San Francisco Employment Law Blog

Habitually Absent, Tardy, and Sick Employees in California Workplace

absent

In California, there are always cases of employees who are always absent from the workplace for no apparent reason. Even when they receive warning letters from their employers, these employees hardly rectify their behavior.

Even worse, some of these employees hardly report to work on time on the few occasions they avail themselves. In some cases, some employees miss work due to genuine reasons such as sickness arising from serious medical conditions-mental illness, cancer and diabetes.

In most instances, employers in California are usually at loss with respect to how to hand medical leave or termination of employees for missing work. To respond accordingly to these issues, let us look at some common questions mostly asked by employers.

 

FAQs (Frequently Asked Questions)

 

  1. Is it mandatory to provide paid sick leave to my employees?

Paid sick leave largely depends on the location. There are places in which employers are supposed to offer their employees paid sick leave while in other places it is not a mandatory.

 

  1. Are my employees entitled to medical leave under the Family and Medical Leave Act (FMLA) if my organization has less than 50 employees?

No. The Family and Medical Leave Act is only applicable to a business that has 50 or more regular employees. Further, the medical leave is applicable if the employees work within 75 miles of each other.

 

  1. What should I expect as an employer from an employee request for FMLA leave?

According to the FMLA, if possible, an employee ought to furnish an employer with a 30 days’ notice prior to taking the leave.

 

  1. As an employer can I terminate an employee on FMLA leave without the risk of legal consequences?

Yes, as an employer you can terminate an employee on FMLA leave without the risking any legal consequences. However, the termination ought to be non-discriminatory in nature. Further, an employer cannot terminate an employee as retaliation for taking FMLA leave. The following are circumstances under which an employer can terminate an employee while on FMLA leave

  • Termination due to low-quality performance
  • Termination due to decreased workload
  • Termination due to gross misconduct, or criminal and fraud-related activities while on leave

 

  1. When does the American with Disabilities Act (ADA) apply to a business?

This law is applicable to businesses that have 15 or more employees. The act requires employers to refrain from discriminatory behavior that intimidates employees with disability.

In conclusion, there are so many disputes that can arise between employers and employees. This is due to issues to do with habitually absent employees, medical leave, and termination. To competently handle these issues, employers should formulate precise guidelines that govern the process to be followed by employees when taking medical leave.

On matters termination, employers should involve qualified lawyers to ensure they do not break any law. As for employees, they should seek legal counsel as well in the event that the termination while on medical leave is deemed unfair or a retaliatory measure by the employee.

The Common Pitfalls To Dodge When Filing A Workers Compensation Claim

workers compensation

Nobody expects to get injuries while working, but workplace accidents happen all the time and knowing how to fill out a workers compensation claim is very important. Some accidents can lead to serious injuries, lasting disabilities or even death – and that is where workers compensation can come in and make a lasting improvement in your life.

Workers compensation claims can cover death benefits, disability benefits, and medical costs. However, filing a claim can be overwhelming and confusing at times. Moreover, if you make mistakes when filing it, the claim may not hold.

Below are the mistakes most people make when filing an employee compensation claim:

 

Failure to report injury 
One cannot start collecting the employees’ compensation benefits without first reporting the workplace accident. An injured employee must inform their employer, either in writing or in person, at that moment if possible.

 

Reporting injury to your medic before informing your employer
It is your duty to report any injury to your employer and not of your doctor although you have to see him or her in order to get treatment recommendations. Make sure to report the matter first to the employer before visiting a doctor.

 

Using your private health insurance to seek coverage for injury
The employer’s workers compensation plan usually covers all your medical costs associated with the injury as well as any disability benefits in case you cannot work. On the other hand, private health insurance covers your medical bills only after paying a co-payment and/or a deductible and does not cover work injuries.

 

Failure to report an injury because you think that you have no claim
Never conclude that you are not entitled to employee compensation benefits because your injury is not very serious or physically obvious. For instance, in case one is suffering from carpal tunnel syndrome, he or she might enjoy the worker’s compensation benefits although no single incident can be linked to the condition.

 

Failure to provide an accurate and complete injury report
It is prudent to be thorough when filling an injury report. Make sure you include a comprehensive injury clarification, time of the accident, date, and location.

Assuming you are not entitled to a claim because you did not take time off from work
Do not be one of those employees’ who doesn’t miss work to seek medical attention or to recuperate because you are dedicated and do not want to get a punishment for skipping work. Even if you go to work daily, you are still eligible to injury benefits.

 

Assuming your pre-existing condition nullifies your eligibility for benefits
So long as the workplace accident is the main reason why you need treatment, your pre-existing conditions, made worse by the injury, do not hamper your eligibility to enjoy benefits.

