CALIFORNIA Employment Law

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1 FMLA HR SPECIALIST Trusted compliance advice for California employers The federal FMLA and the California Family Rights Act (CFRA) don t forbid you to fire employees after they return from leave or even while they re on leave. You re simply prohibited from firing them because they took FMLA or CFRA leave. But such timing is sure to raise questions with a terminated employee and a jury. Advice: Be able to show and document the reasons for the firing (e.g., insubordination, RIF) that occurred before the employee requested leave. Before you terminate on-leave employees, ask yourself three questions: 1. Would the employee be discharged if he or she weren t on FMLA leave? 2. Have other employees been Negligence Your organization typically is liable for injuries caused by employees who are acting within the course and scope of employment. You aren t liable when employees cause injuries on their own free time. But those lines aren t always clear. To decide if employees are on the clock when they commit negligent actions, courts will look at specific questions, such as: Was the action within the employee s general authority? And was the employee working in furtherance of the employer s business? CALIFORNIA Employment Law Terminating employees on family leave: It can be done discharged for similar conduct? 3. Does the conduct indicate the employee is a danger to himself or herself and others? (If so, it s unlikely a court will second-guess your decision.) The more yes answers, the more likely the firing won t be seen as retaliation for taking leave. Recent case: A rental-supply clerk, who suffered from bipolar disorder, met with her boss to discuss performance problems. It didn t go well. She cried, screamed obscenities, tossed her written improvement plan at the boss and slammed the door. She then threatened suicide. She was hospitalized briefly and took FMLA leave. The company investigated the incident and fired her. She sued, alleging that firing her while on FMLA leave was illegal. Not so, concluded the 9th Circuit Court of Appeals, which includes California. The firing was related to her behavior, not to FMLA leave. (Gambini v. Total Renal Care, No , 9th Cir., 2007) Employees gone wild: When is your organization liable? If the negligent act involves a car accident, courts will consider other factors, such as whether the car was company-owned. Advice: Draft a clear policy that outlines what employees can and can t do within the scope of their jobs, including whether they re allowed to conduct any personal business on company time. And, when possible, shift liability. For example, have a courier service make deliveries, instead of your staff. Recent case: Thomas Robinson took a large plastic storage bin from December 2007 Special Issue Editor: Joseph L. Beachboard, Esq., Ogletree Deakins, Los Angeles Free report How to Wipe Out FMLA Fraud and Abuse For an 11-step process to help stop employees from working the system, download our free white paper, How to Wipe Out Fraud and Abuse Under FMLA, at the winery where he worked (without the winery s permission) and drove it home to make wine for himself. While driving, the bin fell off his truck and struck a motorcycle driver, who suffered injuries in the crash. The motorcyclist sued the winery for negligence. But the California Court of Appeal tossed out the case, saying Robinson wasn t acting within the scope of his employment when the accident occurred. (Baptist v. Robinson, No. H029233, California Court of Appeal) In this issue Build an escape hatch into your discipline policy Sexual harassment: Don t ignore any complaint Arbitration covers claims for unpaid bonus, severance The Mailbag: Your questions answered California Employment Law is published by HR Specialist and is edited by Joseph L. Beachboard, a shareholder with the law firm of Ogletree Deakins and the former publisher of the California Labor Letter. In addition to representing management in employment matters, Mr. Beachboard speaks regularly before employer groups. Contact him at (310) (800) National Institute of Business Management

2 LEGAL BRIEFS Even HR managers may be personally liable for harassment A federal court interpreting California law has concluded that managers may be personally liable if they condone a hostile work environment or harass a disabled employee. Recent case: Lisa Beck sued FedEx Ground and HR manager Sandra Williams over Williams refusal to find Beck a job that matched her medical restrictions. Beck also claimed negligence, alleging that Williams had a duty to protect her from harassment, but instead harassed her because of her disability. Williams argued that managers can t be held negligent for personnel actions taken within the scope of their employment. But the court concluded that California law didn t preclude personal liability for harassment. The negligence case will go forward. (Beck v. FedEx Ground, et al., No. S , ED CA 2007) Pay extra attention to harassment claims by teens Just because employees are young doesn t mean they don t know their rights. The EEOC last year launched an unprecedented national outreach campaign to educate young people about their right to work in a harassment- and discrimination-free workplace (see Part of the effort: using schools to help spread the word. Last year, the EEOC filed twice as many lawsuits involving teenage workers than it did in Recent case: Lexus of Serramonte, a dealership in northern California, agreed to settle an EEOC sexual harassment lawsuit by paying $325,000 to five female employees, one of whom was a teenager when the alleged harassment started. The settlement also requires the dealership to train its staff on anti-harassment policies and procedures. The EEOC lawsuit alleged that dealership managers slapped female employees on the buttocks, made inappropriate comments about their appearance and repeatedly propositioned them. In one instance, a manager allegedly pulled an employee s skirt down in front of customers. 