Tag: HR consulting firms

Intermittent Maternity Leave in California

by hrconsulting14

California family leave which covers pregnancy, is in Government Code Section 12945.2.  After 12 months of service, it allows as much as 12 weeks of maternity leave.  Under subsection (o), it states: “Leave provided for pursuant to this section may be taken in one or more periods.”

California pregnancy disability leave which also covers pregnancy, is in Government Code Section 12945.  It also allows up to 12 weeks of maternity leave due to disability.  It can be taken intermittently (“Pregnancy disability leave does not need to be taken in one continuous period of time”; Cal. Code Regs., tit. 2 Section 11042(a)).

These types of leave can be taken consecutively–for example, up to six months.  But the total amount of leave must be completed within one year of the child’s birth (Cal. Code Regs. Section 11090(d)).

There can conceivably be more if you have to accommodate the employee’s pregnancy related disability under Government Code Section 12940(m)[maximum seven months].

These types of leave are unpaid, which means the employee may not want to be out that long.

But is there any limit to this?  Could the employee take it excessively, for example a dozen times?  There is no definite answer.

However, courts do look at the undue influence on an employer.  Taking time off means other employees have to fill-in or you have to hire a substitute.  And because the employee has the right to reinstatement to her same position, it might be hard to get a substitute who is willing to work temporarily.  This could directly affect productivity.

Suggestion: limit the intermittent leave to three times and document the file as to the reason why.

Termination of Employment–What Not to do, Part 1

by hrconsulting14

DO NOT TERMINATE IF AN EMPLOYEE IF HE OR SHE HAS JUST MADE A LEGAL COMPLAINT AGAINST THE COMPANY. For example, as an HR consultant, if any of the following has occurred recently: a workers’ compensation claim; time off for disability; pregnancy leave; exercising leave under the FMLA; whistleblowing; claim of sexual harassment; claim of retaliation; any acts of discrimination; request for accommodation under the ADA; or the similar exercise of legitimate or statutory employee rights. But does that mean you can never terminate the person if this occurs? No, this is not the case.

Prudent employers wait for the “taint to be dissipated” (a period of time after the claim is made). This means waiting a reasonable time after the assertion of these claims; followed by having another bona fide reason for the termination.

For example, assume your employee has just made a claim with workers’ compensation. But his performance has been substandard and you want to terminate. Let the employee make the workers’ comp claim and start the process for compensation. Then do an internal write-up in the personnel file for nonperformance and decide to terminate. Wrongful discharge only applies if the motivating factor is retaliation for the exercise of statutory rights. If you have allowed that exercise and there are other reasons, you have a much better chance in court or arbitration. Remember, just because an employee exercises their rights, does not mean you can never terminate him or her.

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. (925) 899-8449. Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.

Employee leave as ADA accommodation

by hrconsulting14

Here is another issue for those providing HR Consulting. Giving employees unpaid leave can be a form of accommodation. But the leave must be directly related to the disability. Take for example an employee who is complaining of bouts of anxiety. This would have to be necessary to alleviate or help manage the anxiety (Bailey v Amsted Industries, Inc., 172 F3d 1041 (8th Cir 1999) (where employee’s absenteeism not related to disability).

On the other hand, the employee cannot insist on indefinite leave. As certain point, if the employee takes too much time, it would be tantamount to job abandonment.

For example, in Gantt v Wilson Sporting Goods Co., 143 F3d 1042 (6th Cir 1998), the employee was terminated for failure to return to employment after a 1-year leave of absence. The court ruled the employee was not discriminated against because reasonable accommodation does not require to employer to wait indefinitely for an employee’s medical condition to be corrected.

Also, the employer is not required to grant long periods of leave it if it would cause undue hardship to the company. This is especially the case if the individual’s position is needed for normal operations. For example, see Walton v Mental Health Assn. of Southeastern Pennsylvania, 168 F3d 661 (3rd Cir 1999), the court found that a 2½-month leave was excessive and caused undue hardship where employee’s presence was essential at the time due to fear the program she headed would fail for lack of funding and leadership. Thus, where the employer can show the leave would create undue hardship, it will not be liable for failing to accommodate.

Then there is the issue of offering a similar job to the employee when they come off disability. The ADA does require this. The only exception is if it would cause an undue hardship to the business. In this case it would, because one can hardly expect to keep the management job open indefinitely when that is need for the operation of the business.

