California’s anti-discrimination laws just got a bit more complicated for employers. The Fair Employment and Housing Commission, the ultimate guardians of FEHA’s galaxy of laws, recently promulgated new regulations you need to be aware of. (Just in case: FEHA = California’s Fair Employment and Housing Act.) And since the new regs are effective April 1, 2016 (no fooling), you need to act fast.
Here’s what you need to know.
More companies are covered under FEHA.
Five employees is the legal standard, and that didn’t change – employers with fewer than five employees are exempt from FEHA. But the regs did implement a new rule that includes non-California-based employees in the company count. So if you have one person in a satellite office in Oakland and four more in your Phoenix branch, congratulations, you are officially playing with the big boys.
Things are changing a bit with gender.
The regulations provide new definitions for gender identity, gender expression, and transgender. In general, “gender expression” refers to appearance and behavior; “gender identity” is how a person identifies him/herself; and “transgender” means someone whose gender identity differs from the person’s sex at birth. They are all protected under FEHA.
More nit-picky rules for handbooks.
The new regulations are extremely detailed with respect to what your written anti-discrimination policy needs to say and how it needs to say it. (You don’t have a written anti-discrimination policy? Time for a heart-to-heart with your favorite employment lawyer.)
- It needs to be in writing (duh).
- It needs to list each one of the protected classes referenced in FEHA – depending on how you count, that’s north of 30 different categories.
- It needs to specify that harassment, discrimination, and retaliation are no-nos whether done by a manager, a supervisor, a co-worker, a contractor, a client, a vendor, or pretty much anyone else employees are likely to meet in a workplace setting.
- It must include an explicit and legally adequate complaint procedure to ensure any complaints (1) get a timely response; (2) are kept confidential to the extent possible; (3) can be reported somewhere outside the chain of command; (4) get investigated quickly, by competent and impartial personnel; (5) are tracked and documented; and (6) lead to discipline if the facts warrant.
- It must prohibit retaliation of any kind. This means in the real world, as well as written policy land.
- The policy needs to be disseminated to employees before April 1, 2016, in hard copy, on an intranet site, and/or through new hire training. Does more than 10% of your workforce speak a language other than English? Well then, translate and disseminate into all such languages.
Make sure you’re training your people to avoid conduct that isn’t even illegal yet.
Yes, you read that right. Stick with me here.
Employers big enough to require biennial discrimination and harassment training under California law (50 employees or more), must also tweak your training program. Specifically, the training has to include matters relating to “abusive conduct” in the workplace, including
- Its negative effects, like reduced productivity and bad workplace morale.
- What it is, generally conduct taken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests.
- That a single really egregious act can trigger, uhh, well, something that will make your teacher very disappointed (see next paragraph). Although most instances of abusive conduct require more frequent occurrences.
Interestingly, abusive workplace conduct isn’t technically illegal in California – at least not yet – although in many cases it’ll get you sued for harassment or other bad employer behavior. But maybe you can read the tea leaves about where this is going.
Consider yourselves up to date (for now — gotta love California, there’s always more coming). And make sure to get these new items incorporated into your manuals and procedures, and avoid a love note from the DFEH in your Easter basket.
Thanks for reading – and please let me know if we can make these updates more useful (or at least more entertaining).
We sincerely hope worrying about work is the last thing on your mind. But we also think you’ll rest easier knowing the ins and outs of pregnancy in the workplace. (And if you haven’t heard, rest is soon going to be in short supply.)
So here are the basics:
- California has got your back. California law is extremely strict when it comes to pregnancy. Discrimination or harassment on grounds of pregnancy is completely prohibited. And the law takes an expansive view about what “pregnancy” means — it includes serious prenatal issues requiring bed rest, less serious matters like morning sickness or pregnancy related fatigue, and even just additional time needed for normal doctor visits. If your boss or coworker is making snide comments about your prenatal appointments or morning sickness, they’re looking at a lawsuit. Think of it as an expensive shower gift.
- Doesn’t matter if you’re a brand new employee. There is no waiting period for protection to kick in for most purposes. (Bonding leave, discussed below, is an exception.) If your pregnancy is announced the first day you’re hired, you’re still protected.
- Doesn’t matter if it’s a small company. The pregnancy disability and discrimination laws apply to companies with as few as five employees (including you). Anti-harassment laws apply to companies with just a single employee.
- Accommodations must be made. If you can’t do everything you used to do, no one’s going to blame you. Your boss actually has to make accommodations to help you do what you can. For instance, you may be entitled to work from home. Or to a light duty assignment if you can’t lift boxes or other heavy things. Or to avoid work entirely if you are put on bed rest. Ask your employer if you are having trouble, and they’re obligated to discuss with you ways to make it easier.
