Workplace Solutions

Subscribe to Workplace Solutions

By Joshua M. Henderson

Consider this not-so-hypothetical example.  An employer in California receives a citation from Cal/OSHA for a relatively minor safety violation involving no employee injuries.  Maybe the citation was for inadequate training on a particular workplace hazard.  The citation carries with it a penalty of $500.  The employer could appeal the citation, and spend perhaps thousands of dollars to challenge the citation through a hearing before an Administrative Law Judge; or, it could write a check for $500, agree to fix the violation, and be done with it.  In this light, the former response may seem extravagant, while the latter response could be seen as a rational business decision.  

Now, fast forward two years from the date that the employer spent $500 to make that previous violation go away.  The employer abated the prior violation by adequately training its employees shortly after paying the penalty.  A newly-hired employee, however, failed to receive training on the same workplace hazard and suffered a serious injury when exposed to the hazard.  After its investigation, the Division of Occupational Safety and Health (the investigative and prosecutorial arm of Cal/OSHA) cites the employer for a “repeat” violation.  A “repeat” violation carries with it a significant increase in penalties: that $500 penalty now transforms into a serious, repeat violation  with a penalty of up to $36,000.  If the untrained employee had been killed, the employer would face a repeat penalty amount of up to $50,000, and the employer (and the responsible managers) would face potential criminal liability.

This is not a fanciful scenario.  Under Cal/OSHA, employers are required to have an Injury and Illness Prevention Program (IIPP) in place to identify and respond to particular hazards in a workplace.  In addition, the IIPP regulation mandates that employers train their employees on the hazards in the workplace.  Yet, employers may be lulled into settling a Cal/OSHA citation by a short-term cost-benefit analysis of a particular citation and its accompanying penalties.  But, except perhaps where an employer is in financial distress, the penalties should not be an employer’s chief concern.  Instead, the focus should be on answering these questions: …
Continue Reading Cal/OSHA Considers Changes to Its Policy on “Repeat” Violations — With Significant Implications for Employers

By Colleen M. Regan

From the promontory of the first full week in January, we look out over the California employment law landscape and offer our fearless predictions for the coming year.

  1. State enforcement agencies are on the prowl. Employers are increasingly finding themselves the targets of California enforcement agencies, particularly the Department of Fair Employment and Housing (DFEH) and

…
Continue Reading Surveying the California Employment Landscape: Our Predictions for Trends in 2014

By Aaron Lubeley and Candace Bertoldi

With the holiday season in full swing, there’s a lot of buzz (and confusion) around holiday work and pay requirements in California.  Employers often like to be more generous this time of year but many simply are misinformed as to what they must do. Here are seven tips about holiday pay that every employer …
Continue Reading It’s Not All Egg Nog and Candy Canes: Filling Employers’ Stockings with Seven Things They Need To Know About Holiday Pay

By: Kristina Launey and Daniel Kim

As noted previously in this space, California already permits employees to take many kinds of protected time off not generally available in other parts of the country.  In 2013, California’s Legislature presented workers with even more kinds of legally-protected absences.  It is hard to begrudge leaves of absence for crime victims and emergency…
Continue Reading ‘Tis the Season… New CA Laws Give Employees More Legally-Protected Time Off

By Dana Peterson and Coby Turner

Depending on your view of the world, California legislators have either implemented much-needed protections for California’s immigrant workforce, or they have given the legislative equivalent of a “gift” to dishonest employees this holiday season.  Starting January 1, 2014, workers will have immunity from disciplinary action for providing updated “personal information” to their employer, including, …
Continue Reading California Employees Have Even More Protections to be Thankful for This Year

By Christopher Crosman

Navigating the shoals of California law on arbitration agreements has been exceedingly difficult.  The California Supreme Court has maintained a long tradition of general antipathy to mandatory arbitration, and has been particularly hostile to arbitration agreements that limit a plaintiff’s ability to pursue a class action.  For example, Discover Bank v. Superior Court, 36 Cal. 4th …
Continue Reading California Law On Class Action Waivers In Arbitration Agreements: As Clear As Mud

By Simon L. Yang, Myra B. Villamor, and Rishi Puri

Recently, we kicked off the blog series, The Battle After Brinker, to explore the current controversy over the meaning of the California Supreme Court’s decision in Brinker. This week, we examine a recent skirmish—the proceedings that occurred in the Brinker case in the trial court, on …
Continue Reading What’s the Point of Having a Lawful Meal-Break Policy? Trial Court Certifies Brinker Meal-Break Class on Remand

