Disability Accommodations Require Extending Probationary Period

The Rancho Santiago Community College District learned the hard way that disability accommodations required the district to extend an employee’s probationary period. In Hernandez v. Rancho Santiago Community College Dist. an administrative assistant sued her employer for failing to accommodate her disability. Hernandez worked for defendant Rancho Santiago Community College District on and off for a number of years without any complaints about her performance.  During her one-year probationary period, her performance was to be evaluated at three months, seven months, and 11 months.  At the completion of 12 months of probation, she would become a permanent employee.  She took a medical leave of absence after 8 months for surgery related to a disability.  She was to return to work on, or shortly after, the anniversary of her hiring date.  The district terminated her while she was on the approved leave because her performance had not been reviewed.

District Sued for Failing to Provide Disability Accommodations

Hernandez sued the district alleging it failed to provide a disability accommodation for her medical condition. She also claimed the district failed to engage in an interactive process.  The court found in Hernandez’s favor and awarded her $723,746 in damages.  The court concluded the district could have accommodated her by extending her probationary period. If necessary, the district could have deducted the four months she was on disability leave from her probationary period. Alternatively, it could have added the time away from work to the probationary period. The district argued it would have been required to make Hernandez a permanent employee on the anniversary of her hiring regardless of the performance evaluation. The court disagreed.

The appellate court affirmed the lower court’s decision.

Disability Accommodations in the Workplace

Employers must provide reasonable accommodations to persons with disabilities unless to do so would create an undue hardship. Employers and employees must engage in an interactive process to determine what, if any, reasonable accommodations will enable the employee to perform the essential functions of the job. I routinely advise employers on how to correctly process disability accommodation requests. I work with employees to obtain the disability accommodations they need. Many employers misunderstand their obligations, and employees oftentimes don’t know their rights and obligations.

Providing persons with disabilities equal access to employment is a fundamental right protected by state and federal laws. Understanding the rights and obligations of both parties is the most effective way of ensuring persons with disabilities receive the accommodations the law requires.

If you have a question or concern about workplace disability accommodations, contact the Nuddleman Law Firm.

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 on 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.

Dynamex and the Independent Contractor Landscape

A friend and colleague, Alan Foster, asked me to write an article for his newsletter regarding independent contractors under Dynamex. I’ve seen articles, presentations and blog posts about the dramatic shift in the law regarding independent contractor versus employee tests. I have a slightly different take. The following is my take on the independent contractor landscape.

Dynamex and the Independent Contractor

Many legal professionals and business advisors are writing about the California Supreme Court “dealing a blow” to independent contractors. Different articles claim Dymanex Operations West, Inc. v. Superior Courtmakes it more difficult” for employers to classify workers as independent contractors. Many are calling it a “game changer.” But is it really?

Dynamex, a package delivery company, hired delivery drivers to deliver packages. Although Dynamex initially hired the drivers as employees, in 2004 Dynamex changed the drivers to independent contractors. Dynamex believed it provided drivers sufficient freedom it could safely classify the workers as independent contractors. The delivery drivers filed a class action lawsuit seeking unpaid wages and expenses, claiming they were really employees.

The employees claimed that under Martinez v. Combs (2010) 49 Cal.4th 35, Dynamex was the employer. Dynamex argued that Martinez only applied in the joint-employer situation and that the common law test set out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 should apply.

In Martinez, the court adopted a very broad definition of employer based on the IWC orders.

“[t]o employ . . . under the [wage order], has three alternative definitions. It means:

(a) to exercise control over the wages, hours, or working conditions, or

(b) to suffer or permit to work, or

(c) to engage, thereby creating a common law employment relationship.”

