HR Consulting Network

HR Consulting News–Working 7 Consecutive Days

April 25, 2019 by hrconsulting14

We are all familiar with the classic 40 hours per week and Monday through Friday scheduling. But there are situations, from an HR consulting point of view, in which the employer can legitimately ask for work seven days in a row if there is a bona fide business reason.

California Labor Code Section 551 states: “Every person employed in any occupation of labor is entitled to one days’ rest therefrom in seven.” In turn, Labor Code Section 552 states: “No employer of labor shall cause his employees to work more than six days in seven.”

Those sections do not apply “when the nature of employment reasonably requires that the employee works seven or more consecutive days, if in any each calendar month the employee receives days of rest equivalent to one day’s rest in seven (LC 554)”. For example, this would apply to retail employees who have to work longer consecutive days during the Christmas holidays.

From an HR standpoint, these provisions do not apply “to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof (LC 556).”

Two employees of Nordstrom sought to enforce these provisions in the California Supreme Court case of Mendoza v. Nordstrom (2017). For example, one of them claimed that they were forced to work 11 straight days. But in that time period, there were periods in which the work was less than six hours/day.

The court noted that the labor code sections above did not have a specification of civil penalties. This means the plaintiffs sought their penalties under the Private Attorney General’s Act (PAGA), which requires $200 per employee for each pay period, together with attorney’s fees and court costs, in which the labor code violation occurs.

For these reasons, HR consultants should be aware of these exceptions.

National Lien Law can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

Denying Service to Patrons of Places of Public Accommodation (Hotels and Restaurants)

April 16, 2019 by hrconsulting14

The question presented is whether a place of public accommodation, such as a hotel or restaurant, can deny service to a patron. This is important for HR consultants to understand, because it may impact whether your clients are sued for discrimination.

Take the example of a restaurant. This is clearly a place of public accommodation. In other words, the public may enter and use the facilities. In general, a place of public accommodation has the right to refuse service to a patron. But not on the basis of a protected class. In California, this includes: race or color, national origin or citizenship, religion or creed, sex, age, disability, pregnancy, genetic information, veteran status, marital status, sexual orientation or gender identity, medical condition, HIV status, political affiliations or status as a victim of domestic violence, assault or stalking. It appears Kevin is not a member of any protected class.

But California goes even further. In 1959 it enacted the Unruh Civil Rights Act, Civil Code Section 51, which states:

(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

This prohibits any form of arbitrary discrimination, even if it is not included in the protected classes described above. In Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 1152, it construed the Act to apply to several unexpressed classifications–namely, unconventional dress or physical appearance, families with children, persons under age 18, and homosexuality. (Harris, supra, 52 Cal.3d at p. 1155).

This allows a restaurant to exclude if there is a showing of good cause. The court observed in Stoumen v. Reilly, 37 Cal.2d 713:

Members of the public of lawful age have a right to patronize a public restaurant and a bar so long as they are acting properly and are not committing illegal and immoral acts. The proprietor has no right to exclude or reject a patron except for good cause, and if he does so without good cause, he is liable in damages.” Clearly, the law does not allow a business to arbitrarily exclude a prospective customer. In order for courts to determine what constitutes arbitrary discrimination, the court must examine whether the action taken by a business owner is reasonable and for good cause. Good cause is established when there is evidence of improper, illegal or immoral conduct by the customer that occurs on-premises and that is contrary to the public’s welfare or morals.

Thus, the exclusion can be proper if it is based upon neutral or economic factors (Harris, supra, 52 Cal.3d 1142, 1148), namely preventing a patron from further harassment of an employee. Other examples would be a patron causing a disturbance or committing some kind of illegal act.

Note also that California Penal Code Section 602.1 allows a restaurant owner to exclude a patron if that person would disrupt the business:

(a) Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner’s agent, or by a peace officer acting at the request of the owner or owner’s agent, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine.

Note also you do not need a sign to eject someone. Although it might be helpful from a practical standpoint, signs such as: “We reserve the right to refuse service at any time” are not technically required.

So as an HR consultant, bear these issues in mind and appropriately inform your clients.