So if the individual comes off leave and still wants the job, as an HR consultant you would not necessarily have to give them the same job that has been replaced, but at least attempt something that is equivalent.

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.

SB 606: New CAL/OHSA Penalties

by hrconsulting14

Gov. Newsom has just signed new legislation under SB 606, laying out some rather stiff new rules for violation of Cal/OSHA requirements. Independent HR consultants should be wary of this. Here are the particulars:

Summary:

This Act does not create any new safety rules. Instead, under certain circumstances, it adds following:

  • A presumption that safety violations may be companywide, and
  • In some cases, giving Cal/OSHA subpoena power over multiple jobsites and overall company records.

This expansion can be quite burdensome for a company and HR consultant. For example, assume Mr. A is seriously injured at work. The company will have no problem divulging all the records related to this single individual and single incident. But the worst nightmare is if Cal/OSHA subpoenas companywide records; information on similar injuries; multiple employee records; multiple incident reports; companywide safety measures and amendments; and the like. In those cases, Cal/OSHA would essentially be conducting a “fishing expedition”: without any particular probable cause, looking through records in hopes of finding something.

Cal/OSHA can only do this if there is evidence of an overall “pattern and practice”. But this new law gives it more power in that regard. For example, assume there is an investigation of a safety violation as to Mr. B at Jobsite #1. In the process of the investigation, Mr. B remarks he has friends/heard through the company grape vine that Jobsite #2 has similar violations. On this rather skimpy evidence, based upon the rebuttable presumptions given in this legislation, it might empower Cal/OSHA to subpoena those other worksites.

Never underestimate the power of a rebuttable presumption. Upon the simple showing of some credible evidence, it is presumed there is a violation and requires the company to rebut same.

Effective Date: January 1, 2022.

Employers: All companies, regardless of the number of employees.

Enterprise-wide Violations:

Most Cal/OSHA violations relate to a single jobsite. But then there are companies that have multiple sites. The new law relates to the latter. If the violations involve more than one site, penalties and subpoenas may be issued companywide. This involves the following:

  1. The company has a written policy (for example, in an employee handbook, job posting, memo, notice or circular) that violates Health & Safety Code 25910 (spraying a substance containing asbestos) or any other Cal/OSHA regulation (i.e., the huge list of safety related regulations throughout California). Note that if a company has an invalid policy, is presumed to apply to all of its worksites and a Cal/ OSHA inspector does not have to go to each one to find a violation. In other words, if there is a written company policy, it will be considered applicable to all company premises.

However, excluded from a violation is a Cal/OSHA emergency policy made within the previous 30 days.

OR

  • Cal/OSHA finds a “pattern or practice” of the same violation at multiple worksites.

If 1) or 2) applies, there will be a rebuttable presumption of violation. This means Cal/OSHA can assume there has been improper conduct and you have to prove otherwise.

It would be relatively rare that a company would put in writing a directive that employees observe some unsafe work practices. If violations are allowed to occur, it would probably be because of inadvertence or lack of attention.

What readily comes to mind is a COVID violation. This is particularly difficult because the CDC continues to change its recommendations. Do your best to keep up with the following health regulations that may be in effect or have been eliminated:

  • Masking.
  • Social distancing.
  • Whether an employee has been exposed to an infected person within 6 feet and for a continuous 15-minute period.
  • If and when a vaccination is mandatory.
  • Giving employees a Notice of Potential Exposure.
  • Reporting to the local Department of Health (for example, if there have been three or more employees infected within a two-week period).
  • Not sending an employee home if they have tested positive or have symptoms.
  • Refusing to abide by the 2021 California Supplemental Sick Leave Law as to COVID.

Egregious Violations:

The law also introduces a new concept called an “egregious violation”. This would include the following:

  • The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation. This typically applies well beyond simple carelessness; namely if the company has actual knowledge of the infraction and purposely does nothing to correct or report.
  • The violations resulted in worker fatalities or a worksite catastrophe (defined as inpatient hospitalization of three or more employees).
  • The violations resulted in persistently high rates of worker injuries or illnesses.
  • The employer has an extensive history of prior violations.
  • The employer has intentionally disregarded their health and safety responsibilities.
  • The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duty to provide a safe work environment.

