Is My Electronic Signature Binding?

Is My Electronic Signature Binding?

Agreements may not be denied legal effect because they are in electronic form or have an electronic signature. California’s Uniform Electronic Transactions Act states,

[a]n electronic record or electronic signature is attributable to a person if it was the act of the person. The act of the person may be shown in any manner, including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.

Many companies require new employees to sign key documents and policies electronically. Former employees challenge these signatures as inauthentic—particularly when trying to avoid arbitration agreements. Employees claim they either never signed the documents or cannot remember signing the document. Judges take these challenges seriously and hold employers to high standards to properly authenticate the employee signatures.

For “wet” signatures, it is usually fairly routine to authenticate a document. You show the employee the signature and confirm it is their signature. Or, the employee confirms a signature on one document with a sufficiently similar signature. Or, someone testifies they witnessed the signature.

How do you Authenticate an Electronic Signature?

Although the CUETA does not require heightened scrutiny of electronic signatures, many courts sometimes apply a seemingly heightened standard. In Ruiz v. Moss Brothers Auto Group, the trial court refused to enforce an electronically signed arbitration agreement based on authenticity questions. The employee claimed he did not sign the agreement, and would never have signed the agreement. The employer submitted a declaration claiming each employee logged into the HR system with a unique username and password to review and sign the agreement. The court said this was insufficient evidence to authenticate the signature.

The court noted the declaration did not explain that the electronic signature could only have been placed on the agreement by a person using the employee’s unique username and password. The declaration did not explain that the date and time printed next to the electronic signature indicated the date and time when the electronic signature was made. The employer did not explain that all employees were required to use their unique usernames and passwords when they logged into the HR system and signed electronic forms and agreements.

In a more recent decision, Espejo v. Southern California Permanente Medical Group, the court clarified what an employer must show to authenticate an electronic signature. Contrasting Ruiz, the court noted the employer offered “the critical factual connection that the declarations in Ruiz lacked.” The court pointed out the employer’s declaration detailed:

  • The electronic review and signature process for employee agreements,
  • The security precautions regarding transmission and use of an applicant’s unique user name and password, and
  • The steps an applicant would have to take to place his or her name on the signature line of the agreement.

The court determined the employer had a sufficient process in place to enable the systems consultant to properly authenticate the signature.

Electronic Signature Best Practices

If you are going to use electronic signatures, make sure your IT department can authenticate the signature. Can IT to determine when and from what IP address the document the employee signed the document?

You must be able to confirm no one but the employee could have signed the document, and that the employee in fact signed the document. Employees should have unique usernames and passwords to access the documents, and should create their own employee-created password before signing documents.

The company’s e-signature policies must comply with the CUETA and the federal E-SIGN Act.

If you are going to require electronic signatures, inform employees they need to review every document. Allow the employees to print the documents and provide sufficient time for review and execution.

Electronic signatures may be the wave of the future, but if done improperly, the employer may not get a second byte of the apple.

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. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The 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.

Compensable Commute Time Crash

It’s commute time. You’re traveling to work, listening to the radio. You’re clocking about 25 miles an hour on the freeway when you accidentally bump the car in front of you. No one’s hurt, but you know this will impact your insurance rates. Did you also know your employer could be responsible for your commute time? Sometimes, employers are responsible for paying the employee for the commute time, and for accidents while driving to/from work.

Must My Employer Pay for My Commute Time?

Usually, the answer is no. Recent court decisions, however, are creating several exceptions to the general rule. Employers must pay employees for time traveling to work-related functions. Employers must pay employees for all “hours worked.” This includes any time the employee is suffered or permitted to work. It also includes time the employee is subject to the employers control. Traditionally, traveling to and from work is not considered part of the job. In 1947, the Department of Labor adopted the Portal-to-Portal Act, which modified the federal laws regulating minimum wage and overtime.