 

Failure to file a claim as no any particular event causes the injury
You might be eligible for benefits even if your injury results from cumulative trauma such as carpal tunnel syndrome or a series of event like repetitive lifting.

Same-Sex Couples and Shared Employment Benefits in California

same-sex couples

The laws surrounding work benefits and same-sex couples have evolved rapidly, so staying up to date is essential to avoid any lawsuits. Here are some of the most important details you should know to stay safe.

 

Implications of the Supreme Court’s ruling on same-sex marriages

When the U.S Supreme court issued its decision to strike down the Federal Defense of Marriage Act in the United States v. Winsor case, it legalized same-sex marriage at least at the federal level. This was to hopefully, open the doors for such couple to enjoy same rights as their heterosexual counterparts.

This has, however, not been the case across the entire US. Some states are yet to adopt and implement this shift. One of the areas that same-sex couples expected to enjoy equal rights as the heterosexual couples were in the Shared Employment Benefits.

Turning to California, same-sex marriage has been legal since 2013 but the Supreme court’s ruling expanded same-sex marriage rights across the US and is having an impact in California. Employers in this state must now treat their employees in opposite-sex and same-sex marriages equally for both state and federal law purposes.

With this requirement in place, now there are new possibilities concerning shared employee benefits in California.

Shared Employment Benefits in California in the Workplace

Six things one should know concerning employee benefits for same-sex couples in California are:

  1. Cobra coverage: Same-sex couples have COBRA election rights. These allow them to continue insurance coverage but for a limited time under certain circumstances such as divorce and job loss.
  2. ERISA benefit plans: these couples have just the same rights as the heterosexual couples to ERISA retirement plants as well as health plans and other workplace benefits.
  3. FMLA or the Family and Medical Leave Act which holds that same-sex couples are to be considered a family member/spouse as far as taking FMLA leave are concerned.
  4. HIPAA: special insurance enrollment rights under this arrangement apply to same-sex couples
  5. Flexible spending accounts: Eligible employees may make use of their Flexible spending accounts, Health savings accounts, and health reimbursement accounts for the expenses of these couples.
  6. Health plan taxes: The health plan benefits that are provided to the same-sex employee’s spouse are not to be subjected to federal or state income taxes.

Some FAQs

  1. Will our marriage be treated the same in California if we are married in the District of Columbia, or in the states of Massachusetts, Connecticut, Iowa, Vermont, or New

Hampshire, or in Canada or another foreign country in which same-sex marriages are legal? For the most part, each area has different rules but they will honor most of what California does.

  1. Will all same-sex domestic partners and same-sex spouses be eligible for benefits? Again, it depends on the state and their laws, but in California, the answer is yes.
  • What documentation will be required by the State employee/retiree in order to add a same-sex domestic partner to the coverage? A marriage license will suffice in most states.
  1. Will the dependent child(ren) of same-sex domestic partners or same-sex spouses also be eligible for benefits? Yes, as long as there is proof that they are your child or your spouse’s child.
  2. Can parents of employees be covered under this new eligibility expansion? If the company allows for this, then it should not be an issue.
  3. Is my domestic partner/spouse eligible to continue health benefits coverage if I pass away? Again, it depends on the companies insurance carrier and what they allow for.

Paid Sick Leave Payment

sick leave

There are several portions to the paid sick leave law in California. It is necessary for you to carry out research so that you can know what the law dictates before you make your decision. Employers should use the existing laws to grant or even deny sick leave. Some common questions which people ask about paid sick leave in California include the following:

Is the employer required to provide more sick days even if he had provided the sick leave days before the law went into effect in 2015?

No, if your employer had provided paid sick leave plans prior to the grandfathered paid times. If our employer had such a provision, he can decide to retain it or add more days if they are few. The law requires the employer to provide the paid sick leave in a given employment while adhering to the law. If the provisions provided by the employer adhere to the law, then the employer can decide to retain the plan.

My employer provides paid time off under grandfathered plan; does the new law change the rate at which employees are paid under the plan or other provisions such as vacation?

No, the sick paid leave addresses payment on leave taken due to being sick. It does not address payments related to sick off taken due to other reasons other than seeking medication. There are other provisions of the law which addresses other provisions in regard to payments in the workplace.

Calculations of the paid sick leave in California employers

The paid sick leave is calculated based on the amount of work the employee will do in a week. It is calculated in regard to all the possible work the employee will do and the rate will be based on the duties which other employees in the same category did in the week. If they did overtime, the employee in sick leave will be as well provided the employment.