Borello and the Independent Contractor

In Borello, decided 21 years before Martinez, the court focused primarily on “whether the person to whom services is rendered has the right to control the manner and means of accomplishing the result desired.” The court also looked at nine other factors:

(1) right to discharge at will, without cause;

(2) whether the one performing the services is engaged in a distinct occupation or business;

(3) the kind of occupation, with reference to whether in the locality the work is usually done under the direction of the principal or by a specialist without supervision;

(4) the skill required in the particular occupation;

(5) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work;

(6) the length of time for which the services are to be performed;

(7) method of payment, whether by the time or by the job;

(8) whether or not the work is part of the regular business of the principal; and

(9) whether or not the parties believe they are creating the relationship of employer-employee.

In a very lengthy (85 pages) opinion, the Dynamex confirmed that Martinez and Borello applied in the independent contractor arena. And the court adopted a new test to determine whether someone was “suffered or permitted” to work. This new test is being called the “ABC test.”

Under the ABC test, a worker is an employee unless the hiring entity establishes:

(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Is This Really a New Test for the Independent Contractor?

Since this is a new test, that means this is a “game changer,” right? Not necessarily. Anyone who has gone through an EDD audit is familiar with the ABC test already. The Employment Development Department has a very useful, although not employer-friendly, test for determining whether someone is an independent contractor. The questions in the DE-38 contain the same factors that make up the ABC test.

Under the DE-38, if the employer answers “yes” to the first three questions, “it is a strong indication that the worker is an employee.” If the employer answers “no” to the next three questions, this “indicates that the individual is not in a business for himself or herself and would, therefore, normally be an employee.” Answering “yes” to the final seven questions on the DE-38 means there is a “greater the likelihood the worker is performing services as an employee.”

So, how does the ABC Test compare to the DE-38? This chart shows the ABC test elements line up directly with the DE-38 test:

ABC Test DE-38
(B) that the worker performs work that is outside the usual course of the hiring entity’s business 3. Is the work being performed part of your regular business?

 

(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity 4. Does the worker have a separately established business?
(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact 5. Is the worker free to make business decisions which affect his or her ability to profit from the work?

One aspect of the ABC test arguably not in the DE-38 is that the hiring entity must establish each of the three factors in the ABC test. The DE-38 uses phrases such as “strong indication” and “normally,” allowing more leeway than the more definitive ABC test.

The ABC test is less a “new” independent contractor test, and more an application of an existing test that many employers ignored. I have been advising my clients against hiring workers as independent contractors unless the workers have their own established business and the workers are performing work not part of the company’s normal business. Dynamex confirms the conservative approach is the right approach, particularly in California.

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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims, and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Labor Commissioner Audits Can Be Expensive

Labor Commissioner audits can be time consuming and expensive. Just ask Kome Japanese Seafood & Buffet, Burma Ruby Burmese Cuisine, and Rangoon Ruby Burmese Cuisine. The restaurants and their owners are facing a hefty bill after their audits.

Expensive Labor Commissioner Audits

California’s Department of Industrial Relations announced the Labor Commissioner cited seven Bay Area restaurants more than $10 million for “wage theft violations.” The restaurants included Kome Japanese Seafood & Buffet, Burma Ruby Burmese Cuisine, and Rangoon Ruby Burmese Cuisine.

The Labor Commissioner’s Office launched the investigation after receiving complaints from workers who reported wage theft to the Asian Law Caucus. The Asian Law Caucus also represented many of the workers who cooperated in the investigation.

The wage theft violations and civil penalties cited in the Labor Commissioner Audits include:

  • Failure to pay minimum wage,
  • Overtime
  • Split shift premiums,
  • Illegal counting of tips received as part of the minimum hourly wage,
  • Waiting time penalties, and
  • Pay stub violations.

Many of the overtime violations resulted from employees paid a salary who worked 50 or more hours each week.

Labor Commissioner Audits Include Individual Corporate Owners

The citations are against the corporations and LLCs as well as the owners and members of the companies. Being incorporated does not prevent personal liability for wage theft claims. Labor Code section 558.1 provides:

Any employer or other person acting on behalf of an employer, who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226, 226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.