National Lien Law can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

California Employment Arbitration Provisions

April 11, 2019 by hrconsulting14

Just how far can you go in drafting a California arbitration provision for employer/ employee disputes? This is important information for HR professionals.

Under the California Armendariz decision, the employee must be given the same rights in arbitration as they would have in litigation. But for most companies, there are some exceptions. Waiving the right to consolidate or have a class-action in arbitration is one. This is allowed by the US Supreme Court in ATT Mobility vs. Conception 131 S. Ct. 1740, 1750 (2011).

An agreement can also waive a jury trial. The argument is that arbitration, for example through the American Arbitration Association, almost never can provide for a jury trial. In other words, it is the nature of arbitration not to have a jury. It’s just not set up for that. So you probably will get by with this exception.

Examples of what rights cannot be waived would be damages for emotional distress, punitive damages, injunctive relief, declaratory relief or other examples.

An HR consultant should also know about a waiver of the employee being able to bring an action as a private attorney general under California Labor Code Sections 2698 – 2699.5 (for example penalties for over time etc., in which the employee brings the action on their behalf as well as others)? This is not allowed because of the California case of Iskanian vs. CLS Transportation, 59 Cal.4^th 348 (2014) which prohibits such a waiver. But you can include the following provision:

A mutual agreement to arbitrate claims also means that both you and the Company forego any right either may have to a jury trial on claims relating in any way to your employment, and both you and the Company forego and waive any right to join or consolidate claims in arbitration with others not signatory or to make claims in arbitration as a representative or as a member of a class or in a private attorney general capacity, unless such procedures are agreed to by both you and the company.

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

HR Consulting News Update–Religious Affiliation on Job Application

February 7, 2019 by hrconsulting14

The question is whether there can be an optional question inserted in job applications as to whether Muslim individuals or similar persons would have a religious objection to delivering alcohol.

A quick check of the EEOC website indicates the following relevant passage:

Questions about an applicant’s religious affiliation or beliefs (unless the religion is a bona fide occupational qualification (BFOQ)), are generally viewed as non job-related and problematic under federal law . . .[O]ther employers (for example not churches or other religious organizations) should avoid questions about an applicant’s religious affiliation, such as place of worship, days of worship, and religious holidays and should not ask for references from religious leaders, e.g., minister, rabbi, priest, imam, or pastor.

In other words, a direct inquiry as to one’s religion would be prohibited. But what if you mention on employment applications, without asking about one’s specific religion, that they might be delivering alcohol products and asking if they would have a problem doing so? Could you be sued for doing so?

Unfortunately, it could go either way. Here are the two arguments:

There is no discrimination against religion–you are actually honoring it. You are simply giving them a “heads up” there may be difficulties with their beliefs in such deliveries. Isn’t that something that a prospective employee would like to know before joining the team?
You cannot ask an applicant about their religious beliefs, but here you are indirectly doing so. If they say they cannot make the deliveries, it is because of their religious beliefs so in essence you are making that inquiry. If they cannot do so, it gives you the right to deny the application. It may also come out in discovery that you have a number of Muslim workers that have objections (which you do not like) and that is the reason you have posed the question.

If you do want to broach the subject in the application, you might consider the following:

Optional Question: We do not make inquiries into an applicant’s religious denomination, religious affiliation, places of worship or religious holidays. Nor do we discriminate for or against any religion. We honor the religious beliefs of our employees, seek to accommodate them, but at the same time do not want you to be uncomfortable in performing certain services. As a disclosure, part of your duties may involve the lawful delivery of alcoholic beverages or marijuana paraphernalia. Without disclosing any religious denomination or belief, is this something you will not be able to do?

HR Consulting News: the ADA and Back Problems

January 28, 2019 by hrconsulting14

Question: What ADA accommodation is required under the ADA for back problems involving a degenerative disc?

Answer: Although the ADA does not have a specific list of medical conditions, there is a general definition of disability that involves an impairment substantially limiting one or more major life activities, which would clearly apply to her work situation.

