Employer Responsible for Attorneys’ Fees After Labor Commissioner Appeal

A California appellate court held an employer responsible for attorneys’ fees after Labor Commissioner appeal.

In Royal Pacific Funding Corporation v. Arneson, the employer appealed a $29,500.00 Labor Commissioner award.  After the employee retained an attorney for the appeal who notified the employer of the employee’s intent to add additional claims to the appeal, the employer dismissed the appeal.

The employee’s attorney filed a motion for attorneys’ fees, which the employer opposed.  The trial court denied all attorneys’ fees “on the theory that there must be a court award under Labor Code section 98.2 before a party can collect its fees.”  The appellate court reversed the decision and ordered the trial court to determine the employee’s reasonable attorneys’ fees.

Attorneys’ Fees After Labor Commissioner Appeal

Attorneys’ fees on appeal from a Labor Commissioner Order, Decision or Award are governed by Labor Code section 98.2, which provides:

If the party seeking review by filing an appeal to the municipal or superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.

In 2003, the legislature amended Labor Code section 98.2 to include the statement, ” An employee is successful if the court awards an amount greater than zero.”

Royal Pacific Funding argued that under Arias v. Kardoulias (2012) 207 Cal.App.4th 1429, the employee cannot recover attorneys’ fees because the court never determined the case on the merits, and therefore the employee was not “successful” on the appeal.  In Arias, the court denied an employer’s attorneys fees when the employer got an appeal dismissed on procedural grounds, because such a procedural dismissal could not be equated with a superior court determination of the merits. According to the appellate court, interpreting 98.2 to require a decision on the merits “turns the basic purpose of the 2003 amendment on its head.”

Employees and employers must think carefully before appealing a California Labor Commissioner decision.  Employees may be allowed to add additional claims on appeal, and the non-successful appellant may be obligated to pay the other side’s attorneys’ fees.  Before you appeal you Labor Commissioner case, contact an experienced attorney familiar with wage and hour claims.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Home Care Companions Are Entitled to Overtime Under the FLSA

A D.C. Court of Appeals confirms that home care companions are entitled to overtime under the FLSA.  The appellate court confirmed that home care agencies and families using caregivers must pay overtime unless the employee meets the narrow “companion” definition.  The new regulations gained a lot of press in late 2014 and early 2015 when the regulations were set to go into effect.  A D.C. Circuit court judge held the provisions invalid, and stayed implementation of the new regulations.  The Department of Labor appealed, and many have been waiting to see what the appellate court will do.

Home care companions are entitled to overtime under the FLSA

The appellate court issued its decision in Home Care Association of America, et al. v. David Weil on August 21, 2015.  The appellate court disagreed with the lower court’s analysis, and found the regulations enforceable.  What does this mean for California employers (at least until the case is appealed to the Supreme Court)?

California and federal rules are different

The federal companion regulations mark one of the first instances where the federal wage and hour laws are more strict than California’s wage and hour laws.  Under California law, caregivers–which California usually calls personal attendants–are only entitled to overtime when they work more than 9 hours in a day or more than 45 hours in a week.  Those same home care companions are entitled to overtime under the FLSA after working 40 hours in a week.  This means many California caregivers will receive overtime after 9 hours in a day or after 40 hours in a week.

The definition of companion is also more limited than California’s personal attendant exemption.  Federal companions cannot spend more than 20% of their time providing care (e.g., assisting with the activities of daily living).  Their primary job is limited to providing fellowship and protection.  California’s personal attendants are allowed to spend 80% of their time providing care, fellowship and protection.

Another major difference between federal and state law is that, under the federal regulations, companions employed by third party care agencies can never be exempt from the FLSA.  California law does not differentiate between private employers and third-party employers.

If you or someone you know has questions about caregiver overtime rules in California, contact the Nuddleman Law Firm, P.C.  Robert Nuddleman assists families, care agencies and caregivers understand the law and ensure employees are paid correctly.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Employee Threatening to Kill Co-workers Not a Qualified Individual With a Disability

Although Timothy Mayo was diagnosed in 1999 with major depressive disorder, medication and treatment enabled him to work for CC Structurals, Inc. without significant incident for many years. In 2010, however Mayo and some co- workers began to have issues with a supervisor who they claimed was bullying them and making work life miserable. In response to a complaint, HR met with Mayo and another employee about the supervisor’s behavior.