Other Labor Code sections also allow the Labor Commissioner to cite individual owners.

David Tai Leung, Wendy Lai Ip, Jun Zheng, Gang Zhou, Bai Dong Zhang and Tiffany Leung, owners of the corporations Kome Japanese Seafood Buffet, Inc. and Koshi Food Service, Inc., are ordered to pay the 133 workers at Kome Buffet $4,381,461 in unpaid wages, premiums and liquidated damages, as well as civil penalties of $780,400.

Max Lee and John Lee, owners of Rangoon Ruby Investment LLC and Burma Ruby Investment LLC, have been ordered to pay their 298 workers $4,394,118 for unpaid wages, premiums, liquidated damages and itemized wage statement violations, and civil penalties of $574,150

The press release did not indicate whether the restaurants will appeal the citations, or how much the Labor Commissioner will actually collect.

I represent employers in Labor Commissioner audits. The audits can be time-consuming and result in serious assessments. Seemingly small mistakes can have serious consequences, and the appeal rights are somewhat limited. Employers receiving notice of an audit should speak with counsel as soon as possible. Properly preparing for an audit can reduce the exposure.

The best way to prevent an audit, or at least make it through an audit unscathed, is to review your policies with a knowledgeable attorney before a problem arises. If you have a question about your wages or employment practices, 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.

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 on 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.

Notice to Employees: The Missing Form

Every employer, at the time of hiring, must provide a notice to most employees regarding certain basic terms of employment. Labor Code 2810.5. The employee must sign the notice, receive a copy of the signed notice, and the original should be maintained in the employee personnel file.

Labor Code 2810.5 Notice to Employees Requirements

The Notice to Employees must contain:

(A) The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.

(B) Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.

(C) The regular payday designated by the employer in accordance with the requirements of this code.

(D) The name of the employer, including any “doing business as” names used by the employer.

(E) The physical address of the employer’s main office or principal place of business, and a mailing address, if different.

(F) The telephone number of the employer.

(G) The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.

(H) That an employee: may accrue and use sick leave; has a right to request and use accrued paid sick leave; may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave, and has the right to file a complaint against an employer who retaliates.

(I) Any other information the Labor Commissioner deems material and necessary.

The Labor Commissioner developed a form employers can use for this purpose. You can download the form here.

For whatever reason, employers are not using the Labor Commissioner’s standard form, and many are neglecting to include the notice to employees in the hiring documents. If any of the items in the notice to employees change (i.e., pay rate, workers’ compensation carrier, etc.), the employer has to provide a new signed notice to the employee.

Even if your offer letter or employment agreement contains all the required information (it likely wouldn’t because no one includes their workers’ compensation carrier information in an offer letter), employers should still use a standard form.

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.

Sexual Harassment Training Does Not Work

Sexual Harassment Training Doesn’t Work

A recent study by the EEOC suggests sexual harassment training does not work. In California, employers with 50 or more employees must provide 2 hours of sexual harassment prevention training to managers and supervisors every two years. Smart employers train all employees on a regular basis.

Does sexual harassment prevention training prevent sexual harassment? According to an EEOC task force: “Much of the training done over the last 30 years has not worked as a prevention tool.” Much of the training is focused on avoiding liability instead of a more holistic approach. According to the researchers, this effectively teaches would-be-harassers how to harass people and avoid liability. Sexual harassment training and prevention should focus on creating a hostile-free work environment.

The sexual harassment prevention training I provide focuses on identifying sexual (and other types of) harassment, as well as circumstances that lead to harassment claims. We help employees not only identify unlawful conduct, but also behavior that can lead to a non-productive workplace. Aside from being compliant with the latest regulations, my training sessions are tailored to the company and its employees.