- You’re entitled to a long leave if you need it. California employees disabled as a result of pregnancy are entitled to up to four months of leave. That doesn’t mean every pregnant employee gets all four months — the leave lasts only as long as the pregnancy-related disability. A normal pregnancy generally involves about 10 weeks of disability (four pre-partum, six post-partum), but if your doctor says you were disabled for longer, you get the leave.
- You may be entitled to a really long leave. If you meet the criteria for FMLA or its California partner CFRA leave, you are also entitled to 12 weeks off to bond with Junior. And bonding leave generally does not run concurrently with disability leave. So pregnant employees who qualify for bonding leave can get up to seven months of leave — up to four month’s disability and up to three months bonding.
- You and your spouse can even get some money. Employers aren’t usually required to pay you if you take pregnancy disability leave or bonding leave. But California does provide a short amount of Paid Family Leave for new parents bonding with their offspring. And the employer generally has to keep your benefits going during your leaves. It ain’t Denmark by a long shot, but better than a sharp stick in the eye.
- Your doctor — not the company’s doc — is in charge. When it comes to pregnancy disability, if your doctor says you’re disabled, you’re disabled. You may need to provide medical certification of the need for leave, but the employer can’t get a second opinion. And all your doctor needs to say is (1) you are disabled as of a particular date, (2) you’re probably going to be disabled for a particular time, and (3) a general statement that the employee can’t work at all or can’t do some of the job functions without risk to mother or child.
- In most cases, you get your old job back. If you come back directly after your disability ends, you are generally entitled to be reinstated to your old job. (Unless it doesn’t exist anymore, for reasons other than that you left work to have a baby.) If you take bonding leave too, you must be returned to a comparable job, but not exactly the same one you had before.
- You don’t have to pump in the restroom. Under both California and federal law, employers have to provide appropriate time and private space for new mothers to express breast milk. And no, a bathroom stall doesn’t qualify.
Very best wishes on the impending arrival! Take care of yourself and your baby.
And if you need to take care of your job, too, well, now you know what you need to know.
Raise your hand if you’ve ever hired, or worked as, an intern — exchanging labor for nothing but experience, contacts, perhaps some academic credit, and maybe even a small (read, “under the minimum wage”) financial stipend. A business gets a break on employee expense, and a newbie gets a resume boost and “real-world” experience. Great deal for everyone, right?
Wrong. In fact, in most cases, people called “interns” are actually nothing more or less than a garden-variety employee. And the part where the intern gets experience rather than money is a tremendous legal risk for the employer. Because for some reason courts don’t like employers who don’t pay their employees minimum wages, overtime, etc.
Talk about your summertime blues.
True “interns” under the law are actually called trainees. And they must meet six criteria before they will be recognized as a true “trainee” and exempt from federal and state wage and hour laws, rather than an employee.
- The training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in a vocational school;
- The training is for the benefit of the trainees or students;
- The trainees or students do not displace regular employees, but work under their close observation;
- The employer derives no immediate advantage from the activities of trainees or students, and on occasion the employer’s operations may actually be impeded;
- The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and
- The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.
These factors are assessed according to the “totality of the circumstances.” No one of the factors is more important, and the particular facts and circumstances are critical to the conclusion. As a result, there is very little predictability about whether a particular trainee is or isn’t an employee. That’s bad for employer certainty, and it’s terrible if litigation results — because that kind of fact-driven analysis virtually ensures a lengthy, risky, and expensive trial.
A few points can be made about these criteria, however — none of them particularly helpful to the employer. First, the “internship” experience has to benefit the trainee, and it has to be sufficiently general that it provides the trainee with experience that will benefit the trainee in other industry-related employment. So learning how to fix a variety of different computer systems may be OK; building or repairing specific components of the employer’s proprietary systems is probably not.
Second, the employer can’t receive any immediate benefit from the trainee’s work. This factor very likely sinks almost all purported “internships.” If an intern is building the widgets or providing the services that are the employer’s stock in trade, the employer is deriving an immediate benefit from her work. That means the trainee is an employee, and has to be paid.
Third, and related, the trainee must not “displace regular employees.” So if an employer is reducing staff at the same time it is hiring “trainees,” it’s probably in trouble. Same problem if the employer is ramping up production and hiring trainees at a disproportionately higher rate than new employees. In fact, an employer may have to show a detriment to employee productivity as a result of hiring a trainee before the trainee will be considered exempt from wage and hour laws.
