the employee’s request because of undue hardship, put that in writing and explain the reasons for the denial. You should invite the individual to further engage in the interactive process and keep the door open to other options. In fact, any change in accommodations should be in writing.

Bottom line:

A little communication and documentation can go a long way and prevent costly litigation. Don’t rely on stereotypes or your personal knowledge and beliefs when an employee requests accommodations or gives notice of medical or psychological conditions. Meet with the employee, discuss his/her restrictions and discuss possible accommodations, if necessary.

As always, if you have questions or concerns regarding your obligations as an employer, contact an attorney in our Employment Practice Group: 818-990-2120.

Sue M. Bendavid and Tal Burnovski Yeyni are  Employer Defense Attorneys at our Firm. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Dec202016

California Employer Compliance 2017

Lawyers for Employers

by: Lewitt Hackman's Employment Practice Group

818-990-2120

 

There have been significant changes to state and federal laws in 2016 affecting employers of all sizes and in many industries. We'd like to help our clients stay apprised of some of the more critical changes by reminding all of the important dates below. Except where otherwise indicated, new laws and regulations go into effect as of January 1, 2017.

 

Federal Minimum Salary Threshold

A federal court blocked the Department of Labor's Final Rule with an injunction in late November. As a result, the minimum salary threshold required for overtime exemptions that was to be met December 1, 2016 no longer applies. This may be a temporary reprieve for employers, as the DOL recently filed a Notice of Appeal.

In the meantime, employers should ensure they meet all state and local overtime exemption requirements.


Affordable Care Act

IRS Affordable Care ActUnder the Affordable Care Act, employers must provide employees forms 1094-B (Health Coverage) and 1094-C (Employer-provided Health Insurance Offer and Coverage to Employees) by March 2, 2017.

Information reporting via Forms 1094 and 1095 with the IRS is February 28, 2017 (hard copies) or March 31, 2017 (electronic filing). 

 

New I-9 and Immigration Protections

Employment I-9A new I-9 Form (Employment Eligibility Verification) was released in November. Employers must begin using the new form for new hires by January 22, 2017

Federal law prohibits employers from asking for additional documents other than those required by the I-9. A new California law (Senate Bill 1001) prohibits this practice as well -- violations may incur penalties of up to $10,000. 


California Fair Pay Act

Fair Pay EthnicityThe Fair Pay Act prohibits employers from paying employees of opposite sex different wages for substantially similar work. Any pay differentials must be based on seniority, merit system, quantity or quality of production, or other bona fide factors such as education or experience. Additionally:

Senate Bill 1063 amends and expands the different rates of pay prohibitions to employees of another race or ethnicity.

Assembly Bill 1676 clarifies that prior salary history cannot justify compensation disparities. 


Criminal Background Checks

Background Checks in CaliforniaCalifornia: Employers are prohibited from asking about arrests or detentions that did not result in a conviction, or about those incidents that have been judicially sealed or dismissed. Assembly Bill 1843 expands protections to protect job applicants with juvenile criminal histories as well. 

Los Angeles: Ban the Box, or the Second Chance Initiative, prohibits employers with ten or more employees from including questions about criminal history on job applications. Employers may ask about criminal history AFTER a conditional offer of employment is made to the applicant. There is a process involved regarding the consideration of such information, written notices, maintaining records; and notifications that must be included on all job posts. Read our Ban the Box blog for more information. 


Payroll, Wage Statements & Notices

Employee NoticesCurrently, employers cannot discriminate or retaliate against employees who are victims of domestic violence, sex assault or stalking – and cannot prohibit employees from taking time off to seek treatment or legal actions for these crimes. Assembly Bill 2337 now requires employers to provide written notice of their employment rights should they become victims of these crimes to all new hires and to other employees as requested. Employers are required to comply with the notice requirements when the Labor Commissioner develops a form notice, on or before July 1, 2017.

Employers who must notify employees of eligibility for federal Earned Income Tax Credits (EITCs) must also notify employees of California EITCs per Assembly Bill 1847.

Employers are not required to track hours worked for exempt employees on itemized wage statements. The clarification comes under Assembly Bill 2535.

