Tag: HR consulting services

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.

New COBRA Premium Assistance–For Employers

by hrconsulting14

April 18, 2021

As part of the new American Rescue Plan of 2021 (ARP), changes have now been made to extended COBRA coverage. Previously, a terminated employee received extended group healthcare if he or she continued making payments or co-pays. Now under the new Act, the employee pays nothing out of pocket and the premiums are paid for him or her during the extended period. Here are the details for HR consultants to be mindful of:

Previous COBRA

This applied to companies that had at least 20 or more employees, both full or part-time and had a group health care plan in effect. If an employee is terminated (for other than gross misconduct or resignation), has a reduction in work hours or goes from full-time to part-time, that person becomes a qualified beneficiary and is notified by the insurance carrier it has the option of continuing the coverage for at least 18 months. However, the beneficiary must continue making payments.

From an HR consulting standpoint, under the special provisions of Cal-COBRA, the extension period goes as long as 36 months.

It also applies if an employee is furloughed or has a layoff and during this period did not receive health coverage.

In many cases the extended premiums were more expensive because the company previously had covered part of the premium. During the extended period, the employee would pay the full premium and an administrative fee.

Coverage was also provided, if certain conditions were met, as to an employee’s spouse and dependent children.

Reduction in work hours is defined under the group plan. In other words, the group plan usually has a minimum number of hours the employee must work to be covered. If the employee goes below those minimum hours and is no longer covered, it is considered a qualifying event (26 CFR Section 54.4980B-4e)).

The whole idea is the terminated employee would have health coverage while he or she is looking for a new job.

New COBRA

The same basic COBRA rules apply, except that premiums are no longer paid by the employee. They get what is called premium assistance. Premiums are paid by the employer for the period April 1, 2021 through September 30, 2021. These payments are reimbursed through payroll tax credits.

This premium assistance is only for the period April 1, 2021 through September 30, 2021 (six months). It is anyone’s guess whether this will be continued. Assuming there is extended coverage under the plan for 18 months after termination, here are the different scenarios (for these hypotheticals it is 18 months, although you have to add up to 36 months in California):

Termination after April 1, 2021:

The employee shall receive premium payments through September 30, 2021:

        Example 1: Linda is terminated in May 2021. Her premiums will be paid for the period May through September 30, 2021. Thereafter, she will have to start paying full premiums herself.

Termination before April 1, 2021 and the employee has paid all premiums:

There is no relief under the Act and the employee does not receive reimbursement for premiums previously paid.

        Example 2: Jim was terminated in September 2019 and paid all his COBRA premiums for the 18-month period through March 2021. He will receive no relief under the Act.

Termination before April 1, 2021 and the employee has paid partial premiums:

Assuming the employee is not later covered under a new employer and wants coverage, the employee’s premiums are paid for the balance of the period April 1, 2021 through September 30, 2021.

        Example 3: Sally was also terminated in September 2019. Her 18-month entitlement period ends in March 2021. She paid premiums for one year–from September 2019 through September 2020. Then she stops paying. She still has six months left on her 18-month period, so she can receive premium payments for the period April 1, 2021 through September 30, 2021.

Termination before April 1, 2021 and the employee has not paid any premiums:

Assuming the employee is not later covered under a new employer and wants coverage, the employee’s premiums are paid for the full period April 1, 2021 through September 30, 2021.

        Example 4:  John was similarly terminated in September 2019. His 18-month entitlement period ends in March 2021. He can receive  premium payments for the period April 1, 2021 through September 30, 2021.

This premium assistance is not available if, for example, the employee becomes entitled to group benefits through another employer, under a spouse’s plan or with Medicare coverage.

To help soften the employer’s payment of these premiums, they get a tax credit for that amount. In other words, the employee does not receive money to pay the premiums–instead they are paid for by the employer.

An employee has 60 days after notification to elect receipt of this premium assistance.

As long as the premiums are the same or lower, the employee can also elect to receive different coverages under the same plan.

