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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.

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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.

HR Consulting News: Forcing an Employee to Use PTO After an Unpaid Absence

January 14, 2019 by hrconsulting14

Bottom line: In California, an employer can force the employee to use PTO after an extended unpaid leave of absence.

From a federal standpoint, the FLSA does not regulate PTO, so there are no requirements either way. But what about California?

In California, employers cannot implement a “use it or lose it” policy for PTO. In other words, if you don’t use your accrued PTO each year, it will be lost for the next year. However, the DLES does allow “caps”. In other words, you can only carry forward a certain number of hours. It is suggested that you use 1.75 times the annual accrual rate.

But our case is different. The employer is not implementing a “use it or lose it” policy.

In California, as long as the employee has received advance notice (typically at least 90 days with provisions in the Employee Handbook), the employer can force use of PTO after taking an unpaid absence. The provision has to be reasonable. An unpaid absence of 10 days or more seems reasonable.

Note also, it is common to require employees to use PTO in conjunction with FMLA.

Exception: Under the California Pregnancy Disability Leave Act, the company cannot require a person to use PTO for a pregnancy disability leave. The employee is given the option to use it if she wishes.

Remember, in “use it or lose it” litigation, the employee does not want to take leave for a certain period of time, but is being forced to do so by the employer–or lose it. Here we have a totally different circumstance. The employee has voluntarily decided to take leave, although unpaid. The employer is not forcing anything.

HR Consulting Legal Update: On Call or Standby Pay

January 13, 2019 by hrconsulting14

One of the many rules that HR consultants and professionals must be aware of, is how to handle standby pay.

Assume the following hypothetical: Company has employees that are on a standby basis and must return to work for a myriad of reasons after notification. They must have their cell phones “at the ready”, be able to communicate within approximately 15 minutes and return to work in the neighborhood of 20 minutes. Through the HR department, do they have to be paid for this standby time, and if so, at what rate?

Standby or on-call Pay:

Bottom line: if the standby time is considered “unrestricted”, no compensation need be paid by HR, even at the minimum hourly rate. If it is considered “restricted”, the employee must be paid, but the Company can get away with merely paying the minimum wage.

The difference between restricted and unrestricted has to do with the control exercised by the employer. Control means they are not unrestricted in pursuit of their personal activities. In other words, their private activities can be interfered with at any time at the will of the employer. Under the California Supreme Court case of Madera Police Officers Association v. City of Madera (1984) 36 Cal.3d 403, the test is whether the employee is “substantially restricted so as to be unable to attend to private pursuits”.

Court’s will consider the following factors:

The employee cannot be more than a certain number of miles away from the main office;
The frequency of the calls;
Whether there is a required response time;
Whether the employee can “trade” on-call responsibilities with another, and
The ability to engage in personal activities.

An example of restricted time HR consultants have to be mindful of, would be if the Company requires the employee to remain at the Company’s premises (i.e. in the lunchroom). Or be close thereby–no further than the coffee shop in the next block. In one case, it was considered restricted when the employee had to be within three minutes of the premises. Other examples: the seamstress waiting for a customer to arrive requiring alteration or a technical support guy who was waiting for a call from a disgruntled customer.

Examples of cases where the court found the standby to be unrestricted and not entitled to compensation are as follows:

A hospital biomedical repair technician was required to respond to all calls, received about four or five per week, carried a beeper, had to respond within 20 minutes, and could not be intoxicated if called;
An ambulance dispatcher was on call, but was allowed to visit friends, entertain guests, sleep, watch television, do laundry and babysit;
A K-9 officer was required to carry a pager, avoid alcohol and respond within 10 to 20 minutes.

The mere requirement of wearing a cell phone and being on standby—alone–does not require compensation. We know this from a reading of Madera Police Officers Assn. v. City of Madera (1984) 36 Cal.3d.403. But in that case, based on other circumstances, the employees were entitled to extra compensation. Police officers had an unpaid 45 minute meal break each shift. They were on call during this period and heavily restricted, namely having the requirements to stay fully armed, stay in uniform, not have lunch at home, and be available to respond to emergencies at a moment’s notice. The court observed:

The case at bench involves restrictions in addition to the on-call status. Indeed, that opinion of the Attorney General implicitly recognizes that on-call status, coupled with other factors, could entitle an employee to compensation. It argues: “While standing by, subject to being directed to return to work, as a general proposition, the employee is not entitled to credit for work performed.” (39 Ops.Cal.Atty.Gen. 261, 264 (1962).) However, when the employee is on call during his or her regularly scheduled shift, compensation may be required . . .

