One issue that consistently trips up employers is the interplay of laws for an employee with work-related medical issues.  This is sometimes referred to as the Bermuda Triangle of workers’ compensation, ADA/FEHA (disability), and FMLA/CFRA. 

Quite often an employee is injured, a workers’ compensation claim is opened, and the employer somehow forgets the other two prongs of the triangle.  For example, the time off is not designated as FMLA/CFRA, with the rights that go along with it.  Or the duty to engage in the interactive process and reasonably accommodate under the ADA/FEHA is somehow forgotten when the employee returns to work with restrictions.

The reality is that many legal issues start with a workers’ compensation injury, and if those claims are handled proactively, then related civil claims arising from disability can be avoided. 

 Here are some tips for handling those workers’ compensation claims:

  1. First, be proactive when the claim comes in.  Investigate what happened.  Make sure witnesses provide statements with sufficient detail.  Preserve security film and video.  Document the extent of injuries (or the lack thereof).
  2. Second, get all of that information to your workers’ compensation carrier promptly so they can properly evaluate the claim.  If the carrier isn’t responsive, follow-up. 
  3. Third, if you have a light duty program, make sure it is only for a limited time (such as 90 days).  Otherwise you risk creating a new job for someone, and no incentive to get better.
  4. And finally, don’t forget about the interactive process.  If the claim is going to end with a Compromise & Release in the workers’ compensation case, then ask your carrier to negotiate for a resignation.  And if the employee comes back to work and is not fully recovered, make sure any restrictions are documented and accommodated. 

And of course, make sure the employee is not retaliated against for filing the claim. 

Be sure to remember all three sides to any work-related injury so you can avoid getting lost in the Bermuda Triangle!

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More than ever before, the topic of sexual harassment is dominating the news (and this blog).  It’s time to make sure that your company’s sexual harassment prevention training is up to the task.

Fox Rothschild’s skilled team of attorney trainers will tailor a program to meet your company’s needs.  Take a break from the online routine, and make sure that your next sexual harassment prevention training session is a “wow,” not just a check-the-box compliance item.

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To learn more, check out this alert featuring our Los Angeles team.

In recent years, California and federal agencies have highly scrutinized independent contractor status.  While that scrutiny may be abating somewhat on the federal level, it is still alive and well in our golden state.  In fact, the issue has been popping up quite a bit lately in the context of audits by the Employment Development Department (EDD).

Copyright conceptOne issue that trips up many employers involves a standard provision many companies include in their independent contractor agreements to protect their intellectual property rights.  The standard language involves a statement that any work product developed by the contractor is deemed a “work made for hire“ under the meaning of the US Copyright Act, and is therefore owned exclusively by the company.  In lay terms that means that the company retains the intellectual property rights to works developed under contract.

Unfortunately, under California Unemployment Insurance Code Section 686, that language also means that the contractor is presumed to be an employee.  Yes, that’s right.  Even if the contractor meets none of the common law factors of an employee (i.e. works independently, the company doesn’t control how they do the work, they are paid by project, etc.), and wants or even requests to be a contractor, California’s EDD requires that the contractor be deemed an employee for purposes of unemployment and state disability taxes.

When and if the company is audited, the EDD will ask for copies of all independent contractor agreements, and if those four words are in there, “work made for hire,” the EDD will find the contractor (or group of contractors) should be taxed as employees.  That translates into back taxes, penalties and interest, as well as the potential of a pretty unhelpful precedent for related legal claims.

There is a possible work-around for this language — to use very specific assignment language instead; although this could have serious copyright implications under the “termination of transfer” provisions of the Copyright Act, so please consult a copyright lawyer before going forward with such a work-around.  Companies can also be proactive and remind departing contractors that they are not entitled to unemployment, which might dissuade a contractor from inadvertently triggering an audit.

For companies that rely on independent contractors, including consulting and entertainment businesses, it is especially important to review your contractor agreements for those four “work made for hire” words.  Oh, and if you use independent contractors and don’t have a signed contractor agreement on file, well you have much more risk than just an EDD audit on this one four-word technicality!

 

What a year it has been for harassment claims. The biggest year in the 22 years I have been practicing law. It seems that every day there is a big new headline or rejuvenated social media campaign, and someone else powerful losing their job over harassment allegations.

It is astounding to me that there are so many issues, even after AB 1825 was passed back in 2004 mandating harassment prevention training in California. That statute was expanded to require training on bullying and abusive conduct in 2015 (AB 2053). And now, as of January 1, 2018, it will need to include training on gender identity, gender expression and sexual orientation (SB 396).  With increased protections for transgender employees under California law, training to increase tolerance and understanding surrounding those issues will be particularly important.