Or

  • The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that might be in place.

This applies to serious injuries that may have occurred within five years. If found, Cal/OSHA may not issue the more lenient ”Notice in Lieu of Citation”. Instead, a formal citation will be issued.

Subpoena Power:

As an additional punch to the law, it now allows Cal/OSHA to subpoena, potentially companywide, records that the company fails to promptly, within a reasonable amount of time, provide.

Conclusion:

This certainly gives Cal/OSHA the potential for great power–if it wishes to use it. Remember: in already being spread thin, getting access to voluminous records means it will take much staff time to review, organize and analyze. For this reason, it appears the new law applies most readily to a minority of flagrant and abusive cases.  Notwithstanding, California employers should remain vigilant. And HR consultants should also be careful as well.

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.

Employer’s Offer to Return-to-Work–What if an Employee Says No? HR Consulting Guidelines

by hrconsulting14

How to Handle Employees Who Refuse to Return to Work After a Furlough?

Thankfully, businesses in California are slowly reopening. A number of questions have arisen to be addressed by HR Consultants as to what is expected for the returning employees. The following are some of the common questions posed with guidelines.

Obviously, few issues are involved if an employee readily returns to work after a temporary layoff for furlough. This Memo concerns employees who, for various reasons, do not want to return and insist on remaining on furlough for an indefinite period of time. In large part, this may be because they are enjoying the ample benefits of unemployment insurance.

Remember this guidance must be viewed with the background of various state laws. For example, in California’s recent Executive Order N-33-20. Gov. Newsom has ordered all employees of non-essential businesses to stay home until further notice. It is anyone’s guess the extent to which this will be enforced in the future. If you are performing HR Consulting, you know this may also be true in other states

A word to the wise: more and more non-essential businesses are opening up even though self-quarantine laws are still in effect. Most legal advisors opine that police officers will probably not enforce these rules. However, if you do reopen, it is absolutely necessary to implement serious hygiene and protective measures. This will hopefully lessen the blow if there is a lawsuit due to one of your employees becoming sick or dying because of the virus.

FAQ

If someone refuses to return to work from furlough due to making more money via UE what are the appropriate steps here?  I know we can alert the EDD as to their refusal.  Is it a quit?

Denial of Unemployment Benefits:

As a general rule before the onslaught of the Coronavirus, to receive unemployment benefits, the employee must be: a) totally or partially unemployed, b) unemployed through no fault of their own; c) physically able to work; d) available for work and e) ready and willing to accept work immediately if offered.

This has changed slightly because of the virus. For example, the California EDD states:

Qu: Are benefits available if my employer reduces my hours or shuts down operations due to the impacts of the coronavirus?

Ans: If your employer reduced your hours or shut down operations due to COVID-19, you are encouraged to file an Unemployment Insurance (UI) claim. UI provides partial wage replacement benefit payments to workers who lose their job or have their hours reduced, through no fault of their own. Workers who are temporarily unemployed due to COVID-19 and expected to return to work with their employer within a few weeks are not required to actively seek work each week. However, they must remain able, available, and ready to work during their unemployment for each week of benefits claimed and meet all other eligibility criteria.

This means that for the first few weeks/months, there would be no need to seek work because the employers were not making positions available. During that period, unemployment could be paid.

This would all change soon as there is a return-to-work offer. If the employee refuses to work, one could hardly claim they are making themselves available or seeking work. At that point, one could argue unemployment benefits cease.

But this assumes the company is considered an essential business and has the right to continue operating. For non-essential businesses, there is no right per se to remain open nor to allow employees to return to work. In that case, the employee need not prove he or she is available to work–because that position is technically unavailable.

Because California favors employees, it will probably allow the employee to continue receiving unemployment even with an offer to return to work–under the theory the offer is not legally valid because the company has not yet been given the right to reopen.

But what if a non-essential business decides to open up anyway? It would be a technical violation of the Executive Order. Positions would now be available from a practical standpoint. But not from a strictly legal standpoint. Again, because of the per se violation, the employee could argue there never was a valid return to work offer and so continue to receive unemployment benefits.

A finding the Employee Has Quit:

Bottom line: As long as the Executive Order is in effect, do not consider the employee to have quit (i.e. if an offer to return is made and there is a refusal).

