Is Pokémon Go Causing Productivity Losses?

I’ve heard several stories about the current Pokémon Go craze, and the seemingly mindless zombie-youth walking around neighborhoods trying to find the best and the most Pokémon Go characters. Lest you think the craze is limited to the younger generation, I know several adults that are gripped by the craze. But, what happens when that craze spills over to your work?

For those of you living under a rock, Pokémon Go is a game based on the beloved(?)Pokémon characters from the 1990’s. The game uses your phone’s GPS to detect where and when you are in the game and make Pokémon “appear” on your phone screen so you can go and catch them. As you move around, more—and hopefully different—Pokémon appear. The game has a time aspect to it such that if you don’t act quickly, the Pokémon may not be there later on. So what do you do if you’re in the middle of typing your report, and you get notified that Pikachu is right down the hall? If you don’t act quickly, he’ll be gone. But that darn report has to get done.

This is not an isolated problem, nor is one that was created by Pokémon Go. Companies are continually struggling with how to deal with personal use of electronic devices in the workplace.

Recommendations for Employees:

  1. Don’t download Pokémon Go or any other game onto your work phone.  Employers who discover games on work phones will presume you are playing games instead of doing work.  Even if your company policy is lax—or non-existent—it doesn’t make sense to open the door to problems.
  2. Games shouldn’t be running in the background. You don’t want your phone notifying you that Squirtle is in the copy room when you are in a meeting with your boss.
  3. Never download software onto a work computer or device without your employer’s permission. This is particularly true for personal cloud software such as Google Drive, Dropbox or Box. You could unknowingly compromise your company’s systems or give the impression that you are taking confidential company material.
  4. Don’t access your personal email or social media accounts from work computers or devices. Depending on your company’s policies, the employer could have a right to view anything done on a work device, including personal and even confidential emails.

Recommendations for Employers:

  1. Make sure your company has a written policy regarding use of personal devices during work or at the worksite.  Communicate clear policies to employees before problems arise.
  2. Don’t infringe on employee break and meal time. Employees that want to spend their lunch break tracking down MewTwo, that’s their business.
  3. Whenever possible, don’t mix personal devices with work devices.  If you require employees to use cell phones or tablets, give them a company device for that purpose. Work devices are for work. Employees should not access personal emails or social media pages from work computers.
  4. Develop an electronic device policy that works for your company.  Cutting and pasting a policy from a different company may not fit your needs.

There are some very positive things that can come from Pokémon Go. Kids are getting out and walking around exploring their neighborhoods.  One girl even found a dead body while searching for Pokémon.  Maybe the game gives your family something they can do together.  Whether you like the game or not, be smart about what you do and don’t do at work.

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. Use of this website for communication does not establish an attorney-client relationship. Do not send confidential or time-sensitive information via this website. 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.

Two Disability Accommodation Cases to Consider

I recently had the opportunity to advise several clients—both employers and employees—regarding their rights and obligations when it comes to a disability accommodation. It is an area that is frequently misunderstood. It’s no wonder so many employers make correct disability accommodations for employees with disabilities. The following two published cases are good examples of how employers and employees can make mistakes.

Castro-Ramirez v. Dependable Highway Express, Inc. 246 Cal.App.4th 180 (2016)

Luis Castro-Ramirez worked for Dependable Highway Express, Inc. as a truck driver.  Luis’ son became ill requiring daily dialysis.  According to the evidence presented, Luis was the only one who could be available to do the dialysis. For several years, Dependable Highway worked with Luis and scheduled him so he could be at home during the evening when it was time to administer the dialysis.  When a new supervisor took over, however, he assigned Luis to a night shift. When Luis had to choose between his son’s dialysis and his job, he chose his son. The supervisor told plaintiff he “had quit by choosing not to take the assigned shift.”

Is An Employer Required To Provide A Disability Accommodation To A Non-Disabled Employee, But Who Needs The Accommodation To Care For A Disabled Child?

According to the California appellate court, although it is a “seldom-litigated cause of action,” an employee who needs to assist a disabled son can proceed with an “associational disability discrimination” claim. Prior to Castro-Ramirez, no published California case had determined whether employers have a duty under FEHA to provide disability accommodations to an applicant or employee who is associated with a disabled person. The Castro-Ramirez court held that “FEHA creates such a duty according to the plain language of the Act.”

The court was not persuaded by cases interpreting similar claims under the federal Americans with Disabilities Act. According to the court, “under the ADA, employers need not provide reasonable accommodations to employees who are relatives or associates of the disabled. FEHA’s language is simply not parallel to the ADA in this regard.”

If an employee requests disability accommodation, even if the accommodation is not related to the employee’s disability, employers need to consider whether the law requires the employer to provide the disability accommodation.

Mendoza v. The Roman Catholic Archbishop of Los Angeles 819 F.3d 1204 (9th Cir. 2016)

Alice Mendoza worked full-time for a small parish church as a bookkeeper. She took sick leave for ten months, during which the pastor of the church took over the bookkeeping duties himself and determined that the job could be done by a part-time bookkeeper. When Mendoza returned from sick leave, there no longer was a full-time bookkeeping position, so the pastor offered her a part-time job, which Mendoza declined.

