San Francisco Employment Law Blog

What Paternity Leave Law Entails

Childbirth is a big event in any family. Employees will like to have enough time with the child so that they can bond. Unfortunately, the time allocated for the parents to create bonds with the child may not be enough. The law states clearly when you are allowed to seek paternity leave so that you can have time with the baby and create the bond. Mothers are offered pregnancy leave and then the paternity leave so that they can bond with the baby. But, men employees are only offered paternity leave where they can bond with the baby. There are several aspects of the law you need to understand so that you can find it easy when trying to seek the leave from your employer.

 

What Is a Parental Leave?

It is a child bonding leave. The paternity leave allows you to take some time off from your workplace so that you can spend time with the new baby and create a form of a bond. In states such as California, parental leave refers to a combination of pregnancy disability leave and parental leave.

 

Employers Who Must Offer Parental Leave

According to Federal Family Medical Leave Act (FMLA) requires workplaces with more than 50 employees to access a 12-week paternity leave so that they can interact with the new child. There are different factors which can determine the paternity leave. They include the following:

  • The employee should have worked more than 12 months in the company to qualify for the leave
  • In the previous year, the employee should have worked for more than 1,250 hours in the same company.
  • The employee should work in an employer with at least 50 employees who work in a radius of fewer than 75 miles.

Do You Get Paid During Parental Leave?

Generally, employers are not mandated to pay for parental leave. But, there are some cases such as city ordinance where some employers can decide to offer some form of payment. You can as well use your accrued vacation and sick leave so that you can access some form of payment during your leave.

 

Do You Have the Right to Get Reinstates?

When paternity leave ends, you get reinstated in the same position where you served before leave. The reinstatement requires you to access the same privileges which you used to enjoy before the leave. How do you Request Parental Leave? You are supposed to give a 30-day notice for you to access the leave. If the leave is unforeseeable, then you should let the employer know as soon as possible.

Five Common Questions About Severance Pay

severance pay

California law does not require severance pay for dismissal. In any case, bosses who have a conceivable debate with the departing representatives should consider offering compensation for dismissal in exchange for a severance agreement that contains an arrival of cases against the organization. This can allow the company to maintain a strategic distance from an expensive claim. The following are answers to five common questions regarding severance pay.

Are companies obliged to give workers compensation for dismissal?

No. In the case that the worker is a free representative, the company is not obliged to give compensation for dismissal, without paying much attention to who terminated the business relationship.

 

Why do companies offer compensation for dismissal if it is not required?

There are several reasons why companies offer compensation for dismissal. In case the business of a has been withdrawn and needs to reduce the workers, the company can offer compensation for dismissal so that the change is easier for the representative. Likewise, managers who trust that there is a conceivable debate between them and the representative can offer compensation in exchange for a severance agreement. The agreement, if carried out with precision, can allow the company to maintain a strategic distance from a possible claim. Since the worker would renounce all cases that may have against the organization.

Is the company required to pay the worker for the arrival of cases?

If the company is requesting that a worker unload all the cases they have against the organization, in general terms, the representative should obtain something of significant value in exchange for the discharge. Despite the fact that it is common, the compensation awarded to the worker is not required to be a payment. However, the two meetings should have significant value.

What terms are usually incorporated in an understanding of compensation?

According to Section 1542 of the Civil Code, all known and unknown cases must:

  • Remain secret
  • Be no confirmation of obligation
  • Must be without present or future business details
  • The non-slander condition that can also establish which work reference, assuming some, will be given to future bosses
  • Their will be a return of ownership of the organization and provisions of non-clients

Are particular contemplations required in a discharge for workers of 40 years of age or more experienced?

Indeed. The Law guarantees people of 40 years of age or more on Protection of Benefits for Older Workers (OWBPA). The OWBPA has certain prerequisites for the arrival of cases to anticipate separation by age. The prerequisites include that the worker is encouraged to consult with a lawyer, the exemption is simple, the individual is given at least 21 days to think about the assent, and the individual receives at least seven days after their acknowledgment of consent. To the understanding.

Although the worker may waive the 21-day reflection period, the 7-day repudiation period cannot be deferred. It is essential to consider not paying any cash until the 7-day repudiation period has ended. If a download is offered to a workers’ meeting, a longer reflection period and additional prerequisites may apply. It is strongly suggested that companies receive help from the councils to ensure that workers of 40 years of age or older are adequately renouncing any right under the OWBPA.