The safer approach is do the following:

  • Make at least two offers to return to work (see emails #1 and #2 below). If the employee refuses, state it is evidence the employee has decided not to come back to work. In other words, they have decided, not you, to terminate the relationship. An employee can do this voluntarily at any time.
  • State if they do not return to work, their position may be filled by another person (see Email #2 below).

Email #1:

Dear Joe. This is an update as to our operations in light of the Coronavirus. For a limited number of positions, we are giving some of our employees the right to return to work. As to your previous position of ________, we are happy to report you can now return to that  job effective ______________. Your hours and rate of pay will be: _________________.

So we can properly schedule, please indicate within 48 hours as to whether you wish to return to work under those conditions. Feel free to contact me for more details (Phone: ________; Email: ________).

Email #2:

Dear Joe. On _________ we emailed you with an offer to return to work with your previous position. We have not heard from you  –OR–  We have yet to receive your written consent  –OR– You have not yet informed us of your desire to return. It is important we receive your decision, either way, so we can schedule work hours.

If we do not receive word from you within 48 hours, we will assume you are no longer interested in the position and accordingly reserve our right to have it filled by someone else.

You can call/email at any time if you have further questions (Phone _________; Email: __________). If we do not hear from you, the best of luck in your future job endeavors.

If someone refuses to return to work from furlough due to fear of the virus what are the appropriate steps here? I know we can try to explain the safeguards in place and the fact that the venues have no known cases of COVID-19.  Should we just keep them out on furlough and leave them alone or can that be a quit?

 Assume an employee has not tested positive, does not have the virus, has none of the symptoms, has not sought or received medical attention and there is no information of contacts with others having the Coronavirus. Notwithstanding, the person has a generalized suspicion it would not be safe to return to work. It is merely a personal belief.

At the Federal level, there is the Families First Coronavirus Response Act. This is the new federal paid sick leave, so technically it does not apply to our situation. But by analogy, it may provide some guidelines. There are only six reasons to receive benefits:

  • (1) Subject to a federal, state or local quarantine or isolation order due to the Coronavirus.
  • (2) Has been advised by a healthcare provider to self-quarantine due to concerns related to Coronavirus.
  • (3) Experiencing symptoms of the Coronavirus and is seeking a medical diagnosis.
  • (4) Caring for an individual who is subject to a self-quarantine order as directed by a governmental authority or healthcare provider.
  • (5) Caring for a son or daughter if the school or place of care has been closed or is unavailable due to the virus.
  • (6) Experiencing any other substantially similar condition specified by the Sec. of Health and Human Services.

Factor (1) does apply in California because of its stay-at-home quarantine order.

Then there are regulations at the State level. As mentioned, California currently has in effect a stay-at-home order which would apply to non-essential businesses. It applies even if an employee has no symptoms. And by definition, it would apply to mere generalized suspicions–since it applies to all persons in all circumstances as to these non-essential businesses. Further, the Federal Act does not preempt state law.

So as stated above, the company would technically have to continue the furlough.

The answer could also depend upon the relationship with the employee. If the Company really likes the employee or that person is indispensable, by all means you can allow him or her to continue on furlough.

For these reasons, the best solution is not to force a “Quit”, but send out the attached emails and let the employee make the decision.

If someone refuses to return to work from furlough due to underlying medical condition?  I assume we keep them out on furlough and maybe have them complete an accommodation request?

 The usual ADA rule has been the employer can ask an employee if they are able to perform work duties, but cannot ask about the disability itself. But the EEOC has changed this rule with the Coronavirus. Under new guidelines, if an employee does not want to come back to work for fear of contracting the virus due to an underlying medical condition, the company can actually ask the nature of the disability and even request medical documentation (while the same time keeping this information confidential) . Supposedly, this will better help the Company institute accommodations and prevent the spread of the virus those individuals.

Thus, effective April 23, 2020 the EEOC has stated:

What are an employer’s ADA obligations when an employee says he has a disability that puts him at a greater risk of severe illness if he contracts COVID and therefore asks for a reasonable accommodation?

A:    The CDC has identified certain conditions (for example, lung disease) that put certain people at a higher risk for severe illness if COVID-19 is contracted. Thus, this is clearly a request for a reasonable accommodation and a request for a change in the workplace. Because employers cannot grant employees reasonable accommodations for disabilities that they do not have, employers may verify that the employee has a disability, what the disability is, and that the reasonable accommodation is necessary because the disability may potentially put the individual at a higher risk for severe illness due to COVID-19.

