Nancy Yaffe’s post entitled “Want to Get Sued? Fire Someone and Say ‘You Aren’t the Right Fit’” was named by Mondaq as their Most Popular Article in the United States for January 2014. Careful readers will recall that we won the same award last October for our post “8 Things You Should Never Say in a Termination Meeting.”
In the spirit of the award season, Nancy and I would like to thank our readers for continuing to follow our blog, even when we occasionally lapse into shameless self-promotion and bask in our unprecedented popularity.
San Francisco’s new “Ban the Box” ordinance takes effect on August 13, 2014. On that date, employers with 20 or more employees (regardless of location) will be prohibited from asking applicants for jobs in SF questions about:
- An arrest that didn’t lead to conviction (they can ask about unresolved arrests, i.e. those that are the subject of an active pending criminal investigation or trial);
- Participation in diversion or deferral of judgment programs;
- Convictions that have been “judicially dismissed, expunged, voided, invalidated or otherwise rendered inoperative;”
- Juvenile convictions;
- Convictions that are more than 7 years old; or
- Convictions for offenses that are not felonies or misdemeanors, e.g. infractions.
The ordinance prohibits any inquiry about criminal history at the beginning of the hiring process, including on job applications. Employers can only ask for this information after a “live interview” (which can be by phone) or after a conditional job offer’s been made. The Office of Labor Standards Enforcement will also be creating a notice that employers must provide the applicant before any such inquiry and a notice employers must post.
If the employer does obtain information about a conviction or unresolved arrest, it can only use the information if it’s directly related to the job and it considers mitigating factors. There are also specified procedures for giving the applicant notice of a proposed adverse action and letting him or her provide information in response.
During the first year the ordinance is in effect, the OLSE can only issue warnings and notices to correct. After that, a first violation will result in a warning, there will be a $50 penalty for a second violation, and a $100 penalty for each violation thereafter. Only the OLSE can bring a claim. There is no private right of action.
For those of you keeping score at home, businesses choosing to locate in SF now face the highest minimum wage, a paid sick leave ordinance, a Family Friendly Workplace Ordinance, and requirements for commuter benefits and per-employee spending on health care. Is the goal to drive businesses out completely?
Businesses have been dealing for years with the hassles of accommodating customers and employees with service animals. The problem isn’t people who legitimately need the assistance. No one begrudges a blind person the right to a guide dog. But service animals can be used for a wide variety of issues, ranging from a miniature horse pulling a wheelchair to animals that provide “emotional or other support.” To compound the problem, businesses can’t ask customers for any type of proof that there’s a legitimate need for the animal — as opposed to someone just wanting their beloved pet with them at all times.
Now Phyllis Cheng, who directs California’s Department of Fair Employment and Housing, has joined the chorus of those saying that there should be a way to verify that an animal provides legitimate assistance with a disability. Is she saying this because she’s sympathetic to the burdens placed on businesses? No, the concern is that people who legitimately need service animals are being met with suspicion and that makes them uncomfortable.
Whatever the reason, the law needs to change. If someone needs a service animal, they should absolutely get to use one. But everyone acknowledges that the law’s being abused. For the time being, as we’ve said before, business owners need to train their employees on what they can and can’t do in these situations. They can ask whether the animal is a service animal and what it’s trained to do. And that’s it. Employers do get to ask for certification for their employees’ animals and impose certain requirements. However, any further inquiry can itself be a violation of the Americans With Disabilities Act and other laws.
One of the new laws for 2014 is SB 435, which requires one hour of premium pay for an employer’s failure to provide additional rest breaks to serve as heat recovery periods for employees who work outdoors. Cal-OSHA regulations require that employees who work outdoors in temperatures exceeding 85 degrees be allowed and encouraged to take a cool-down rest period of 5 minutes to avoid overheating. Therefore, employers who do not comply with this regulation can be subject to claims for failure to provide rest breaks and/or to pay the one-hour premium for missed rest breaks.