2 California Employment Law December 2007 Discipline policies: Build an escape hatch that allows for instant terminations Does your employee handbook outline a progressive discipline process to be followed in cases of employee behavior or performance problems? If so, make sure the policy also includes language allowing you to skip progressive discipline in egregious cases. Failing to have such an escape clause is a mistake made by many employers and it s typically not noticed until it s too late, such as when an employee sues. Your policy should retain the right to fire employees for serious offenses without having to go through progressive discipline. (For more on progressive discipline, see page 7) As the following case shows, courts could require you to follow the letter of the discipline language, even if your handbook clearly says it doesn t Returning soldiers are not at-will employees; be aware of their extra job protections Be ultra-cautious before you terminate an employee who has a military connection, especially in times of war. Courts will bend over backward to side with the employee plus, the law is on their side. Why? The federal Uniformed Services Employment and Reemployment Rights Act (USERRA) gives reservists the right to return to work once their active service is over. You can t penalize employees for being called to active duty or participating in training. Another key point: When an employee returns from active duty, you can t terminate him or her without a clear, business-based reason, even if the person is an at-will employee. How long does this protection last? Reservists gone on active duty for more than 180 days receive this extra protection for one year. Those gone for 31 to 180 days are given six months worth of extra job protection. constitute a contract. Recent case: U.S. Bancorp s employee handbook explicitly said that policies and procedures do not constitute a contractual obligation. Still, after the company fired Susan Messinger for violating a company policy, she sued claiming the handbook guaranteed her the right to progressive discipline before termination. The handbook stated that the company s progressive counseling will provide [the employee] with a reasonable opportunity to make the necessary improvements in order to succeed. The 9th Circuit Court of Appeals sided with Messinger, saying the handbook s promise to provide a reasonable opportunity to improve negated the contract disclaimer. (Messinger v. U.S. Bancorp, No , 9th Cir.) Recent case: James Wallace worked as a San Diego police officer and also served in the Navy Reserve. He sued the city of San Diego soon after he quit the police department, claiming he was passed over for promotions and his performance reviews were downgraded because of his active-duty military tours. A jury agreed and awarded him $250,000. The 9th Circuit Court of Appeals upheld the jury award, saying the jury was reasonable in concluding Wallace would feel he had no choice but to quit and sue. (Wallace v. City of San Diego, No , 9th Cir., 2007) Final tip: Be proactive against such claims by training supervisors on the rights of service members, including the right to time off and reinstatement. Remind them never to comment negatively about an employee s military obligations. (800)

3 Sexual harassment Remind supervisors, managers and HR staff: Don t brush off or make light of sexual-harassment complaints. Doing so can just add more fuel to the fire. When employees are ignored, they may begin to see every slight that comes their way getting the cold shoulder at meetings, or missing out on promotions as retaliation for voicing their concerns about sexually hostile behavior. They ll be much more likely to file lawsuits against your company. Recent case: Rachel Spade and Rhonda Myers worked at a California Pepsi bottling facility. They claimed that co-workers continually made sexist and sexual comments. When they complained to managers (even an HR manager), no one did anything. In fact, one manager said she was sick of hearing their complaints. This allegedly went on for four years. Eventually, the women said they were Don t ignore or make light of harassment complaints Harassment training joke triggers not-so-funny lawsuit Because of the new state law, many California employers are hosting sexual-harassment training for the first time. And a new court ruling shows the legal risk of allowing employees to make light of the training sessions. The case: The Contra Costa County Sheriff s Department hosted harassment training. During the session, a sergeant jokingly pointed to a grenade with the number 1 painted on it and said, Yeah, anybody who wants to report sexual harassment, take a number. A female deputy, who had reported harassment in the past and had been ignored, filed complaints with both the EEOC and California Department of Employment and Fair Housing. The court ordered a trial, reasoning that her original harassment, coupled with the sergeant s cavalier attitude toward complaints, was enough to suggest a sexually hostile work environment. A jury will decide the case. (Linkenhoker v. Ruff, No. C , ND CA, 2007) being retaliated against by being ignored at meetings and not getting promotions. They filed a sexual-harassment and retaliation lawsuit under both Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (FEHA). The