Mendoza sued alleging she the church violated the ADA by discriminating against her and failing to provide a disability accommodation.

Does An Employer Have To Keep A Full-Time Position Open As A Disability Accommodation Even If The Position Does Not Require Full Time Work?

According to the Ninth Circuit, unless the employee can show the employer changed the position to part-time because of the employee’s disability, or that there was another full-time position available that the employee could perform, there is no claim under the Americans with Disabilities Act.

The 9th Circuit first determined that “Mendoza failed to raise a triable dispute as to whether the Archbishop’s legitimate, nondiscriminatory reason for not returning Mendoza to fulltime work was pretextual,” and therefore could not establish a discrimination or disparate treatment claim.  The court went on to say Mendoza “failed to establish that a full-time position was available,” and therefore could not establish a failure to accommodate claim.

Just because an employee is on a medical leave of absence as a disability accommodation does not mean the employer cannot make changes to the employment.  An employer cannot make changes because the employee went on a disability leave of absence, and the employer is still required to provide a reasonable accommodation for the employee, but the employer does not have to keep a position open that is no longer necessary.

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.

 

 

 

Service Advisors Exempt from FLSA

Encino Motorcars, LLC is an automobile dealership. Encino’s service advisors filed a lawsuit alleging that Encino violated the FLSA by failing to pay them overtime compensation when they worked more than 40 hours in a week. At issue in this case is whether the Department of Labor’s interpretation of the service advisor exemption is valid.

History of Service Advisors Exemption under the FLSA

The Fair Labor Standards Act (FLSA) requires employers to pay over­time compensation to covered employees who work more than 40 hours in a given week. In 1966, Congress enacted an exemption from the overtime compensation requirement for “any salesman, parts-man, or mechanic primarily engaged in selling or servicing automo­biles” at a covered dealership. Congress authorized the Department of Labor to promulgate necessary rules, regulations, or orders with respect to this new provision. The Department exercised that authority in 1970 and issued a regulation that defined “salesman” to mean “an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles . . . which the establishment is primarily engaged in selling.” 29 CFR §779.372(c)(1) (1971).

The regulation excluded service advisors, who sell repair and maintenance services but not vehicles, from the ex­emption. Several courts, however, rejected the Department’s conclusion that service advisors are not covered by the statutory exemption. In 1978, the Department issued an opinion letter departing from its previous position and stating that service advisors could be exempt under 29 U. S. C. §213(b)(10)(A). In 1987, the Department confirmed its new interpretation by amending its Field Operations Handbook to clarify that service advisors should be treated as exempt under the statute. In 2011, however, the Department issued a final rule that followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells vehicles. 76 Fed. Reg. 18859. The Department gave little explanation for its deci­sion to abandon its decades-old practice of treating service advisors as exempt under §213(b)(10)(A).

Does the FLSA Apply to Service Advisors?

Encino argued that the FLSA overtime provisions do not apply because service advisors are covered by an exemption in §213(b)(10)(A).The District Court granted the motion, but the Ninth Circuit reversed in relevant part. Deferring under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to the interpretation set forth in the 2011 regulation, the court held that service advisors are not covered by the §213(b)(10)(A) exemption.

The Ninth Circuit held that section 213(b)(10)(A) must be construed without placing controlling weight on the Department’s 2011 regulation.

According to the court:

When an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and the agency’s interpretation is reasonable. See Chevron, supra, at 842–844. When Congress authorizes an agency to proceed through notice-and-comment rulemaking, that procedure is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chevron should apply. United States v. Mead Corp., 533 U. S. 218, 229–230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U. S., at 227.

One basic procedural requirement of administrative rulemaking is that an agency must give adequate reasons for its decisions. Where the agency has failed to provide even a minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. Agencies are free to change their existing policies, but in explaining its changed position, an agency must be cognizant that longstanding policies may have “engendered serious reliance interests that must be taken into account.” FCC v. Fox Television Sta­tions, Inc., 556 U. S. 502, 515. An “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice,” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981, and an arbitrary and capricious regulation of this sort re­ceives no Chevron deference.

Applying those principles, the Ninth Circuit determined that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reliance interests position that service advisors are exempt from the FLSA’s overtime pay requirements. Employers had negotiated and structured compensation plans against this background understanding. In light of this background, “the Department needed a more reasoned explanation for its decision to depart from its existing enforcement policy.” The Department instead said almost nothing. It did not analyze or explain why the statute should be interpreted to exempt dealership employees who sell vehicles but not dealership employees who sell services. “This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law, and so the regulation does not receive Chevron deference.”

This is not the first time the DOL has changed courses and reinterpreted the law. In this instance, the court found that the DOL’s failure to include a reasoned explanation regarding the change of course was sufficient to render the DOL’s interpretation void.

More Local Paid Sick Leave Ordinances

 

Over the last few years, several cities and counties in California have passed ordinances requiring paid time off or paid sick leave for employees.  California employers are still trying to figure out how to comply with California’s paid sick leave law (aka: Healthy Workplace Healthy Family Act).  Santa Monica, Los Angeles, San Diego, and Long Beach have added their own sick leave ordinances, and San Francisco has amended its sick leave ordinance, making it that much more difficult for employers to comply with the sometimes contradicting requirements.  Below are brief highlights the new/amended local ordinances.

