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Expensive Disability Accommodation Lesson

Caltrans in Nevada County learned the hard way that you cannot ignore an employee disability accommodation requests. More importantly, you can’t retaliate against an employee for requesting an accommodation. An article in the Sacramento Bee provides many of the details. I’ve written several articles regarding the importance of proper accommodation policies and procedures in the workplace.

Employee Awarded $3million in Disability Accommodation Lawsuit

John Barrie claimed his supervisors harassed him and ignored his requests for accommodations related to his allergies. Mr. Barrie has severe reactions to certain smells, such as chemical cleaners and perfumes. Although Nevada County Caltrans accommodated Mr. Barrie for years, Barrie alleged supervisors started harassing him and denying the disability accommodations in 2010. Barrie allegedly sought help internally through various channels, but the harassment continued. The jury believed Mr. Barrie, and awarded him $3million for the retaliation and harassment related to his allergies.

Allergies Can Constitute a Disability

State and federal laws broadly define “disability.” In short, a disability is any medical condition–psychological or physiological–that impairs one or more major life functions. Severe allergies can impair major life functions such as breathing. Some people experience severe skin rashes, headaches, nausea and vertigo from allergic reactions.

Disability discrimination laws require employers to provide reasonable accommodations for persons with disabilities. Failing to provide reasonable accommodations, and in some instances failing to engage in the interactive process of determining what disability accommodations are appropriate, is a violation of the law.

From the pleadings, it appears Caltrans HR department tried to accommodate Mr. Barrie. A regional administrator affirmed his allergies in 2011, and wrote an order compelling workplace accommodations. Barrie alleged his supervisors ignored the order, and retaliated against Barrie by giving him job duties outside his normal scope and moving him to less convenient job sites.

Every Disability Accommodation Request is Serious

Supervisors oftentimes fail to recognize they must treat every disability accommodation request seriously. While HR may know the requirements, ensuring supervisors comply with the law can be difficult. In Barrie’s case, an HR note revealed that Barrie’s supervisors wanted to discipline Barrie for going to HR because he went outside the “chain of command.” I suspect this factored heavily in the juries $3million award. Employers cannot retaliate against employees for requesting accommodations or raising complaints in the workplace.

If you require a workplace accommodation, or if your employee requests an accommodation, talk with an attorney familiar with disability accommodation and discrimination issues.

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.

IMDb Halts Age Discrimination Law

New Age Discrimination Law in the Entertainment Industry

In 2016, the California legislatures passed AB 1687, “to ensure that information obtained on an Internet Web site regarding an individual’s age will not be used in furtherance of employment or age discrimination.”  The statute prevents IMDb from publishing factual information (information about the ages of people in the entertainment industry) on its website for public consumption. Although Governor Brown signed the new age discrimination law, IMDb sued the government, arguing the statute violated its first amendment rights.

Injunction Prohibiting Enforcement of Age Discrimination Law

On February 22, 2017, U.S. District Court Judge Vince Chhabria issued an injunction prohibiting the government from enforcing the statute. According to Judge Chhabria’s order, “it’s difficult to imagine how AB 1687 could not violate the First Amendment.” Although the government established a valid “goal” of limiting age discrimination, the government failed to show that the restriction is “actually necessary” to serve a compelling government interest. The government “presented nothing to suggest that AB 1687 would actually combat age discrimination (much less that it’s necessary to combat age discrimination).” The court held “there is an exceedingly strong likelihood that IMDb will prevail in this lawsuit.”

So, for the time being, IMDb can continue to publish the ages of actors. I guess Hollywood will have to find another way to combat age discrimination in the entertainment industry. The judge’s order, although not the conclusion of the litigation, is a definite preview of how the court views this new age discrimination law.

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.

 

Marlon Wayans Accused of Discrimination

Discrimination in the Movies

In a recent case before the 9th Circuit Court of Appeals, an actor working as an extra in a Marlon Wayans movie (A Haunted House 2) claims he was the victim of racial discrimination and harassment. According to Pierre Daniel, the alleged victim, during his one day of work on the movie he was compared to a Black cartoon character and called “ ‘[n]igga.’ ” Wayans filed an anti-SLAPP motion claiming Daniel’s claims arose from Wayans’s constitutional right of free speech. Wayans argued the comments were protected. He claimed the “core injury-producing conduct” arose out of the creation of the movie and its promotion over the Internet.  The trial court agreed with Wayans finding Daniel failed to establish the probability of prevailing on any of his claims.  The trial court entered judgment for Wayans, awarding him attorney fees.

