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HR Consulting News Update–Religious Affiliation on Job Application

February 7, 2019 by hrconsulting14

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

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

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

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

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

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

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

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

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HR Consulting News: the ADA and Back Problems

January 28, 2019 by hrconsulting14

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

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

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

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

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

No-Hire Agreements: HR Consulting Legal Summaries

January 26, 2019 by hrconsulting14

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

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

Case Law:

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

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

Key Points:

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

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

Key Points:

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

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

Key Points:

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

Conclusion:

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

Reporting Time Pay: HR Consulting News

January 21, 2019 by hrconsulting14

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

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

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

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

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

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

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

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

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

January 17, 2019 by hrconsulting14

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

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

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

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

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

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

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

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

Reporting Time Pay: HR Consulting Update

January 15, 2019 by hrconsulting14

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

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

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

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

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

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

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

January 14, 2019 by hrconsulting14

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

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

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

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

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

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

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

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

HR Consulting Legal Update: On Call or Standby Pay

January 13, 2019 by hrconsulting14

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

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

Standby or on-call Pay:

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

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

Court’s will consider the following factors:

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

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

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

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

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

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

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

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

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

January 9, 2019 by hrconsulting14

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

Can you pick the days?

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

Law:

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

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

In turn, a work unit is defined as follows

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

Thus, the requirements are as follows:

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