According to the court:

Shortly after the meeting, Mayo made threatening comments to at least three co-workers. He told one that he “fe[lt] like coming down [to PCC] with a shotgun an[d] blowing off” the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur. Mayo told another co-worker on several occasions that he planned to “com[e] down [to PCC] on day [shift] . . . to take out management.” He told a third co- worker that he “want[ed] to bring a gun down [to PCC] and start shooting people.” He explained that “all that [he] would have to do to shoot [the supervisor] is show up [at PCC] at 1:30 in the afternoon” because “that’s when all the supervisors would have their walk-through.”

The co-workers, presumably concerned for their safety and the safety of others, reported Mayo’s comments. The employer suspended Mayo after they asked him if he planned on carrying out his threats and he responded that “he couldn’t guarantee he wouldn’t do that.” PCC also notified the police, who questioned Mayo and had him admitted to a psychiatric facility because Mayo, a gun owner, admitted to making the threats and that he had “two or three people in mind,” including his supervisor.

Mayo remained in custody for six days, then took leave under the Oregon Family Leave Act and the Family Medical Leave Act for two months.  Mayo’s doctor cleared Mayo to return to work, indicating Mayo was not a violent person, but recommended Mayo receive a different supervisor.  PCC did not return Mayo to work because, according to PCC, Mayo would not—or could not—guarantee to refrain from similar threats in the future.

Mayo sued PCC contending his termination violated the Americans with Disabilities Act and Oregon’s state-equivalent.  The trial court granted PCC’s motion for summary judgment contending “Mayo was no longer a ‘qualified individual’ once he made his ‘violent threats.’ And ‘[b]ecause Mayo [wa]s not a qualified individual,’ he was not ‘entitled to protection under the ADA and Oregon’s disability discrimination statute.’  The appellate court agreed.

Qualified Individual with a Disability

The court determined Mayo could not even make out a prima facie case of discrimination because Mayo was not a “qualified individual” with a disability.  Under both the ADA and Oregon’s analogous law, “an individual is qualified for a position if the individual, with or without reasonable accommodation, can perform the essential functions of the position.”  The court pointed out that an essential function of almost every job is the ability to appropriately handle stress and interact with others. Citing Williams v. Motorola, Inc., 303 F.3d 1284, 1290 (11th Cir. 2002). “[W]hile an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times).”

Thankfully, workplace threats are not a common occurrence.  When a person’s threatening behavior stems from an underlying medical condition, an employer is faced with two opposing duties: The duty to provide a safe and healthful workplace and the duty to accommodate persons with disabilities.  Mayo v. PCC Structurals may help employers make appropriate decisions when handling similar issues.

If you, or someone you know, has questions about workplace accommodations, or threats of violence in the workplace, contact an experienced employment attorney.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

 

Truck Drivers are Employees Not Independent Contractors

In Garcia v. Seacon Logix, Plaintiff truck drivers sued Seacon Logix, Inc. under Labor Code section 2802 for reimbursement of paycheck deductions, contending that they should have been classified as employees, not independent contractors.  The trial court agreed and awarded damages for specified paycheck deductions.  Seacon appealed contending the truck drivers are employees not independent contractors.

Seacon arranged for transportation of cargo from the Port of Long Beach and Port of Los Angeles to warehouses or other facilities. Although Seacon’s drivers initially used to own their vehicles, due to a clean air program, Seacon later provided the trucks to the drivers.  Seacon required the drivers to sign lease agreements for the use of the trucks and deducted lease and insurance payments from the truck drivers’ paychecks.

Employees Not Independent Contractors

The drivers were told when to arrive at work and had to let Seacon know if they were going to be absent. If the drivers declined a delivery for any reason, they would not receive work the following day. assigned deliveries to the drivers and occasionally provided them with maps showing the route to take. The drivers had to call Seacon when they arrived at their destination and completed their delivery, and check in with Seacon numerous times each day, particularly if they were going to be late with a delivery due to traffic or any other reason. The truck drivers did not have separate business licenses or any other source of income while driving for Seacon, and the drivers could not hire other drivers to use their trucks or use the trucks to work for other companies. The truck drivers were not involved with billing Seacon’s customers and did not believe they had the ability to negotiate their payments.