court ordered a trial. It noted that FEHA makes it illegal for an employer to allow unwelcome physical or verbal conduct of a sexual nature that is sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. The conduct the women described, if true, would meet that standard. (Spade and Myers v. Pepsi Bottling Group, et al., No. 2:07- CV-362, ED CA, 2007) FMLA/CFRA Both the federal FMLA and the California Family Rights Act (CFRA) restrict how much medical information you can demand from an employee who wants leave. In most cases, you have to be satisfied with the employee s medical certification and can t call the health care provider directly for more information. You also have to guard the medical information, keeping it confidential. But be aware of an important exception to this rule: If your organization has a short-term disability program through a third-party insurance policy, you can ask the employee to provide additional information if it s needed to let the plan administrators decide whether the employee is eligible for benefits. What s the best way to proceed? Get the employee to sign a medical release as part of the short-term disability application process. That way, the person can t later say your request violated his or her right to medical privacy. Recent case: Chevron engineer Kiran Pande received consistent Know when you can (and can t) ask for more medical info promotions for a decade, but developed problems with a supervisor. When a merger meant some employees would have to relocate from California to Texas, Pande rejected a relocation offer. She was told she wouldn t have a job when her assignment expired. Her response? She requested protected leave for a medical condition and submitted a certification to HR. She also applied for temporary disability benefits under a company-sponsored plan. When the company asked for more medical information, she bristled. While on leave, her assignment ended and she was terminated. She filed an FMLA suit and also claimed the company violated her right to medical privacy by asking for more information. Not so, ruled the court. Because she asked for temporary disability payments, in addition to FMLA and CFRA leave, she opened the door for additional medical questions to see if she was eligible for benefits. Besides, she signed a release as part of her application. (Pande v. Chevron, No , ND CA, 2007) Protecting employees medical privacy: 4 steps 1. Keep medical information in a separate, confidential file. The FMLA, the CFRA and the ADA all require you to protect the integrity of sensitive information. 2. Allow supervisors access to the information only if they need to make accommodations for disabilities or manage their work force while an employee is out on leave. 3. If a disability insurance policy requires additional information, obtain a signed release from the employee or make a release part of the application process. 4. When trying to determine if an employee is eligible for FMLA or CFRA leave, ask for certification from the health care provider. If you need more information, don t call the provider directly. Ask for (and pay for) a second opinion. If the two conflict, get a third, tie-breaking assessment. December 2007 California Employment Law 3

4 Pay for car-pooling time? Only if you require it NEW MEXICO A group of gas-rig employees always drove to work together in a pickup because the wells were in a remote location with limited parking. During the drive, they often discussed work issues. They filed a Fair Labor Standards Act lawsuit demanding pay for that commute. But the court said no, noting that all workers were free to drive their own cars and spend their car-pooling time as they chose. So they weren t performing work. (Smith, et al., v. Aztec Well Services Company, 10th Circuit) Advice: Unless you mandate that employees travel together, it s unlikely that their travel time will be compensable work time. But if you insist that employees car pool or make certain work-related stops along the way, you ll pay. FMLA users can shop for a second opinion IOWA A company fired an employee for excessive absenteeism. She asked her doctor to certify that her absences were due to a chronic gastrointestinal disease (thereby qualifying her for FMLA leave). The doctor refused, as did a second doctor. A third doctor agreed to sign the FMLA certification. When the company refused to reinstate the woman, she filed suit. The court let her case go to trial, saying FMLA regulations are silent about whether employees can approach multiple doctors to sign their FMLA form. (Cook v. Electrolux Home Products, 8th Circuit) Advice: You may not realize that employees can go shopping for the best medical diagnosis. But you don t have to blindly accept the employee s word. You can seek your own second (and, if necessary, third) opinion on the seriousness of the condition. You can choose the doctor for the second opinion (although it must be one with whom you do not regularly contract). If the opinions contradict, you and the employee must agree on a doctor for a third assessment. You must pay for the second and third visits. Editor: Joseph L. Beachboard, Esq., Ogletree Deakins, (310) Contributing Editor: Anniken Davenport, Esq., Editorial Director: Patrick DiDomenico Senior Editor: John Wilcox, (703) , National Roundup STAFF 4 California Employment Law December 2007 Publisher: Phillip Ash Copy Editors: Nancy Baldino, Cal Butera Production Editor: Dan Royer Production Assistant: Nancy Asman Marketing Directors: Adam Goldstein, Linda Smith Customer Service: (800) HR Specialist: California Employment Law is published monthly by the National Institute of Business