Amended San Francisco Paid Sick Leave

Effective January 1, 2017, San Francisco’s paid sick leave law is amended in an attempt to better align its provisions with California’s paid sick leave law. The amendments provide that San Francisco’s sick leave begins to accrue upon the commencement of employment, but employers may limit usage until after 90 days of employment.  The amendments allow employers to “advance” the sick leave at the beginning of the year instead of permitting employees to accrue the time. This is treated as an advance, temporarily halting accrual until after working the number of hours necessary to have accrued the advanced amount, at which point accrual resumes.  However, unlike the grant method under California’s paid sick leave law, employers  still have to allow employees to carry over unused sick time to the following year.  I suspect this will continue to cause problems for San Francisco employers, and doesn’t really address the accrual versus one-time grant problem.

The amendments also change to the definition of “family members” for whom time may be used, expands the permitted uses to include preventative care and time for purposes related to domestic violence, sexual assault, and stalking suffered by the employee, clarifies how and when sick leave must be paid, requires written notice to employees regarding available balances of paid sick leave, and, like California’s law, requires reinstatement of unused sick leave if an employee is rehired within one year of separation.

San Francisco is usually pretty good about providing FAQ’s about their ordinances, so I suspect the city will publish material to help guide employers in the near future.

Los Angeles Paid Sick Leave

Covered employees: Employees who work two or more hours in a particular week in the City of Los Angeles

Effective date: Businesses must comply with the sick leave requirements starting July 1, 2016

Accrual rate: The ordinance provides that paid sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of paid sick leave for every 30 hours worked

Accrual cap: Employers may implement an accrual cap of 72 hours of accrued paid sick leave.  Accrued time must be carried over from year to year

Usage cap: Employees must be permitted to use up to 48 hours of accrued sick leave each year

One-Time Grant: Instead of permitting employees to accrue paid sick leave, employers may grant the full amount of leave at the beginning of each year, and if they do so, the time need not carry over from year to year

Usage: Employers may prohibit employees from using any accrued paid sick leave until after the first 90 days of employment

Leave to care for others: In addition to the persons identified in the California sick leave law for whose care employees can use sick leave, the ordinance permits employees to use sick leave to care “for any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”

Santa Monica Paid Sick Leave

Covered employees: Employees who work two or more hours in a particular week in Santa Monica

Effective date: Businesses must comply with the sick leave requirements starting January 1, 2017

Accrual rate: The ordinance provides that paid sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of paid sick leave for every 30 hours worked

Accrual cap: Employers with 26 or more employees shall provide at least 40 hours of paid sick leave as of January 1, 2017 (note, however, that the California law requires employees be permitted to accrue up to 48 hours) and at least 72 hours of paid sick leave as of January 1, 2018

Employers with 25 or fewer employees shall provide at least 32 hours of accrued paid sick leave as of January 1, 2017 and at least 40 hours of accrued paid sick leave as of January 1, 2018 (remember: California law requires employees be permitted to accrue up to 48 hours)

Accrued time must be carried over from year to year

Usage cap: Unlike the California sick leave law, the ordinance does not permit a usage cap

One-Time Grant: Instead of permitting employees to accrue paid sick leave, employers may grant the full amount of leave at the beginning of each year, and if they do so, the time need not carry over from year to year

Usage: Employers may prohibit employees from using any accrued paid sick leave until after the first 90 days of employment

San Diego Paid Sick Leave

Covered employees: Employees who, in one or more calendar weeks of the year, performs at least two hours of work in the City of San Diego

Effective date: The voters of San Diego approved the paid sick leave ordinance on June 7, 2016.  Under San Diego election laws, the law will take effect on the date the City Council adopts a resolution declaring the result of the election.  It is assumed this will occur sometime in July

Accrual rate: The ordinance provides that earned sick leave begins to accrue at the commencement of employment, and the employee shall accrue one hour of earned sick leave for every 30 hours worked within the geographic boundaries of the City of San Diego

Accrual cap: Employers may not implement an accrual cap; employees must be permitted to continue to accrue earned sick leave.  Accrued time must be carried over from year to year

Usage cap: Employers may limit usage of earned sick leave to 40 hours per year

One-Time Grant: The law does not expressly provide for a grant of earned sick leave

Usage: Employers may prohibit employees from using any accrued earned sick leave until after the first 90 days of employment

So far, Oakland and Emeryville have not changed their paid sick leave ordinances. None of the local ordinances require employers to pay out unused paid sick leave upon termination. However, if an employer allows employees to use paid sick leave for purposes other than sick leave, the employer could turn the paid sick leave into a paid time off policy which would have to be paid out at the end of the employment.

California employers with employees working in any of the cities above should review their paid sick leave f policies to evaluate whether they comply with both the state and municipal sick leave ordinances.  Businesses with employees in multiple cities should either adopt a different policy for employees in certain cities or create a single policy complies with whichever municipality is the strictest.

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.