Monthly Archives

January 2017

Disclosing an Employee’s Medical Condition May Result in an Automatic FMLA Violation

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This employee has a medical condition affecting his genito-urinary system.

Like other employees with a genito-urinary disorder, this employee didn’t want his medical condition broadcast.

In requesting FMLA leave for his condition, the employee submitted medical certification containing “sensitive and detailed” information about the ailment.   Thereafter, the employee claimed:

  • A manager blabbed about the employee’s medical condition at a meeting involving eight other employees (the employee apparently was not present); and
  • Coworkers approached him, asking about the condition and making jokes and obscene gestures about his condition in front of him.

Notably, the employee wasn’t complaining that the employer denied him FMLA leave. In fact, the employee took all the FMLA leave his little heart desired. Rather, the employee argued that his employer violated the FMLA when his managers disclosed his medical condition to those without a need-to-know and when his coworkers ridiculed him for it.

To the court, the issue was a straightforward one. Under the FMLA, confidentiality of medical information is an employee right, and the allegation here is that the employer violated that right. Therefore, even if the employer granted to the employee all the FMLA leave he was entitled, the court found it possible that the employer still “materially affected” the employee’s working conditions when it allegedly breached confidentiality and other employees mocked the employee for his condition.

Insights for Employers

What are the takeaways from this sad case? Let me count the ways:

  1. Need I remind you? Employers, please train your managers about their obligations under the FMLA! Prohibiting disclosure of sensitive medical information must be covered in that FMLA 101 course you should convene every year. When you don’t train, you end up with lawsuits like this one.
  2. While you’re at it, don’t forget anti-harassment training, too.  When you apparently have employees joking about another employee’s medical condition and making obscene gestures in front of him ), you have a problem.
  3. Under what circumstances can medical information be shared with others? In its ADA guidance, the EEOC warns that this information can be shared only for extremely limited purposes:
    •  to supervisors and managers where they need medical information in order to provide a reasonable accommodation
    •  to first aid and safety personnel if an employee would need emergency treatment
    •  to individuals investigating compliance with the ADA and with similar state and local laws
    •  pursuant to worker’s compensation laws (e.g., to a state worker’s compensation office in order to evaluate a claim) or for insurance purposes.

2017 Is Still Young, But California Legislative Proposals Are Already Here

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Although we have barely scratched the surface on 2017, the California Legislature is already active on the labor and employment front, with a number of new (or not so new) proposals being introduced in the first weeks of the legislative session.

“Opportunity to Work Act”

The most significant measure to be introduced thus far is Assembly Bill 5 by Assemblymember Gonzalez Fletcher (D–San Diego).  Based on similar ordinances enacted in San Francisco, and (most recently as Measure E) in San Jose, AB 5 would enact the “Opportunity to Work Act” in an effort to require employers to provide additional hours of work to part time employees.  AB 5 applies to employers with 10 or more employees in the state, and requires such employers to offer additional hours of work to an existing employee before hiring any additional employees or subcontractors, including hiring an additional employee or subcontractor through the use of a temporary employment agency, staffing agency, or similar entity.

In a press release accompanying introduction of the bill, Assemblymember Gonzalez Fletcher stated, “Even as we’ve won increases in the minimum wage to help part-time workers, that just won’t cut it if you can’t get enough hours of work…The Opportunity to Work Act will provide a boost to the millions of workers in California who want to work more so they can afford the necessities of life and to take care of themselves and their families in a time when housing costs, student debt, and surprise expenses are increasingly difficult to manage.”

The bill does not specify a methodology by which employers are to offer additional hours to existing employees, such as by seniority, or how long the employer must give the employees to decide before being able to hire additional employees.  The bill provides that an employer is not required to offer additional hours if it would result in the employer being required to pay overtime to the existing employee(s).  The bill also prohibits discrimination and retaliation against employees.  Employees are authorized to file a claim with the Labor Commissioner or a private civil action.

The California Chamber of Commerce has already labelled AB 5 a “job killer,” noting that the bill would limit an employer’s ability to effectively manage their workforce to address both consumer and employee requests.  They also argue that the bill would create unnecessary delays and burdens on small employers to accommodate employee and consumer demands, subject employers to costly fines and multiple avenues of litigation for technical violations, and reduce job opportunities for the unemployed.