As is well known, if there is such a disability, there must be a reasonable accommodation as long as there is not significant difficulty or expense. Here are some possibilities: a) preventing heavy lifting or strain upon the back muscles, b) longer breaks (for example, 5 minutes as opposed to 10 minutes), c) allow some work from home, d) an ergonomic chair or back brace, e) height adjustable desk, f) desktop organizers for easy access to files or g) a sit/stand computer workstation.

There is no such thing as leaving early and resting at home as a reasonable accommodation. If there is a reasonable accommodation, it should be at the premises.

You can offer the employee work at home under a telework program, but only if he/she is actually working exclusively for company business during those periods and she can accomplish her work duties.

No-Hire Agreements: HR Consulting Legal Summaries

January 26, 2019 by hrconsulting14

Assume your company is hired by Company B that needs technical computer services. It’s a long-term arrangement so you dispatch a crew of employees to work full-time and work at the premises of Company B. You have agreements with your employees that they will not work for any of your customers. After a few months, one of your employees is hired away by Company B. Can you prevent this?

Assume you are a pest control company and have spent years training an employee. All of a sudden the employee decides to jump ship and work with a competitor. Can you prevent this?

Case Law:

The courts have not wavered from the strong public policy of the right of every employee to earn a livelihood under Business and Professions Code Section 16600. See Metro Traffic Control, Inc. v. Shadow Traffic Network (1994) 22 Cal.App.4th 853, 859 (“every citizen shall retain the right to pursue any lawful employment and enterprise of their choice”); Morlife, Inc. v. Perry (1997) 56 Cal.App.4th 1514, 1520 (“the important legal right of persons to engage in businesses and occupations of their choosing”).

The California Supreme Court has gone so far as to state that even “a mere limitation on an employee’s ability to practice his or her vocation … [that was] reasonably based” would fall afoul of section 16600. Edwards v. Arthur Andersen LLP, 44 Cal.4th 937, 81 Cal.Rptr.3d 282 (2008)

Key Points:

Courts overwhelmingly favor the right of a person to find the employment of their choosing.
Courts almost have a built-in bias against no-hire and similar provisions.

VL Systems, Inc. v. Unisen, Inc. (2007) 152 Cal.App.4th 70. Company hired consultant for computer services. One of consultant’s employees was hired away by Company, which caused a lawsuit for violation of the no-hire agreement. That agreement had a liquidated damages provision. The employee of the consultant had never worked on any jobs for the Company and was just a random employee. The employee was hired away after answering an Internet ad. The court invalidated the no-hire provision and allowed the employee to be employed.

Key Points:

There is a better chance of stopping the employee if that person was actually working for the contracting party.
There is a better chance of the employee winning if he or she did the solicitation as opposed to the contracting party (because the contracting party would not be directly violating the provision it signed).
It is easier for the employee to win if he or she did not know about the no-hire provision.
It is not okay to “raid” the employment pool by taking away numerous employees

Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083 (9th Cir., 2015). A doctor worked with a medical staffing company that specialized in staffing emergency rooms with physicians. The agreement signed by the doctor prohibited him from working for any of the hospitals that had been under contract. At the appellate level, the Court of Appeal held in favor of the employee and sent the case back to the District Court for redetermination.

Key Points:

Although there are many cases regarding non-solicit or non-compete, as to no- hire agreements, there is no definitive statement thus far from the California Supreme Court.
Regardless, the weight of authority and the trend modernly is to invalidate these provisions and allow the employee to work.
Other states allow the prohibitions if they are reasonable in nature. California cases say that any restraint is unlawful.

Conclusion:

There is a strong public policy in California and other states that your company cannot prohibit one from working somewhere else and pursuing their livelihood. Unfortunately, your chances are slim of enforcing such provisions.

Reporting Time Pay: HR Consulting News

January 21, 2019 by hrconsulting14

Assume hypothetically that a company requires some of its employees to carry cell phones after normal work hours and be on call to return back to the facility as needed. Assume further they have to be available to take the call in 15 minutes and return to the office within 20 minutes. From an HR perspective, to what extent should these employees be paid for the time returning back to the premises ?

Obviously, all time spent after returning to the job site is paid at the regular hourly rate. But what about returning or driving back to the job site? This HR question would be the time after receiving the call, getting one’s affairs in order and driving back to the facility.

