E-Book Cover: Employment Compliance in the Age of Legalized MarijuanaThough cannabis is illegal under federal law, at least 30 states and the District of Columbia have legalized cannabis for medical use and nine states, as well as D.C., have legalized it for recreational use—a dichotomy that presents a unique and complex challenge for employers. In a new e-book, Fox attorneys Joseph A. McNelis III, Lee Szor, William Bogot and Joshua Horn provide an overview of federal and state marijuana laws, discuss specific aspects of the employment relationship affected by the legalization of marijuana in certain states, and offer practical guidance for employers on how to navigate this new and developing area of the law.

We invite you to download a PDF of the e-book.

 A disabled employee asks her employer for an accommodation. After engaging in the interactive process, it becomes clear that the accommodation requested is going to be challenging. At what point can the employer say “no” to an accommodation request because it creates an undue hardship?

If the accommodation is cost prohibitive, that can be enough to show undue hardship. But the question of undue hardship is not limited to financial burden. In other words, just because a company can monetarily afford to provide the accommodation requested, it is not necessarily required to do so.

Accommodations that are “unduly extensive, substantial, or disruptive” can create an undue hardship regardless of monetary cost. See US E.E.O.C. v. Placer ARC, 114 F. Supp. 3d 1048, 1058 (E.D. Cal. 2015). Maybe a requested accommodation would not financially break the company, but it would affect essential operational flexibility. That can be enough to show undue hardship. See Barth v. Gelb, 2 F.3d 1180 (D.C. Cir. 1993).

Of course, the law expects employers to accept certain costs, inefficiencies, and burdens to keep disabled employees working. Whether hardship is undue will depend on the employer’s size and resources.

Finally, remember that if no reasonable accommodation exists, and/or if the accommodation creates an undue hardship, the employer should consider reassigning the disabled employee to another vacant position. But that’s a blog post for another day.

The following post was contributed by Jaemin Chang.

We have come a long way!

I had the pleasure of attending the dedication of former SF Mayor and State Assembly Speaker Willie L. Brown, Jr.’s archive to San Francisco State University Library on April 4, 2016.  One of his manila folders was labeled “Labor/Employment,” and an article from 1974 entitled “California Upheld on Denial of Disability Pay for Pregnancy” sat on the top.

Archive article

This article, written by Linda Mathews, discussed the U.S. Supreme Court case, Geduldig v. Aiello, 417 U.S. 484 (1974).  U.S. Supreme Court Justice Ruth Bader Ginsburg (a law professor at Columbia at the time) was quoted as saying, “This decision has terrible implications” for working women, especially low income earners.

The Geduldig case challenged California’s disability insurance system which denied temporary disability pay to women with normal pregnancies. It is difficult to imagine that our State championed denial of coverage to pregnant women, but that was the convention of our thinking back in 1974.

Fast forward to the present. California has some of the most expansive laws covering pregnancy disability and paid family leaves.  San Francisco being at the forefront passed an ordinance on April 5, 2016, requiring employers to pay up to 6 weeks of fully paid time off for new parents.  California is already one of the few states that offer paid parental leave, where workers receive 55% of their pay from the state’s Worker’s Compensation insurance program. Under the new ordinance, San Francisco employers are required to fund the remaining 45% of the pay for up to six weeks.

This new law will take effect January 2017:  employers with 50 employees or more must comply by January 1, 2017, and employers with 20 or more employees must comply by July 1, 2017.


JC WB Photo

I’ve just ordered my family’s holiday cards and started making my gift lists.  I know that the holidays will creep up on us quickly and before I relax with a gingerbread latte, there is work to be done.  I wanted to share my list of the five HR-related to-dos California employers should consider before the end of this year.

