The year end is a time for reflection, and one theme in my practice this year has been the failure of managers (and some HR professionals) to fully understand the interactive process, and to inadvertently cause liability by imposing a 100% healed policy.

Here’s how it often works.  An employee goes out for a medical issue, sometimes work-related, sometimes not.  At some point the employee reaches out about returning to work with some sort of restrictions.

  • The manager believes these restrictions will prevent the employee from performing the job as needed, emails HR and indicates an inability to accommodate the restrictions, and the HR manager takes the manager at her/his word.
  • It is communicated back to the employee that she/he can’t return to work until 100% healed, or fully able to do the job, or similar words.
  • What we have here is a documented example of failure to engage in the interactive process, which equals liability.  Not helpful.
Speech bubbles
Copyright: rawpixel / 123RF Stock Photo

Here’s how it should work.  The same employee raises a medical issue and reaches out about returning to work with some restrictions.

  • The manager partners with HR to get more details on those restrictions, clarify the scope of those restrictions with the  employee as needed (i.e. interact), and documents those discussions.
  • They review the job description (if one exists) to see what is listed as an essential function of the job, understand how others have been accommodated (or not accommodated) in similar situations, and evaluate whether the employee can or cannot perform the essential functions of the job with any accommodation (whether requested or not).
  • They further discuss with the employee (i.e. interact) and document those discussions.
  • Care is taken to be consistent with accommodations granted (or not granted).
  • No one uses the term 100% healed.
  • What we have here is a documented example of engaging in the interactive process, which should equal no liability.  Very helpful.

While both scenarios can yield the same result, one is a trigger for liability, and one is a great defense to a disability discrimination or failure to accommodate/engage in the interactive process claim.  The choice is yours.  And remember, if at first you don’t succeed, try, try again!

 

On January 1, 2017, the California minimum wage will increase for businesses with more than 25 employees from $10 per hour to $10.50 per hour. This is another step toward a $15 per hour minimum wage on January 1, 2022. You can see a schedule of the planned increases here. The legislation allows the governor to pause increases for a year if budget or economic factors dictate.

Copyright: svlumagraphica / 123RF Stock Photo
Copyright: svlumagraphica / 123RF Stock Photo

In addition, more than 20 cities and counties, three ports, and various business zones have their own minimum wage/living wage ordinances (which the good folks at UC Berkeley (Go Bears!) have been kind enough to track for you here).

Businesses subject to the state increase (i.e. those with more than 25 employees) will see a corresponding increase in the minimum salary required for the executive, administrative, and professional exemptions to $43,680. That’s not so bad considering that, up until last week, we thought that number would be $47,476 under federal legislation that would have taken effect tomorrow but for a Texas judge granting a temporary injunction.

What will the end result be? Over-priced burritos? Robots taking over entry level jobs and developing the skills that will ultimately lead to cyborg attacks? Or just a constantly changing mishmash of laws so confusing that full compliance is all but impossible?

Many employers have taken steps to comply with the US Department of Labor’s Final Overtime Rule that was set to take effect on December 1st. But yesterday, a District Court judge in Texas issued a temporary injunction barring the rules from taking effect nationwide. You can read our take on the issue here.

Copyright: rangizzz / 123RF Stock Photo
Copyright: rangizzz / 123RF Stock Photo

While people have many questions and concerns arising from last week’s presidential election, one thing is for sure:  California remains entrenched in a very deep blue bubble.

Blue bubble
Copyright: alphaspirit / 123RF Stock Photo

To say that California leans democratic is an understatement, and the votes on progressive issues showed it.  Californians voted to extend progressive tax rates, restrict ammunition sales, legalize recreational marijuana (although you can’t buy it until the state licenses distributors, so no lighting up yet!), increase the cigarette tax, repeal English-Only education, and ban plastic bags.

Here in Los Angeles, voters approved a ½ cent sales tax for improvements to public transportation (Measure M).  Voters also approved a $1.2 billion dollar bond measure to facilitate the construction of up to 10,000 units of affordable housing for the city’s estimated 28,000 homeless people (Measure HHH).  More money went to improve schools, community colleges, and parks.

Moreover not only do we have a Democratic Governor, but according to the Los Angeles Times, voters elected a two-thirds super-majority of Democrats to the state Assembly, and pending one more district’s vote count, the state’s Senate as well.

What does this mean for employers in the Golden State?  Well, it almost assuredly means progressive employment laws on both the state and local levels will not only remain, but may even increase to keep California in its trend-setting position.  At last count, seven cities have enacted their own paid sick leave ordinances to supplement the three day minimum provided under state law.  State and local organized labor activity remains strong, as shown by its influence on the state’s minimum wage increase and local ordinances like the LA Hotel Minimum Wage Ordinance.  While rumor has it that the NLRB will ultimately turn more pro-business in a Republican administration, and perhaps even put the break on some key pro-labor initiatives (such as micro-units, the Persuader Rule, and maybe even its assault on class action waivers in arbitration agreements as a violation of Section 7 rights), changes on the state and local level are unlikely (at least in the short term).