There may also be a situation in which the employee’s disability is exacerbated by the current situation. The employer may verify this as well. Aside from requesting a doctor’s note, other options to verify an employee’s disability may be to request insurance documents or their prescription. An employer may want to provide a temporary reasonable accommodation pending receipt of the documentation.

For this reason, if an employee states they have an underlying condition, you can follow up with the following email:

Thank you for your recent reply. To summarize, on our Company offers you the opportunity to return to work in your position as ____________. You indicated you would not be comfortable doing so and wanted to continue on furlough because of an underlying health condition.

We want to make sure you are safe at work and accommodate any disability. For this reason, please indicate the nature of your disability. Also provide medical documentation or a doctor’s note. This is in accordance with the recent guidelines of the EEOC on April 23, 2020.

In the meantime, we reserve the right to fill your position with someone else so we can productively operate our business. So, your prompt response would be very helpful.

This would not apply to obvious conditions such as age (over 65) which would not require medical confirmation.

If someone refuses to return to work from furlough due to lack of childcare should we just leave them out on furlough?  Are they then entitled to the FFCRA 2/3 pay?

 You have to be very careful here. Two recent laws give employees large entitlements in cases in which their child’s school has been closed. In California, all schools are closed through the end of the school year. This includes the following:

Families First Coronavirus Response Act–New Federal paid sick leave: up to 80 hours of paid sick leave at the regular rate of pay. Maximum is $511 per day or a total of $5,110.

Families First Coronavirus Response Act–New extended FMLA: If an employee stays home to take care of a child with a closed school, a person receives no benefits the first 10 days. But on the 11th day forward, there is paid leave at the rate of two-thirds of their regular rate of pay, not to exceed $200 per day and $10,000 total.

Obviously, this could be a financial drain on the Company if large numbers of employees insist upon these benefits. You want to avoid this as much as possible. For this reason, it is better to allow the employee to remain on unemployment and continued furlough. If you refuse the furlough (declare job abandonment or they have quit), you run the risk they will immediately apply for these benefits.

If we just don’t hear back from someone who we try to call back from furlough, I presume this will be considered a quit?

Yes, you can presume this is a “quit”. You would send the above emails, and if no response, confirm they have voluntarily quit.

Conclusion

To be safe, if an employee refuses to return to work while on furlough, let them continue in that status and do not force a termination or quit status. What does the company have to lose? The employee continues to receive unemployment and is happy with the situation. There is less danger the employee will be asking for the payout of additional paid sick leave.

As an HR professional, you can always inform the employee that you reserve the right to fill that position with someone else if they continue to be on furlough.

HR Consulting Network 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.

HR Consulting News: California Meal Break Waivers

by hrconsulting14

The question presented is whether it is permissible for a non-exempt employee to waive a second meal break. Note: these rules do not apply to exempt employees under the category of executive, administrative or professional. This is written from the perspective of an HR consultant.

For example, the employee receives a 30-minute paid meal break before the 5th hour. But the employee continues to work for 12 hours in that particular day. Because the employee has been given the first meal break, can there be waiver of the second?

HR Departments know that California Labor Code Section 512 sets forth the general rule. An employee who works 8, 9 or 10 hours in a day, is entitled to just one 30-minute meal break. An employee who works 11 or 12 hours in the day is entitled to a second meal break unless that person waives it in writing. A person that works 13 or more hours in a particular day, must under all circumstances have a second meal break and it cannot be waived.

This is the general law of the State. However, there are special rules as to the pest-control industry. This is found in California Wage Order 5—2001. This Order applies to the “public housekeeping industry.” Under “Definitions” (P), this is defined as companies that “contract for development, maintenance, or cleaning of grounds; maintenance or cleaning up facilities and/or quarters of commercial units and living units”.

As to maintenance, this would most readily apply to handyman services or building contractors. For example, maintaining and repairing an HVAC system.