Year-end HR To-Do List
Copyright: mexrix / 123RF Stock Photo
  1. Review Your Independent Contractors: This year’s numerous court decisions and administrative guidelines make it virtually impossible for companies to categorize workers as independent contractors. Now is a good time to review who you are still paying via Form 1099. January 1 is the best time to convert misclassified independent contractors to W-2 employees so that tax paperwork will be as clean as possible and hopefully not raise any concerns. When in doubt, classify workers as employees and talk to your attorney to help craft the appropriate communication.  For classification criteria if you choose to continue to work with contractors, I invite you to read a Law360 article written by my colleague Colin Dougherty, entitled “Nothing New in DOL Worker Misclassification Memo.”
  2. Ensure Employees Are Properly Classified: While the DOL’s proposed amendments to increase the salary threshold for employee overtime exemptions are usually ignored by CA employers, if these amendments pass, they will indeed impact many CA workplaces. So, it is worth taking a look at questionably classified employees whose salaries are below the proposed threshold. Effective January 1, 2016, this amount in California will increase to approximately $800 per week ($41,600 per year) when California’s minimum wage increases to $10.00 per hour. The new federal proposal raises that amount to $970 per week ($50,440 annually). There is also a proposed increase in the “highly compensated” exemption from $100,000 to $125,148 annually. You may have a suspicion that some of your employees within this salary band should be earning overtime, in which case, the new year is as good a time as any to minimize overtime liability and reclassify those employees.
  3. Organize Personnel Files: Consider this a second chance at spring cleaning. At the end of each year, take the time to organize your employee files and I-9 Forms and separate the terminated employees from the active. Keep I-9 files separate from employee personnel files and maintain them for one-year post-termination. Keep terminated employee personnel files for three years after the date of separation.  Once that retention requirement has been met, grab the shredder.
  4. Review Your Paystubs: Why start another year wondering if you might get hit with the PAGA suits that are plaguing other California employers? Don’t assume your third-party payroll provider has it covered. Especially with the new reporting requirements on paid sick leave, best practices demand that accounting, human resources and payroll administrators are collaborating to ensure compliance. Luci Li recently posted a go-to list of what must be included on every employee’s regular wage statement.
  5. Analyze Compensation Practices: The California Fair Pay Act goes into effect January 1st so your policies and practices need to be in compliance. Evaluate employees by job duties, not title, to ensure men and women are compensated equally. If you find disparity, either fix it or be sure you can justify it. Jeff Polsky recently posted a rundown on the Fair Pay Act and what factors can legitimately be used to justify pay disparities.

Well, until the year-end close-out phone calls start rolling in, I think I’ll head over and get that latte… in a red cup, of course.

Every year, the ABA Journal invites nominations for its Blawg 100 list, a compilation of staff and reader “favorites” within the legal blogosphere. The rigorous selection process for the 2015 list has begun, with the magazine calling for recommendations from “Blawg Amici” – regular readers who wish to support and spread the word about their favorite legal blogs.

Here’s a sampling of posts from the past year:

If you have enjoyed and valued our updates during the past year and believe the California Employment Law blog deserves a spot in the top 100, we invite you to take a few moments to nominate us. The online nomination process is very quick – it shouldn’t take more than a minute or so.

Blawg Amici nominations will be accepted until 11:59 p.m. CT on August 16, 2015. Thank you in advance for your support!

Fox Rothschild LLP is proud to support the Bay Area Urban Debate League. BAUDL establishes and maintains competitive debate leagues in under-resourced public middle and high schools. BAUDL teaches young people in San Francisco, Oakland, Emeryville, and soon Richmond to research and advocate positions on complex policy issues. Its participants are overwhelmingly students of color (98%) and low income (66%). Our program has a direct, measurable impact. The young people who participate see their literacy scores increase 25% per year and their odds of going to college increase 30%.

Now is a great time to make a donation that will help BAUDL students attend one of several summer debate institutes. To quote one BAUDL student, “There is nothing better than debate camp!” Every donation helps.

  • $50 is the cost of the shuttle to and from a university campus. Many BAUDL students have a difficult time covering even small expenses, which can be embarrassing when their peers from private schools don’t have that problem.
  • $100 provides the airline luggage fees for students who need to bring 2-4 weeks of clothing with them.
  • $250 is airfare to the University of Oregon for a Bay Area young person. BAUDL is sending three students to be Ducks for two weeks.
  • $500 is the tuition for the eight day institute at CSU Fresno. Three BAUDL students are there all of this week.
  • $700 is the tuition at the University of Oregon Institute.
  • $1000 is the tuition for Coppin State (HBU) and UC Berkeley. Eight hard working students will attend debate institutes on these campuses – living in the dorms and working with college students and instructors.