The Portal-to-Portal Act (secs. 1–13, 61 Stat. 84–89, 29 U.S.C. 251–262) eliminates from working time certain travel and walking time and other similar “preliminary” and “postliminary” activities performed “prior” or “subsequent” to the “workday” that are not made compensable by contract, custom, or practice.

For the most part, California follows similar rules. For example, employers don’t have to pay for commute time when the employer does not control the method and means of transportation. Employees who “commute to work on their own decide when to leave, which route to take to work, and which mode of transportation to use. By commuting on their own, employees may choose and may be able to run errands before work and to leave from work early for personal appointments.” Therefore, the commute time is not compensable.

When an employee must report to the employer’s business office before going to the actual worksite, the employee is “subject to the control of the employer” from the moment of reporting to the office until the employee is released to proceed directly to his or her home.  Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575.

Is My Employer Responsible for an Accident During Commute Time?

If you asked this question 10 years ago, I would have said no. However, in 2013, a court said that an employees was “acting within the scope of employment” when she got into an accident while running personal errands on her commute home because an employee was required to use her car for work (Moradi v. Marsh USA, Inc., 219 Cal. App. 4th 886). Moradi worked for an insurance broker. She had to drive her personal vehicle to work so she could do work errands throughout the day. Because the employer required her to have her vehicle at work, the employer could be responsible for accidents while driving to/from work.

In 2017, another court followed the same logic.(Sumrall v. Modern Alloys, Inc.). In Summrall,

a construction company paid its employee only for the hours he worked at a jobsite. But rather than driving his vehicle directly from his home to the jobsite, the company expected the employee to first commute to the company’s “yard.” The employee would then drive a company truck from the yard to the jobsite, transporting coworkers and materials. One day, while driving from his home to the yard, the employee collided with a motorcyclist, who sued the construction company.

If the employee’s “worksite” was the “yard,” then the employee was commuting on his own time, in his own vehicle, and therefore the employer would not be liable. However, if the employee’s “worksite” was the actual jobsite, then traveling to the yard to pick up supplies and workers was a part of the employee’s job responsibilities, and the employer could be liable for accidents occurring on the way to the yard.

Neither Moradi nor Sumrall addressed whether the employee had to be paid for the commute time. Whether the time is compensable is a slightly different analysis from whether the employer can be responsible for an accident occurring during the commute. Employers, however, need to be aware of both issues when creating policies and practices for employees driving to/from work, and to/from job sites.

Travel and Commute Time Policies

If you have questions about whether your commute time is compensable, or if you would like to discuss your travel time policies, contact the Nuddleman Law Firm, P.C. and speak with a knowledgeable 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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.

Background Check Problems

Overly Broad Background Check Authorization

Sarmad Syed wanted to work for M-I, LLC. Like many employers, M-I conducts background checks of its prospective employees. Following standard operating procedures, M-I had Syed sign a Disclosure Release. The release allowed M-I to conduct a background check under the Fair Credit Reporting Act. It also contained release of liability regarding M-I using or disseminating the information obtained.

The liability waiver at the heart of the present dispute reads as follows:

I understand the information obtained will be used as one basis for employment or denial of employment. I hereby discharge, release and indemnify prospective employer, PreCheck, Inc., their agents, servants and employees, and all parties that rely on this release and/or the information obtained with this release from any and all liability and claims arising by reason of the use of this release and dissemination of information that is false and untrue if obtained by a third party without verification.

It’s not clear whether M-I hired Syed, but Syed sued M-I claiming including a liability waiver violated the FCRA’s requirement that the disclosure document consist “solely” of the disclosure. 15 U.S.C. § 1681b(b)(2)(A)(i)  Syed sought statutory and punitive damages, attorney’s fees and costs. Syed did not seek actual damages, which would have required proof of actual harm.

Background Checks under the FCRA

The Ninth Circuit looked whether “a prospective employer may satisfy the Fair Credit Reporting Act’s (“FCRA”) disclosure requirements by providing a job applicant with a disclosure that “a consumer report may be obtained for employment purposes” which simultaneously serves as a liability waiver for the prospective employer and others.”