The employee is not required to pay any administrative fee during the covered period.

What Notices are Employers Required to Send its Employees?

In many cases, the employer’s health care plan administrator would have the notices needed. It is also good idea to call your plan administrator and get definitive direction as to who sends what notices. In the absence thereof, here are the notices to be sent out:

        “Model ARP General Notice and COBRA Continuation Coverage Election Notice”: Sent to employees by the health care plan administrator and not the employer.

        “Model COBRA Continuation Coverage Notice in Connection With the Extended Election Periods”. Sent to employees by the health care plan administrator and not the employer.

        “Notice of Expiration of Period of Premium Assistance.” Sent to employees by the health care plan administrator and not the employer.

        Notice to Plan Administrator of an Employee’s Termination:

This can be sent informally, but must be within 30 days of the termination.

The federal FAQs on the subject indicate: “the plan or issuer [in other words the insurance company] should provide you and your beneficiaries with the notice of your eligibility to elect COBRA continuation coverage and to receive the premium assistance. The notice should include any forms necessary for enrollment . . .”

This means that the insurance company gives the above notices and not the employer.

If a terminated employee does not receive notice, it can demand same through a “Request For Treatment as an Assistance Eligible Individual”. If an employer receives this notice, it should be forwarded immediately to the carrier.

Your group insurance company will also include amendments to its plan covering these extended benefits.

Because of the complexity of these issues, HR consultants need to be keenly aware of this new law.

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.

When an Employee Tests Positive for Coronavirus–Informing Other Employees

by hrconsulting14

 

The question posed is whether a company has the obligation to inform other employees if a particular employee has tested positive.

The CDC advises that if an employee tests positive, other employees should be informed of their possible exposure:

“Inform employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Americans with Disabilities Act (ADA).”

This author has been unable to find any contrary authority to his duty to inform. Additionally, the failure to do so could very well impose liability.

One of the first cases on this subject is the Walmart case. It demonstrated the significance of warning other employees. In that matter, the estate of an Illinois Walmart employee sued for wrongful death in the case of Toney Evans v. Walmart, Inc. (Cook County Illinois Circuit Court, filed April 6, 2020, Case Number 2020L003938). The estate alleged management knew several other employees exhibited symptoms of the Coronavirus, allowed these employees to continue working and did not warn the deceased or others of the possible risk.

But it is significant to note the case also alleged the failure to maintain a safe working environment due to:

  • Not disinfecting the store or providing employees with masks/latex gloves;

 

  • Not enforcing social distancing guidelines;

 

  • Failing to evaluate employees for symptoms (for example, not using non-touch thermometers or otherwise monitoring employees for sickness);

 

  • Not inspecting, cleaning or sterilizing facilities or equipment; and

 

  • Not implementing any infectious prevention program.

Hopefully, a company will have implemented reasonable safety measures across the board–exactly what did not occur with Walmart. The take away: As long as a Company implements safety procedures before and after, and notifies other employees, it should have a relatively safe harbor from liability.

Steps to Take:

The first step is to meet with the affected employee. This should be done in a confidential setting; behind closed doors or by phone. Explain the importance of a healthy job environment and a requirement of the person to self-quarantine at home. Tell him/her to stay home until one is free of a fever for at least 72 hours and at least 10 days have passed since the symptoms first appeared.

Then inform other employees. When doing so, it is crucial to preserve confidentiality (per ADA) and not disclose the identity of the affected employee. Never do any of the following:

  • Disclosure of the infected person’s name or job title;

 

  • Disclosure of any of the person’s symptoms;

 

  • Disclosure of how long a person may have exhibited symptoms;

 

  • Disclosure of the medical condition of the employee;

 

  • Disclosure of what medical procedures the person will undergo;

 

  • Any other details of the illness.