If you believe in equality of access to education, if it bothers you that the gap between the “haves and have nots” continues to widen, if you believe that there are young people in the poorest parts of the Bay Area who deserve a chance to succeed (and have much to contribute), please help. You can donate online here or send a check to Bay Area Urban Debate League, 287 17th St, Suite 201, Oakland, CA 94612.

Thank you!

cwl-banner-2015Several Fox Rothschild attorneys are participating in the California Women Lawyers Annual Conference on May 8th in Burlingame, CA. Founded in 1974, CWL is the only statewide bar association for women attorneys in California.

Connie L. Chen is the co-chair for the Conference, whose theme will be “Pathways to Equality and Success.” There will be networking sessions and eight different panels on issues affecting women in law and society, including employment issues female attorneys face.

As part of a panel on the complicated cluster of evolving laws dealing with pregnancy and employment, Nancy Yaffe will provide guidance useful to pregnant women and their employers.

Yesenia M. Gallegos will share her insights on the panel: “Mentors, Sponsors, and Coaches: How to Enhance Your Career Trajectory.” 

We hope to see you there!  Register here by May 4. MCLE credit is available.

The Bay Area Urban Debate League (“BAUDL”) is a debate mentoring program that currently serves 14 Bay Area schools and over 400 students. Studies show that these programs improve literacy, GPA, graduation rates, and provide a host of other direct benefits to the participants, their schools, and the community.

Fox Rothschild LLP is proud to be among 13 law firms competing in BAUDL’s “Champions of Diversity” fundraising campaign. The initial round is this week, ending Friday, March 27th, during which the firms will compete to see which one can raise the most money and the most money per attorney in their Bay Area office(s). There will then be a second round among the top three finalists. The winner gets a full-page ad.

You can find updated results here and, if you’re moved to give, you can do so on behalf of your my favorite law firm here. Every bit helps and it’s a very worthy cause.

March madness will soon be underway.  But are office pools legal?  As employment lawyers, is it our responsibility to wipe out another hallowed workplace tradition just like we did with binge drinking and sexual harassment at office holiday parties?

In California, according to Penal Code section 337a, gambling can be a felony or a misdemeanor.  But Penal Code section 336.9 creates an exception for betting pools between people who are not acting for profit, other than the same stakes available to every participant.  The exception applies as long as the pool isn’t being run online and no more than $2,500 is at stake.  This doesn’t make the pools legal.  But instead of a potential felony, it’s an infraction and the maximum penalty is a $250 fine.

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

So are the pools illegal?  Technically, yes.  But they’re just a little illegal.  For most people, the odds of getting in legal trouble for an office pool are very slight.  But probably not as slight as the odds of a 16th seed winning the NCAA tournament.  The WSJ puts those odds at  384,000,000 to 1.

Copyright: glopphy / 123RF Stock Photo
Copyright: glopphy / 123RF Stock Photo

Fox Rothschild LLP is a proud sponsor of the Bay Area Urban Debate League. So am I. BAUDL helps to establish and maintain competitive debate leagues in under-resourced public high schools, through which under-served youth are taught to research and advocate positions on complex policy issues. Its participants are overwhelmingly students of color (98%) and low income (66%). Our program has a direct, measurable impact. The young people who participate see their literacy scores increase 25% per year and their odds of going to college increase 30%.

If you believe in equality of access to education, if it bothers you that the gap between the “haves and have nots” continues to widen, if you believe that there are young people in the poorest parts of the Bay Area who deserve a chance to succeed (and have much to contribute), please support BAUDL.

BAUDL currently serves 14 high schools locally, principally in San Francisco and Oakland. Our goal is to expand to reach more kids, in more schools, in more cities. To do that, we need your help. If you’re moved to donate, or would like to read more about how our organization is literally changing people’s lives, you can do so here.

BAUDL fight! BAUDL win!