The appellate court agreed that the truck drivers are employees not independent contractors. Seacon controlled the manner and means of the work, despite the fact that the contracts defined the drivers as independent contractors.  In addition to right to control, the court also looked at secondary factors such as:

  • Right to discharge at will
  • The workers were “a regular and integrated portion of [the] business operation.”
  • The work was performed under principal’s direction or without supervision
  • Skill required
  • The employer supplied the instrumentalities, tools, and place of work
  • Method of payment (by the job versus hourly or weekly)
  • Work was part of the principal’s regular business
  • Parties’ belief

The Department of Labor takes the position that, “[t]he misclassification of employees as independent contractors presents one of the most serious problems facing affected workers, employers and the entire economy.”  Uber is currently facing several lawsuits for allegedly it  is misclassifying its drivers.  Employers misclassifying employees as independent contractors face serious consequences, oftentimes ignoring wage and hour laws created to protect employees.

If you or someone you know has a question about how to correct classify workers, contact Robert Nuddleman at 925-400-9052.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Stray Remarks Lead to Age Discrimination Claim

The Ninth Circuit today held that stray remarks could support an age discrimination claim, particularly when a supervisor considers age as being pertinent to a promotion decision.  In France v. Johnson, an employee who was denied a vacant GS-15 position, and later sued claiming he was denied the position because of his age.

The employer defended the action, claiming the employee lacked the leadership and judgment for the GS-15 positions. The employer gave six reasons why it did not recommend promoting the, including the employee’s lack of leadership, flexibility, and innovation.

Age in Promotion Decision

The employee claims that during a staff meeting, one of the interviewers expressed his preference for “young, dynamic agents” to staff the GS-15 positions.  Another employee confirmed he ageist comment.  The employee also claimed that throughout his tenure one of the interviewers repeatedly asked about the employee’s retirement plans:

For example, during a meeting in June 2007, Gilbert asked if France was interested in teaching firearms as a “rehired annuitant” after retirement, but France said he did not want to retire. A few months later, Gilbert again asked what France wanted to do, and France said that he “was not going to retire and that [he] was going to apply for the GS15 positions.” France recalled that Gilbert had responded that if he were in France’s position, he would retire as soon as possible.

The district court concluded that the employee did not present direct evidence to establish an inference of age discrimination.  The Ninth Circuit Court of Appeals agreed that it was “a close question.” The appellate court felt the interviewer’s statement about his preference for “young, dynamic agents” to staff the GS-15 positions “probably goes beyond a stray remark.”  The court pointed out that “a speaker of discriminatory statements need not be the final decisionmaker of an employment decision.”  Under the “Cat’s paw” theory, even if a subordinate employee with bias was not the final decisionmaker, the plaintiff can establish a causal link by proving that “the biased subordinate influenced or was involved in the decision or decisionmaking process.”

The appellate court faulted the lower court for not considering the repeated retirement discussions in assessing whether the articulated nondiscriminatory reasons were pre textual.

This is a good reminder to employers that stray remarks, and repeated questions about retirement plans, can lead to significant problems.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.
Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

New Paid Sick Leave Law Causes Anxiety for Employers

California workers are often faced with a difficult decision: I don’t feel well and I don’t want to go to work where I will get other people sick, but I can’t afford to miss any work. In order to remedy this malady, the California legislature passed AB 1522 creating the Healthy Workplaces, Healthy Families Act of 2014, which requires all employers to provide at least 24 hours of annual paid sick leave to all employees. Unfortunately, the new law was poorly drafted, causing confusion. The Labor Commissioner set up a FAQ page that helped a little, but still didn’t answer important questions.

Just about every employer client I have called me in the weeks leading up July 1st with questions about what they needed to do to comply with the law, and the answers were not always simple. Then, 13 days after employers were required to begin providing paid sick leave, governor Brown signed AB 304 modifying the statute. Although I suspect the purpose of the amendment was to clarify the law, California’s Healthy Workplaces, Healthy Families Act of 2014 leaves the most ardent HR professionals lightheaded.

HEADACHES

For employers that did not previously offer any type of paid time off, the new law seems fairly simple: Employers must provide at least 24 hours of paid sick leave every year. Simple, right? But what about employees working in San Francisco, Oakland, Emeryville, San Diego or any other city that has passed its own local ordinances requiring a hiring amount of paid sick leave?