The question that has come up for many businesses is whether this new law applies to their employees who may occasionally work outside. For example, some of my hospitality clients want to know if the heat recovery rest break rules apply to employees who work an outside catering event, or to servers who work by the pool, or to an engineer who may do some painting or repair work outside.
Thankfully for the hospitality industry, the heat recovery rules do not apply. The Cal-OSHA heat recovery regulations only apply to the following industries: Agriculture, Construction, Landscaping, Oil/Gas Extraction, and certain Transportation/Delivery services.
That said, it certainly makes sense for all businesses to be cognizant of heat issues for their employees, and to give them ample water, shade, and a place to rest as needed to avoid heat stroke. It is also a good reminder that certain rules, including California’s wage orders, are industry specific, so it is always a good idea to check if particular rules (or new developments) apply in your industry.
In last week’s post (“Toto, We’re Not In Kansas Anymore – Kansas to Permit Widespread Discrimination Against Gays?”), I asked whether Kansas would pass a law that would let businesses and individuals refuse to provide services to gay people if based on a “sincerely held religious belief.” While the bill handily passed the state House of Representatives, the state Senate announced it would not hold a vote on the bill.
I’d love to know what led the Republican-controlled House to overwhelmingly pass a bill that the Republican-controlled Senate wouldn’t consider. (A story in the Wichita Eagle noted the high cost of defending the bill in court.) But for now, what matters is the result.
Two final points. First, I acknowledge that being unable to write about Kansas without a Wizard of Oz reference displays a certain lack of imagination. Second, when I say “gay” in these posts, I’m referring to the entire LGBT community. Because as the Scarecrow noted, “Some people do go both ways.”
One of my recurring themes is the unique burdens California law imposes on employers. Because I know how different our laws are here, it’s hard to shock me on that subject.
Or so I thought until I read Mark Stern’s piece in Slate about the Kansas House of Representatives passing H.B. 2453. Stern reports that the statute heads next to the state senate and then to the governor, both of whom apparently support the measure.
Among other things, H.B. 2453 allows any individual to refuse to provide services to a gay person if doing so would violate a sincerely held religious belief. This not only applies to store clerks, but also to doctors, nurses, firefighters, and police officers — all of whom now have a legal right to refuse to provide service to gay people. And if they’re sued in any tribunal, according to the law, they can transfer the dispute to state court, have it dismissed, and collect their attorneys’ fees.
I’m glad I don’t have any sincerely held religious beliefs that require me to discriminate. Also, while I complain mightily (and with good cause) about some of our state’s employment laws, I’m glad to live in a state where a law like H.B. 2453 is seen as ridiculously offensive.
February is going to be a busy month for presentations on new legal developments and you have plenty of opportunities to hear me speak.
If you work in the hospitality industry, you can see me speak for the LAHHRA (Los Angeles Hotel Human Resources Association) on February 21st. I will be covering new legal developments impacting hotels and an overview of “What to Expect When Your Employee is Expecting.” If you work in the restaurant industry, you can check out a new group, the LARHRA (Los Angeles Restaurant Human Resources Association); I am speaking on the same subjects (as applied to restaurants) at their meeting on February 19th. Both of these groups are by invitation only, but if you email me I am happy to connect you with the event organizers.
And finally, if you are an attorney, please come to the LACBA Employment Law Symposium on February 26th, and see me speak on a panel entitled “Labor Pains: Expanding Developments in Pregnancy, Lactation and Related Disability Accommodation Issues.” You will hear a very awesome hypothetical, with every twist and turn you can imagine. Then see how the facts are interpreted by me (on behalf of employers) versus a plaintiff’s lawyer (on behalf of employees). I am looking forward to a few sparks!
Lots of opportunities to come hear me speak, to learn about new legal issues that may impact your business in an entertaining way, and to do a little networking. I hope to see you!
Here’s another post from guest blogger Chip Zuver.
The NLRB is again trying to trample employer free speech in order to aid union organizing. They’re attempting to justify changing well-established rules and procedures by making the absurd assertion that the current time frame for conducting elections are resolving challenges is too slow and that this hurts employees and employers. Nothing could be further from the truth. According to the Board’s own annual reports, the current process results in elections being conducted well within the NLRB’s own guidelines.