Fourth, although an “understanding” between employer and intern is part of the test, it is not terribly difficult for a young, unsophisticated, hungry intern to disclaim really knowing all of the rights he or she may be giving up by accepting that unpaid internship. And an employer will find it difficult to prove equal bargaining power under most circumstances.
The consequences of misclassification can be disastrous. In California, minimum wage violations come with liquidated damages that effectively double the employer’s financial exposure. Daily and weekly overtime, civil penalties, and attorneys’ fees — the employer’s and the successful employee’s — add significantly to the potential pain. Don’t think you’ll just be fighting about one or two interns, either. Any misclassification case will probably be brought as a representative or class action, on behalf of all the interns you’ve hired in the past four years. Employee attorneys live for this kind of stuff.
Employers should think long and hard about hiring unpaid or underpaid interns. And they should definitely talk to their attorneys first. Far better to bring them in as employees if you need people to do the work, and leave the education to the colleges and vocational schools if you don’t. Anything you save in wage cost will be dwarfed by even a single complaint.
Whether you are thinking of starting a business, are hiring your first employee, or have been in business for years, this short list of tips can help you avoid some of the big legal pitfalls that come with employees. (Adapted from a presentation I frequently give to business groups and anyone else who will listen to me for an hour or so.)
10. Draft, and use frequently, written job descriptions. Include the job title, essential duties of the job, and the skills, experience, and physical requirements necessary to do it. Specify whether it’s an exempt position or hourly. Use the job description when advertising openings, interviewing candidates, evaluating and disciplining employees, and considering ADA accommodations. Review your job descriptions at least annually to make sure they comport with reality, and fix them if they don’t.
9. Publish a compliant employee handbook. A good handbook is a roadmap for dealing with employee issues and managing employee expectations. Each state has differing laws, and those laws change with some regularity (paid sick leave in California, anyone), so having a lawyer or HR consultant help with drafting is a pretty good investment. The internet is not a reliable source of handbook forms.
8. Train supervisors regularly. Don’t let that handbook gather dust. Make sure your supervisors are trained in what it says. In some states, like California, supervisors must receive certain training (on discrimination, harassment and, new for 2015, workplace bullying) every couple of years. Well-trained supervisors can help nip potential problems in the bud. Poorly-trained supervisors can create significant problems for which the business will almost always be liable (after an expensive lawsuit.)
7. Tell your employees they are “at will”, but don’t rely too much on the concept. Most states presume employees are employed at will, and can be fired (or can quit) at any time and for any reason or no reason at all. Put at will language in your handbook and offer letters to confirm that the employees know it. But also make sure you have a business justification for all your employment decisions, because you’ll need one to defend a discrimination case.
6. Conduct regular employment practices audits. Hire a consultant or lawyer to look over your handbook and other practices on an annual or biennial basis, and follow their advice regarding fixes. It’s a modest expense that can limit major liability down the road. This is particularly true in the wage and hour/overtime area. Almost by definition, practices problems affect every employee, and there can be long look-back periods in lawsuits. By some studies $1 billion changes hands in wage suits each year. Keep your share of that in your pocket.
5. Evaluate employees regularly, and honestly. Let everyone know how they are doing — it’s the fair thing to do, and it limits the kinds of surprises that lead to lawsuits. Use a standardized form in you can, and train supervisors so that grading fluctuations are minimized. And be honest, about good and bad. Evaluations can be one of an employer’s best defenses against discrimination suits, but only if they honestly document deficiencies.
4. Don’t fire a pregnant woman. State and federal laws are extremely protective of expectant mothers, and juries do not like employers who treat them poorly. (And the jury will see Mama and Baby at trial, you can be sure.) Maternity leaves may be disruptive in the workplace, but far less so than a lawsuit.
3. Get insurance. There are many good insurance products that will protect against some of the risks of an employment lawsuit. The market for those products is competitive, and the coverage is not expensive. Don’t face a five- or six-figure defense bill by yourself if you don’t have to. Talk to your insurance broker.
2. Keep your eyes open and act promptly to correct problems. Lawsuits don’t come without warning. Train supervisors to look for trouble before it erupts into something that can’t be fixed without a jury. The ostrich approach to employment risks is not a good one.
1. Write everything down. Many employment cases come down to documentation, and it’s always the employers job to keep it. Juries often find that things that are not written down did not happen — or else they would have been written down, right? An employer will never be given the benefit of the doubt in this context. Save yourself the trouble and write down important facts, incidents, and discussions.
As a business owner or manager, you have enough to worry about. Follow these tips and — hopefully — you can leave defending an employee lawsuit out of it.
BYOD — “bring your own device” — policies have gained quite a bit of popularity among employers. These policies acknowledge the ubiquitous possession of cell phones and other mostly mobile devices by employees, and encourage or sometimes require employees to use their devices to do their jobs.