On appeal, Daniel argued that the conduct at issue was not part of the “ ‘creative process’ ” inherent in making the movie because it occurred when the cameras were not rolling. Daniel claimed the comments did not involve the right of free speech or an issue of public interest.  Daniel also argued that even if the statements implicated Wayans’s right to free speech, Daniels established a probability of prevailing.  The 9th Circuit rejected Daniels argument and  affirmed judgment for Wayans.

Marlon Wayans (Wayans) co-wrote, produced, and starred in the movie, which came out in 2014.

Discrimination and Harassment in the Entertainment Industry

This is not the first time the entertainment industry avoided discrimination and harassment claims based on the “creative process.” In 2006, the California Supreme Court threw out a sexual harassment lawsuit against the makers of the hit comedy “Friends”, ruling that vulgar and coarse comments by the show’s writers reflected the “creative workplace” for a comedy with sexual themes.

Employers should not see these decisions as free license to allow racists or sexually inappropriate comments in the workplace. Employers have an obligation to provide a workplace free of sexually or racially inappropriate comments. These “entertainment” cases are outliers resulting from the unique circumstances in the studios. If the same comments were made on a factory floor or a typical office environment, I suspect the court would have gone the other way.

I will use this case in the sexual harassment prevention trainings to emphasize the importance of maintaining an appropriate work environment. The alleged comments occurred in 2013. Four years later Wayans and the other defendants were still defending the case. You can expect they spent hundreds of thousands of dollars to achieve a favorable result. Although the court ordered Daniels to pay Wayans’s attorneys fees, what are the chances that the movie extra has the ability to pay those fees?

If you have a question about inappropriate workplace conduct, contact the Nuddleman Law Firm, P.C. We help employers and employees in a wide range of employment disputes, including race and gender discrimination claims.

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

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. 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.

Fair Pay Act Investigations

California recently enacted new standards to combat discriminatory pay practices. California’s Fair Pay Act prohibits paying any employee less than the amount paid to employees of the opposite sex, race or ethnicity for doing “substantially similar work.” Employers have the burden of demonstrating that pay differential are based entirely and reasonably upon:

  • Seniority system, merit system, or system that measures earning by quantity or quality of production; or
  • Bona fide factor that is not based on or derived from sex-based differential compensation and that is job-related and consistent with business necessity.

Fair Pay Act Presentation

I recently attended a great presentation sponsored by the Alameda County Bar Association where Hillary Benham-Baker, Jamie Rudman and Carolyn Rashby did an excellent job describing the interplay between the various state and federal statutes, regulations and orders regarding equal pay. Jamie described a speaking engagement where Julie Su, California’s Labor Commissioner, discussed enforcing California’s Fair Pay Act. The Labor Commissioner discussed what questions Deputy Labor Commissioners would typically ask during Fair Pay Act investigations to determine what constitutes “substantially similar work.” I asked Jamie’s permission to share the information, as they represent excellent questions employers should ask themselves when evaluating whether they are complying with the law.

Fair Pay Act Questions To Determine What Constitutes “Substantially Similar Work”

·         What are the actual tasks performed for each job?  What percentage of time is spent on each?

·         What experience, training and education are required for each job?

·         What knowledge is required to perform each job?

·         What kinds and amounts of physical and/or mental effort are required for each job?  Is one job more physical difficult or stressful?

·          What programs, equipment, tools or products are required for each job? What training is needed to use the programs, equipment, tools or products?

·         What is the working environment?  Does one job involve an exposure to hazards or damages?

·         Does one job require supervision of other employees?

·         What is the difference in terms of the job obligations, levels of authority and/or degrees of accountability?

·         What are the programs, equipment, tools or products used for each job?

·         What kinds and amounts of physical and/or mental effort required for each job?

Employers need to understand what constitutes substantially similar work so they can properly evaluate whether or why employees should be paid the same. Pay disparities must be justified by legitimate business reasons.

If you have questions about equal pay, fair pay or any other employment-related issues, contact me at your convenience.

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.

I Have a Dream by Martin Luther King, Jr.

As we remember the life and assassination of a great leader, I thought it poignant to recall Martin Luther King, Jr.’s famous “I Have a Dream” speech, delivered August 28, 1963, at the Lincoln Memorial in Washington D.C. His words are an inspiration, and a reminder that although we’ve made great progress toward equality, we are not done.

