Category Archives: Employee Handbook

NEW CASE: Major Changes to California’s Reporting Time Pay Requirements

Does your organization require employees to call-in before a scheduled shift to determine if an employee actually needs to report to work that day?  If the answer is yes, then this new California Court of Appeals case imposes new reporting time pay requirements on your organization.

In a recent case (Ward v. Tilly’s Inc.), the California Court of Appeals has held that employers who require employees to call-in prior to a scheduled shift to determine whether the employee is needed that day, is required to pay the employee reporting time pay (at a minimum for 2 hours of work) even if the employee is told that he does not need to work that day.

Background

This case arises from a scheduling policy of a retailer (Tilly’s).  Under the policy, employees were required to call in approximately two hours before the start of a scheduled shift to determine whether they needed to come to work for that shift.  If the employee was told to come into work, the employee was paid for his scheduled shift.  However, if the employee was told not to come into work, the employee received no pay for the day. Continue reading NEW CASE: Major Changes to California’s Reporting Time Pay Requirements

NEW LAW: Prohibits Discrimination Based on Gender Identity or Expression in New York

On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.

“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.

What does this mean for employers?

  • Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
  • Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
  • Training managers on detecting such discrimination will be needed.
  • Education/train employees on the forms of harassment and discrimination.
  • Provide reasonable accommodation if needed.

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

NEW LAW: Predictive Scheduling Coming to Philadelphia

Philadelphia Mayor Jim Kenney recently signed the Fair Workweek Employment Standards Ordinance into law. The new law, which goes into effect on January 1, 2020, will impact employee scheduling if the employer:

  • Is in the retail, hospitality, or food service industries;
  • Has 250 or more employees (including full and part-time); and
  • Has 30 or more locations worldwide in.

Employers must provide newly hired employees a “Good-faith” estimate of their work schedule which includes:

  • The average number of work hours the employee can expect to work each week over a typical 90-day period.
  • The expectation to work any on-call shifts,
  • Days and times the employee can typically expect to work and when they can expect to be off work.
  • A written work schedule through the end of the currently posted work period (provided before the first day of work).

Continue reading NEW LAW: Predictive Scheduling Coming to Philadelphia

Don’t Tell Me How To Dress, Or Can You?

This is the million-dollar question…literally (well almost). Violating the state and federal anti-discrimination laws can cost employers thousands of dollars per violation.

“Can’t an employer impose a dress code?”, you ask.  Do you have to allow employees to show-up in any “get up” they’ve imagined for the day, costing you customers, reputation and possibly your business.

Before we answer that question, let’s look at the issue from another perspective.

The law is continually expanding to cover more individuals and the definition of sex has grown to cover gender expression, gender identity, transgender, sexual orientation and other LGBT groups.

Because our definition of sex is no longer limited to “boy” or “girl”, our dress codes will also need to expand. Continue reading Don’t Tell Me How To Dress, Or Can You?

Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

When administering FMLA , employers are generally advised to run FMLA concurrently with other leaves for which the employee may be eligible– as this practice prevents leave stacking.

However, when drafting FMLA policies, how an employer handles the use of paid leave during FMLA is commonly overlooked.  While most leave policies require employees to use their earned vacation, sick or PTO time concurrently with FMLA leave, employers tend to overlook the FMLA regulation that prohibits employers from requiring employees to use paid leave during FMLA.

Employers should consider how to handle situations where an employee who is requesting FMLA also has some type of paid leave available for his or her use. Continue reading Employers Beware — You Cannot Always Require Employees Exhaust Paid Leave Benefits During FMLA Leave

NEW GUIDANCE: FAQs Regarding Michigan’s Paid Medical Leave Act Published

Paid sick leave is coming to Michigan (at least for employers who employ more than 50 employees) — thanks to the Michigan Paid Medical Leave Act. (For an overview of the Paid Medical Leave Act, please see “NEW LAW: Michigan Amends Earned Sick Time Act“)

In anticipation of this new law, LARA (Michigan’s Department of Licensing and Regulatory Affairs) recently published FAQs relating to the Paid Medical Leave Act and also released the new required poster, which covered employers must post in the workplace.