So while the national post-election map looks very red, California remains very blue — as do its employment policies — and as are the majority of its voters.

I recently participated in a panel discussion about ADA/FEHA reasonable accommodation and interactive process issues for the LA County Bar Association. I presented on a panel with a plaintiff’s attorney and a disability rights expert/mediator.

Doctor's note
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Despite our differing points of view, there were many things we agreed upon, including the need for employers and employees to actively engage together in an interactive dialogue (not monologue) about requested accommodations, and what might work for both the employer and the employee. We agreed that it was necessary and helpful for the employer to document those communications, not only to prove they occurred if challenged, but to avoid misunderstandings. We also agreed that the employer is not required to provide the exact accommodation requested if there are other reasonable accommodations that would achieve the desired result.

Another thing we agreed on was the need for consistency in accommodations, and the problems that occur when one employee is granted a type of accommodation (such as a special parking spot or a schedule change) and another is not, and there is no clear reason why. On that issue, the attendees seemed to like my idea of keeping a Reasonable Accommodation Log, to track how certain issues are accommodated company-wide, and to promote consistency across departments or divisions.

However, one issue that sparked a lot of debate among the panelists (and attendees) was my recommendation to employers to consistently request a doctor’s note to substantiate requests for accommodations, and to facilitate the interactive process. My advice was based on my experience with employees who ask for the moon (such as the stated need for a walking desk, or first class air travel, or a job transfer to a role for a preferred supervisor), but often can’t substantiate those requests with any medical requirement. I argued that since many disabilities are not visible, that accommodation requests can’t be properly evaluated without medical justification. Plus, if you ask for doctor’s notes from some, and not others, then you run into a consistency problem. So my vote is for doctor’s notes.

Boy did I get push-back! My other panelists argued that it is hard for an employee to get a doctor’s note, and often the doctor doesn’t write what they need. They also argued that requiring a note for a small request, or for successive requests, could amount to harassment. I was challenged:  If someone is in a wheelchair are you going to require a note for every structural issue needed to grant full access? To raise the desk, widen the doorway, order transcription equipment, etc.? My answer was “of course not.” I responded that one doctor’s note should cover all of those issues.

So employers are in a bind. If you don’t ask for a doctor’s note, and you accommodate someone out of goodwill, then you could be stuck with that accommodation for a very long time, because once you give it, it is presumed reasonable, and there is a high burden to take it away (which is why some accommodations should be documented as “temporary” by the way). But if you insist on a doctor’s note, the employee feels harassed and pressured.

So what is the answer? I still believe employers should consistently get doctor’s notes, and actually review them to make sure they support the requested accommodation. But ask for them nicely, and be open to granting a temporary accommodation in the meantime.

Here’s your annual roundup of new California employment laws. Since we’ve discussed many of these laws when they were enacted, I’m including links to those earlier discussions.

In addition to statewide legislation, local ordinances continue to proliferate. These include paid parental leave in San Francisco and numerous cities that have enacted their own minimum wage and paid sick leave requirements.

Copyright: alexraths / 123RF Stock Photo
Copyright: alexraths / 123RF Stock Photo

What can employers do to get ready?

  • Review pay practices to identify potential disparities based on race and ethnicity, as well as gender.
  • Ensure that applications do not elicit information on prior salary or juvenile convictions.
  • Obtain and install appropriate signage for single-user restrooms.
  • Make sure that human resources staff, hiring managers, and supervisors understand the changes affecting them.
  • Wonder what surprises the legislature has for us in the year ahead!

With briefs due next week, we anxiously await the California Supreme Court’s review of the de minimus doctrine.  Under the doctrine, employers are not obligated to pay employees for small increments of off-the-clock time spent preparing for or ending a shift, provided such time amounted to approximately 10 minutes or less of work.

12350701 - blue clock face, close upWhile we wait to hear the CA Supreme Court’s take on this, it’s worth noting that even under the FLSA, courts nationwide have had varied results on what constitutes non-compensable time under the de minimus doctrine. Many of the recent cases involve minimal time spent checking e-mails or texts that are work related. And while courts employ a fact-specific analysis of employment policies and practices, the following factors will weigh against a finding that the time is de minimus:

  1. If the time is a regular and necessary component of the work day or work week;
  2. Employer compulsion to complete the tasks at issue; and
  3. If the time can be recorded easily for payroll purposes

 My colleague Mark Tabakman spoke about this topic today and offered the following advice to employers:

-Consider eliminating or limiting access to work-related email and systems for non-exempt workers during non-work hours

-Develop a comprehensive policy requiring non-exempt employees to record their after-hours time with a clear process for reporting such time

-Train managers on how and when to communicate with non-exempt staff after hours

-Pay for after-hours work performed, while utilizing disciplinary measures if the after-hours work was unauthorized

Until we have more consistent application from the courts, this issue continues to be a ticking time bomb for employers.