If you’ve never read the speech in its entirety, or if it’s been a while since you’ve heard the recording, take a few moments. Read it to your children or your grandchildren. Better yet, listen to King deliver the speech. Discuss with your family and friends whether we have lived up to the the dream.  The speech begins by echoing the words Abraham Lincoln recited 100 years earlier. Consider how much progress we’ve made in the more than half a century since King spoke these inspiring words.

Martin Luther King, Jr.’s “I Have a Dream” Speech:

Reprinted from http://www.americanrhetoric.com/speeches/mlkihaveadream.htm

I am happy to join with you today in what will go down in history as the greatest demonstration for freedom in the history of our nation.

Five score years ago, a great American, in whose symbolic shadow we stand today, signed the Emancipation Proclamation. This momentous decree came as a great beacon light of hope to millions of Negro slaves who had been seared in the flames of withering injustice. It came as a joyous daybreak to end the long night of their captivity.

But one hundred years later, the Negro still is not free. One hundred years later, the life of the Negro is still sadly crippled by the manacles of segregation and the chains of discrimination. One hundred years later, the Negro lives on a lonely island of poverty in the midst of a vast ocean of material prosperity. One hundred years later, the Negro is still languished in the corners of American society and finds himself an exile in his own land. And so we’ve come here today to dramatize a shameful condition.

In a sense we’ve come to our nation’s capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the “unalienable Rights” of “Life, Liberty and the pursuit of Happiness.” It is obvious today that America has defaulted on this promissory note, insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.”

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we’ve come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice.

We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God’s children.

It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro’s legitimate discontent will not pass until there is an invigorating autumn of freedom and equality. Nineteen sixty-three is not an end, but a beginning. And those who hope that the Negro needed to blow off steam and will now be content will have a rude awakening if the nation returns to business as usual. And there will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

But there is something that I must say to my people, who stand on the warm threshold which leads into the palace of justice: In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred. We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again, we must rise to the majestic heights of meeting physical force with soul force.

The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. And they have come to realize that their freedom is inextricably bound to our freedom.

We cannot walk alone.

And as we walk, we must make the pledge that we shall always march ahead.

We cannot turn back.

There are those who are asking the devotees of civil rights, “When will you be satisfied?” We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality. We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities. *We cannot be satisfied as long as the negro’s basic mobility is from a smaller ghetto to a larger one. We can never be satisfied as long as our children are stripped of their self-hood and robbed of their dignity by signs stating: “For Whites Only.”* We cannot be satisfied as long as a Negro in Mississippi cannot vote and a Negro in New York believes he has nothing for which to vote. No, no, we are not satisfied, and we will not be satisfied until “justice rolls down like waters, and righteousness like a mighty stream.”

I am not unmindful that some of you have come here out of great trials and tribulations. Some of you have come fresh from narrow jail cells. And some of you have come from areas where your quest — quest for freedom left you battered by the storms of persecution and staggered by the winds of police brutality. You have been the veterans of creative suffering. Continue to work with the faith that unearned suffering is redemptive. Go back to Mississippi, go back to Alabama, go back to South Carolina, go back to Georgia, go back to Louisiana, go back to the slums and ghettos of our northern cities, knowing that somehow this situation can and will be changed.

Let us not wallow in the valley of despair, I say to you today, my friends.

And so even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

This is our hope, and this is the faith that I go back to the South with.

With this faith, we will be able to hew out of the mountain of despair a stone of hope. With this faith, we will be able to transform the jangling discords of our nation into a beautiful symphony of brotherhood. With this faith, we will be able to work together, to pray together, to struggle together, to go to jail together, to stand up for freedom together, knowing that we will be free one day.

And this will be the day — this will be the day when all of God’s children will be able to sing with new meaning:

My country ’tis of thee, sweet land of liberty, of thee I sing.

Land where my fathers died, land of the Pilgrim’s pride,

From every mountainside, let freedom ring!

And if America is to be a great nation, this must become true.

And so let freedom ring from the prodigious hilltops of New Hampshire.

Let freedom ring from the mighty mountains of New York.

Let freedom ring from the heightening Alleghenies of Pennsylvania.

Let freedom ring from the snow-capped Rockies of Colorado.

Let freedom ring from the curvaceous slopes of California.

But not only that:

Let freedom ring from Stone Mountain of Georgia.

Let freedom ring from Lookout Mountain of Tennessee.

Let freedom ring from every hill and molehill of Mississippi.