Management Inc., 7600A Leesburg Pike, West Building, Suite 300, Falls Church, VA , (800) , Annual subscription price: $ , National Institute of Business Management. All rights reserved. Duplication in any form, including photocopying or electronic reproduction, without permission is strictly prohibited and is subject to legal action. For permission to photocopy or use material electronically from HR Specialist: California Employment Law, please visit or contact the Copyright Clearance Center Inc., 222 Rosewood Dr., Danvers, MA 01923, (978) Fax: (978) This publication is designed to provide accurate and authoritative information regarding the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal service. If you require legal advice, please seek the services of an attorney. Compliance lessons from other states Ethnic name isn t a head-start to bias claim MISSOURI Mohammed Hussein, who was born in Fiji, worked as a pilot during the Sept. 11 attacks. When flights were grounded that day, Hussein went to his hotel s bar and allegedly hoisted a toast when the TV showed the collapsing Twin Towers. The airline fired him for breaking the no drinking while in uniform rule. He sued, arguing that his name triggered the firing. The court disagreed, saying it takes more than an ethnic name to infer that an employer would fire someone based on prejudice. Employees must show some level of discriminatory intent, action or motive by the employer. (EEOC v. Trans States Airlines, 8th Circuit) Advice: Employees whose names people associate with a particular religion, origin or ethnicity can t automatically claim that their name led to discrimination. If that were the case, anyone with such a name would have a leg up on other employees in every discrimination case. Volunteers can sue for job discrimination WASHINGTON, D.C. When Dr. Syed Rafi was turned down for a volunteer research job at the National Institutes of Health (NIH), he filed a discrimination claim. NIH argued that the volunteer work isn t employment, so discrimination laws don t apply. But the court disagreed and let the case go to trial, noting that many volunteers to those spots earn full-time jobs. Because volunteers were compensated with the possibility of being hired, they weren t volunteers but employees for discrimination purposes. (Rafi v. Thompson, DC DC) Advice: This case shows that if you discriminate in the selection process for volunteers, it s possible that disappointed applicants may be able to sue under Title VII. That s especially true if you often hire permanent employees out of your volunteer pool. FMLA T HR SPECIALIST CALIFORNIA Terminating employees on family leave: It can be done he FMLA and California Family Rights Act (CFRA) don t forbid you from firing employees after they return from leave or even while they re on leave. You re simply prohibited from firing them because they took FMLA or CFRA leave. But such timing is sure to raise questions with a terminated employee and a jury. Advice: Be able to show and document the reasons for the firing (i.e., insubordination, RIF decisions, etc.) that occurred before the employee requested leave. Before you terminate on-leave employees, ask yourself three questions: 1. Would the employee be discharged Employment Law if she weren t on FMLA leave? 2. Have other employees been discharged for similar conduct? 3. Does the conduct indicate the employee is a danger to herself and others? (If so, it s unlikely a court will second-guess your decision.) The more Yes answers, the more likely the firing won t be seen as retaliation for taking leave. who suffered from bipolar disorder, met with her boss to discuss performance problems. It didn t go well. She cried, screamed obscenities, tossed her written improvement plan at the boss and slammed the door. She then called her counselor and threatened suicide. Recent case: A rental-supply clerk, She was hospitalized briefly and took FMLA leave. The company investigated the incident and fired her. She sued, alleging that firing her while on FMLA leave was illegal. Not so, concluded the 9th Circuit Court of Appeals, which includes California. The firing was related to her Trusted compliance advice for California employers Editor: Joseph L. Beachboard, Esq., Ogletree Deakins, Los Angeles Yes, I want to begin my subscription to California Employment Law for only $179 per year (nearly 40% off the normal price). Name Company Address City, State, ZIP Phone Negligence Y Employees gone wild: When is your organization liable? Recent case: Thomas Robinson our organization typically is liable for injuries caused by employees who are acting within the course and scope of employment. You aren t liable when employees cause injuries on their own free time. But those lines aren t always black and white. To decide if employees are on the job when they commit negligent actions, courts will look at specific questions, such as: Was the action within the employee s general authority? And was the employee working in furtherance of the employer s business? In this issue Build an escape hatch into your discipline policy Must you investigate silent victims of harassment The final word California harassment-training requirements The Mailbag: Your questions answered June 2007 Special Issue Free report: How to Wipe Out FMLA Fraud and Abuse For an 11-step process to help stop employees from working the system, download our free white paper, How to Wipe Out Fraud and Abuse Under FMLA, at If the negligent act involves a car deliveries, instead of your staff. accident, courts will consider other factors, such as whether the car was took a large plastic storage bin from company-owned and whether the the winery where he