The fact is that the unions do not want a level playing field. Unions spend months covertly organizing employees; informing employers of their presence at the facility only when the union either demands recognition or an election. Unions organize employees by essentially misrepresenting what they can do for the employees. They never explain that unions cannot dictate salary and benefit levels, ensure that employees have work, or guarantee the employees have a job. Nor do they tell employees that if the union calls a strike it can require the employees walk off the job or be disciplined, that the employee will be required to pay monthly dues to the union, or that by organizing the employees lose their ability to deal with employer on an individual basis to resolve issues.
Telling employees these things would not aid in the organizing effort. Hence, employers are left to explain these issues to employees. Under the existing election procedure, the employer had about a month to reach out to its employees and to explain the potential downside to organizing. This is an adequate amount of time. Still, unions win more than half the elections conducted. Such a success rate seems reasonable, but it is not enough for the unions or for the labor-friendly majority on the NLRB.
Thus, the NLRB seeks to implement a rule that could result in elections being conducted in less than twenty days. This severely handicaps employers in educating their workers about the downsides to organizing. Unions hope that, with this quicker procedure, employees will only hear the upside so that they vote in favor of the unions, rather than making an informed decision and potentially choosing not to have union representation.
The NLRB proposed and implemented this rule in 2011 only to have a federal judge strike it down because a three-member panel of the NLRB did not vote on the matter. Now that the NLRB has five members—three of whom favor the rule—the rule will surely be implemented. The question remains whether the federal courts will strike the law on substantive grounds. Given this uncertainty, non-unionized employers should consult with experienced labor counsel to determine if they’re at risk of being organized and whether it makes sense to take certain pro-active steps to reduce that likelihood. Because once the union demands an election, there may not be time.
We’ve known since its enactment that San Francisco’s Family Friendly Workplace Ordinance applies to employers with 20 or more employees. But what was about as clear as a June day here (photo below) was whether to count just employees based in San Francisco or to count all company employees regardless of where they’re based. Now, according to an amendment to the FFWO, the answer is clear. If an employer has 20 or more employees anywhere, it must comply with the ordinance for its employees in San Francisco.
You can read about the specific requirements here and download the mandatory posters here. We continue to wait for San Francisco to enact some type of employer-friendly legislation.
Many employers have a 90-day introductory or probationary period. During that time, the employer and the employee are supposed to evaluate each other and determine if they’re each satisfied with the employment relationship. If they are, the employee stays and often gets more benefits, including health care coverage, and maybe accrued vacation and/or paid holidays. If either is unhappy, the employment terminates. There has always been some sort of prize for making it through the 90-day introductory period.
As many employers have realized, employers can no longer wait 90 days to provide healthcare in California. That is because California has a “special” version of the Affordable Care Act where the maximum eligibility waiting period after date of hire is 60 days, not 90. Of course things must be different here!
So how does that impact the introductory period? In reality, it messes it up.
You can still have a 90-day introductory period, but you have to give healthcare benefits after no more than 60 days. In fact, many employers are starting benefits at the first day of the month following 30 days of employment. So getting benefits is no longer a prize to employees who pass probation. Sure you can give health care benefits at one date, and hold off on accruing paid vacation or getting paid holidays until after probation, but that isn’t as much of a prize as it used to be. Plus, terminating someone with healthcare benefits is more costly and administratively burdensome than terminating someone without them.
Another option is to change your introductory period to 60 days, and to maintain the synchronization of the two.
With either option, the practical impact is that California employers should implement steps to evaluate their new hires more quickly, preferably within the first 30 days, rather than waiting a full 60 or 90 days. Remember that firing someone during probation does not mean you can skip documenting performance problems. In fact, some documentation of your objective reasons for termination is always advisable.
Waiting until day 89 to evaluate a new hire has never been a good practice. The timing requirements for healthcare coverage in California have just made that practice even less productive.
Bottom-line: Hire carefully, and if someone isn’t working out, the best strategy is to document it early and move them out quickly.