Employees of Temporary Staffing Agencies must be paid weekly. Assembly Bill 1311 makes this law applicable to security personnel employed by private patrol operators who are also temp service employers, as of July 2016.


Single User Restroom Facilities

Restroom LawAs of March 1, 2017, single-occupant toilet facilities in any business or public building must be identified as "all gender" facilities with signage compliant with Title 24 of the California Code of Regulations. Single-occupant bathrooms have no more than one stall and one urinal. See Assembly Bill 1732.

 

Minimum Wage Hikes

Minimum Wage HikeCalifornia: Businesses with 26 or more employees must pay a minimum wage of $10.50 per hour as of January 1, 2017. Employers with 25 or fewer employers must raise minimum wages to this rate on January 1, 2018

Local Ordinances: In unincorporated Los Angeles County, Los Angeles City, Pasadena and Santa Monica, employers with 25 or fewer employees must begin paying minimums of $10.50 per hour as of July 1, 2017. Employers with 26 or more employees were required to start paying a rate of $10.50 per hour as of July 1, 2016; and will be required to pay $12.00 per hour as of July 1, 2017. (Click: Cty and County Wage Rates for more specific information.) 

 

Sick Time

Sick Leave CaliforniaCalifornia: As of 2015, employers in California must provide 24 hours of paid leave per year for employees who work at least 30 days per year. 

Local Ordinances: In Los Angeles County, employers must provide 48 hours of paid sick leave annually. The time can be front-loaded every 12 months or accrued at the rate of one hour paid sick time for every 30 hours worked. This requirement is part of the Los Angeles Minimum Wage Ordinance, and went into effect last July for employers with 26 or more employees. For employers with 25 or fewer employees, the requirements must be implemented as of July 1, 2017


Arbitration Clauses

Senate Bill 1241 prohibits employers from requiring employees, as a prerequisite of employment, to arbitrate employment disputes under the laws of another state or in another state. This protection applies to all employees who primarily live and work in California. 

An exception to the new law applies to employees represented by an attorney when negotiating terms of an employment contract, including those containing forum selection and choice of law provisions. 


New California Employment Laws: Industry Specific Legislation

 

Janitorial Services

Janitor LawPer Assembly Bill 1978, employers of property service workers (janitorial) must keep records of all employees to include: employee names and addresses; start/stop times and all hours worked; wage rates for each pay period; ages of any minor employees; and conditions of employment – for three years. The law applies to janitorial employees, independent contractors and franchisees. 

Employers in this industry must register with the Labor Commissioner each year as of July 1, 2018. Cost of registration is $500.00.

The new legislation also requires janitorial staff and supervisors to undergo sexual violence and harassment prevention training every two years as of January 1, 2019


Agricultural Workers

Farm Worker LawAssembly Bill 1066 eliminates the one day of rest per seven days worked exemption for California's agricultural industry. Employers cannot require agricultural employees to work more than six days per week.

As of January 1, 2019, agricultural employers must provide overtime wages for more than 9.5 hours worked (or more than 8 hours starting January 2022); meal breaks; and meet other wage and working condition requirements.

Employers with 25 or fewer employees have an additional three years to comply with the criteria above. 


Private Education

Private School Minimum Salary ThresholdAssembly Bill 2230 requires a new minimum earnings test for private school teachers to be exempt from overtime:  salaries for these employees must be comparable to those offered to public schools in the same district or county. The new test is effective as of July 1, 2017

 

 

Salon Services

Salon Worker LawBusinesses licensed by the Board of Barbering and Cosmetology (BBC) are required to post notices regarding wage and hour laws and workplace rights as of July 1, 2017, under Assembly Bill 2437.

Another new law (Assembly Bill 2025) will require BBC schools to provide basic labor law education to license applicants.

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Monday
Dec052016

Criminal Background Checks: Banning the Box in Los Angeles

Lawyer for EmployersEmployer Compliance Attorney

Employer Update 02.09.17

The City updated its website with further information and resources for both Private Employers and City Contractors, including official notices for applicants and employees, sample letters and rules for implementing the Fair Chance Initiative for Hiring Ordinance.

Please visit this City of Los Angeles webpage to access these: Ban the Box resources.