worked (without employee was on-duty. the winery s permission) and drove it Advice: To protect yourself in such home to make wine for himself. While cases, draft a clear policy that outlines driving, the bin fell off his truck and what employees can and can t do within the scope of their jobs, including fered injuries in the crash. struck a motorcycle driver, who suf- whether they re allowed to conduct any The motorcyclist sued the winery personal business on company time. for negligence. But the California And, when possible, shift liability or Court of Appeal tossed out the case, tap a better employee for the job. For saying Robinson wasn t acting within example, have a courier service make the scope of his employment when the California Employment Law is published by The HR Specialist and edited by Joseph L. Beachboard, a shareholder with the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. In addition to representing management in a variety of employment matters, Mr. Beachboard speaks regularly before HR and employer groups. Contact him at: (310) (800) National Institute of Business Management Payment Method: Credit card Visa/MC AMEX Discover Fax this form to (570) Card # Exp. date Signature Check/money order Mail to: California Employment Law, Bill me P.O. Box 906, Williamsport, PA Contact our Customer Service Center at (800) or CA6907 (800)

5 Employment Law News Revise policy on cell-phone usage to prepare for 2008 law If your employees use cell phones for company business while driving, start the process of revising your policy to require hands-free devices. Then educate employees about the new policy. Reason: A new California law taking effect on July 1, 2008, will ban the use of hand-held cell phones while driving a motor vehicle. The law carries a $20 fine for a first offense and $50 fine for all subsequent offenses. The law does allow hand-held phones to be used to contact police or fire departments. The California Highway Patrol (CHP) plans a PR blitz later this year to publicize the change. CHP stats from 2005 show that many more accidents are tied to the use of hand-held phones while driving than the use of the hands-free variety (1,098 to 102). Don t waste money buying government forms and posters Several government agencies are alerting business owners that they don t need to pay for most forms and posters they re required to use and post in their workplaces. Those documents are often available free on government web sites. Web sites ending in.gov are the only official government sites. Some private companies try to sell government documents using official-looking web sites. Advice: You can download most required federal posters free at the U.S. Labor Department s main poster page, Download mandatory California posters at Former Fresno State volleyball coach awarded $5.85 million A California Superior Court jury has awarded $5.85 million to a former Fresno State volleyball coach who filed a discrimination suit after she was fired in Linda Vivas sued under both California s Fair Employment and Housing Act and Title IX. She claimed the State What s the biggest employment-law issue you face today? This question was asked of California HR professionals at a recent Society for Human Resource Management conference. Here are some responses: Family leave. The biggest issue for me is trying to comply with the FMLA and all the California add-ons, like the CFRA (California Family Rights Act). It takes a lot of time to track it and make sure you re doing it correctly. I ve only been in HR a year-and-a-half and it takes a lot to learn all the nooks and crannies of those laws. Lauren, San Jose * * * Wage lawsuits. The wage-and-hour lawsuit problem is horrendous. Class actions are so hot right now. There are so many ways to hit employers if they re not 100 percent complying with the law. Margaret, San Diego * * * Immigration. We re reading and hearing a lot about the immigration raids around the country. The current laws really put HR in a no-win situation. I don t know what the answer is. I don t want total amnesty, but Congress needs to do something. Pat, Fallbrook University of Fresno discriminated against her because of her gender, marital status and perceived sexual orientation. In addition, she alleged the university retaliated against her because she complained of discrimination and advocated gender equity in the school s athletic programs. Vivas argued that other employees were treated more favorably in terms of contract limitations, salary, coaching assistance and performance standards. According to the university, its actions were based solely on Ms. Vivas job performance and her unwillingness to improve the volleyball program. Apparently, the jury didn t buy the university s version of events. Beware legal risks of jotting nasty notes in customers files In a classic Seinfeld episode, Elaine s doctor made a note on her medical chart that said she was difficult. Do your employees make similar editorial comments about customers quirks in your internal files? If so, be careful of the legal risks. A recent lawsuit shows the potential legal dangers. The case: A drugstore customer asked the pharmacist not to mention the type of drugs she was picking up. The pharmacist made note of her request in the internal computer system, but added in his notes: CrAzY!! and She s really a psycho!! When a friend picked up the woman s prescription, the printout receipt accidentally included these comments. The woman sued for libel, noting that the comments were available to every pharmacist in the drugstore s chain. Advice: Use this example to remind employees to avoid writing down their personal comments about customers, even if