From every mountainside, let freedom ring.

And when this happens, and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and Gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual:

Free at last! Free at last!

Thank God Almighty, we are free at last!

Provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

The Nuddleman Law Firm protects the workplace. Our experienced and knowledgeable attorneys bring the highest level of advocacy to attain the results our clients deserve. We represent employers and employees, giving us an advantage over firms that only focus on one side or the other. Our experienced Northern California attorneys handle workplace discrimination, sexual harassment, wrongful termination, unpaid wages, disability discrimination, retaliation and other employment disputes. We represent clients throughout Oakland, Berkeley, Pleasanton, Concord, San Jose, Alameda County, Contra Costa County, Santa Clara County and the Silicon Valley in California.

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. Using the Internet or this blog for communication 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.

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 Labor Law Posters for San Francisco

Every year, federal and state employment laws alter the landscape for employers. More recently, cities and counties have entered the mix with their own rules and regulations. Companies doing business in San Francisco are likely familiar with the ever-changing rules and posters.  Effective July 1, 2016, there are some new labor law posters for San Francisco companies that must be displayed in the workplace.  Which posters you have to display depends on how many employees you have working in San Francisco.

San Francisco Labor Law Posters

You can obtain nice laminated posters from various sources, but you have to be sure the posters are up to date and appropriate for your location and the size of your company. Alternatively, you can hunt around the Internet to find the new labor law posters. In order to make it easy for you, I’m including links to the new labor law posters for San Francisco in this article with a brief description of when you need the poster.  The links and posters are accurate as of July 1, 2016, but as I’ve said before, the laws keep changing so it is always a good idea to check with an employment law specialist.

San Francisco Minimum Wage Notice with New $13.00 per hour Minimum wage

On July 1, 2016, pursuant to Proposition J, which passed in 2014 with more than 76% of the vote, San Francisco’s minimum wage increases to $13.00.  All employers, regardless of where they are located, must pay their employees who perform work in San Francisco the San Francisco minimum wage.

The current SF Minimum Wage Notice can be downloaded here.

San Francisco has a helpful FAQ about the SF Minimum Wage requirements.

San Francisco Health Care Security Ordinance (HCSO) Notice with Rate Increases for 2016

Businesses with 20 or more employees (and nonprofit organizations with 50 or more employees) must spend a minimum amount on health care benefits for each of their “covered employees” – generally, those employees who work 8 or more hours per week in San Francisco and have been employed for more than 90 days. Employers with 20-99 employees must spend at least $1.68 for each hour payable for each covered employee. Employers with 100+ employees must spend at least $2.53 for each hour payable for each covered employee. These expenditures must be made for each employee within 30 days following the end of each calendar quarter.

The current SF HCSO can be downloaded here.

You can find more information regarding the SF HCSO, including reporting requirements, here.

San Francisco Family Friendly Workplace Notice

The San Francisco Board of Supervisors passed the Family Friendly Workplace Ordinance (FFWO) on October 8, 2013 and it became effective on January 1, 2014. This ordinance gives certain employees the right to request a flexible work arrangement and gives the employer the right to refuse for legitimate business reasons.

The FFWO requires that employers with 20 or more employees allow any employee who is employed in San Francisco, has been employed for six months or more by the current employer, and works at least eight hours per week on a regular basis to request a flexible or predictable working arrangement to assist with caregiving responsibilities. The employee may request the flexible or predictable working arrangement to assist with care for:

  1. a child or children under the age of eighteen;
  2. a person or persons with a serious health condition in a family relationship with the employee;  or
  3. a parent (age 65 or older) of the employee.

The official notice can be downloaded here.

The SF Office of Labor Standards Enforcement has a helpful FAQ regarding the FFWO.

San Francisco Paid Sick Leave Notice

The San Francisco Paid Sick Leave Ordinance became effective on February 5, 2007.  All employers must provide paid sick leave to each employee (including temporary and part-time employees) who performs work in San Francisco. Although statewide Paid Sick Leave Requirements went into effect on July 1, 2015, employers with employees performing work in San Francisco are required to comply with both laws. Unfortunately, compliance with the statewide Paid Sick Leave Requirements does not guarantee compliance with San Francisco Paid Sick Leave Ordinance.

The official poster that must be posted in the workplace can be downloaded here.

There is a helpful FAQ regarding the SF Paid Sick Leave Ordinance compared to the California paid sick leave requirements.