 

 

by Tal Burnovski Yeyni

818-907-3224

 

Los Angeles City is on its way to approve a new Ordinance prohibiting employers with 10 or more employees from including on any application for employment any question that seeks the disclosure of an applicant’s criminal history. The Ordinance was approved on Wednesday, November 30, 2016 and is rescheduled for a second reading on December 7, 2016 (commentators say this second hearing is merely a formality).

Los Angeles' Ban the Box

More commonly known as the Ban the Box or Fair Chance Initiative, the Ordinance aims to reduce recidivism by providing more job opportunities to those with a criminal history, from relapsing into criminal behavior.

Ban the Box’s Primary Parameters

Who May Be Held Liable? The Ordinance defines “Employer” as any “individual, firm, corporation” etc., that is located or doing business in the City and that employs 10 or more employees. The definition also includes owners, management, supervisors and employment agencies.

No Inquiry Permitted Until a Conditional Offer of Employment is Made. An employer may not, at any time or by any means, inquire about or require disclosure of an applicant’s criminal history unless and until a conditional offer of employment has been made to the applicant.

Notice to Employee before an Adverse Action Is Required. If an applicant provides information/documents regarding criminal history, any decision to withdraw or cancel the conditional offer of employment may not be made until the employer complies with specific notice requirements and allows the applicant an opportunity to provide information regarding the accuracy of his/her criminal history or information regarding other factors that should be considered.

These include mitigating factors or evidence of rehabilitation. The notice requirements also include preparation of written assessment and reassessment by the employer that links the aspects of the criminal history with risks inherent in the duties of the position.  

Hiring and FiringNotice Requirements in Job Posts. Any job posts or employment ads must include a statement that the employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of  the Los Angeles Fair Chance Initiative for Hiring.  

Additionally, employers are required to post a notice informing applicants of the provisions of the Ordinance in a conspicuous place at every workplace, job site or other location in the City under the employer’s control visited by applicants.  

Duty to Maintain Records for a Period of Three Years. Employers are required to retain all records and documents related to applicants’ employment applications and the written assessment and reassessment for a period of three years following the receipt of an applicant’s employment application.  

Exceptions. The criminal history inquiry prohibition, the assessment and reassessment requirements, and the duty to give notice to applicants in all solicitations or advertisements seeking applicants do not apply if: (1) the employer is required by law to obtain information regarding conviction; (2) the position requires possession or use of a firearm; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the Applicant, and; (4) an employer is prohibited by law from hiring an applicant who has been convicted of a crime.  

Fines for Failure to Comply Will Be Imposed This Summer. As of July 1, 2017 the City may impose fines of up to $500 for failure to (1) provide notice to applicants in solicitations or advertisements; (2) post notice in a conspicuous place; or (3) retain records as required. For any other violation of the Ordinance, the City may impose a fine of up to $500 for the first violation; up to $1,000 for the second violation and; up to $2,000 for the third and subsequent violation.  Administrative fines paid by the employer may be awarded to the applicant or employee, up to a maximum of $500 per violation.  

Approximately half of America's states have Ban the Box laws, though most, including California, currently apply only to public employers.

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Nov302016

Estate Planning NOW: Preparing for a New Government

Gift Tax, Trusts & Estate Planning Attorney

by Kira S. Masteller
818.907.3244

It’s impossible to predict what any future president will do, or what Congress will approve. But in light of comments president-elect Donald J. Trump made on the campaign trail, and given that Grand Old Party members will have a majority in both houses of Congress – certain factors in estate and succession planning should be considered.

Estate Planning for Tax Reform

Trump has promised what he calls A Pro-Growth Tax Plan, designed to reduce taxes for many groups of taxpayers.

In broad strokes, the president-elect has promised lower taxes for businesses and low to middle-income families with children. The plan also promises to close special interest loopholes, repeal estate taxes (which generates a hefty 40 percent in federal income from single taxpayer estates worth $5.45M or more; $10.9M for married couples), and reduce tax brackets down to three from seven, according to Motley Fool.