AB 5 has been referred to the Assembly Committee on Labor and Employment and has not been set for a hearing yet, but will likely be heard in March or April.

Equal Pay Measures

Recent years have witnessed a flurry of activity at the state level related to gender pay equality measures.  Most significant was the enactment of Senate Bill 358 (Jackson) in 2015, which completely overhauled California’s Equal Pay Act.  This area of the law continues to be a hot topic in the Legislature, with two measures already introduced this year.

Assembly Bill 46 by Assemblymember Jim Cooper (D–Elk Grove) would specify that the California Equal Pay Act applies to both public and private sector employers.  In reality, this bill is about ensuring that the law applies to the Legislature itself.  Last year, there was an awkward floor debate during the deliberation on Assembly Bill 1676 (Campos), a bill which specified that prior salary cannot, by itself, justify any pay disparity.  On the Senate floor, Republicans raised questions about whether the bill applied to the Legislature itself, and even asked the author to amend the bill to specifically do so.  Senate Democrats would not do so, which led to grumbling among many Democratic legislators about the Legislature’s willingness to impose certain requirements on businesses but not on itself.  AB 46 is aimed directly at closing that perceived gap by ensuring that the California Equal Pay Act applies to legislative employees as well.

File this one under, “what’s good for the goose is good for the gander.”

Nor was the “salary history” debate resolved with the passage and enactment of AB 1676 last year.  This year, the issue is back with the introduction of Assembly Bill 168 by Assemblymember Susan Talamantes Eggman (D–Stockton).  AB 168 is virtually identical to previous legislative proposals that would have prohibited an employer from seeking salary history information (including compensation and benefits) about an applicant for employment.  Proponents of these measures argue that employer use of salary history information perpetuates pay inequality for women.

Governor Brown vetoed a virtually identical measure, Assembly Bill 1017 (Campos) in 2015, arguing that SB 358 should be given a chance to work before making further changes to the law.  The identical bill was reintroduced last year as AB 1676 (Campos), but (as noted above) the bill was amended to merely clarify that prior salary cannot, by itself, justify any pay disparity.  And like AB 46, AB 168 specifically provides that it applies to the Legislature.

AB 46 and AB 168 have not yet been referred to policy committee.

Family Leave Proposals

Another perennial hot topic in the California Legislature are bills dealing with family leave.  Already in 2017, we have seen two bills introduced that repeat policy proposals from recent years.

Senate Bill 62 by Senator Hannah-Beth Jackson (D-Santa Barbara) would amend the California Family Rights Act (CFRA) to cover leave to care for grandparents, grandchildren, siblings, and parents-in-law.  The bill would also remove existing age and dependency restrictions on the existing definition of “child” under CFRA to, for example, cover leave to care for adult children who are otherwise independent.

This expansion of the definition of “family member” under CFRA has been attempted numerous times throughout the years, most recently in Senate Bill 406 (Jackson) from 2015.  That measure was vetoed by Governor Brown, who noted that the expansion could create a disparity with the federal Family and Medical Leave Act (FMLA) that could result in employers being required to provide up to 24 weeks of leave in a 12 month period.

The California Chamber of Commerce has designated SB 62 as a “job killer,” noting that the initial intent of CFRA was to provide a balance between an individual’s work life and personal life.  However, they argue that this proposal would disrupt that balance and have a negative impact on California employers. Given that the individuals SB 62 proposes to add to the protected leave list are not covered under the corresponding and similar leave provided by the federal FMLA, the Chamber notes that this change will potentially provide a California employer with an obligation to provide up to 24 weeks of protected leave – the same concern raised by the Governor by his veto message from 2015.

Senator Jackson has also introduced Senate Bill 63, a reintroduction of her efforts in 2016 to provide job-protected leave to employees who work for employers not covered under the CFRA.