Knowing which labor law posters to post and when to get updates is not always easy. Hopefully this article will help companies comply with the posting requirements for the various labor law posters in San Francisco.

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.

State Bar’s Guide to Kids and the Law

Every year the California State Bar publishes several  guides regarding different areas of the law.  The State Bar recently published it’s annual “Kids and the Law Guide.”  The guide has several useful topics such as:

  • The Age of Majority
  • Alcohol and Kids
  • Bikes, Skateboards and Scooters
  • Cars, Kids and Traffic Laws
  • Child Abuse and Neglect
  • Civil Laws and Lawsuits
  • Criminal Law and Crimes
  • Curfew Laws
  • Drugs and Kids
  • Emancipation
  • Fighting
  • Hate Crimes and Hate Speech
  • The Internet, Cell Phones and Computers
  • Parents’ Rights and Responsibilities
  • Privacy and Kids
  • Schools and School Rules
  • Work, Work Permits and Taxes

State Bar’s Kids and the Law Guide

I started reviewing the annual guide regarding Kids and the Law when I taught a high school class as part of a law school course I took at Santa Clara University School of Law.  The guide was very helpful in identifying topics for discussion with my students.  Now that I have kids of my own, the guide reminds me how important it is for my children to understand their rights and responsibilities.  I have not represented a significant number of minors in the workforce, and most of my employer clients do not employ minors beyond the occasional son or daughter. Reviewing the section on work permits is always a good refresher.  Since I am scoutmaster for my sons’ boy scout troop, I may use different portions of the guide to help educate the scouts.

You can download the Kids and the Law Guide in English or Spanish.  You can also order multiple copies of the guide.

Anyone with children, or who works with children or has responsibility for children should take a look and consider reviewing the information with their family and friends.

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.

Confidentiality Obligations Interfere with Protected Rights

Many employers, particularly those in Silicon Valley, prohibit employees from using or disclosing “confidential information.”  Many employee handbooks have policies limiting employee discussions regarding confidential business information outside the workplace.  Employers typically use very broad definitions of “confidential information,” and, according to the General Counsel for the National Labor Relations Board, the confidentiality obligations may interfere with protected rights.

On March 18, 2015, Richard F. Griffin, Jr., General Counsel for the NLRB issued a report concerning recent employer rule cases.  The report discusses different policies and workplace rules that the NLRB determined violated employee Section 7 rights.  According to the General Counsel, “Under the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the mere maintenance of a work rule may violate Section 8(a)(1) of the Act if the rule has a chilling effect on employees’ Section 7 activity.”

Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives. Thus, according to the General Counsel,

an employer’s confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment— such as wages, hours, or workplace complaints—or that employees would reasonably understand to prohibit such discussions, violates the Act. Similarly, a confidentiality rule that broadly encompasses “employee” or “personnel” information, without further clarification, will reasonably be construed by employees to restrict Section 7-protected communications.

Citing Flamingo-Hilton Laughlin, 330 NLRB 287, 288 n.3, 291-92 (1999).

In contrast, broad prohibitions on disclosing “confidential” information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, employers have a substantial and legitimate interest in maintaining the privacy of certain business information.

Citing Lafayette Park Hotel, 326 NLRB 824, 826 (1998), enforced, 203 F.3d 52 (D.C. Cir. 1999); Super K-Mart, 330 NLRB 263, 263 (1999).

The report covers several areas, but for today’s article I wanted to point out a few of the rules regarding confidentiality discussed by the General Counsel.  You can review the entire report here.

Rules That Interfere with Protected Rights

The General Counsel found the following rules regarding confidentiality would unlawfully interfere with protected rights:

  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
  • “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places.”

Rules That Do Not Interfere with Protected Rights

The General Counsel found the following rules regarding confidentiality would not unlawfully interfere with protected rights:

  • No unauthorized disclosure of “business ‘secrets’ or other confidential information.”
  • “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
  • “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
  • Prohibition on disclosure of all “information acquired in the course of one’s work” when “nested among rules relating to conflicts of interest and compliance with SEC regulations and state and federal laws” such that employees would reasonably understand the information described as encompassing customer credit cards, contracts, and trade secrets, and not Section 7-protected activity.

California employers should also be aware that California’s revised Equal Pay Act now prohibits employers from interfering with employees’ right to discuss their own wages as well as other employee wages.

Employers should carefully review their existing confidentiality agreements and workplace rules to ensure they do not interfere with protected rights.

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.