Paid Bonding Leave for Mothers and Fathers in San Francisco

San Francisco approved a measure earlier this month making it the first place in the nation to require businesses to provide fully paid bonding leave for mothers and fathers to spend time with their new child. Kind of.  The measure does not pay for the entire leave, but it does require an employer with 20 or more employees to supplement the employee’s Paid Family Leave from the Employment Development Department.

The proposal was unanimously approved by the city’s Board of Supervisors, AP reported, though one more formal vote is required before the measure can be sent to Mayor Ed Lee, who is expected to sign it into law.

Paid Bonding Leave

Normally, mothers and fathers can receive Paid Family Leave through the EDD  which pays approximately 55% of the employee’s wages for 6 weeks while a parent bonds with a new child.  San Francisco’s new measure will require some employers to supplement the Paid Family Leave so the employee receives the 100% of the employee’s normal gross weekly wage.

When a Covered Employee receives California Paid Family Leave compensation for the purpose of New Child Bonding, a Covered Employer shall, during the leave period, supplement the California Paid Family Leave weekly benefit amount that the employee is receiving by paying the employee Supplemental Compensation in an amount such that the total of the California Paid Family Leave compensation the employee is receiving and the Supplemental Compensation provides, but does not exceed, 100% of the employee’s current normal gross weekly wage.

Paid bonding leave advocates say the issue is gaining momentum across the country much like the debate over a higher minimum wage.  They say the measure is needed because too many parents can’t afford to lose pay to take time off after a birth or adoption.  Some big companies and government entities already provide such benefits, but smaller businesses argue the action in San Francisco is another expensive mandate they can’t afford.

I foresee a potential issue in that the Paid Family Leave benefits are not subject state taxes.  When someone normally receives Paid Family Leave Benefits through the EDD, the benefits are less than the normal wages, but they are not taxed by the state. The employees will actually net more money under the new measure than they would if they just received their normal salary because the portion paid by the EDD is not taxed by the state.  But then again, I tell people to never take my tax advice.  Perhaps a CPA or tax lawyer can explain the fallacies in my logic.

Here are some things to know about the measure:

WHAT DOES THE PAID BONDING LEAVE MEASURE DO?

The state of California currently allows workers to receive 55 percent of their pay for up to six weeks to bond with a new child. The money comes from a state insurance program funded by workers. Paid Family Leave (PFL) benefits are reportable for federal purposes but not state tax purposes.  The measure in San Francisco requires private employers with at least 20 employees to make up the remainder of a parent’s full pay for six weeks.

WHO IS AFFECTED BY THE PAID BONDING LEAVE?

The benefit applies to new mothers and fathers who work at least eight hours a week and spend at least 40 percent of their work week within San Francisco boundaries.  The regulation will be phased in, starting with businesses that employ 50 workers or more in January 2017 and gradually moving up to businesses with 20 or more employees.

A “covered employer” is (1) commencing with January 1, 2017, 50 or more employees; (2) commencing with July 1, 2017, 35 or more employees; and (3) commencing with January 1, 2018, 20 or more employees.

Businesses with 35 to 49 workers must comply starting in July 2017, and businesses with 20 to 34 workers have until January 2018. The new policy affects mothers and fathers, including same-sex couples, of newborns.

The legislation does not apply to the federal, state or other municipal governments, but people who work for the city and county of San Francisco already receive up to 12 weeks of paid leave.

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 FEHA Regulations May Require Handbook Revisions

Most employers already have anti-harassment policies, but effective April 1, 2016, amended FEHA regulations may require some handbook revisions.  The following summarizes the requirements imposed by the amended regulations.  Read on to see if your anti-harassment policies need to be revised.

Anti-Harassment Handbook Revisions

All California employers with 5 or more employees must develop a written harassment, discrimination and retaliation prevention policy that lists all current protected categories covered under the FEHA.  The policy must indicate that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by FEHA.

Handbook Revisions Regarding Complaint Process

The policy must include a complaint process to ensure that complaints are kept confidential, to the extent possible.  The complaint process must also require a timely response and an impartial and timely investigations by qualified personnel.  The policy must include documentation and tracking for reasonable progress, appropriate options for remedial actions and resolutions, and timely closures.

The complaint mechanism cannot require an employee to complain only to his or her immediate supervisor. The policy should allow for oral or written communication with a designated company representative, such as a human resources manager, EEO officer, or other supervisor.  Alternatively, the policy can include complaint hotline and/or access to an ombudsperson.  The policy should also notify employees they have a right to complain the EEOC—including contact information for the organization.

The policy must instruct supervisors to report any complaints of misconduct to a designated company representative (i.e., HR manager), so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training.

The policy should also state that when an employer receives allegations of misconduct, the employer will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.  If at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.  The policy must also make it clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.