the notes are intended for internal use only. California housing crisis expected to slow down job market A recent UCLA Anderson Forecast predicts that real estate weaknesses (including the subprime mortgage collapse) will start spilling over into the job market in late 2007 and According to Ryan Ratcliff, the author of the forecast, the losses in construction and real estate finance will slow overall payroll job growth in California to less than 1% for the next five quarters. Ratcliff also expects unemployment to rise from 5.1% to 5.5%. Personal income and gross state product will grow at a rate of less than 3%. Even so, Ratcliff is not entirely pessimistic. In spite of all this bad news from real estate, the wider California economy is mostly unfazed: Job growth has slowed only slightly and we ve seen only a minor uptick in unemployment, he said. December 2007 California Employment Law 5

6 In the Spotlight by Cheryl Schreck and Traci Park, Ogletree Deakins, Los Angeles Arbitration covers claims for unpaid bonus and severance In an opinion welcomed by multistate employers with employees and operations in California, the California Court of Appeal recently ruled that binding arbitration mandated by an arbitration agreement could determine a former employee s wage claims for an unpaid profit-sharing bonus and severance pay. The Court of Appeal held that Section 2 of the Federal Arbitration Act (FAA) pre-empts an employee s right to a judicial forum for the employee s unpaid wage claims under California Labor Code Section 229. The FAA mandates enforcement of arbitration clauses in contracts involving interstate commerce. The case is Giuliano v. Inland Empire Personnel, Inc., No. B190771, California Court of Appeal, 2nd Appellate District, The case In 2003, James Giuliano moved from Indiana to California to become executive vice president and chief financial officer of Inland Empire Personnel. Giuliano signed an employment contract containing an arbitration clause providing for final and binding arbitration of all employment disputes. Giuliano also agreed to be bound by the employee handbook, which said arbitration shall be the sole remedy for you as to any such dispute, and shall be in lieu of any rights you or we may otherwise have had to have a court or jury decide the disputed issues. Finally, Giuliano signed a bonus plan with a similar arbitration clause. After Giuliano left Inland Empire in 2005, he sued for statutory wages under the California Labor Code, claiming that, under his employment agreement, the company owed him a $5 million to $8 million profit-sharing bonus and a $500,000 severance payment. Giuliano asserted that the arbitration clauses were invalid and unenforceable under California Labor Code Section 229, which provides a judicial forum for statutory wage claims despite the existence of any private agreement to arbitrate such disputes. Inland Empire moved to compel arbitration, contending that the FAA trumped the labor code. The trial judge denied the company s motion to compel arbitration on the grounds that the FAA did not pre-empt Giuliano s statutory wage claim because his employment contract did not involve interstate commerce, and that the arbitration agreement was unconscionable and invalid under California case law. The Federal Arbitration Act trumps the California Labor Code when employees work involves interstate commerce. Previously, the California Supreme Court had held that employer-mandated arbitration agreements that cover claims for discrimination, harassment and retaliation under the California Fair Employment and Housing Act (FEHA) are enforceable only if such agreements provide for neutral arbitrators, more than minimal discovery, a written arbitration award and the same types of relief that would otherwise be available to the employee in court. The court also ruled that employers must pay arbitration costs and fees. The decision In the Giuliano case, the California Court of Appeal ruled that the FAA governed the arbitration agreement because it constituted a contract evidencing a transaction involving commerce. The court found that Giuliano s employment had an interstate nature because he had attended meetings, site visits and grand-opening ribbon cuttings in other states and had negotiated multimillion-dollar loan agreements with a bank headquartered in another state. The court also held that the arbitration agreements in this case, unlike those brought under FEHA, were valid because the subject matters they covered were waivable. The Court of Appeal differentiated between minimum-wage and overtime payments, which are mandated by law and unwaivable, and bonus or severance payments, which are not. That is, no employee can agree to work for less than minimum wage or agree to forgo overtime, but anyone can decline bonuses or severance payments. Practical impact For employers with operations and employees in California as well as other states, this ruling confirms that employer-mandated arbitration agreements covering claims for unpaid bonuses or severance pay brought by an employee who is involved in interstate commerce are pre-empted by the FAA and are not precluded by California Labor Code Section 229. The impact of the Giuliano decision for employers is that claims for unpaid bonuses and severance, but not statutory claims for mandated overtime and minimum-wage payments, may be subject to mandatory and binding arbitration where the employee s work on behalf of the employer affects interstate commerce. Advice: Employers that use arbitration agreements should review them and make certain that provisions covering compensation disputes include claims for unpaid bonuses and severance. Employers that haven t used arbitration agreements because they assumed they were not valid or practical should consider using them. Consult qualified counsel before presenting an employee with an arbitration agreement. Counsel can make sure the agreement meets California and federal legal requirements. Cheryl Schreck is a shareholder and Traci Park is an attorney with the Los Angeles office of Ogletree Deakins, where they represent management in labor and employment law matters. They can be reached at (213) California Employment Law December 2007 (800)