The court found that a prospective employer violates Section 1681b(b)(2)(A) when the background check disclosure document includes a liability waiver. The court concluded that the disclosure document must consist “solely” of the disclosure, and a prospective employer’s violation of the FCRA is “willful” when the employer includes terms in addition to the disclosure.  Section 1681b(b)(2)(A) unambiguously requires a document that “consists solely of the disclosure.” The statute does not implicitly authorize the inclusion of a liability waiver in a disclosure document. The statute’s explicit language does not allow a liability waiver.

In California, employers cannot obtain credit reports on prospective employees except in certain limited situations. Employers that can obtain credit reports need to follow the disclosure requirements.

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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

Cal Chamber Updates Employee Handbook Creator

California Chamber of Commerce Employee Handbook Creator

Employers looking to create an inexpensive employee handbook oftentimes use the California Chamber of Commerce’s Employee Handbook Creator. It is a good resource for obtaining up-to-date, compliant policies. Although not customized solely for your company, it contains the policies you need. It also tells you why the policies are in place.  The Employee Handbook Creator asks a series of questions, and includes policies appropriate for the number of employees.  It also identifies required policies versus recommended policies. The software now asks questions about where your employees work, so you can comply with local ordinances. For around $250, it’s an affordable and reasonable solution for smaller employers.

The Chamber recently updated its standard policies to include city- and county-specific policies regarding paid sick leave and minimum wage laws. With the ever-growing number of local ordinances imposing new obligations on employers, the policies are very helpful.

The Chamber also has a chart of local minimum wage laws and paid sick leave ordinances. The chart identifies whether there are specific posting requirements, which employers must comply with the local laws, and links to the ordinances and FAQs. This is a very helpful resource, and I’ve just bookmarked it.

In conjunction with Fox Rothschild, LLP, the Chamber also published a comparison of California State and local paid sick leave laws. You guessed it, I’ve bookmarked this one as well.

The California Chamber of Commerce has not paid me to provide this information. After creating, reviewing and revising scores of handbooks over the years, I’m just a fan of low-cost ways to help employers comply with the law.

Have Your Employee Handbook Reviewed by an Expert

Using the Chamber’s Employee Handbook Creator is not an excuse to avoid having an knowledgable professional review the handbook. The Chamber uses some language in its policies that I like to change, and the resulting handbook won’t necessarily express the culture of your business. Additionally, as good as it is, I’m always reluctant to rely entirely on a computer-generated document. I like to read and edit the employee handbook to make sure it actually fits the employment. The Chamber handbook is a lot better than copying the handbook from your competitor or your last employer, but I still recommend having it reviewed by counsel or knowledgeable HR professional before implementation.

Most employers should update their handbook every one to two years. Sometimes changes in the will require more frequent updates. For example, in the middle of last year the Fair Employment and Housing Commission implemented updated regulations requiring all employers to have a written sexual harassment prevention policy in place and distributed to all employees. I wrote about some of the new requirements here.

If you have a question about your employee handbook, contact the Nuddleman Law Firm, P.C.

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.

Vacation, Sick Leave and PTO. Oh My!

With the different paid sick leave laws adopted by different cities and counties, not to mention California’s Healthy Families Healthy Workplaces Act, employers and employer are confused. Some employers combined their vacation and sick leave into PTO. Others  separated PTO into vacation and sick leave. Given the number of calls I receive from employers and employees regarding the difference between PTO, Sick Leave and Vacation, I thought a quick refresher would help.

Sick Leave

Sick leave is for sickness, illnesses and injuries.  California law requires employers to allow employees to use up to one-half of the employee’s annual sick leave to care for family members.  The Healthy Families Healthy Workplaces Act also allows employees to use paid sick time for certain domestic violence related purposes.

Vacation

Vacation, on the other hand, is for any purpose. You can use vacation for a day in the sun, to go on a trip, or just lounge around the house.  You can, of course, also use vacation pay for illnesses. Employees typically plan vacations. Employees only sometimes plan sick leave. Employers must provide paid sick leave, but not vacation.