If we combine Trump's and the GOP's 2015 tax reformation plans, the changes could include the broader goals above, and: 

  • Increase standard deduction amounts from $6.3K to $12K for single tax payers; and $12.6K to $24K for married couples;

  • Eliminate personal exemptions;

  • Cap itemized deductions at $100K (single), $200K (married), which could put a damper on reaping the current benefits of charitable contributions (more information on that below);

  • Repeal AMT (alternative minimum tax);

  • Repeal NIIT (net investment income tax); and

  • Repeal generation-skipping transfer taxes.

Mortgage interest deductions and charitable contribution deductions would remain under the GOP plan, but changes may be imminent.

Estate Planning for a Trump Presidency

We looked at the broader strokes above. But here are some considerations to make for the immediate future.

Trump Tax ReformCharitable Contributions: Make them now, just in case. The GOP opted to keep them, but Trump wants to "disallow" them. Currently, you can deduct up to 50 percent of your adjusted gross income when giving cash – and anything above 50 percent can be carried forward over the next five years.

Death Tax: If the federal estate tax is repealed, those with significant assets may not need to reduce the size of their estates.

Capital Gains: On the other hand, the president-elect's tax plan would levy fees on capital gains at death if they are worth more than $5M (single) or $10M (married).

Business Planning: Now may not be the time to sell business interests. Currently, income generated from those sales is taxed at over 43 percent. But if the Trump tax reformations go into effect, the tax rate could come down to 33 percent.

Again, none of us can predict what will happen should tax reforms be enacted under a Trump presidency. The main things to remember now are that charitable contributions may be worth making in 2016, and that it may be best to hold off on selling businesses for the moment. 

 

Kira S. Masteller is a Shareholder in our Trusts & Estate Planning Practice Group. 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Wednesday
Nov232016

Employers: Texas District Court Grants Nationwide Injunction Against DOL's Final Rule

Lawyer for EmployersEmployment Defense

by Tal Burnovski Yeyni

818-907-3224

 

In May we reported the Federal Department of Labor issued its Final Rule regarding the minimum salary level required for the exemption of executive, administrative and professional (EAP) employees.  The final rule was designed to raise the minimum salary required for the exemption from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). 

In an 11th hour ruling,  U.S. District Court Judge Amos L. Mazzant granted a motion for preliminary injunction filed by 21 States that challenged the Minimum Salary Rule and imposed a nationwide injunction against the implementation of the Final Rule that was scheduled to take effect on December 1, 2016.  

In a 20-page decision Judge Mazzant opined the DOL lacked authority to define and delimit a minimum salary threshold for exemption. Per Judge Mazzant, Congress intended for the EAP exemption in the Fair Labor Standards Act (FLSA) to depend on employee’s duties rather than on the employee’s salary.  Accordingly, the DOL’s authority was limited to define and establish the types of duties that might qualify an employee for the exemption:

While this explicit delegation would give the [DOL] significant leeway to establish the types of duties that might qualify an employee for the exemption, nothing in the EAP exemption indicates that Congress intended the Department to define and delimit with respect to a minimum salary level. 

Further, Judge Mazzant held that with the Final Rule, the DOL exceeded its delegated authority and ignored Congress’s intent by raising the minimum salary level “such that it supplants the duties test” and creates a “de facto salary-only test”.

Following the Court’s analysis regarding the DOL’s authority to promulgate the Final Rule and the likelihood of the irreparable harm and balance of hardship between the parties’ the Court decided that a nationwide injunction was proper in this case.

Implications for California Employers

As the Final Rule is currently on hold, California employers are required to comply with the California threshold for EAP exemption, which is at least two times the state’s minimum wage for full time employment (currently, $3,466.67 monthly; $41,600 annually).  Note that with the gradual raise in the State’s minimum wage starting on January 1, 2017, the minimum threshold for exemption will go up as well.

Finally, employers should be advised that the salary threshold test is merely one component of a valid exempt status. To be properly classified as an exempt employee an employee must: 

  • Primarily engage in “exempt duties” and;
  • Earn a minimum monthly salary of no less than two times the state minimum wage for full-time employment.  

While some commentators speculate the DOL will appeal yesterday’s ruling, it still remains to be seen whether the feds will challenge Judge Mazzant’s decision. 

 

Tal Burnovski Yeyni is an attorney in our Employment Practice Group

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120