Last year, after a tortuous legislative history (which including her bill dying the first time in the Assembly Committee on Labor and Employment), Senator Jackson ultimately sent Senate Bill 654 to the Governor’s office.  SB 654 would have required employers with 20 or more employees to be provided with six weeks of job-protected leave to bond with a new child.  However, SB 654 was vetoed by Governor Brown, who stated that he was concerned about the impact of the proposal, particularly on small businesses, and the potential liability that could result.  He expressed particular concern that the author had rejected an amendment offered by the California Chamber of Commerce that would have required a mediation process prior to any private lawsuit being filed by a worker, stating, ”I believe this is a viable option that should be explored by the author.”

SB 63 (this year’s version of the proposal) similarly applies to employers with 20 or more employees (within 75 miles of the worksite) but increases the leave entitlement to twelve weeks, rather than six weeks.  In addition, the bill does not respond to the Governor’s stated concerns in the veto message about a requirement for mediation prior to litigation.  Therefore, SB 63 is actually broader than the bill that was sent to the Governor last year.  This is likely due to the author’s desire to start with an aggressive version of the bill to leave room for negotiating amendments during the legislative process.

SB 63 has been referred to the Senate Committee on Labor and Industrial Relations and the Senate Judiciary Committee, and has not been set for a hearing yet, but will likely be heard in March or April. 

Busy Year Ahead?

And this is likely just the tip of the iceberg.  The deadline for bills to be introduced is February 17, and the vast majority of bills are introduced in the last few days before that deadline.  Moreover, 2017 promises to be a busy year as labor groups and worker advocates respond to federal developments under the Trump Administration by pursuing state-level policies here in California.  Stay tuned here for further legislative updates as the year progresses.

Background Check Disclosure/Consent Form That Includes a Liability Waiver Violates the FCRA

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On Friday, the Ninth Circuit Court of Appeals issued its opinion in Syed v. M-I, LLC, holding, on an issue of first impression, that an employer willfully violated the Fair Credit Reporting Act (“FCRA”) by including a liability waiver on the background check disclosure and consent form it provided to prospective employees.  The Ninth Circuit held that the FCRA expressly states that before obtaining a consumer report for employment purposes, an employer must disclose its intent to secure a consumer report for employment purposes and inform the consumer of his/her rights under the FCRA.  The FCRA states that this information must be provided in writing in a document “consisting solely of the disclosure.”  The FCRA goes on to state that the employer must obtain the consumer’s authorization to procure the report and that the authorization can be on the same document as the disclosure.  In this case, the employer had a disclosure and consent form, as required by the FCRA.  However, the employer’s form included a provision stating that the applicant signing the form agrees to release the employer from any and all liability stemming from its reliance on information derived from the consumer report.  The Ninth Circuit held that the inclusion of this liability waiver on the disclosure and consent form violated the FCRA’s express mandate that the disclosure consist “solely of the disclosure.”  The Ninth Circuit reasoned that the inclusion of extraneous information, such as a liability waiver, in the disclosure form violates the law.

Worse, the Ninth Circuit held, as a matter of law, that the employer’s violation was both “objectively unreasonable” and “willful” (thereby exposing the employer to statutory and punitive damages), even though this was an issue of first impression that no Circuit Court had before decided.

DOT To Add Synthetic Opioids To Its Drug Testing Panel

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Today the U.S. Department of Transportation published a notice of proposed rulemaking in the Federal Register in which it proposes to amend its drug testing program regulation to add four synthetic opioids (hydrocodone, hydromorphone, oxymorphone and oxycodone) to its drug testing panel. DOT also proposes to add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine, (MDEA) as a confirmatory test analyte.

DOT explained that it will maintain the current five-panel test, but will change the name of the opiates category to “opioids” and will include the four new synthetic opioid drugs.

DOT also proposes to:

  • add a new provision indicating that only urine specimens are authorized to be used for drug testing under 49 CFR Part 40;
  • revise an existing provision to describe the procedure for discarding an original urine specimen under certain circumstances;
  • adding three new “fatal flaws” to the existing list of four “fatal flaws” currently found in Part 40;
  • remove Part 40 provisions requiring blind specimen testing;
  • add emphasis to an existing Part 40 provision prohibiting DNA testing of urine specimens;
  • add clarification of the term “prescription” during MRO review;
  • remove, modify and add some definitions to clarify the program and make it consistent with the DHHS Mandatory Guidelines, among other things.