Training certainly hasn’t fixed the harassment issue. But since training is mandatory for any business with over 50 employees, it might as well be meaningful. That is why I try to focus my training on real life stories and anecdotes that get people out of their own head (and point of view), and into the head of the victim. One of the main themes is always that harassment is based on perception, not intent; so it is possible to unintentionally harass someone, in fact it happens all of the time. For example, someone may think a compliment, sexual innuendo, or even a direct pass is flattery, but as the millions of “me too” posts reflect, that may not be how such conduct is perceived by the recipient.  Especially when there is a power differential at play.

David Schwimmer’s series of #that’sharassment videos provide realistic (and disturbing) examples of how harassment resonates in workplaces, and how it feels to the recipient.

In my career I have seen many talented and valuable managers lose their jobs due to inappropriate behavior that violated harassment policies. In my training, I tell all managers that doing a great job is not a defense to a harassment claim, and won’t protect them. That message certainly rings true based on recent headlines.

Illustration of a pot boiling overCalifornia employers can expect all of the news about harassment claims to keep bringing even more issues to the surface. The proverbial pot has been stirred.

And as current events have shown, taking prompt action to correct and prevent harassment is critical. There have been enough headlines about harassment in 2017, don’t let the next one be about your company.  Let’s put an end to the me too’s.

There are few things I love more in life other than dogs and beer. So when I saw this article I was delighted! A beer company, called BrewDog, has decided to pay its employees a week of new puppy leave dubbed “pawternity” or “mutternity” leave when an employee gets a new puppy or adopts a dog.

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In my adult life I have raised three puppies, and each time I took “puppyernity leave” for the first week the puppy was home. Many clients, colleagues, and even opposing counsel were super supportive (and requested pictures). For those who love pets, especially puppies, they understand how hard that first week can be, and how little sleep you get.  Raising a puppy (or adopting a dog) is a tremendously joyous time, but it is also a big time commitment!

On a related issue, many clients have asked me if the various paid sick leave statutes coming up in cities all over the country allow time off for sick pets. My answer has been “not yet.” Unless, of course, you live in the city of Emeryville, and need sick time to care for a guide dog, signal dog, or service dog.

So let’s give a shout out to San Francisco, the most liberal city in the US. Come on now. Get on the puppy train. Let’s get some puppy leave ordinance drafted and expand sick leave to include pets. Oh, and while you are at it, make it mandatory to allow pets into all work spaces! Ok, maybe that one can wait. But are you really going to let a beer company based in Glasgow do more for employees (and their canine babies) than a business in San Francisco?

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The claim du jour is website accessibility.

Plaintiffs are suing businesses in alarming numbers alleging that websites are not accessible to persons with disabilities.  In this alert, Fox attorneys Carolyn Richmond, Ernest Badway and Jason Jendrewski offer practical guidance for avoiding a lawsuit.

In addition to explaining the legal issues, this article includes a comprehensive checklist to evaluate the accessibility of a website and its content.  It also includes helpful action items for conforming with the Web Content Accessibility Guidelines 2.0.

Get up to speed on this new legal issue here!

All of this news about hurricanes and the tragic images of people losing their homes (and everything in them), takes me back to advice my father gave me years ago, which was:  You need insurance for things you can’t afford to replace.

The same is true for businesses.  They need insurance for losses they can’t afford to sustain.  Yet, employers often don’t spend enough time thinking about insurance, until of course they need it, and are disappointed with the scope of protections provided.

I often see this with clients with regard to EPLI (Employment Practices Liability Insurance).  Some employers think they have it, but get sued by a former employee and find out they don’t have coverage.  But even those who have EPLI are not strategic enough about the scope of coverage they need.  Which brings me to my list of considerations:

  • Deductibles: How much of a deductible can you afford?  And what incentive does that provide in litigation? EPLI deductibles often range between $25,000 and $250,000.  A $25,000 deductible means that the business can afford a lot of litigation (if it wants to make a point of fighting to deter other claims).  A $150,000 or higher deductible may just cover larger losses, and motivate early settlements to save on the deductible.  A $75,000 deductible can be a reasonable middle ground (to either encourage settlements or litigate).  That said, I have had more than one mediator suggest that a client just pay the $75,000 deductible to settle because they will pay that much anyway if litigation proceeds.
  • Choice of Counsel: Many EPLI policies require certain law firms be used.  Others suggest that firms can be waived in.  Whether an off-panel firm to can waive in will depend on the insurance carrier.  Many times I have seen clients unable to get a desired firm approved.
  • Attorney Rates: Just about all carriers limit the rates that attorneys can charge.  But some also limit the rates that the client can pay.  Years ago it was typical for an employer to pay its law firm one rate, and then get partial reimbursement from the carrier for the approved (lower rate).  But now, many carriers prohibit that practice.
  • Is Wage/Hour Covered?: Typically wage-and-hour coverage is excluded unless a separate rider is purchased.  And that separate rider is very much like earthquake insurance in California with a relatively high cost, high deductible, and limited coverage.  Many wage-and-hour riders have a $100,000 or higher deductible (that only covers defense costs and not damages).  And often defense costs are capped at some amount after the deductible as well.  For example, a policy may only cover $100,000 in defense costs after a $100,000 deductible; so the only real coverage is on the second $100,000 in attorneys’ fees.
The time to think about these issues, and negotiate them (to the extent you can), is before you purchase or renew the policy, not after.  And while it isn’t fun to think about insurance, remember what my father said, it is important for those losses you simply can’t afford.

The news is full of stories of employers taking action, or allegedly not taking sufficient action, for employee off duty conduct.  The issues are vast and varied, ranging from communicating views about coworkers’ intellectual capabilities, to using drugs with prostitutes in hotel rooms, to being “outed” for participating in a controversial and violent rally.

What is interesting from an employment law perspective, is whether and when a private sector employer can take action against an employee for off duty conduct.  My partner wrote a blog post on the issue that focused on federal law and related First Amendment protections.  But as is so often the case, California employers need to also comply with state laws that provide an extra layer of protection to employees.

In fact, California limits how much a private sector employer can do to regulate lawful off duty conduct occurring during nonworking hours off premises, including exercising free speech rights and engaging in political activity.  Other states, including New York and Colorado, do so as well.

When faced with facts about an employee’s off duty conduct, I typically recommend a four step analysis.

  1. First, was the alleged conduct unlawful?  Sometimes the answer is clear, such as shooting up illegal drugs.  But for the worker attending a rally, that analysis is a bit more complicated and likely fact dependent.
  2. Second, was the alleged conduct a violation of any company policy?  An employer can always enforce its various policies, including harassment prevention, conflict-of-interest, equal employment opportunity, prohibitions on illegal drug use, etc.
  3. Third, is the policy being enforced consistently?  Inconsistent application of a legitimate policy can be considered discriminatory.
  4. And finally, does the company have a bigger picture goal to take a particular stand?  Often it makes strategic sense for public relations, customer relations, and sometimes even employee relations purposes for a company to take a particular position on an employee’s off duty conduct, even if it results in some legal risk.  Such calculated risks are part of everyday business decisions.

So, if an employee attends a political rally that is offensive to the employer’s views, a termination for that alone (without an associated policy violation) would be problematic.  Or if an employee communicates with coworkers about a belief about one sex’s genetic lack of ability to be effective at work, and that employee has no supervisory authority, then a termination could run afoul of applicable law (not to mention get the attention of the NLRB as protected concerted activity).  Or if an executive takes drugs in a hotel room all night long, but comes to work and performs fine, then addressing that conduct could be problematic.  The particular facts of each situation matter.

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The reality is that the steps a private sector employer can (and should) take are actually more nuanced than what the normal knee-jerk reaction would suggest.  And one could certainly argue that is the way it should be.  Should an employer really police what its employees do after hours?  Does it matter if it doesn’t impact their job?  Where is the line where such conduct does impact the job (or the employer’s brand)?  The answer may be clear when the conduct is blatantly illegal or an unambiguous policy violation, but short of that, the line can be very blurry indeed.

So many times an employer gets in trouble for following logic instead of the law.  Quite often what is logical just isn’t legal, and that can be tricky for many managers and HR professionals.  It trips them up.  That’s why one of my favorite topics to speak about is Employment Law Bloopers and Lessons Learned.

If you are interested in this topic, and like to learn employment law from stories (instead of detailed powerpoints with dense legal citations), then you have two chances to come hear me speak.  First, on August 28th at the California HR Conference in Long Beach, and second on August 29th at the FIRMA (Foodservice Industry Risk Management Association) Conference in Fullerton.

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One of the bloopers I will be talking about is “Ignoring Warning Signs from Top Performers.”  Those who read my blog posts know this is an issue close to my heart.  And it is all over the news regardless of industry, from tech, to media, to entertainment, to universities and more.  Other bloopers involve skipping steps when dealing with the interactive process and reasonable accommodation, retaliation, and the mistakes people make with emails and social media (like those texts we see in litigation from managers to employees sent in the wee hours of the morning on issues unrelated to work … you get the idea).

Come be entertained on August 28th or 29th and learn a few things too!