Disseminating New Harassment Handbook Revisions

There are also new dissemination requirements.  Employers must either:

·      Print and provide a copy to all employees with an acknowledgment form for the employee to sign and return;

·      Send the policy via e-mail with an acknowledgment return form;

·      Post current versions of the policies on a company intranet with a tracking system ensuring all employees have read and acknowledged receipt of the policies;

·       Discussing policies upon hire and/or during a new hire orientation session; and/or

·      Any other way that ensures employees receive and understand the policies.

I recommend a discussing the policies during a new hire orientation AND providing a printed copy for the employee to sign and return.  Employers must also translate the policy into every language that is spoken by at least 10 percent of the workforce at any facility or establishment.

Given the speed with which the courts and the legislature alter the employment law landscape, employers should consider updating their handbooks every year, or at least every other year.  Adding or losing a significant number of employees may also require handbook revisions because different laws apply depending on how many employees work for the company.  There are a number of low-cost ways to create a handbook, but employers should not just copy and paste someone else’s handbook without ensuring the policies fit the workplace.  For more information about handbook revisions, see my article regarding Facts and Myths Regarding Employee Handbooks.

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.

Workplace Rules Violate the NLRA: Conduct Toward Other Employees

Over the last few weeks, we’ve been looking at a report by Richard F. Griffin, Jr., General Counsel for the NLRB regarding workplace rules.  First we looked at confidentiality rules that may violate the NLRA, then workplace rules regarding conduct toward management.  This week, we will see which workplace rules violate the NLRA regarding conduct toward other employees.  Employees have a right under the Act to argue and debate with each other about unions, management, and their terms and conditions of employment.  Employer attempts to curb employee fights could violate the NLRA.

According to the NLRB’s General Counsel when an employer bans “negative” or “inappropriate” discussions among its employees, without further clarification, employees reasonably will read those rules to prohibit discussions and interactions that are protected under Section 7. Citing Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 7 (Aug. 22, 2014) and Hills & Dales General Hospital, 360 NLRB No. 70, slip op. at 1 (Apr. 1, 2014).

Let’s See Which Workplace Rules Violate the NLRA

Unlawful Workplace Rules That Violate the NLRA

  • “[D]on’t pick fights” online.
  • Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”
  • “[S]how proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
  • Do not send “unwanted, offensive, or inappropriate” e-mails.
  • “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. …”

Lawful Workplace Rules That Do Not Violate the NLRA

  • “Making inappropriate gestures, including visual staring.”
  • Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
  • “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”
  • No “harassment of employees, patients or facility visitors.”
  • No “use of racial slurs, derogatory comments, or insults.”

You can read the report to see the General Counsel’s justifications regarding why some rules are unlawful and other very similar rules are not.

It is usually a bad idea to copy and paste another company’s workplace policies.  The policies may not fit your work environment, and the policies may violate the NLRA or other employee rights.  Be careful when drafting workplace conduct policies. Employers should not interfere with employees’ rights to complain about their workplace and share their experiences and opinions regarding management, the company or other workers.

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.

Workplace Rules that Violate the NLRA: Conduct Toward Management

Last week I wrote about workplace confidentiality rules that the NLRB’s General Counsel says violate the NLRA (National Labor Relations Act).  This week, we are looking at the same report and what it has to say about workplace rules regarding conduct toward management.

Employees have Section 7 right to criticize or protest their employer’s labor policies or treatment of employees.  According to the General Counsel,” rules that can reasonably be read to prohibit protected concerted criticism of the employer will be found unlawfully overbroad.”  The GC goes on to say:

a rule that prohibits employees from engaging in. “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful.

Citing Casino San Pablo, 361 NLRB No. 148, slip op. at 3 (Dec. 16, 2014).

As with the confidentiality rules, the General gives several examples of rules regarding conduct toward management that he believes violate the NLRA and examples of rules that do not violate the NLRA.

Rules that Violate the NLRA

  • “Be respectful to the company, other employees, customers, partners, and competitors.”
  • Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
  • “Be respectful of others and the Company.”
  • No “[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.
  • “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
  • “Chronic resistance to proper work-related orders or discipline, even though not “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
  • overt insubordination” will result in discipline.
  • “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
  • Do not make “[s]tatements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”
  • “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”

Rules that Do Not Violate the NLRA:

  • No “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company.
  • “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
  • “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.”
  • “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.”
  • “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in” discipline.

Confused yet?  Does it seem that some of the lawful rules are extremely close to the unlawful rules? You’re not alone.  It’s difficult to tell the difference in many examples.

When drafting workplace conduct policies, employers should be mindful that employees have the right to complain about their workplace and share their experiences and opinions regarding management and the company.  Limiting an employee’s right to complain about management will likely violate the NLRA.  Employers have to consider the impact of workplace rules on employee rights and find an appropriate balance.

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.