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Entries in discrimination claims (13)

Tuesday
Mar052013

Employers: New Posting Requirement & Expanded FMLA Regs

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Marking the 20th anniversary of the federal Family and Medical Leave Act (FMLA), the US Department of Labor (DOL) issued new FMLA regulations on February 6, 2013. 

The regulations, which take effect Friday, March 8, 2013, expand FMLA protections for military family members and airline flight crews. The regulations also clarify intermittent leave calculations, and remind employers of their confidentiality obligations under the Genetic Information Nondiscrimination Act (GINA).

Highlights from the new FMLA regulations are summarized below:

 

Military Family Leave

 

Current FMLA regulations provide “qualifying exigency” leave for eligible family members of certain military personnel to address issues related to certain military deployments. The revised regulations clarify that qualifying exigency leave is intended for family members of persons serving in the regular Armed Forces, National Guard or Reserves who are on active duty or called to active duty in a foreign country.  

Additionally, a new category of qualifying exigency leave – parental leave -- has been added. Parental care exigency leave may be utilized to make arrangements for care of parents of military members.

 

Military Caregiver Leave

 

FMLA regulations currently provide leave to care for certain military members with serious injuries or illness. 

Military caregiver leave has been expanded to include leave to care for covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. A covered veteran is an individual who was discharged or released under conditions other than dishonorable in the five-year period prior to the date the employee’s military caregiver leave begins.  

 

Intermittent Leave

 

Regarding intermittent leave, the new regulations clarify that employers must use the shortest increment of time the employer uses to account for other forms of leave, provided it is not greater than one hour. For example, if an employer allows an employee to take vacation in 15-minute increments, it must allow employees to take FMLA in 15-minute increments. 

 

Airline Flight Crew Eligibility

 

The new regulations state airline flight crew employees meet the FMLA hours-of-service eligibility requirement if they:

(1) have worked or been paid not less than 60 percent of the applicable total monthly guarantee (i.e., not less than 60 percent of the minimum number of hours an employer has agreed to schedule the employee), and

(2) have worked or been paid for not less then 504 hours during the previous 12 months. 

Airline employees who are not flight crew members continue to be covered under the general FMLA hours-of-service eligibility standard (1,250 hours in the preceding 12 months).

 

Genetic Information Nondiscrimination Act (GINA)

 

The regulations include a reminder to employers of their obligation to comply with the confidentiality requirements of GINA to the extent records and documents created for FMLA purposes contain family medical history or genetic information. 

Under both FMLA and GINA, employee information relating to medical certification or family medical history must be maintained as confidential medical records in separate files from the usual personnel files, and may only be disclosed under certain limited circumstances.

 

New FMLA Poster/Forms

 

In addition to the above, the DOL has published an updated FMLA poster for covered employers (i.e., employers with 50+ employees), as well as several updated (optional-use) forms. The new poster, which must be posted by March 8, 2013, is available on the DOL website. California employers should use caution when using the DOL’s forms, which may not be compliant with state law.

 

FMLA covered employers should review their policies and forms to ensure consistency with the new regulations. Employers should confirm they are properly accounting for intermittent leave (increments of one hour, or shorter if other forms of leave are permitted in shorter increments). Employers should be aware of and provide qualifying exigency and military caregiver leave when needed. 

Finally, covered employers should replace their current FMLA posters with the revised poster and review recordkeeping policy and practice to ensure compliance with FMLA and GINA.

 

Nicole Kamm is an Employment Attorney who helps employers minimize the risk of wage and hour, harassment, discrimination and FMLA claims. Contact her via email: nkamm@lewitthackman.com.

 

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.
Thursday
Sep132012

Employment Defense | Governor Brown Expands Religious Accommodation Requirements

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Late last week, Governor Jerry Brown signed AB 1964 into law, clarifying the responsibilities of California employers with respect to religious accommodation in the workplace.

Also known as the Workplace Religious Freedom Act, AB 1964 was introduced by Assemblywoman Mariko Yamada and supported by a variety of faith groups – including Catholics, Muslims, Jews and Sikhs.

Several years ago, one of Assemblywoman Yamada’s Sikh friends was accosted by guards with guns drawn when he reported for jury duty. Around that time, another incident occurred during which two elderly Sikh men were shot and killed in what was believed to be a hate crime. And last year, a Sikh man settled an employment discrimination lawsuit against the California Department of Corrections and Rehabilitation (DOCR) after the DOCR refused to hire him unless he shaved his beard.

In the wake of these incidents, Assemblywoman Yamada proposed AB 1964 to address what she found to be workplace discrimination faced by Sikhs and other religious minorities. The bill, whose number commemorates the federal Civil Rights Act of 1964, is considered to be landmark legislation in protecting the civil rights of citizens of all religious backgrounds.

 

Religious Discrimination Claims by Employees & the New Law

 

California’s Fair Employment and Housing Act (FEHA) has long prohibited discrimination against applicants and employees based on their religious beliefs, and required reasonable accommodation of religious beliefs and observances.