As for cleaning, this would most readily apply to maid or cleaning services, such as sweeping, vacuuming, mopping, sanitizing and other related cleaning services. The open question is whether this would apply to pest-control. Obviously eradicating, for example, rats, mice, ants and roaches would be a form of cleaning the premises. Because the penalties of not giving a meal break can be severe (one hour of wages per missed break, together with penalties and interest per Labor Code Section 226.7) an abundance of caution would classify pest-control companies under this wage order. In fact, the review of one of the attorney blogs who represents employees, emphatically states that it does apply to pest-control companies: (https://www.turleylawfirm.com/blog/pest-control-class-action-lawyer.cfm).

Section 11 “Meal Periods” of Wage Order 5 states as to the healthcare industry, employees who work more than eight hours in the day can waive in writing the second meal break. But that is the only waiver that is specified. Waivers for the pest-control industry are not mentioned.

Thus, this is subject to two interpretations:

  • Because a special exception is not stated for the pest-control industry, there cannot be a waiver of that second meal break or
  • The Wage Order does not state pest-control companies cannot give the waiver so it would be allowed as usual under Labor Code 512.

Recommendation:

Because of the vagaries of the law and the tendency of California courts to side for employees, be cautious here and lean toward being conservative.

Here are the examples:

Employee Works 8, 9 or 10 Hours in a Day: You can get away with one meal break.

Employee Works 12 or More Hours a Day on a Rush Job: Have the HR department give the employee the option of either taking a second 30-minute meal break or, if the employee would rather go home and not take a second break, give them one hour of pay at the normal rate. Once that is paid, there are no further penalties (Cal. Code of Regs., tit. 8, § 11040, subd. (12)(B) states: “If an employer fails to provide an employee a rest period in accordance with the applicable provisions of this order, the employer shall pay the employee one (1) hour of pay at the employee’s regular rate of compensation for each workday that the rest period is not provided”).

As an HR professional, always keep these rules in mind. If you have any special fact pattern that does not fit nicely into these guidelines, feel free to give us a call.

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.

 

 

 

Taking Employee Temperatures for Coronavirus

by hrconsulting14

This is a guide for HR consultants before they make a decision as to whether to take employee temperatures before going to work. Here are FAQs on the subject:

 

Is it Permissible for HR to Take Employee Temperatures Before Start of Work? As a result of CDC recommendations, it is now permissible per the EEOC to do so. As of March 17, 2020, the EEOC issued the following guidelines:

Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.

However, a Company is not required to take temperatures.

What is Considered a High Temperature? Per CDC guidelines, 100.4 F/38 C or above.

How do you Give the Results? The actual temperature should be kept confidential and placed in a file separate from the personnel file and not broadcast others. If the employee has a high temperature, take the person aside to notify them of the reading. Also privately state the details, if any, of your decision to send the person home.

What Kind of Devices are Used? Use only a no-contact, infrared digital thermometer (forehead scanner). Traditional oral thermometers are considered too intrusive.

Who Administers the Test? Recommendation: A trained nurse or other medical professional. If not available or too costly, a management level employee or someone from the HR department. Use PPE precautions, including gowns, facemasks and gloves.

What to do if the Employee has a Temperature? A temperature alone is not indicative of COVID-19. However, it is recommended the employee be sent home for a minimum of 24 hours to be fever free. If in addition to fever, there are symptoms of dry cough, shortness of breath and chills, the employee must be sent home for a 14-day quarantine.

Can the Employee be Required to Wait in Long Lines? There are no specific guidelines, but for productivity purposes and to eliminate employee inconvenience, HR should attempt to shorten the lines by: a) having more than one entry point or b) staggering with different shifts. Make sure there is social distance while waiting in line (placing markers with tape).

Are the Employee’s Paid For the Time Taking the Temperatures? It is best to have the employees punching in when they first arrive before getting in line. That way they will not be shorted for their hours. Although the argument can be made testing is so brief in time to be de minimis, it is best to consider these preparations indispensable to employees work activity (per the FLSA) and therefore compensable.

What Records Should be Kept? Temperatures need not be recorded, but if they are, they should be contained in a confidential file. As an alternative, you can be recording “No” or “Yes” as to the temperature thresholds.

What Questions Can You Ask the Employee? Per EEOC guidance, the employer may ask an employee if he or she is experiencing any symptoms of COVID-19 or if they have been tested. This applies even if the employee has not volunteered that he or she is feeling ill. As usual, you cannot be selective who you ask as this could be interpreted as discriminatory.