Online versus In-Person Sexual Harassment Training

When choosing a sexual harassment training provider, many employers go the online route. There are some wonderful online options, many of which are less expensive than in-person training. But at what cost? The EEOC task force concluded that effective training must be “tailored to the specific workforce and workplace, and to different cohorts of employees.” Off-the-shelf online training does not have the flexibility of in-person training. It’s too easy for employees to simply check-the-box to get the training completed.

Online training can be interactive if the service provides a means for answering questions in real-time, but employees won’t use the Q&A feature if they aren’t already engaged. When I conduct in-person sexual harassment prevention training, the presentation is very interactive. I engage the audience so they remain interested.

I consider my audience when creating the training program. Software engineers can require different tactics than construction managers. Restaurant workers have different experiences than custodial staff. My goal is to tailor the sexual harassment training to the company, its employees and its culture.

I begin with, and include, the company’s actual policy in the training. Harassment prevention begins with making sure employees understand appropriate conduct and what to do if they see or experience problems. You may not get that from online training.

Can’t Train Everyone at the Same Time

A big obstacle to in-person training is getting everyone trained at the same time. Someone has to mind the ship during the training. Employees are oftentimes spread throughout the state, country or the world. Sometimes we conduct multiple training sessions in different locations. Other times we use technology to bring everyone together.

With online meeting technology, getting everyone together at the same time is easier. Many online meeting providers allow you to record the session, making the training available to those few people who cannot attend the session live. I provide my clients with direct access to me so I can answer questions when they arise during the training. Answering questions via email is not as good as in-person Q&A (see point above), but sometimes we have to work with the hand we’re dealt.

Costs of Sexual Harassment Training

Online providers usually offer “per seat” pricing. This can be great for a few training sessions, but not great for training 100 people. I price my training sessions on a flat-fee or hourly basis. Depending on the number of participants, in-person training is usually more cost-effective than online training.

I believe sexual harassment prevention training should be inexpensive and readily available.

Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted. Employers should communicate and model a consistent commitment to that goal. Select Task Force on the Study of Harassment in the Workplace

Creating a productive work environment that is free of harassment is everyone’s goal, and everyone’s responsibility. Training employees today helps prevent problems tomorrow, and increases workplace productivity and job satisfaction.

If you would like more information regarding sexual harassment prevention training, contact my office today.

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.

Handbook Updates for 2018

California passed a number of new laws that take effect 2018. Here are a few employee handbook updates employers will need to make:

Employment Handbook Updates for 2018

Parental Leave Act

California’s New Parent Leave Act requires employers with 20 to 49 employees to provide unpaid, job-protected leave for purposes of bonding with a new child. This is similar to FMLA and CFRA, with some important differences. Employers may want to adjust their vacation policies to address the new leave act and Employers with 50 or more employees may need to adjust their FMLA/CFRA policies.

New IRS Mileage Rate

Employers must reimburse employees for all expenses incurred in the discharge of their duties. This includes mileage reimbursement. The simplest method is to pay the IRS mileage rate. January 1, 2018, the IRS mileage reimbursement rate increases to 54.5 cents. If you state a specific rate in your policies–rather than just referring to the IRS mileage rate–you’ll want to update your policy.

Lactation Accommodation

Now that lactation accommodations are part of the Fair Employment and Housing Act, and can constitute a type of gender discrimination, it is important to review your lactation accommodation policies. Employers may need to update policies to address differences between California and federal law.

Paid Family Leave

Paid Family Leave is available to some employees. Although not a “protected” leave of absence, employers must provide information regarding Paid Family Leave to all employees. A change to California law eliminates the seven-day waiting period before PFL benefits begin. This change should be noted in the handbook.

Hiring Practices

Two new laws change how employers interview and hire employees:

San Francisco Specific Changes

Three of the more notable changes to San Francisco’s laws will require handbook updates:

  • The City and County Paid Parental Leave Ordinance.
  • San Francisco Lactation Accommodation Ordinance
  • San Francisco Paid Sick Leave Ordinance has changed, allowing more flexibility for employers.

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.

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.