That’s a problem in California. The reason is California Labor Code section 2802, which says:
“An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer….”
So employees who use their cars to do the employer’s business need to be reimbursed by the employer for that use. But it goes well beyond that, as the court held recently in Cochran v. Schwan’s Home Service, Inc.
In Cochran, a class of customer service managers sought reimbursement for their personal cell phone use on the job. Cochran sought damages for violation of section 2802. The trial court denied certification of the class (which for these cases generally means the case is over), holding that there were too many individual questions relating to employees’ personal usage plans, etc.
The court of appeal reversed. According to the Court of Appeal, the trial court mistakenly assumed that (1) an employee does not incur any expenses if the cell phone charges are paid by a third person or if the employee did not purchase a different cell phone plan because of work-related cell phone usage, and (2) liability could not be determined without examining the specifics of each class member’s cell phone plan.The Court of Appeal determined that the details of a cell phone plan are essentially irrelevant. When cell phone use is mandatory, an employer must always reimburse an employee for “some reasonable percentage” of the personal cell phone bill, whether or not the employee incurred extra fees or changed plans to accommodate work-related cell phone usage.
The California Supreme Court turned down Schwan’s appeal in late 2014. So this is the law of the land, employers.
Here are the big takeaways for employers:
- Employees must be reimbursed for expenses necessarily incurred on the job. Not terribly controversial, but important from the standpoint of the terms and limits of your BYOD policy. If employees are using their own phones for their own purposes, no reimbursement. If they’re using them to do things the employer requires them to do, and doesn’t provide an alternative way of doing without fishing their own phone out, it’s a problem.
- How much an employee must be reimbursed is an open question. The court said “some reasonable percentage.” That’s court-speak for, “Don’t bother us with facts, ask a jury.” Which for most employers is a troubling prospect, since it means you don’t know what you owe until two years after the fact, when it’s well too late to do anything about it. This aspect of the decision is likely to spawn a mini-wave of suits to bring some clarity to what is essentially a completely meaningless phrase.
- Employee expenses must be reimbursed even if the employee can’t point to any “extra” expense he incurred. Most cell phone plans today come with unlimited or extremely liberal usage plans that are rarely exceeded. And thus, most employees won’t see — and employers won’t be able to quantify — any additional amount due on their bills for the work calls made on the employees’ phones. Doesn’t matter. Employers owe their share, whatever that may be.
- It’s helpful for employers to give employees the tools they need to do their jobs. If an employer can show the employees are using their own devices for their own convenience, it will be easier to avoid reimbursement. Employers who try to save a little bit by counting on employees’ devices are looking at a fairly open-ended obligation.
- Process counts. Regardless of the expense or how the employer reimburses it (mileage? percentage of personal/business use? flat percentage per month?), it’s a good idea to give employees an opportunity to argue that they are out more than the employer thinks. That idea works for automobile use, anyway, and might be useful to at least minimize penalties or attorneys’ fees if the process is there but the employee doesn’t use it.
Employers need to act to make sure the meter’s not running on their employees’ cell phone bills. Have your HR rep or lawyer check your reimbursement and BYOD policies in California. Otherwise, you’re apt to get an expensive surprise.
It almost doesn’t matter what was said. What does matter is what you, as a business owner or HR specialist or supervisor needs to do when on the receiving end of that kind of communication. You need to conduct an investigation. And the way you do that can turn a little, solvable problem into a big, legal-fee-generating, morale-killing, six-figure mess.
So, fresh from the What Were They Thinking desk, the top 10 ways (taken from actual investigation files!) to boot a harassment investigation:
1. Ignore it. It may be human nature to want to minimize other people’s failings, but now is not the time to reflexively defend the alleged harasser, or tell the complainant to man up. If an employee is reporting harassment, it’s a problem, and you have to deal with it. Saying “I’m sure he was just joking,” or “you must have misunderstood,” or “you need a thick skin in sales” is going to make it worse. Respect the complaint, and respect the complainant for giving you the opportunity to fix it, hopefully without a lawsuit.
2. Procrastinate. Investigations are not fun to conduct. They don’t come with a deadline. They don’t add anything to the bottom line. No one likes to make decisions about who’s right and who’s wrong. So sometimes these things get low priority. Big mistake. Delaying an investigation is going to make it much harder to conduct, as people’s memories lapse or alibis get manufactured (yes, you heard me). Delay also violates your legal obligation to take reasonable steps to prevent harassment before it happens and to stop it when it does. Act, and act fast.