Assembly Bill 1964 clarifies that “religious beliefs” under FEHA include religious dress and grooming practices – and that employers cannot discriminate against applicants or employees based on those practices. The bill further clarifies what it means for an employer to reasonably accommodate such practices in the workplace.

According to the new law:

the term 'religious dress practice' shall be construed broadly to include the wearing of jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. 'Religious grooming practice' shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.

The legislation states it is an unlawful employment practice for an employer to:

refuse to hire or employ a person...or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer…demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship [on the company]….

The new law further explains, “An accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.”

Though intended to merely clarify existing law, the impact of AB 1964 could affect workplaces across California and bring increased focus on employer obligations to accommodate religious beliefs. Already on the rise, the new law could also bring an increase in religious discrimination lawsuits and claims.

In view of the above, employers are advised to review and update their anti-discrimination and equal employment opportunity policies and consult employment counsel if and when questions about religious accommodation arise.

Nicole Kamm is a Management-side Employment Attorney who works with employers in all aspects of defense and claim prevention.

 

 
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.
Thursday
Apr282011

Top 10 Management Mishaps

Lawyer for EmployerWage and Hour Defense

 

by Nicole Kamm
818.907.3235

 

Editor's Note:  This list by Los Angeles Employment Lawyer Nicole Kamm was initially posted on the blogsite TheHiveMarketing.com on April 18, 2011. Please visit The Hive Marketing if you would like to read this post in its original format. 

 

Today's economy makes managing employees much more difficult. There's increased pressure to do more with less -- and in many cases, a lot less.  Mistakes inevitably occur. But you can sidestep some of these pitfalls if you know what to watch for.

Here are the Top 10 Management Mishaps to avoid so you can take steps to stay compliant with California employment laws, and hopefully safeguard your company against potential claims:

 

1.  E-mail Hazards - Watch What You Write

 

Hazard #1A more senior employee e-mails you that after 25 years with the Company, he is considering retirement.  You reply that it is about time he retire and attach information about Social Security and MediCare benefits.

Hazard #2:  You and an employee argue or disagree, which prompts you to vent by sending some particularly nasty comments about the employee to another supervisor. 

Hazard #3:  While checking your personal e-mail account, you watch a hilarious YouTube video full of offensive language. . .which you forward to a coworker you know will love it.

Recommendation

Cases in litigation are often made or broken by e-mails. Common e-mail mistakes include:

▪  Thinking e-mails are deleted after pressing the delete button.

▪  Believing e-mails are confidential if written only to internal management.

▪  Viewing e-mails as a conversation instead of a formal letter.

Don't hit the "Send" button until you visualize your e-mail as a 3’x4’ poster read aloud by opposing counsel in front of a 12-person jury.  This exercise helps you avoid some of the most common e-mail mistakes.

 

2.   Document Everything! (Even Verbal Warnings)

 

Remember: “If it is not in writing, it didn’t happen.”

As a Los Angeles employment lawyer, my mantra is “document, document, document.” 

As a human resources or management executive, you can help cover your bases with notes to the file, letters to the employee, memos to general staff, e-mails to management personnel, minutes of management meetings, etc. 

Everything that happens in the workplace that may be employee claim-related should be documented. And this definitely includes in-person meetings and verbal warnings.

 

3.   Improper or Incomplete Documentation - Be Detailed

 

 

Remember: “If it’s not documented well, better that it not be documented at all.”

Incorrect or incomplete documentation weakens even the strongest case.  As an employer, you should review all documentation and consider consulting an employment attorney before finalizing any writing.

 

4.  Reviews and Terminations - Say What You Mean

 

Sometimes human resources or management can “sugar coat” reviews and employee termination notices.  This could turn sour if the employee is angry and inclined to sue. 

Avoid telling the employee, “Your layoff has nothing to do with your performance." If  the employee takes you to court, it's hard to make a case for poor performance when you sugarcoat. 

Employees in litigation commonly use positive performance reviews when terminated in an effort to demonstrate they were good performers and the reasons they were given for termination were “pretextual,”  defined as “a fictitious reason that is concocted in order to conceal the real reason.” Examples of pretextual reasons include termination:

▪  Due to a work-related injury,

▪  For lodging a complaint (e.g., harassment, discrimination), or

▪  For excessive absences related to “protected activities” (e.g., disability, jury duty, witness duty).

Recommendation: 

Plan what you are going to communicate before saying or writing it.  Be honest and concise.  Explain the reasons behind the review or termination, but don’t be defensive or argue.  Remember, a single review or termination may be the linchpin for a future claim.

 

5.  Employee Complaints - Never Ignore Them

 

As a supervisor, you must notify HR or upper management immediately when you learn of potentially unlawful conduct.  Legally speaking, once a supervisor is aware of harmful or illegal conduct, the company is deemed to be on notice.

As a business owner or HR executive, you must promptly conduct an investigation when certain complaints arise (e.g., harassment, discrimination, etc.) or potentially illegal conduct is reported.  Employers are under a legal obligation to conduct investigations in these situations.

And investigations are essential to managing the workplace and resolving disputes before lawsuits arise.  You'll want to protect yourself as properly conducted investigations often lead to an important defense after a lawsuit is filed. 