One of the most important questions answered in the FAQs is addressing when the new  Paid Medical Leave Act takes effect.  According to LARA, the new law will take effect on March 29, 2019. Continue reading NEW GUIDANCE: FAQs Regarding Michigan’s Paid Medical Leave Act Published

NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

Good news for certain California trucking companies — California’s meal period and rest break requirements no longer apply to truck drivers who are regulated by the U.S. Department of Transportation’s hours-of-service requirements.

How did this happen?

To understand how this happened, we need to first give a brief history of this issue.

California’s meal period and rest period laws are quite onerous – especially for trucking companies.  These laws require all California employers provide employees with a duty-free 30-minute meal period to begin before the employee completes five hours of work; employers must also provide paid 10-minute duty-free rest breaks for every four-hour work period or “major fraction thereof.”   Among the problems that trucking companies have with complying with these requirements is actually proving compliance with the requirements.  How does one prove that a driver actually took the rest and/or meal period? Continue reading NEW DEVELOPMENT: Certain Truck Drivers Exempted From California’s Rest and Meal Period Requirements

NEW CASE: Non-Solicitation Clauses In Employment Agreements Are Unenforceable In California

In a recent case (Barker v. Insight Global), the California Court of Appeals has held that non-solicitation clauses (i.e. a contract provision that restricts former employees from soliciting former co-workers) in employment agreements are unenforceable.  This is the second California Court of Appeals to reach this conclusion in less than six months (the previous case was AMN Healthcare, Inc. v. Aya Healthcare Services). 

In both cases, the Court concluded that non-solicitation clauses in employment agreements constitute an unlawful restraint on trade and are therefore unenforceable.

It is recommended that all California employers review their employment-related agreements and remove any non-solicitation clauses.

NEW CASE Reminds California Employers Of The Business Expense Reimbursement Requirement

A recent $5.4 million settlement of a California wage and hour class action (Marley Castro, et al. v. ABM Industries, Inc.) reminds employers of the far-reaching scope of California Labor Code section 2802’s business expense reimbursement requirement.

In this case, the plaintiffs alleged that the company had failed to reimburse all employees for the required use of their personal cell phones for business-related purposes.  According to the plaintiffs, the company required all employees to use their personal cell phones to (1) clock in and out from work and (2) to communicate with their supervisors.

While this case was settled, it serves as an important reminder that California employers are required to reimburse their employees for business-related use of their personal cell phones.  Specifically that California law requires that employers reimburse employees for “some reasonable percentage” of their cellphone bills if the employer requires them to use their personal cellphones for a business purpose – regardless of whether the employee incurs charges over and above what his or her plan costs.

Some common business-related uses for which employers may require employees use their personal cell phones include:

  • Clocking in and out for work or meal periods;
  • Checking or updating schedules via a scheduling app or otherwise requiring them to use data;
  • Texting or calling a manager regarding scheduling or for other work-related purposes;
  • Using data plans for GPS purposes;
  • Requiring employees to use cellphones for purposes of responding to emergency calls or for on-call time periods;and
  • Any other required use of a personal cellphone (text, call, or data) for business-related purposes.

It is recommended that all California employers review their current reimbursement policies and determine whether they are currently reimbursing employees for required business-related cell phone usage.  If employees are required to use their cell phones for work, employers have the following options available to them:

  • reimburse employees for actual cell phone fees incurred for business purposes;
  • reimburse for a percentage of cell phone fees that accurately reflects the amount of mandatory business usage (and inform employees that if their business-related use exceeds that flat rate, a process employees should follow for reimbursement); or
  • provide employees with a cellphone or another communication alternative for business use .