3. Ignore what’s in your handbook and policies. Remember how much you paid for your handbook? Now’s the time to use it. Most likely, it has a description of what will be done in an investigation. That’s your instruction manual. Follow it. If you don’t, you’re going to be accused (and with good reason) of conducting a cover-up rather than a good faith investigation.
4. Put the alleged harasser’s buddy, or boss, in charge. Don’t laugh, it’s happened. Investigations are worthless if they are not objective. In fact, they are worse than worthless. They can turn a potentially isolated incident into a major disaster. Get someone who has no connection with either party to conduct the investigation. If you have to, hire someone.
5. Promise secrecy. You may not promise complete confidentiality. To anyone, in any investigation. You need to talk to others to conduct the investigation. How else can you find out what occurred, or evaluate the credibility of the actors in the frequently-occurring “he said, she said” situation? An employee seeking confidentiality needs to be reminded that the company will not tolerate retaliation (see number 9). But your legal duty to thoroughly investigate means you can’t promise that no one will hear about what happened or who was involved.
6. Ignore witnesses. If the complainant says someone heard or saw something, talk to them. Ignoring the complainant’s witnesses is another indication of a whitewash. To a jury your not talking to a potential witness means you reached your conclusion before the investigation started. That’s not a good thing.
7. Keep informal (or no) records. Repeat with me the HR mantra — if it wasn’t documented, it didn’t happen. Write everything down. Keep it all in a separate file until the investigation is complete. If discipline is imposed against someone after the investigation is done, by all means the reason should be included in the appropriate personnel file — just not while the investigation is pending, please.
8. Conclude with “I don’t know.” Let’s face it, many complaints boil down to one person’s word against another. You still have to make a decision. Either something happened or it didn’t. Say what you think, and document the objective reasons why you think it.
9. Retaliate. “I think I’ll just put the complainant on the night shift to separate them while I sort this whole thing out.” Wrong. You just retaliated against the complainant, and added a cause of action to the lawsuit. That goes for anything that could be characterized as adverse (more frequent performance reviews, exclusion from meetings, changes in responsibilities, and many more things can be considered retaliatory). Also, keep the complainant informed of the progress of the investigation, and follow up during and after the investigation to make sure nothing untoward is happening. And, I hope it goes without saying but will say it anyway, stop it if it is.
10. Let harassment or discrimination slide. If you conclude that something improper happened, you need to do something about it. It doesn’t matter if the harasser is the biggest rainmaker in the firm, conduct that violates the law and your policies must have consequences.
Keep these in mind and things should go well (or as well as can be expected after someone’s complained). Ignore them, and the lesson can be a bit more difficult.
There’s a lot going on every day in employment law. New laws, new cases, new regulations, new requirements. It’s next to impossible for a huge HR department with significant resources to digest it all, let alone a small business owner doing everything else as well.
But there’s one rule every employee, HR rep, or owner knows already, that will serve you well regardless of the situation. I’m talking about the Golden Rule. Treating others how you’d wish to be treated. Basic fairness. That’s what most of us want, regardless of which side of the employer-employee divide you find yourself on.
Think I’m being too simplistic? From the legal point of view the Golden Rule has a lot to say for itself. What happens if you get in a dispute? Sure, you’ll be arguing case law and code sections. But worst case scenario, you are going to have to justify your actions to a jury of regular people. (And even if most cases settle, they settle based in large part on how the parties expect a jury to view the case.) How is the jury of laypeople going to judge what you did? Probably under some version of the Golden Rule.
They’ll ask questions like this:
- Did the employee know what was expected?
- Were decisions made after gathering all the facts?
- Were similarly situated people generally treated the same?
- Was power abused?
- Did everyone get his or her say?
- Was a promise made, and if so was it kept?
- Was the process and the outcome fair?
And depending on the answers to those questions, they may go to a place no company wants them to be:
- How much?
Now don’t get me wrong. This doesn’t mean you have to avoid managing, or that you need to keep non-performers or troublemakers in the ranks out of some misguided attempt to give a benefit when all doubt has long since left the building. If you think about it, failing to make the tough personnel decisions is unfair to the other workers, who are going to have to work harder to make up for someone else’s failings. As long as an employer can show it acted humanely, fairly, reasonably, and consistently, it will be well placed to prove that it’s the employee and not the boss who is responsible for the problem.
By all means keep up with all of the many rules, laws, and regulations that apply to workplace relations. And get professional help when you need it. But don’t miss the big picture sorting through the minutiae of statutes, regulations, administrative opinions and court cases. Make sure you run your decisions through the fairness meter as well.
Practice what you learned in kindergarten, and follow the Golden Rule. The jury will.