The proposed revision of the drug testing panel is intended to harmonize with the revised Mandatory Guidelines established by the U.S. Department of Health and Human Services for federal drug testing programs for urine testing, issued on January 23, 2017.  DHHS has set an effective date of October 1, 2017 for compliance with its final revision.

Cold Weather Safety

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The cold weather is here in California and with these frigid temperatures, comes another hazard our employees may be exposed to! The Occupational Safety & Health Administration, OSHA, provides some tips on how to protect workers not just in cold, outdoor situations, but in all cold weather environments.

Prolonged exposure to freezing or cold temperatures may cause serious health problems such as trench foot, frostbite and hypothermia. In extreme cases, including cold water immersion, exposure can lead to death. Danger signs include uncontrolled shivering, slurred speech, clumsy movements, fatigue and confused behavior. If these signs are observed, call for emergency help immediately. Tips on how to protect workers include:

Recognize the environmental and workplace conditions that may be dangerous.
Learn the signs and symptoms of cold-induced illnesses and injuries and what to do to help workers.
Train workers about cold-induced illnesses and injuries.

  • Encourage workers to wear proper clothing for cold, wet and windy conditions, including layers that can be adjusted to changing conditions.
  • Be sure workers in extreme conditions take a frequent short break in warm dry shelters to allow their bodies to warm up.
  • Try to schedule work for the warmest part of the day.
  • Avoid exhaustion or fatigue because energy is needed to keep muscles warm.
  • Use the buddy system – work in pairs so that one worker can recognize danger signs.
  • Drink warm, sweet beverages (sugar water, sports-type drinks) and avoid drinks with caffeine (coffee, tea, sodas or hot chocolate) or alcohol.
  • Eat warm, high-calorie foods such as hot pasta dishes.
  • Remember, workers face increased risks when they take certain medications, are in poor physical condition or suffer from illnesses such as diabetes, hypertension or cardiovascular disease.

If you should have any questions or need any assistance, please contact your Stratton Agency Risk Manager at 925-556-4404.

NLRB Joins Other Federal Agencies in Combatting Retaliation

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Several federal agencies have joined forces to release a joint Fact Sheet highlighting the various anti-retaliation provisions of the workplace laws these agencies enforce. “Retaliation Based on the Exercise of Workplace Rights is Unlawful” is a collaborative effort of the National Labor Relations Board, the Wage and Hour Division of the U.S. Department of Labor, the Occupational Safety and Health Administration, the Equal Employment Opportunity Commission, and the Office of Federal Contract Compliance Programs.

The Fact Sheet reminds employers that it is unlawful to retaliate against employees for exercising their workplace rights, regardless of the workers’ immigration status. Although workers are “always entitled to pay for work actually performed, regardless of immigration status,” remedies may be limited for undocumented workers. For example, under the NLRA “reinstatement and backpay are not available as legal remedies for employees who do not have work authorization.” The fact sheet will be found here:

https://www.dol.gov/dol/fact-sheet/immigration/RetaliationBasedExerciseWorkplaceRightsUnlawful.htm

 

New I-9 Available – Fines Recently Doubled!

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Employers have until Jan. 22, 2017, to get up to speed on using the newest version of the Form I-9, marked 11/14/2016 (upper right hand corner of the I-9). The version that has been in effect since 2013 (marked 03/08/13) will become obsolete on that date.

Failure to use the new form beginning Jan. 22 will expose employers to penalties, which were recently doubled!

“Employers will find that the Form I-9 in many ways is very similar to the previous version, but some individual fields and the form instructions have been revised. The acceptable documents list and retention requirements have remained the same. Employers are not required to use the new I-9 on existing employees.

There are now three ways for users to complete the Form I-9:

  • Print it and fill it out manually, pen to paper.
  • Fill it out electronically, then print and sign it. Take note that using the online “smart” version of the form does not qualify as a compliant electronic I-9. If the online fillable version is used, it must be printed and signed pen to paper.
  • Use an electronic I-9 vendor.