The perfect time to ask these questions is right before the temperature is taken. You can ask the employee: “Have you been experiencing any of the following symptoms recently? Fever; dry cough; shortness of breath or difficulty breathing; chills; repeated shaking and shivering; muscle pain; headache; sore throat; excessive sweating; sinus congestion or new loss of taste or smell (read from a card to show it is uniform)?

Because you will be asking personal medical information, this has to be out of the hearing range of others. Put the employees in a separate line. Then one by one take an employee to a separate room immediately adjacent which is private, for the questions and temperature taking.

Do These Rules Also Apply to Non-Employees Entering the Workplace? Yes. The same rules would apply to guests, customers, vendors, consultants and other third parties. Remember that OSHA requires an employer to maintain a safe workplace and protect others from direct threats as to recognize hazards, including the virus. Place the attached form at the entrance of the facility in a conspicuous location so all persons entering can see same.

Is Employee Written Consent Required? No, but employees must be given prior notice–please use the attached form.

What if the Employee Refuses to Take a Temperature? No employee can be forced to take a temperature. If they refuse, you can bar entrance to the facility. And technically it is a violation of company policy and they can be written-up. However, termination would not be recommended. Instead, instruct the employee to stay home until they bring in a certification of negative testing through a community testing center or when government authorities have given the “all clear” for all employees to return to work.

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.

Coronavirus Fact Sheet for Employers to Post

by hrconsulting14

 

With the Coronavirus appearing more and more in the news, it is inevitable that employers will be asked to post a fact sheet for their employees to read. This can be posted By the HR Department in conspicuous spots, for example break rooms, bulletin boards or near time clocks.

Here is an example of a fact sheet HR professionals and employers can use for the Coronavirus:

 

Coronavirus Fact Sheet for Employees

 

What is Novel Coronavirus? COVID-19 is a new virus strain spreading from person-to-person in China and now other countries, including the United States. Little is known about this new virus and it has the potential to cause serious illness and pneumonia in some people.

How Severe? Reported cases have ranged from mild illness (like a common cold) to severe pneumonia that requires hospitalization. So far, deaths have been reported mainly in older adults who had other health conditions.

Risk of Infection: Currently, the risk you will contract the virus is low.

How is it Spread?

  • By respiratory droplets (moisture) produced when an infected person coughs or sneezes.
  • Between people who are in close contact with one another (within about 6 feet).

Symptoms: Symptoms may appear in as few as 2 days or as long as 14 days after exposure. Symptoms include fever, cough and difficulty breathing. If you experience any of these or have doubts, it is best to seek medical attention right away and stay home.

Steps to Take: The measures you can take to prevent the spread of flu and the common cold will also help prevent Coronavirus:

  • Wash hands often with soap and water (for at least 20 seconds). If not available, use a hand sanitizer.
  • Avoid touching your eyes, nose or mouth with unwashed hands.
  • Avoid contact with people who are sick. Stay at least 6 feet away.
  • Stay home while you are sick.
  • As much as practical, avoid close contact with others that appear to be sick.
  • Cover your mouth/nose with a tissue or upper sleeve when coughing or sneezing. Then throw the tissue away.
  • Don’t shake hands, rub elbows.
  • If you wish, carry wipes (use on doorknobs and other frequently touched areas).
  • Stand to the side when talking with someone.

Treatment: Currently there are no medications approved for Coronavirus. Most people with mild cases will recover on their own by drinking plenty of fluids, resting and taking pain or fever medications. However, some cases develop pneumonia and require medical care or hospitalization.

 

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.

No-hire or Non-solicitation of Employees Provisions–Are They Legally Valid?

by hrconsulting14

Here is a situation many companies are confronted with over time. You are consulting firm and your customers hire-out your consultants on a temporary basis. But you are finding recently your customers are taking away your consultants. In other words, after they finish one of the jobs, they are hired permanently as an employee and you lose the income for future work. Can you have your customers sign a contract which prevents this? In other words, inserting a No-hire or Non-solicitation of Employees clause?

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.

 

See 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 re-determination.

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.

As you can see from the above, this is a highly technical issue, it’s best to receive legal advice you are confronted with it. And if you do insert a no hire or non-solicitation employees provision, make sure it is properly worded. Be careful, as this is one of the frequent issues confronted by HR consultants.

 

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.