As is well known, the California labor Commissioner zealously defends employees and there is always a risk of not paying compensation. However, a reasonable argument could be made that our standby is unrestricted under the following circumstances: the employee can perform any personal activities they wish; they can take other calls; are not required to stay at home; must respond to a call within 15 minutes; must return to the premises within 20 minutes; must return unintoxicated.

If your HR department still has concerns of liability, then simply pay the employees the minimum wage during standby. This will at least soften possible damages if it is ever contested.

Unpaid Interns–Do They Have to be Paid?

January 11, 2019 by hrconsulting14

The question presented is the legal propriety of hiring an unpaid intern. That intern is in the country under J-1 Visa. As an example, assume the job capacity is working as a front desk receptionist. The intern is perfectly willing to work under those conditions, so the only question is whether any problems will be encountered by the local Labor Commissioner.

Bottom line: Hire this individual as a regular employee with minimum wage. Not as an unpaid intern. There is nothing in the J-1 program that prevents the intern working part-time for pay, especially since one of the requirements is the ability to financially support themselves while the US.

Fact Sheet 71 from the US Department of Labor (see attached) lays out the rules to be followed in such situations. There are seven factors to consider, but the following seem to be the most significant to our case:

Does the internship provide training similar to that given in an educational environment? Answer: No. Assume hypothetically the intern is taking an entrepreneur class. Part of the curriculum is how to set up an initial LLC, enter into employment contracts, sign contracts and leases, and the like. The intern works for a small business where he or she gets an insider’s look into operations. This would probably qualify. Or an intern working for Ingersoll-Rand’s graduate training program where they actually receive classroom training on HVAC products in Wisconsin. Frankly, working for the fitness gym at the front desk has little to do with such educational experience. Especially if one is a psychology major.
Is the internship tied-to the formal education program, including receipt of academic credit? Answer: No. Also assume hypothetically the intern is taking a computer science class in programming. He or she must write a paper as to the basics of programming. That person interns with an IT startup in which he or she is taught programming skills in developing a new product. The intern than writes a paper and gets credit. Again, this would be inapplicable to our case of a receptionist.

The courts use the “primary benefit test”. Namely whether the benefit to the intern (education) predominates over the benefit to the employer (getting free labor). In this case, there is more benefit to the employer.

The first federal cases on the subject is the 2015 New York case of Glatt v. Fox Searchlight Pictures, Inc. It involved the Black Swan film in New York City. College interns were retained ostensibly for work on the film. However, a close examination indicated their work consisted of such things as filing documents, copying, tracking purchase orders, taking lunch orders, making coffee, and answering phone calls. In other words, having nothing to do with the educational experience of making a film. This was important because the interns tended to be film studies majors.

The court held in favor of the employees based upon the above primary benefit test. Here the overwhelming benefit was the employer receiving cheap labor, with the interns getting very little educational benefit. Thus, the employer was penalized for not paying at least minimum wages.

California Alternative Workweeks; 4/10 Compressed Work Schedule: HR Consulting Update

January 9, 2019 by hrconsulting14

A California employer through their HR department may have a desire to institute a new 4/10 policy–instead of working the traditional 8 hours for 5 days a week, work 10 hours for 4 days a week. In total, the hours will not exceed 40 hours per week. Here are the guidelines.

Can you pick the days?

The first question is whether the employer is locked into a specific weekly schedule. For example, only allowing Monday, Tuesday, Wednesday and Thursday. Could there also be another variant, such as Tuesday, Wednesday, Thursday, and Friday? The answer is yes. In fact, as seen below, the employer can offer a “menu” of options. Two of those options could be as stated above.

Law:

California Labor Code Section 511(a) provides in relevant part:

“Upon the proposal of an employer, the employees of an employer may adopt a regularly scheduled alternative workweek that authorizes work by the affected employees for no longer than 10 hours per day within a 40-hour workweek without the payment to the affected employees of an overtime rate of compensation pursuant to this section. A proposal to adopt an alternative workweek schedule shall be deemed adopted only if it receives approval in a secret ballot election by at least two-thirds of affected employees in a readily identifiable work unit. The regularly scheduled alternative workweek proposed by an employer for adoption by employees may be a single work schedule that would become the standard schedule for workers in the work unit, or a menu of work schedule options, from which each employee in the unit would be entitled to choose.”

In turn, a work unit is defined as follows

“(i) For purposes of this section, “work unit” includes a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit in this section is met.”