If a company has employees working in different cities, even if the employees perform as little as two hours per week in one of the cities that has passed its own paid sick leave ordinance, the employer has to either adopt the highest city requirement and apply that across the board, or have different policies for different employees depending on how much time they spend in each different city. Now an employer has different accrual rates and leave caps for different employees. No chance an employer will make a mistake, right?

HOURLY EMPLOYEES

At what rate must employer’s pay out the paid sick leave? For hourly employees, you would assume the hourly rate is the employee’s regular rate of pay. In fact, the original statute defined “Paid sick days” as “time that is compensated at the same wage as the employee normally earns during regular work hours.” Section 246(k) also says, “[t]he rate of pay shall be the employee’s hourly wage.” Simple, right? It was until the legislature amended subsection k.

Now, the employer has three different methods to choose from:

(k) For the purposes of this section, an employer shall calculate paid sick leave using any of the following calculations:
(1) Paid sick time for nonexempt employees shall be calculated in the same manner as the regular rate of pay for the workweek in which the employee uses paid sick time, whether or not the employee actually works overtime in that workweek.
(2) Paid sick time for nonexempt employees shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
(3) Paid sick time for exempt employees shall be calculated in the same manner as the employer calculates wages for other forms of paid leave time.

You’ll notice that there are two different calculations an employer can choose from for nonexempt employees:

  1. the employee’s regular rate of pay; OR
  2. divide the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the previous 90 days.

What does that second option mean? It’s a bit confusing, so let’s use an example. Alice’s regular rate of pay is $12.00 per hour, and she typically works 50 hours per week—40 regular hours and 50 overtime hours. Her regular weekly paycheck is $660.00 [($12 x 40) + ($18 x 10) = $660].

Under the amended statute, the employer is only supposed to include “full pay periods of the prior 90 days of employment.” Let’s assume Alice is paid every week. That would mean that, at most, there are 12 full pay periods in the 90 days prior to the intended sick leave. So, Alice earned $7,920 in those 12 full pay periods ($660 x 12 = $7,920).

The statute then directs us to divide the employee’s total wages “not including overtime premium pay” by the total hours worked. Alice worked 600 hours in the 12 pay periods (50 per week x 12 weeks = 600). When you divide her total wages not including overtime ($5,760) by her total hours worked (600) her paid sick leave rate would be $9.60—$2.40 less than her regular hourly rate. So, if an employee regularly works overtime, the employer can actually pay less than the employee’s regular hourly rate if the employer chooses to use the (k)(2) method of calculating the paid sick leave rate of pay. Maybe the lower rate under (k)(2) rewards employers that are willing to “do the math,” but I don’t see many employers using this alternative calculation.

I’d give an example of what happens when you pay different rates for shift differentials, but it looks like my calculator has a headache.

COMMISSIONS, SALARIES AND PIECE RATES

But what about employees paid commissions, salaries or on a piece rate basis? Well, for salaried employees, the regular rate of pay is presumably the weekly salary divided by 40, as dictated by Labor Code section 515(d)(2). Employees receiving commissions or paid on a piece rate basis are more complicated. Get out your calculators.

There are typically two types of commissioned employees: inside sales and outside sales. While outside salespeople are exempt from overtime laws, inside sales people are only exempt if they are covered by either wage order 4 or wage order 7, more than 50% of their wages are paid in the form of commissions, AND the employee earns at least 1.5 times the current minimum wage. Although the Paid Sick Leave law has rules for employees exempt from overtime under the administrative, professional and executive exemption, it does not have rules for other exempt employees (some inside sales, outside sales, sheepherders, irrigators, etc.).

The Labor Commissioner says “If an employee is paid commission or piece rate, then divide total compensation for previous 90 calendar days by number of hours worked and pay this rate.” But, do you use the compensation earned or the compensation paid? Commissions are oftentimes earned before they are paid. Hopefully the employer’s commission agreements clearly identify when the commission is earned versus when it is paid, but neither the Labor Commissioner nor the statute answer this question.