7 Nuts & Bolts Progressive discipline: How to apply a fair and firm policy THE LAW While no federal or state law requires you to create and follow a progressive-discipline policy, courts often come down hard on employers that promise progressive discipline but fail to deliver it. In fact, many employee lawsuits stem from the employee s perception that he or she didn t receive a fair deal. That s why the most reliable way to protect your organization from wrongful termination charges is to establish a progressive-discipline system and make sure your supervisors enforce it. WHAT S NEW An increasing number of lawsuits have been filed in which terminated employees complain that employers have violated their own progressive-discipline policies by firing the employee before working through all the rungs on the progressive-discipline ladder. That s why your policy should include language allowing you to skip progressive discipline and fire employees right away for particularly egregious behavior. HOW TO COMPLY While it s usually your right to terminate at-will employees at any time for misconduct or lax performance, a progressive-discipline policy lets you make clear that problems exist and need improvement. How it works: Your policy simply increases the severity of a penalty each time an employee breaks a rule. Typically, a policy progresses from oral warnings to written warnings, suspensions and then termination. That way, employees won t be surprised when they reach the end and are fired. By taking the surprise out of the firing, you lessen your exposure to a wrongful-termination lawsuit. Before drafting a discipline policy, make sure employees possess clear job descriptions and an employee code of conduct. It s critical that they know exactly what s expected of them. Five-step model policy Here are the five standard pieces of progressive discipline: Is your discipline fair? A 5-question self-exam The perception that management is against the workers, once established, is hard to shake. That s why it s vital to ensure that you treat employees fairly during disciplinary investigations. To make sure supervisors (or you) play fairly, ask these five questions before handing down discipline: 1. Does the punishment fit the crime (or is the employee being singled out)? 2. Is the discipline consistent? Have different supervisors used different discipline for similar conduct? 3. Has the discipline been administered after a proper investigation of the facts? Be a neutral fact-finder until you gather all the facts. 4. Is the discipline being taken quickly? A simple investigation that takes weeks could be interpreted as though your organization is trying to find problems. Inform the employee of the steps you re going through, as well as when you ll respond. 5. Is the discipline confidential? Warn everyone involved that speaking about disciplinary investigations or actions is strictly on a need-to-know basis. 1. Oral warning/reprimand. As soon as supervisors perceive performance or behavior problems, they should issue oral reprimands. Ask the worker if any long-term problems or skill deficiencies need correcting. Make sure the supervisor keeps detailed (and dated) notes on the reason for the warning and the response. This step is vital. Don t assume that managers will remember specifics about disciplinary actions or even remain employed by your organization when a complaint makes its way to court. 2. Written warning/reprimand. If the problem persists (or more problems emerge), supervisors should meet with the worker and provide a written warning that details the problem and the steps needed to improve. If possible, ask another person a managementlevel employee or HR rep to sit in on the meeting. The written warning should summarize the issues discussed, set a timeline for action and describe in detail the corrective steps agreed upon. Explain the standards that will be used to judge the employee. Also explain the consequences of continued poor performance, including termination. Require employees to sign this form, acknowledging that they ve received it. Place the document in the employee s personnel file. 3. Final written warning. If the performance doesn t improve, deliver a final written warning, possibly including a last chance agreement. Show the worker copies of previous warnings, illustrating specific areas in which he or she must improve. Specify the time period and, again, obtain the employee s signature on the warning. 4. Termination review. If problems continue, supervisors should notify HR. In general, supervisors shouldn t hold solo firing authority. However, to preserve supervisors exempt status under the Fair Labor Standards Act and state law, they should have significant say in hiring and firing decisions. Some organizations suspend employees while they investigate and decide whether to terminate. Before acting, make sure that your disciplinary measures are consistent with those you ve taken in other similar situations. If you don t, a court could say illegal age, sex or race discrimination was the true reason for your actions. Document your action and reasoning. 5. Termination. If you make the decision to terminate, meet with the employee and deliver a termination letter. Next Nuts & Bolts: Coming soon: Personnel files Attendance policies December 2007 California Employment Law 7