Co Authored by Jon Meer, Jonathan L. Brophy, and Brandon McKelvey 

The administrative exemption has been a hot area of litigation for a long time in California with all sorts of twists and turns in the California Supreme Court and Courts of Appeal over the last several years.  Unfortunately, the courts are still struggling with this exemption and have failed to provide clear guidance or clarity in this area.  As a result, plaintiffs’ lawyers continue to target the administrative exemption in individual wage hour actions as well as class actions.

So you have to ask yourself this:  Are you confident that you would be able to withstand an attack as to the exempt status of your employees who are classified as administratively exempt?

Even employers who carefully designate job classifications as exempt are subject to attack.  Employees may claim that, upon closer inspection, their work doesn’t meet the test for the exemption and that they are owed overtime and penalties for missed meal and rest breaks – a costly battle for employers to fight.

Employers, however, can implement some basic safeguards that will help proactively protect their exempt classifications in the event of a lawsuit.  Here are a few suggested steps that employers can put in place now that may help prevent a lawsuit or provide a solid defense in the event of a lawsuit:

1.     Require Self-Evaluations:  During your company’s review process, solicit employees’ self-evaluations in categories related to the exemption test.  Employers should consider including the following types of categories for employee self-evaluations:

…
Continue Reading Protecting The Administrative Exemption – Are You Ready For A Lawsuit?

By: Lindsay Fitch

Just when you thought you finally understood employee rights and employer obligations under the Family and Medical Leave Act (“FMLA”), you realize that you are in California, where employee privacy rights loom large and the California Family Rights Act (“CFRA”) also comes into play.  Although both laws are intended for the same purposes—to provide employees of larger employers with protected time off for various medical conditions and family situations—the CFRA tightens the reins on the information available to the employer.  Of course you want to give your employees what they need, but you also want to make sure the request is legitimate. 

So, as a California employer, what are you entitled to ask your employee about the need for CFRA leave?  Far less than under the FMLA, it turns out.  You can ask: 

→        Is the employee qualified?  Under both the FMLA and CFRA, employees are qualified for leave when they have a serious health condition or when they need to care for a family member with a verified serious health condition.  A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves one of the following: 

  •       Hospital care
  •      Absence (incapacity) plus treatment  
  •      Chronic conditions requiring treatment
  •      Permanent/long term conditions requiring supervision
  •      Multiple treatments for certain (non-chronic) conditions
  •      Pregnancy (a serious health condition under FMLA, but not under CFRA) 

→        How Should I Know?  I’m Not a Doctor.  Fortunately, you can require a medical certification to verify the serious health condition, which must include some specific information to be sufficient.
Continue Reading Mysterious Leaves of Absence: How Do I Know If An Employee Qualifies For Leave If I Can’t Ask About Their Condition?

in·de·pen·dent adjective \ˌin-də-ˈpen-dənt\

1: not dependent: as a (1) : not subject to control by others

con·trac·tor noun \1 usually ˈkän-ˌtrak-tər, 2 usually kən-ˈ\

1: one that contracts or is party to a contract: as a : one that contracts to perform work or provide supplies

Two words with straightforward meanings; at least one would think. But put those words together—“independent contractor”—and their meaning in the workplace context is often anything but clear. Applying the independent contractor label carelessly can lead to a world of trouble.

Whether workers are properly designated as independent contractors, rather than employees, depends on a host of factors. The pivotal factor is whether the principal controls the manner and means of accomplishing the desired result.

Manner and Means: Determining The Level Of Control Exerted

If I offered to pay you to deliver something to a particular place before a particular time––say the ceremonial ball to Times Square by New Year’s Eve 2014––but I gave you no additional instructions, you would be free to choose the manner and means you used to get the ball there. Your route could be circuitous, or direct, as long as the ball arrived at the location before the deadline. You could mail it, carry it on a bus, drive it by car, fly it in a plane, or take it by boat.  You could, theoretically at least, hire a mule team to take you and the ball to New York. Or, you could avoid the hassle altogether and pay a friend to do it.
Continue Reading Blurred Lines: When Manner Meets Means