For piece rate employees it is a little bit easier, divide the total amount earned in the previous 90 days by the total hours worked. If the employer is reporting the pieces and hours worked on the pay stubs as required by Labor Code section 226, then this shouldn’t be a problem. On the bright side, employers that were not previously tracking hours worked for their piece rate workers have a good excuse to change their policies so they can properly track paid sick leave.

WHAT IS A YEAR?

There are still other decisions that have to be made. What constitutes a year? The law became effective January 1st, but employers were not required to provide the paid sick leave until July 1st. Should the employer use a calendar year? A year based on the employee’s start date? A year beginning when the paid sick leave requirement became effective? Choosing the right “year” alters how the employer tracks accrued paid sick leave.

CAN I USE MY EXISTING PTO POLICY?

Will your existing PTO policy satisfy the requirements? In most cases, no, because most employees typically do not begin accruing paid sick leave on their first day of employment. Although employers can prohibit an employee from using the paid sick leave during the first 90 days of employment, the employee begins accruing the paid sick leave from day 1. Keep in mind, if an employer modifies its PTO policy to allow the employee to begin accruing PTO from day 1, and that employee stops working in the first 90 days, the employer has to pay out the unused PTO. If the employer decides to keep Paid Sick Leave separate from other paid leave, the employer would not have to pay out the Paid Sick Leave upon termination.

In order for a PTO policy to satisfy the Paid Sick Leave requirements, the PTO has to have the same 30:1 accrual rate required by the Health Workplaces, Healthy Families Act. Although an employer can cap the Paid Sick Leave at 48 hours, the 30:1 accrual rate would actually give the employee about 66 hours of Paid Sick Leave in a year (assuming the employee works 40 hours a day, 50 weeks per year). If you have a PTO policy that allows an employee to accrue 48 hours of PTO per year, the accrual rate is actually lower than the 30:1 Paid Sick Leave requirements.

The July 13th amendment provided a small safe harbor. If an employer had a pre-existing PTO policy that allowed the employee to accrue at least 8 hours of PTO within the first 3 months of employment and at least 24 hours of PTO within the first 9 months of employment, the employer can use the existing PTO policy to satisfy the Paid Sick Leave requirements. However, if the employer ever alters the accrual method used in that policy, then the employer has to default to the 30:1 accrual rate. This applies even if the employer provides a more generous PTO accrual rate than it previously provided.

Rob’s prediction? Litigation.

Although I don’t know that the value of a paid sick leave violation claim would justify a single-plaintiff lawsuit, you can bet there are class action attorneys waiting file suit when an employer makes a mistake. Keep in mind that the Health Workplaces, Healthy Families Act of 2014 is part of the Labor Code. That means an employee can sue under the Labor Code Private Attorney General Act (PAGA) and bypass the class action requirements. Even though the individual employee’s recovery may be minimal, even small errors can create significant liability given that the penalties will accrue every pay period for all employees.

BROAD RETALIATION PROVISION

I also predict we will see litigation regarding employers who ask employees for proof that the leave was for a qualifying reason. The Act has a very broad anti-retaliation provision:
An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article

There is a rebuttable presumption of retaliation for a variety of actions, including “if an employer denies an employee the right to use accrued sick days, discharges, threatens to discharge, demotes, suspends, or in any manner discriminates against an employee within 30 days of … (c) [o]pposition by the employee to a policy, practice, or act that is prohibited by this article.”

The Labor Commissioner has told employers that it is illegal to “deny sick leave due to a failure to provide details” regarding the need for the paid sick leave. The Act is silent as to whether an employer can require an employee to provide a doctor’s note for the absence, but the Labor Commissioner seems to be taking the position that if an employer asks an employee for the details of the leave (e.g., “Why do you need to take paid sick leave?”), and the employee refuses to provide the details, the employer must still pay the employee to take the time off work.

To be safe, employers should only ask for doctors’ notes once an employee has used the full 24 hours of paid sick leave.

Employment attorneys helping companies comply with the law have been inundated with phone calls and emails from clients that want to comply with the law. California’s new paid sick leave requirements confuse even the most seasoned HR professionals. I am glad the legislature took a stance on this important issue. Sick workers should not be forced to choose between paying rent or showing up to work where they can get other people sick. The idea behind the statute is good and honorable. Unfortunately, as is often the case, the legislature’s method is blemished.

Having thought this all through, I’m starting to feel a bit queasy myself. I think I need to take a sick day.

 

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.