The paid sick leave can be calculated based on the nonexempt employee’s wages on an average of prior 90 days which they worked in the employment.

The employer can calculate the sick leave payment based on the way he calculates other paid leave time for employees.

In general, the sick leave should be paid based on the regular wage which the employer pays his workers when they are in their workplace.

An employer is not allowed to a discipline you if you go to a doctor and claim sick leave due to illness.

Gender Neutral Bathroom Laws 

gender neutral bathroom

There has been a lot of talk about gender neutral bathrooms and whether they are necessary or not, or even if they’re legal. Since it is such a hot topic of debate, it is important to understand the laws about them

What is a Bathroom Bill?

A bathroom bill is simply a common name for a statute or legislation which is meant to define how public facilities are meant to be accessed. To be precise, the bill defines how restrooms should be accessed by transgender people.

 

Basically, bathroom bills often affect access to sex- segregated public facilities for a person based on a determination of his/ her sex as defined in specific ways such as: 

– Sex that is corresponding to the individual’s gender identity

– Sex as assigned or given when the person was born

– Sex as listed or indicated on the person’s birth certificate

Starting 1st March this year, ERAA i.e. Equal Restroom Access Act, California will require single occupancy restrooms to possess signs that indicate they are, in fact, a gender neutral bathroom.

Restrooms that are Being Covered by the California’s ERAA

The ERAA cover in the state of California applies to all single- occupancy restrooms in government buildings, businesses as well as in places set aside for public accommodation such as in parks.

What is Single Occupancy?

Single occupancy simply refers to a toilet facility that contains one water closet and no more than a single urinal that comes with a locking mechanism meant to be controlled by the user.

What Does Equal Restroom Access Act Require?

ERAA needs signs to be put in place that will be used to identify single occupancy restrooms as gender neutral. However, the signs recommended must comply with what is stipulated in Title 24 of California’s Code of Regulations.

What Does Title 24 of the California’s Code of Regulations State?

Title 24 of the California’s Code of Regulation states that there are two signs that employers must adhere to when identifying a restroom, i.e:

1. A sign in form of geometric symbol identifying the restroom as unisex, female or male. For instance, the most common geometric symbol can be the use of circles for female restrooms, triangles for male or triangles superimposed on the circles for the unisex.

Be informed that triangle superimposed onto the circle is the specific indicator needed by California Building Code.

2. A wall mounted designation sign which identifies a permanent space or room to be offered for a toilet facility. However, the sign should be tactile i.e. can be read easily even when a person is trying to view it using a touch.

Last, but definitely not least when adhering to gender neutral bathroom laws, ensure that you only purchase signs that you’ re double sure are complying with the law so that you can avoid being misled.

Jury Duty – What You Can Expect When You Are Called 

jury duty

Law protects employees from being punished or fired by employers for taking leave of work to serve jury duty. Employers are also restricted from trying to discourage or intimidate employees from serving on a jury. They are allowed to require proof from employees that there was called in for jury duty before they are allowed time off work.

 

Jury Selection Process

Whether or not the juror knows any of the defendants, witnesses, victims, experts or investigators in the case or if you happen to have any particular knowledge about the case not publicly known.

After these questions are asked and answered, the jury pool is whittled down. The next step is the judge and attorneys for both sides of the case will decide upon the first twelve jurors who satisfy their requirements.

 

If necessary, the court may decide it is prudent to select some alternates. These back-ups are treated like jurors and listen to all the evidence presented in the case. They do not participate in the actual deliberations unless something prevents one of the original jurors from completing their duty.

Once the jurors are selected, the judge will explain what is expected of them. The judge will probably go over housekeeping items such as if the juror needs a break during the trial, what they can bring into the jury box, how long they have for lunch and what time they are to report each day.
How Long Are Trials?
Most local trials only last a day. Some jurisdictions have made the determination that if you are placed on a jury during the time you are “on call” you have satisfied your commitment and are released from coming back for a period.

During the actual trial, you’ll sit in a designated box and are expected to listen to all the testimony before forming an opinion. Some jurisdictions allow note taking, put provide you the notebooks and pencils as you are entering and leaving the courtroom and collect them as you leave. Some jurisdictions are concerned that people won’t pay close attention and have disallowed note taking.
Who Gives The Jury’s Decision
A foreperson is either determined by the court or elected by the other jurors. This person is the voice of the entire jury and will be responsible for communicating to the court via the bailiff if they can’t hear the testimony, can’t see the visual evidence, it’s too warm or cool, they need a break, etc.