8 The Mailbag Can we pay for OT hours in a later pay period? QOur company was unable to obtain the number of overtime hours worked by an employee in time to include payment for those hours in the current payroll period. We re aware that untimely payment of wages could expose us to penalties. Can we issue a paycheck to the employee for his regular hours worked and include his overtime payment in the following pay period? AThe answer is yes. Section 204 of the California Labor Code provides specific time periods in which nonexempt employees must be paid. Under this section, compensation for labor performed between the first and 15th of the month must be paid between the 16th and 26th day of the month during which the labor was performed. Moreover, compensation for labor performed between the 16th and the last day of the month must be paid between the first and 10th day of the following month. That requirement is satisfied if wages are paid weekly, biweekly or semimonthly, as long as the wages are paid within seven calendar days of the close of the payroll period. This provision includes a specific exception for the payment of overtime. Under Section 204, all wages earned for labor in excess of the normal work period shall be paid no later than the payday for the next regular payroll period. Thus, the law provides a limited grace period for the payment of overtime. Replacing pregnant worker: When is it legal? QOne of our employees is on pregnancy disability leave. We are a small company and it will be difficult for us to keep her position open. May we hire another worker to replace her based on this hardship? ACalifornia law prohibits most employers from discriminating against female employees because of pregnancy. Moreover, you must provide up to four months of leave for a worker who is disabled by her pregnancy (and an additional 12 weeks for bonding with the child under the California Family Rights Act, assuming the company has 50 employees). At the end of a pregnancy disability leave, the employee is entitled to be reinstated to the position previously held. The Fair Employment and Housing Commission (FEHC) has said employers may be excused from returning the worker to the same position if: 1) she would not otherwise be employed in that job for legitimate business reasons unrelated to the leave (such as a plant closure); or 2) preserving the employee s job would substantially undermine the employer s ability to operate the business safely and efficiently. You must show that preserving the job created more than just an inconvenience. Even if your company is excused from keeping the employee s job open, it may be obligated to reinstate the worker in a comparable position. Also, note that pregnancy, childbirth and caring for a new child may be covered under the federal FMLA. Eligible 8 California Employment Law December 2007 by Joseph L. Beachboard, Ogletree Deakins employees are entitled to up to 12 weeks of unpaid leave, plus reinstatement to the same or a substantially similar position. Saying No thanks to a two weeks notice QAn employee recently has provided two weeks notice of his intent to leave the company. Can I tell the worker that he is not needed for the two weeks and avoid paying him for that time? AGenerally, yes. However, the answer may be different if you have a policy requiring two weeks notice prior to resignation. If such a policy exists, you ve arguably established a contractual obligation with your employees to either allow them to continue working for two weeks or to pay them for the time. Even if no such policy exists, consider the impact that such action probably will have on other employees. When others see that this employee was told to leave upon providing two weeks notice, they re not likely to give notice themselves if they resign, potentially leaving an important position vacant. Can we punish staff for false harassment claims? QWe are currently revising our company s sexualharassment policy. Can we include a provision that imposes discipline on employees who bring false claims of harassment? AIncluding such a statement does not violate state or federal law. However, one purpose of a sexual-harassment policy is to encourage employees to bring complaints of inappropriate behavior to the company s attention. Some contend that promising to punish workers who bring false claims will discourage legitimate complaints and result in the employer being held liable for sexual harassment. For example, the U.S. Supreme Court has held that employers can avoid strict liability for harassment by supervisors (when they take no adverse employment action) if: 1) the employer exercised reasonable care to prevent and correct the harassment; and 2) the employee unreasonably failed to take advantage of those preventive or corrective opportunities. If your sexual-harassment policy includes sanctions for employees who bring false claims, a worker may be able to dodge the affirmative defense by contending that he or she did not complain about the inappropriate conduct out of fear. Joseph L. Beachboard is a shareholder with the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in its Los Angeles office. In addition to representing management in a variety of employment matters, Mr. Beachboard speaks regularly before HR and employer groups. You can contact him at (310) or To submit your question to California Employment Law, it to or fax it to (703) (800) HRCA-SIS-003

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