One of my least favorite phrases in blogging is “repurposing content.” The verb “repurposing” hurts my ears. You can give something a purpose, but you’re not “purposing” it. And if “purposing” isn’t a verb, how did “repurposing” become one?

While I hate the term, I love the concept. We’ve posted to this blog over 550 times since 2009. Every one of those posts was not completely unique in all respects. Take, for example, my posts about the pros and cons of mandatory workplace arbitration. I posted about that last year. Shortly thereafter, the California Business Law Reporter asked to publish a version of the post. Then last month, Cal CEB asked me to do a guest post for their CEB Blog on the topic. I then posted here about doing the guest post for CEB. So while I may complain about the term “repurposing content,” I’ve repurposed the heck out of that content.

If writing blog posts is as easy as taking something you’ve done before and putting a new spin on it, why has it been 25 days since my last post? (It’s OK to admit that you”be missed me. I’ve missed you, too!) My absence is due to the fact that I’ve been preparing for trial. The case was supposed to start trial today and we were ready to go. Witnesses lined up, pretrial motions filed, opening statement rehearsed, testimony outlined, exhibits organized, I mean ready. Then we show up at court at 8:30 this morning and the judge tells us he’s in the middle of another trial and to come back in January.

Copyright: antoniodiaz / 123RF Stock Photo
Copyright: antoniodiaz / 123RF Stock Photo

So as that date approaches, we’ll need to meet with witnesses again, refamiliarize ourselves with the extensive documentation, and gear up once more. This brings me to the actual point of this post. That would be a rare event in a case going to arbitration, but it’s perfectly normal in trials. You get ready, show up for trial, learn you’re not getting out, and come back months later. It’s hugely inefficient and expensive for the client. Therefore, we can add that to the list of “pros” of workplace arbitration – the hearings tend to start when they’re supposed to start.

In case you’re wondering, I do not see myself repurposing this particular content. I’m more likely to use it as an egregious example of burying the lede.

Reasonable accommodation issues are tough.  Employees often want a lot of things that are not justified by a doctor’s note, and appropriately documenting the interactive process can be an uphill battle.

If you are in the LA area and have burning questions about how to reasonably accommodate employees under the ADA and California’s FEHA, then please come hear me speak for the LACBA on October 27th.  Topics for discussion will include:

  • Disability Leave:  How long is too long?  How long do you have to keep the job open during the leave?
  • Interactive Process Communications:  If there is no documentation, can you prove they occurred?
  • Undue Hardship:  Is it ever too hard to accommodate?  How expensive is too much?
  • Assistive Technology:  How does new technology change what’s reasonable? (i.e., is everyone entitled to a headset and a standing or walking desk?)

If you can’t make it, look for a blog post next week on tips discussed and lessons learned.

I have been conducting harassment prevention training for California clients since AB 1825 became effective back in 2005. After presenting what must be hundreds of sessions in the last decade, I am always on the look-out for new topics to discuss, and new hypotheticals to present, and sometimes the universe just cooperates with me. Watching the second Presidential debate last weekend was one of those experiences.

Young businessman arguing with sad stressed coworker
Copyright: vadymvdrobot / 123RF Stock Photo

Since 2015 (AB 2053), California law has required employers to train management on abusive conduct (also known as “bullying”). While bullying is not yet illegal, it should be against most employer policies, and should lead to discipline for employees who violate those policies.

Bullying is defined as workplace conduct, with malice, that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. The law goes on to say that bullying may include:

  • Derogatory remarks, insults, and epithets;
  • Verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating;
  • The gratuitous sabotage or undermining of a person’s work performance.

So let’s consider the following hypothetical:

A group of managers is in a team meeting where each person is supposed to present on their enumerated topics to a group of colleagues. When one manager is talking, the other one (who is physically larger) is pacing behind, making faces, and making noises (something between a snort and a grunt). The hands are gesturing and fingers pointing. The manager pacing also repeatedly interrupts the colleague, either with snide comments, jokes (which get laughs or cheers), or insults. Is this bullying?

Would a reasonable person find this conduct to be hostile? Offensive? Unrelated to an employer’s legitimate business interests? Is this verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating? Absolutely.

In fact, many employment attorneys and HR professionals I know were physically uncomfortable while watching the debate, at least in part because we were witnessing conduct that no reasonable employer could tolerate. While we certainly cannot require free speech to be polite or politically correct, we certainly can and should agree that this type of bullying would not be okay in any workplace.