If relying on a vendor, employers should compare the electronic product and the fields and requirements of the new I-9 version to ensure the vendor is collecting all the necessary information.

How about those new fine increases for improperly filling out an I-9? Civil penalties for I-9 Paperwork violations went from $110.00 – $1,100.00 to $216.00 – $2,156.00 per violation! If those violations were not expensive enough in the first place, the new violations should get your attention!

 

There are some changes to the new I-9 that you will need to be aware of. If you should have any questions involving how to properly fill out your new I-9, please contact your HR Ideas Specialist at 530-300-1034.

Tips To Protect Workers In Cold Environments

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Tips To Protect Workers In Cold Environments

Prolonged exposure to freezing or cold temperatures may cause serious health problems such as trench foot, frostbite and hypothermia. In extreme cases, including cold water immersion, exposure can lead to death. Danger signs include uncontrolled shivering, slurred speech, clumsy movements, fatigue and confused behavior. If these signs are observed, call for emergency help.

How to Protect Workers

  • Recognize the environmental and workplace conditions that may be dangerous.
  • Learn the signs and symptoms of cold-induced illnesses and injuries and what to do to help workers.
  • Train workers about cold-induced illnesses and injuries.
  • Encourage workers to wear proper clothing for cold, wet and windy conditions, including layers that can be adjusted to changing conditions.
  • Be sure workers in extreme conditions take a frequent short break in warm dry shelters to allow their bodies to warm up.
  • Try to schedule work for the warmest part of the day.
  • Avoid exhaustion or fatigue because energy is needed to keep muscles warm.
  • Use the buddy system – work in pairs so that one worker can recognize danger signs.
  • Drink warm, sweet beverages (sugar water, sports-type drinks) and avoid drinks with caffeine (coffee, tea, sodas or hot chocolate) or alcohol.
  • Eat warm, high-calorie foods such as hot pasta dishes.
  • Remember, workers face increased risks when they take certain medications, are in poor physical condition or suffer from illnesses such as diabetes, hypertension or cardiovascular disease.

EEOC Releases Proposed Enforcement Guidance Addressing Harassment

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The US Equal Employment Opportunity Commission (EEOC) has released for public input a proposed enforcement guidance addressing unlawful harassment under federal employment discrimination laws. The report builds on recommendations from the agency’s Select Task Force on the Study of Harassment in the Workplace, which were issued in a report last summer. Employers and other stakeholders may submit comments until February 9, 2017.

The laws enforced by the EEOC protect the following characteristics: race, color, religion, sex, national origin, disability, age or genetic information. The guidance reviews and explains the legal standards that apply to harassment claims based on these legally protected categories. The guidance would supersede various guidance documents currently in use, which were all issued in the 1990s.

The proposed guidance also includes promising practices for employers to follow with respect to the following:

  • Leadership and accountability. The EEOC encourages employers to cultivate a culture of respect in organizations, and to ensure that workplace harassment is not tolerated in any way.
  • Policy. The EEOC encourages employers to adopt comprehensive, clear and effective harassment prevention policies to communicate to employees what constitutes unlawful harassment.
  • Complaint system. Employers are urged to implement an effective and accessible complaint system.
  • Training. Although only a handful of states require sexual harassment prevention training for supervisors, employers are encouraged to provide effective training to as many employees as possible. The guidance also mentions offering workplace civility training and/or bystander intervention training.

In fiscal year 2015, the EEOC received 27,893 charges of discrimination that included a harassment allegation, or 30% of the total charges filed that year. EEOC Chair Jenny R. Yang said in a press release, “Harassment remains a serious workplace problem that is the concern of all Americans. It is important for employers to understand the action they can take today to prevent and address harassment in their workplaces.”

The IRS Reminds Tax Payers

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As the start of tax filing season approaches, the Internal Revenue Service is reminding taxpayers to start thinking about who will prepare their 2016 federal tax return. The IRS will begin processing tax returns on Monday, January 23. Many software companies and tax professionals will accept and submit tax returns before the IRS systems open on January 23.

The IRS stresses that no matter who prepares it, by signing the return, the taxpayer becomes legally responsible for the accuracy of all information included.