 

By informing the other employees, the conversation can be verbal, informal and for each individual employee who may be exposed. The conversation can be as follows:

 

“Hi John. I’d like to briefly discuss a matter in private with you. There is no reason to be alarmed, but I wanted to discuss something with you briefly.

As you know, your Department consists of approximately ______ employees. One of those employees has just tested positive for the Coronavirus. That employee was last at the Club on __________ and is now at home under self- quarantine. We bring this to your attention because you worked in the same Department as that individual. Because of confidentiality, we cannot disclose that person’s name.

We will continue taking steps to make the work environment clean and healthy. This consists of ____________________________. We are hopeful these measures will be adequate for your safety.

For this reason, it is important that you self-monitor for any symptoms and let us know if any appear.

Feel free to seek medical advice if you wish. We honor all doctor’s notes. If your doctor has a particular recommendation, please get a note from him or her and give it to our HR department.”

 

The real question is how far should you go. For example, the CDC which is exorbitantly conservative, recommends that employees self-quarantine at home if they had been in close contact with an infected person. “Close contact” is defined as “being within approximately 6 feet of a COVID-19 case for a prolonged period of time.” But enforcing that to the letter of the law, would mean many of employees would stay home and the company would have a hard time operating.

In many ways, telling other employees who were in contact to stay home would be an overkill as long as the following prerequisites have or will be met:

  • Historically in the past, protective measures have been implemented, including cleaning, sterilization, masks, gloves, etc.

 

  • Cleaning and sterilizing any of the equipment this employee may have been in contact with.

Note as a practical matter, telling other employees they may have been exposed to someone who was tested positive means they will put 2+2 together and know exactly what employee. Especially when the employee has been sent home. But that realization does not mean the employer would be found liable–it is simply the inevitable result of making the disclosure.

OSHA:  At the present time, OSHA does not have specific guidelines as to the Coronavirus. For example, in March of this year, OSHA has prepared its “Guidance On Preparing Workplaces For COVID-19”. It has elaborate details of protective measures to ensure a safe work place, but there is no specific mention of having to inform other employees (for example, in a section titled “Steps All Employers Can Take To Reduce Workers Risk Of Exposure”).

This means if there is any enforcement, it will have to be under the General Duty  Clause (Section 5(a)(1) of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1)), which requires employers to furnish to each worker “. . . a place of employment, which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

The OSHA guidelines dovetail back into the CDC, because the Agency is allowed to utilize outside nationally recognized standards.

 

Worker’s Compensation:

Many experts predict there will be a rash of lawsuits by employees who allege contacting Coronavirus because of exposure at work. But there is some good news.

A typical Superior Court lawsuit sues, among other damages, pain and suffering, emotional distress and even punitive damages. And if death occurs, a wrongful death action. But if the Coronavirus is considered an occupational disease or injury, those damages are not available and the employees only recovery is for workers’ compensation wage loss and permanent disability ratings.

But be careful. A creative lawyer will allege the worker has suffered a mental or psychic trauma, no different than physical injury, because of exposure to the virus.

 Disgruntled Employees:

What if an employee refuses to return to work, claiming the facilities contain some of the Coronavirus germs? If they take that position, it would be unjustified.

If the Company takes ongoing efforts to clean and sterilize such equipment, this fear would be misplaced. Certainly, the employee can decide to use some of his or her accrued PTO. But I cannot stay away indefinitely or even utilize the new federal paid sick leave protections. Those protections are under the Families First Coronavirus Response Act (HR 6201), but do not allow absences for a generalized fear of contracting the virus without any substantiation.

There is some credence however, to the argument that an employee can sue for mental distress for fear of being exposed to the virus. This is exactly the basis of the new lawsuit as to what occurred to the guests on the Grand Princess cruise ship as recently reported by the media. Some of the guests sued, even though they did not test positive; it was based on the mental distress of being fearful they might contract the virus.  Archer v. Carnival Corp., No. 3:20-cv-02381 (N.D. Cal. filed Apr. 8, 2020)[Of the nine named plaintiffs, the Complaint identifies only one who was diagnosed and treated for COVID-19].