 

The foreman is also responsible for passing along any information from the court to the jurors. For example, making sure everyone as signed the attendance form and fill out the necessary paperwork to receive their daily stipend.
Is There Any Downtime?
The jury only hears testimony and attorney comments which the judge deems appropriate to the case at hand. Any other information which the judge feels will be prejudicial to the defendant will be discussed while the jury is outside the courtroom. These periods can be short or long depending upon what is discussed.

 

This is an opportunity for jurors to talk among themselves about anything not related to the case. This is also a good time for a juror to read the paper or book, balance a checkbook, set up doctor’s appointments, etc.

While jury duty can be inconvenient, it can also be a wonderful educational experience in how the judicial system works.

 

Racial Discrimination In The Workplace

racial discrimination

Racial discrimination is the unpleasant action or attitude, whether consciously or subconsciously manifested, that undermines an individual based on their heritage or because of their race. Racial discrimination happens as an individual or as a whole group or an institution.

Racial discrimination is not something minor because it accounts for a large number of the complaints received by the Equal Employment Opportunity Commission, a group that handles cases regarding inequality in the workplace.

How Does It Appear At Work?

Racial or ethnic discrimination in the workplace has many facets. Some of these facets can be obvious. Since racial discrimination is sometimes subtle, one of the most common aspects of it is that it can take place undetected.

Racial Discrimination in Workplace is Common

Unfortunately, racial discrimination in the workplace still exists. In 2002, a study conducted by Rutgers University showed that it is widespread for discrimination in the workplace to take place.

28% of African Americans have gone through discrimination in their workplaces. It is a lot when compared to 6% of whites.

Discrimination lawyers say that among all forms of discrimination, workplace discrimination is the most dangerous. This is because of the emotional toll it takes on the discriminated employees.

It is much more difficult to turn your back on racial discrimination when it happens in your workplace.

The Challenge of Coming Forward

While you may know how you are being discriminated, proving it may be difficult. An employer would never admit racial or ethnic discrimination.

When it is so difficult to prove it, this will add to your isolation, frustration, withdrawal, self-doubt, and lack of confidence. The stress accumulated at work can then spill over other aspects of your life.

People naturally want to appear strong, so they are often hesitant discussing these issues with others. One viable solution is to talk to a discrimination lawyer.

He or she will not only be able to determine if you have a legal claim against your employer but also to help you cope with the emotional stress resulted from the discrimination at your workplace.

They may advise you to join some supporting groups and visit some professional organizations that deal with such kind of problems.

They may also recommend you a therapist or a job coach.

Employees’ Rights in Workplace

There are certain basic rights in the workplace. Each employee should benefit from these rights. One of these basic rights is freedom from discrimination.

This right takes effect even before you get hired. You also have certain rights as a job applicant and candidate. Aside from race, you have the right to be free from the discrimination of sex, ethnicity, sex, age, religion and national origin.

If you feel that you have been discriminated in your workplace, arrange a consultation with the local discrimination lawyers.

You should be free from workplace discrimination no matter what is your age, sex, nationality or religion. This is why you have some basic rights against discrimination.

Does My Employer Have the Right to Inspect Personnel Files in California?

personnel files

In the recent past, the state of California reviewed its legislation regarding the right to inspect personnel files. This was particularly to allow the employees access to their records. The new law stipulates that an employee or a representative (current and former) has the right to receive and inspect a copy of personnel records and files that relate to their performance and any other grievances.

A current or former employee or representative should receive a copy of their records by writing a request to the employer. This should not take more than 3o calendar days and should not cost more than reproduction cost.

Inspection Rules

To make inspection possible, employers should:

(1) Keep an employee’s records for a minimum of three years after termination of working relationship.

(2) Have current records of an employee for inspection purposes and upon request by a representative or the employee, he or she must provide a copy of the records to the employees’ place of work otherwise to a location agreeable to the requester or the employee

(3) Have former employees records available for inspection purposes and provide a copy if requested by an employee or representative where they store records or at an agreeable location by both parties in writing.

Employer Compliance with Personnel Files

An employer is to comply only once a year with a previous employees’ request to receive or inspect a copy of their personnel records. A copy of the records can be availed to the employee by mail if they agree to reimburse actual postage charges incurred by the employer. An employer should not comply with more than 50 requests by previous employees to avail copies of their personnel records in a single calendar month.

The employer may take reasonable measure to ascertain the identity of the employer (current or former) or the representative. Before handing over the records for inspection, the employer can obscure the name of non-supervisory employee(s)

Termination and Personnel Files

In case a former employee was terminated because they violated employment relate policy that involved workplace violence or harassment, the employer can comply with their request to inspect personal records by:

(1) Availing the records to the former employee at a place other than the workplace that is reasonably accessible by driving from the employees’ place of residence.