Thus, the requirements are as follows:

This must be regularly scheduled by the HR department. In other words, the employees in the unit must have this schedule on a regular or ongoing basis. You cannot be sporadic.
You must create a special unit or department.
All employees of the unit or department will be subject to these rules.
The employer should start by preparing a written notice of the intent to adopt the alternative workweek schedule. This should detail the new schedule. If 5% of the affected employees primarily speak a language other than English, the notice must be in that language as well. The Notice should also talk about how the arrangement might affect their wages and benefits. Presumably there will be no change therein because it is still a 40 hour workweek.
You can propose a single alternative schedule or a “menu” of different options. Each employee can choose whatever menu they wish. And the employees may switch between the different schedules without putting it to an additional vote.
Employees must vote and agree upon the schedule by secret ballot. Two thirds of the affected employees must vote in favor of the arrangement. The election is at the company’s expense and during regular working hours.
All the employees shall continue to receive their regular rate of hourly pay.
Overtime shall be payable only if the hours exceed the alternative work schedule, namely more than 40 hours per week.
Your HR representatives must report the election results to the California DLSE within 30 days.
If these procedures are not followed, the election is invalidated and the employer may be required to pay overtime after eight hours per day. HR consultants therefore caution their employers to be careful with this compliance.

HR Consulting News–Service Dogs

January 6, 2019 by hrconsulting14

A common question recently is to what extent you have to accommodate a service animal or dog. Bear in mind that there is a difference between a service dog which is used by the disabled and an emotional support dog by non-disabled people who simply want the comfort and convenience of having their animal near them. For purposes of an example, assume you operate a fitness center.

Let us look at the HR law that may be applicable federally.

FEDERAL ADA

Bottom line: the ADA requires accommodation only for service dogs that are necessary to support one disability. It is not address or require emotional support dogs. Thus, the members dog may be banned.

A company may not discriminate against someone with a disability in a place of “public accommodation”. Hence, the ADA (ADA Title III Technical Assistance Manual; III-1.2000 Public Accommodations) applies to “places of exercise or recreation (e.g. gymnasiums, health spas, bowling alleys, and golf courses).”

However, the ADA requires accommodation only for service dogs. In other words, if an individual has a disability and the dog is trained to perform certain life functions, which would not apply to animals used for emotional support or mere comfort. This would include such assistance as pulling a wheelchair, leading the way for blind persons, retrieving dropped items, alerting a person to sound, reminding a person to take medication, or pressing an elevator button.

Parenthetically, it also appears that as to employees, there is no requirement of accommodating for service animals. The ADA has a definition of “service animal” and applies this definition to public accommodations, but Title I, applying to employment, has no such definition and no specific guidelines for employers to follow as to service animals.

Note also that emotional support dogs may be required if you are renting an apartment or house under the Fair Housing Act or traveling on an airplane under the Air Carrier Access Act. So if you are in HR consultant or department, be careful to follow these rules.

Reimbursing Employees for the Cost of Cell Phone Use

January 4, 2019 by hrconsulting14

An issue that is arising more and more lately for HR consultants, is the use of smart phones. It is common for employers through their HR Departments to either require or suggest that their employees have smart phones in use during the workday. There are a number of reasons for doing so, including scheduling, recording hours worked, ordering materials, coordinating with other employees and dealing with vendors. Additionally, apps are being provided to the cell phones to facilitate the work.

The question then arises as to what extent a company is required to reimburse the usage cost for such cell phones.

Fortunately, there is a case directly on point in California. In Cochran v. Schwan’s Home Service (2014) 228 Cal.App.4th 1137, employees brought a class action against the employer after there had been a denial of reimbursement for the expenses to the use of their smart phones.

The first issue was whether the employer is required to pay employees for the initial cost of purchasing the cell phone itself. The case described no such requirement. In fact, it was not even mentioned as an issue in the case.

The next and final issue was to what extent is the reimbursement for the cell phones use. The case made it clear the company is only required to pay the monthly service or data plan, based upon the percentage of use for business by the employees. So for example, if the monthly plan is for $50 and the employees use the cell phone 50% of the time, the reimbursement would have to be $25 per month.

This is also in compliance with various labor code sections which require employees to be reimbursed for business expenses. For example, in California, this is codified in Labor Code Section 2802.

So be mindful of the fact there must be reimbursement. An alternative is to give a reasonable stipend each month for employees. Not the precise and actual cost of the cell phone usage, but a reasonable approximation that would apply to all employees. If you have any questions in this regard, please contact us as we provide HR consulting to employers.