Cal. Code Regs., tit. 8, § 11040, subd. 5(A), known as Wage Order 4, addresses this issue and states:

Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.” (Cal. Code Regs., tit. 8, § 11040, subd. 5(A); known as Wage Order 4.).

Applied to our situation in which the employees have a regular eight-hour shift, this means that in addition to the actual hours spent back at the job, there would be an additional four hours of compensation at the regular hourly rate, if when called back, the employee works less than four hours. So, if one of your employees is called back and only spends two hours, he would be paid those hours plus an additional four. Think of it as a form of penalty. In other words, if the employee goes to all the time and effort of being brought back to work, he would get at least a half day’s wages.

And just the opposite: if the employee back at the job gets at least four hours, he would not get any reporting time pay.

A case directly on point is Aleman v. Air Touch Cellular (2011) 202 Cal.App.4^th 117. One of the plaintiffs was a customer service representative of Air Touch stores that sold cell phones and accessories. From time to time, the plaintiff was on call and called back on weekends to attend business meetings. Applying Wage Order 4 above, the court found that the employees were not entitled to the additional report time compensation.

It is also a good idea for HR professionals to insist upon the filling-out of strict time cards to make sure the Company knows exactly how many hours are spent.

Sign Language Interpreters for Places of Public Accommodation–HR Consulting News

January 17, 2019 by hrconsulting14

As an HR consultant, assume you have a client that operates a place of public accommodation, namely a fitness gym. A member, who is deaf, inquires as to your Pilates class. Specifically, they are requesting an interpreter to receive instructions in the class and answer questions. What are the legal requirements?

Typically, the only statutes require interpreters are for state and local government facilities–public places (as opposed to private for-profit companies), such as courts.

And, the ADA requires accommodation to members of the public using government facilities (42 USC 12101—12213); inapplicable here.

The ADA also covers places of “public accommodation”, which does apply to the gym. This is to accommodate one’s disability or serious medical condition. Under 28 CFR 35.160-35.164, there is a requirement of providing “effective communication” to those with a disability. Research indicates this applies to such auxiliary aids (for example sign language) for people that are deaf or have hearing impairment, as opposed to foreign language interpreters.

On the other hand, if the individual is disabled and there is a need to communicate with her in order to accommodate, one could make the argument of needing an interpreter.

It should also be noted that such classes involve more “doing” than “talking”. In other words, the participants are watching the physical movements of the instructor, and little if any verbal instructions may be required. In this sense, a member can hardly allege damages or the inability to participate.

One option, which is quite expensive, is to have a sign language professional on staff. Possibly a better alternative is to have the disabled individual take a private class where the instructor has access to written materials, a person who takes notes, and sign language videoconferencing. There are number of companies, at approximately $3.50 per minute, that will remotely via video give such sign language instruction.

In any event, it would not be a good idea from HR standpoint to completely ignore the requests for assistance by such a deaf or hard to hear person.

Reporting Time Pay: HR Consulting Update

January 15, 2019 by hrconsulting14

Consider the following scenario that may arise from time to time in your HR department. Your California company operates a facility that requires some of your employees, as the need arises, to return back to the job site either in the evenings or weekends on an on-call basis. As such, certain employees must must carry a cell phone, be able to respond within 15 minutes, and return to the job site within approximately 20 minutes. Do you have to pay them for the time of traveling back to the job site?

HR consultants know that obviously, all time spent after returning to the job site is paid at the regular hourly rate. But what about returning or driving back to the job site? This would be the time after receiving the call, getting one’s affairs in order and driving back to the facility.

Cal. Code Regs., tit. 8, § 11040, subd. 5(A), known as Wage Order 4, addresses this issue and states:

“Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.” (Cal. Code Regs., tit. 8, § 11040, subd. 5(A); known as Wage Order 4.).”

And just the opposite: if the employee back at the job gets at least four hours, he would not get any reporting time pay.

It is also a good idea for your HR department to insist upon the filling-out of strict time cards to make sure the Company knows exactly how many hours are spent.