But that cruise ship presented a totally different environment for most companies. Not to mention the fact that few employees would have the resources to find an attorney to bring such an action, especially since it would not be a class action.

 

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.

 

 

 

HR Consulting News–Meal and Rest Breaks

by hrconsulting14

 

Here is a situation that occurs quite frequently. We all know that in California and in many states, there is a requirement of giving employees rest and meal breaks. For example, a 10 minute rest break and a 30 minute meal break.

Take the example of the 30 minute meal break. Assume a buzzer or bell goes off two minutes before the end of the break to give time for employees to get their affairs in order and walk back to their workstations. Is that two minutes considered working? If so, the employees could argue they are shorted for the full 30 minute break. Actually, the case law is in favor of the company.

Labor Code Section 226.7(a) prohibits an employer from requiring an employee “to work during any meal or rest period mandated by an applicable order of the Industrial Welfare Commission.” But leisurely walking back to a workstation is not “work”.

We should also be mindful of the “de minimis rule” as outlined by the U.S. Supreme Court case of Anderson v. Mt. Clemens Pottery Co., 328 US 680 (1946). The Court held that “split-second absurdities are not justified by the actualities of working conditions” and “when the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded (at page 692).

Also on point, the Dept. Industrial Relations, DLSE Opn. Letter No. 1986.01.03 (Jan. 3, 1986) states in relevant part that the 10-minute net rest time excludes “any time to walk or otherwise travel to a place of rest”.

See also Lindow v. U.S. (9th Cir. 1984) 738 F.2d 1057, 1062 [noting for purposes of the Fair Labor Standards Act that “[w]hen the matter in issue concerns only a few seconds or minutes of work beyond the scheduled working hours, such trifles may be disregarded”]. In that case, workers sought over time for the approximate 15 minutes per day in which they reported to work early to review a logbook, exchange information about entries, be available to relieve outgoing employees, as well as opening and closing project gates. On de minimis grounds, the court denied the employees claims.

This same fact pattern was presented in the recent case of Chavez v. Angelica Corporation. Although an unpublished opinion, it is persuasive authority because of its comprehensive treatment of the issue and the statements by the trial judge.

Similar to our case, the defendant was a California laundry plant. Plaintiff was a nonexempt employee that brought a class action for alleged violations of rest and meal breaks. Specifically, claiming the employees were not given full 10 and 30-minute breaks because of a bell system identical to our situation: it rang two minutes before the end of rest or meal breaks to allow time to walk back to a workstation (at page 28). After an exhaustive analysis, the Court held there was no violation.

It began by stating: “Initially, we note Plaintiffs are unable to cite to any case or statute holding that employers must add walking time to meal and rest break times, nor have we found any such law based on our independent research” (at p. 24).

It is also instructive to consider comments made by the trial judge. It confirmed that the employees were not performing any working duties during the walking time:

The Court: Well, I mean, there’s no — I didn’t see any evidence of anybody saying, ‘we get a 10-minute break, but we are still working,’ you know. ‘We still have to work during part of that break period,’ or, ‘we have to start working before the ten minutes are up.’ I didn’t see any evidence of any of that (at p.12).

The Court: That’s your walking time. The net — when you start talking ‘net,’ you are talking the walking time. I didn’t see any evidence of anybody saying, ‘we get a 10- minute break, but during that break, we are actually working, still working,’ you know, ‘in production.’ I didn’t see any evidence to that (at p. 14).

The Court: No matter what, whether they use the bell or don’t use the bell, you know, your case on the production workers is predicated upon this idea that walking time is somehow a violation. I don’t see — one, I don’t think there’s any per se illegality. I don’t see any basis for that argument (at p.16).

So on this particular situation, there would be no violation of the employee’s rights. Make sure the company does not require any work to be done during the break.

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–Working 7 Consecutive Days

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)

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.