(2) Mail a copy of the personal records to the employee.

If the employer does not allow a current or former employee or a representative to have a copy or inspect the personnel records within the mutually agreed or specified times, the current or former employee or the labor commissioner can recover $750 from the employer as a penalty.

Rights to inspect personal files do not relate to reports, records, crime investigations, letter of reference and ratings that:

(1) Were obtained before the employee’s employment.

(2) Were obtained I regard to a promotional exam.

(3) Were prepared by examination committee members who can be identified.

 

Signing a Non-Compete Agreement

non-compete agreement

When Donald Trump promised to give America back to the Americans; non-compete agreements became a household name. Hiring foreign employees is becoming a serious deal. Everybody wants a chunk of the world’s most flexible workforce.

So, if you landed a major gig only for your prospective employer to give you a non-compete agreement, don’t worry. This article details the nooks and crooks you should know before coloring the dotted lines.

What is a Non-Compete Agreement?

A non-compete agreement is a document that legally binds two parties. It restricts the employee from starting a competitive business for a designated amount of time. The agreement burns you from exploring new opportunities in rival companies. Also, you cannot disclose information considered by your employer confidential or proprietary.

For clarity, just know that this legal binding is meant to protect the working condition and wages of the US workforce while at the same time allowing the hiring of foreign employees. So, whether to sign it or walk away is determined by how bad you need that job.

How Important Is It?

The law obliges every potential employer to confirm the authorization of their new employees for work but not to discriminate against hiring foreign employees. It is an essential document this.

The non-compete agreement started as a scalpel for industries to protect their intellectual properties. With time technology has made this need a desperate must-have bludgeon that exploits every sector in the US. With the uncertainties and unpredictability of the future, companies have to retain their most valuable capital – their talented employees.

When no is not a luxury you can afford, try to bargain for better terms. Read every line. Scrutinize every detail. Make sure you get it right before signing. The non-compete law varies in every state.

Where You Should Pay Attention

The larger the regional radius that binds you, the more you should negotiate for better terms. Also, ask the hiring company to specify which companies are out of your reach so you find yourself exiled from the rest of the industry. Remember that that contract comes with an expiry date.

Keep your employer on a short leash. Limiting yourself to one place for long periods is a career killer. Again, bargain for the departure time. Does the contract hold if you are fired? Also, in case you decide to sue the employer when the contract is still valid, who pays for the company lawyer?

Hiring foreign employees gets harder every day. The non-compete agreements are the latest forms of economic insurance.

How to Handle Intoxication in Workplace

intoxication in the workplace

There are several organizations who suspect that their employees and workers are working under the influence or there is intoxication in the workplace. Now the question remains, how to handle this situation when you are suspecting your employees to be working under the influence at work?

What to Do

Under such circumstances when you suspect intoxication in the workplace, you must send the concerned employee a notice to meet the supervisor to find out whether the suspicion is true. Before taking this step, you should document the facts like slurred speech, the odor of alcohol, balance problems, bloodshot eyes etc. to show why you suspect intoxication in the workplace.

You can also involve a trained observer such as a Supervisor or a law enforcement officer to observe the employee and determine the truth. In the case that the employee is under the influence of the controlled substance, then the trained observer has to establish the “reasonable suspicion” after a careful visual examination.

Lawful Searches

A lawful search can also be an option, with the employee’s consent. You can also ask the employee directly whether he/she works under the influence at work. If the employee replies “yes”, then you need to ask them what they have ingested.

The statement of the suspected employee is to be documented. In case the employee disagrees to this request, then you have the right to ask the employee to undergo an alcohol or drug test which would help to disapprove your suspicion.

Drug Testing

In case the employee declines to take this alcohol or drug testing, then you have to document the incident and place the employee on administrative leave. Also, the employer should be arranging a transportation to get the employee back home. Under such circumstances, the employer or the management should not allow the employee to drive back home.

A breath test is the least intrusive test for alcohol. In case the suspicion is for the controlled substances, then the least intrusive test is urinalysis.

The further step after it has been proved that the employee has worked under intoxication in the workplace is that the concerned employee can be given reasonable corrective directions that will effectively prevent similar or same conduct in the near future during the tenure of the employee’s work in the organization.

A written warning is to be given to the employee that he or she would be required to submit an alcohol or drug testing in the event of similar conduct in future. Also, the concerned employee has to be observed at work for the next few days/months so that you may ensure that similar conduct is not repeated again.

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