Here are some basic tips for conducting investigations:

▪  Interview both the complainant and alleged perpetrator.

▪  Interview additional witnesses.

▪  Gather additional evidence.

▪  Document every step.

▪  Evaluate and conclude, based on the facts.

▪  Assess and address (if necessary) the future impact of the complaint on the workplace environment.

 

6.  “Off the Clock” Work - Pay Now or Pay Later

 

You must keep track of all hours worked by non-exempt employees.  Record the stop and start time of all work being performed, including the beginning and ending of each meal period.  You'll need to pay for all work being performed by employees (including any “off the clock” work).

Employees often accuse supervisors of pressuring employees to work “off the clock," or of “shaving” time records in an effort to reduce costs and increase bonuses for themselves.  And sometimes managers make honest mistakes, but mistakes don't preclude potential lawsuits.

Example: Employee forgets to clock in or out and manager makes correction on time card.

Recommendation: 

Have your employee initial the change to acknowledge that the corrected time accurately reflects the time worked.

 

7.  Meal and Rest Break Periods - Enforce Them

 

Meal Break Rules:

▪  As an employer, you're required to provide a 30-minute unpaid, duty-free meal break for each work period of more than 5 hours under California law.  However, you and your employee may waive the meal period by mutual consent IF the total work period is no more than 6 hours. 

▪  A second meal period of not less than 30 minutes is required if an employee works more than 10 hours per day.  But if the total hours worked is no more than 12 hours, you and your employee may waive this second period by mutual consent -- but only if the first meal period was not waived.

▪  Employees must be relieved of all duty during their 30-minute meal period.  “On duty" meal periods are permitted only when (i) the nature of the work prevents an employee from being relieved of all duty, and (ii) agreed to in writing by you the employer and your employee. 

The penalty for failing to provide a meal period is one additional hour of pay for each workday the meal period is not provided.

Recommendation

You should make sure employees are provided meal breaks and that records reflect meal breaks. Make sure the breaks are taken (i.e., require employees to clock out and in for the full 30-minute break).

 

Rest Break Rules 

▪  As an employer, you must “authorize and permit” your non-exempt employees to take 10-minute rest breaks every four hours. 

▪  However, no rest break is required for employees whose total daily work time is less than 3.5 hours.  Rest breaks should be taken in the middle of each work period, if possible.  You cannot allow your employees to combine rest breaks with meal breaks or use them to come in late or leave early.

▪  Rest periods are counted as time worked, therefore you must pay your employees for this time.  The penalty for failing to provide a rest period is one additional hour of pay for each workday the rest period is not provided.

Recommendation:

Do not deny employees the ability to take 10-minute rest breaks.

 

8.  Enforce Overtime Rules & Pay for Overtime

 

In California, you must provide time-and-one-half the employee’s regular rate of pay for:

 ▪  All hours worked beyond eight in a single workday (or 40 in a workweek), and

 ▪  The first eight hours worked on the seventh consecutive day worked in a single workweek. 

Employers must pay double the employee’s regular rate of pay for:

▪  All hours worked beyond 12 in a single workday, and

▪  The hours worked beyond eight on the seventh consecutive day worked in a single workweek.

California employers my delay payment of overtime wages earned in a pay period no later than the payday for the next pay period. 

If delaying to the following pay period is unavoidable, you must itemize the hours as corrections on the pay stub for the period in which they are paid and identify the date of the pay period to which they are attributable.

A California employer's failure to pay overtime results not only in an obligation to pay the overtime owed, but the failure may also subject you to other penalties under the Labor Code.

 

9.  Leave Rules - Know Them

 

The state requires certain leaves by law, while others are optional.  To make it more confusing, some leaves apply only to companies employing certain numbers of people. 

For example, Pregnancy Disability Leave (PDL) applies to employers with five or more employees whereas the federal Family and Medical Leave Act (FMLA) and state California Family Rights Act (CFRA) only apply to employers with 50 or more employees. 

All employers (even those with only one employee) must provide workers’ compensation disability leave and jury and witness duty leave.  Yet, no employer is required to provide paid vacation or sick leave.

Because the different types of leaves, both required and not, interact with each other in different ways, it is important to understand the various laws and corresponding obligations.

 

10.   “Protected” Activities - Don't Write Up or Terminate Employees for These

 

California law lists a long roster of activities that you cannot cite as grounds for employee termination.  Nor should employees be written up for these reasons.  Some of these include: 

▪  disclosing wages

▪  political activity

▪  limited time off for a child’s school or day care activities

▪  refusing to take polygraph test

These are the top 10 reasons employers leave themselves open to potential legal battles, but they are not all of the reasons. If you feel you need help understanding California's employment laws, you should seek legal counsel. A good Los Angeles employment lawyer can help you navigate the complicated territories of hiring and firing practices, carrying out proper leave and break policies and more. 

Nicole Kamm, Esq. is an Employment Lawyer who represents clients in all aspects of employment law, from counsel to litigation.  For more information, contact Ms. Kamm at (818) 990-2120.

 

 
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.

 

 

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