PTO

Paid Time Off (PTO) is a hybrid of sick leave and vacation. You can use PTO for anything you want, including sicknesses and illnesses.  Vacation and PTO are essentially the same.  You can use PTO to satisfy the paid sick leave requirement so long as the PTO offers the same or better benefits than the sick leave laws.  Some employers don’t want to track vacation separately from sick leave and so they lump them together as PTO. If an employer lumps sick leave and vacation together as PTO, the employer must treat PTO as vacation.

So, what’s the real difference? Vacation is a wage. Once an employee accrues that wage, the employer must pay it out. If the employee still has accrued vacation when the employment relationship ends, the employer must pay out the vacation at the employee’s current rate of pay. Sick leave, on the other hand, is not a wage. An employee is not entitled to use paid sick time unless the employee “meets the condition precedent” of being sick. That’s a fancy way of saying if you’re not sick (or have some other qualifying reason for taking sick leave), you’re not entitled to sick pay.

Having a bona fide sick leave policy allows employers, under certain circumstances, to reduce an otherwise exempt employee’s salary if the employee has exhausted his/her available sick time and takes additional time off for sickness or illness.  I’ve addressed this issue a number of times in prior articles.  Since PTO can be used for illnesses and sicknesses, it is a bona fide sick leave policy allowing the reduction mentioned above.

Employers should be careful whenever they reduce an exempt employee’s salary or they could find themselves losing the exemption entirely. Keep in mind: paying  a salary does not mean the employee is exempt from overtime. But that’s a topic for another discussion.

If you have questions about paid sick time requirements, vacation policies or PTO plans, contact a knowledgeable attorney and get the right answers.

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. We cannot answer questions about specific situations or provide legal advice over the Internet. 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. Do not post confidential or time-sensitive information in this blog. The 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.

Is Your Workforce a Suicide Squad?

Ok. I admit it. I’m a fan of super-hero movies. When I found out DC’s Suicide Squad was opening on my daughter’s birthday it was a no brainer. So I loaded the family into the mini-van and took them to see it opening day. The basic plot consists of a team of dangerous, incarcerated super villains “recruited” for a top-secret mission.

Amanda Waller, the U.S. intelligence officer who assembles the team, specializes in getting people to do what she wants. She has one character’s heart locked in a box. She motivates another character by promising he can spend time with his family. The idea is that each member of the team has separate motivations. Waller uses–OK, exploits–those motivations toward a common goal.

Suicide Squad in Your Workplace?

As a movie, Suicide Squad did not disappoint. As an employment attorney, it got me thinking. I’m not suggesting employers run out and hire dangerous super villains. If we put aside Waller’s I-don’t-care-who-gets-killed mentality, and the hundreds of zombie-like bad guys put down by rapid machine-gun fire, there may be a few lessons for life and the workplace.

  1. A properly motivated team can overcome extreme obstacles.
  2. You can’t properly motivate someone unless you know what makes them tick.
  3. Although others can motivate us, we work better when we motivate ourselves.
  4. Working as a team is almost always better than working alone (except when it’s not).
  5. When management warns you of the consequences should you fail to follow directions, you’d better follow directions (Alas, poor Slipknot, we knew thee little).
  6. Failure is always an option, but we probably won’t like the results.
  7. A carrot is usually a better motivator than a stick.

Workplace Fairness

I frequently advise employee clients that employers are not required to treat employees fairly. I also advise my employer clients that treating employees fairly is the best way to avoid problems (including legal problems) in the workplace. Consider your work environment.  Whether you’re an employee or an employer, are you motivating your colleagues and yourself toward success? Are you treating others the way you want to be treated? Do you have a killer crocodile living in your sewer? If you answered yes to at least two of those questions, you probably have a stable workforce that is building toward success. If not, then think about what you can change to improve your workplace

I’m hoping to see Jason Bourne soon.  We’ll just have to wait and see if I can any more bright ideas about the workplace.

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.

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.

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.

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.