Category Archives: Employee Handbook

Going Wild About Service Animals at Work

Animals as a public accommodation.

A growing public trend is the presence of service animals in places like stores, restaurants, schools, airports and job sites. The basis for this trend is not a new one. It comes from Title III of the Americans with Disabilities Act (ADA) which guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”  This guarantee from the ADA allows for the use of service animals to help people with disabilities accomplish these public accommodations.

The difference between Service Animals, Emotional Support Animals, and Therapy Animals.

Some employers react negatively to the idea of allowing service animals in the workplace. This might be due to a misunderstanding of the difference between service animals, emotional support animals, and therapy animals. These are entirely different categories of animals.

Service animals are not considered to be pets. These are trained animals that must qualify in two categories to be protected as service animals under the ADA: Continue reading Going Wild About Service Animals at Work

NEW LAW: Suffolk County, New York Bans Salary History Inquiries

New York’s Suffolk County recently passed a county ordinance prohibiting employers from inquiring into an applicant’s salary history as a part of the hiring process.

Under this new law, which goes into effect on June 30, 2019, employers are prohibited from

  • Inquiring about a job applicant’s wage or salary history, including but not limited to, compensation and benefits.
    • “to inquire” means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.
  • Relying on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

By passing this new law, Suffolk County becomes the fourth locality in New York State to enact a salary history ban law (joining New York City, Westchester County, and Albany County).  To date, New York State has NOT enacted a statewide salary history ban law.

It is recommended that employers in Suffolk County verify that all employment application materials are updated to remove any requests for salary history – including job applications and job interview scripts.  In addition, all employees who are involved in the hiring process are trained about the new requirement and informed that they are not allowed to inquire into applicant’s salary history.

NEW LAW: Coming Soon to Westchester County – Sick Leave

Attention employers in Westchester County, New York – Under the Westchester County Earned Sick Leave Law, starting April 10, 2019 you will be required to provide sick leave benefits to employees who work more than 80 hours in a year.

How much sick leave must be provided?

 Starting April 10, 2019, eligible employees of Westchester County employers will start accruing sick leave. Employers with less than 5 employees may provide unpaid sick leave, while employers with 5 or more employees must provide paid sick leave benefits.

Unused sick leave can be carried over from year-to-year, but employers are not required to allow an employee to use more than 40 hours of sick leave in one year. Continue reading NEW LAW: Coming Soon to Westchester County – Sick Leave

California Employers — Are You Providing School Activities Leave?

Did you know that in California, companies may be required to grant leave to employees to attend their children’s school activities.

School is back in full swing after the holidays, which also means parent teacher conferences, school assemblies, and other school-related activities are being scheduled.

With employees requesting time off to attend events at their child’s school, California employers may not be aware of two lesser known statutes (California Labor Code sections 230.7 and 230.8) that give parents (and other parental figures) of school-aged children protected time off to attend their child’s related school activities.

Who is a covered employer and employee?

Labor Code section 230.7 applies to all California employers regardless of size.  While Labor Code section 230.8 only applies to employers employing 25 or more employees at a single location.

What is a “parent”?

A “parent” is defined as a natural parent, guardian, stepparent, foster parent, or grandparent of a child of the age to attend kindergarten or grades 1 through 12 or a licensed child care provider.   It is important to note that this does not apply to adult children.

What types of leave may an employee be entitled to?

Under Labor Code section 230.7, employers are required to provide parents of school-aged children with time off to appear at their child’s school for disciplinary purposes.

Under  Labor Code section 230.8 , parents of covered employers may take up to 40 hours per year of job-protected time off to find, enroll, or reenroll their children in school or with a licensed child care provider, or to participate in activities of the school or child care provider. In order to take the protected time off, reasonable notice must be given to the employer before the scheduled absence.

In addition, any time taken for the reasons described above must not exceed eight (8) hours in any calendar month of the year. The code does not define child related school and care activities; however broad enough to suggest field trips, parent- teacher conferences and school assemblies are included.

Parents may also be entitled to 40 hours of job-protected leave for unscheduled absences for “emergency” situations.  Emergency situations are defined as a situation where a child cannot stay in the care of the school or child care provider for the following circumstances:

  • the school or child care provider has unexpectedly requested that the child be picked up,
  • behavioral or discipline problems,
  • unexpected closure or unavailability of the school or child care provider,
  • natural disasters such as fire, earthquake, or flood.

Taking leave for this purpose does not negate the parent’s obligation to inform employers of their unscheduled absence as soon as practicable.

 Can employers require Documentation?

An employer may request the employee provide documentation from the school or child care provider to prove the employee took time off for the reasons described above on a particular date and time.

How does other employment policies apply?

Employees may use any accrued/unused vacation or PTO for scheduled time off related to enrollment or school and child care organized activities. Employers are not required to offer paid time off independently to accommodate absences under section 230.8.

 

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