California Drug Testing Laws

drug testing

If you live in California, it is likely that your potential employer will subject you to drug testing prior to hiring you. When it comes to drug testing in California, the Federal law does not impose strict regulations.

Nonetheless, employer drug testing in industries regarded as safety-sensitive such as aviation, transportation, and several others are provided for by the Federal law. This article analyses California drug testing laws with a keen focus on what they entail.

 

Major Drug Tests Done in California

The types of drug tests done are:

  • Urine drug test which is the most common
  • Saliva drug test which can be administered anywhere
  • Hair drug test which uses hair from any part of the body
  • Blood drug test with is administered with a urine test

 

Drug Testing for Prospective Employees

Based on California court cases, drug testing may be one of the terms and conditions of employment for a prospective employee. Employers are allowed to subject each and every applicant for drug testing with respect to certain job positions. In doing so, employers must not be discriminatory in any way. Discrimination involves situations to do with disability and race.

 

Drug Testing for California Employees

There are two issues that come into play when California courts try to establish the legality of a drug test. One issue assessed is the reason why it was necessary for an employer to conduct a drug test.

The second issue is the right of privacy of an employee. Employees tend to offer a strong argument: that an employer can use their existing work history to gauge their productivity hence no need for a drug test.

If an employer is strongly convinced that an employee is on drugs, a drug test can be conducted without worrying about litigation. However, the employer’s suspicion must be supported by verifiable facts.

All the same, random testing sparks a lot of controversies. However, California courts express that random testing is allowed especially for jobs that are safety-sensitive.

 

Drug Testing with Respect to the Transportation Industry

There exist strict drug testing regulations imposed by federal and state laws on commercial transportation operators and employers. If individual operators and employers fail to adhere to these laws, they expose themselves to consequences in form of penalties.

 

Disability Discrimination and Drug Abuse

The ADA (Federal Americans with Disabilities Act), as well as FEHA (California Fair Employment and Housing act), do not accord any form of protection to people presently using drugs. Instead, these two laws protect those who previously abused drugs but have successfully undergone rehabilitation and no longer abuse drugs.

 

The California Proposition 215

Commonly referred as the Compassionate Use Act, it stresses out the following:

  • Individuals can acquire and use medical marijuana
  • Physicians should not be subjected to prosecution
  • Patients using medical marijuana are protected from criminal prosecution

 

As much as the above is allowed, the supreme court in California argues that employers can deny employment opportunities to prospective employees if they positively test for marijuana as much as the drug has been legally authorized for a disability.

In winding up, California law allows employers to conduct drug tests on employees. But this is only justifiable in very few and well-defined scenarios. For instance, for safety and security-related jobs, employers irrespective of whether they are in the public or private sector are allowed to conduct random drug testing. As an employer, ensure you conform to the stipulated drug testing laws before asking your prospective or existing employees to undergo a drug test.

Make An Injury Claim For Accidents Caused By Faulty Equipment At Work

In every workplace, you will find some form of faulty equipment which the employees are required to use that may cause injury. From desks and chairs to heavy machinery, it is the employer’s duty of ensuring that all the equipment being used is well-maintained and safe for the employees.

Every employer is obliged to take measures to protect the health and safety of their staff while they are at work.

 

 

The employer’s duty of care involves a range of responsibilities such as:

– Providing safe and well-maintained equipment.
– Carrying out regular inspections at the workplace to ensure that equipment being used are in good working order.

– Providing training to employees to enable them to use the equipment properly, efficiently and safely.

– Highlighting the risks of using the various equipment.

– If necessary, providing adequate personal protective equipment when handling equipment at work.

– Taking immediate action if any problem is pointed out with a piece of equipment.

– Halting use of or removing faulty equipment that could put workers at risk of accidents and injuries.

– Notifying employees of the potential risks of using particular work equipment.

– Explaining the findings of risk assessments to the employees.

Work Accidents Caused By Faulty Equipment

Although there are strict rules and regulations in place to protect workers from risks of injuries and accidents at work, it is not possible for any employer to eliminate the risks. Employers have a legal duty to make the work environment safe for the workers. They must take steps to minimize risks of accidents and hazards. If an employer fails to abide by the laws, then that means that they are breaching the duty of care that they owe towards their employees.

The risk of work accidents and injuries are increased when employers fail to take reasonable steps to provide safe equipment to the workers. In most cases, injuries caused by faulty equipment gives rise to potential injury claims.

 

 

Common types of work accidents and injuries caused as a result of using faulty equipment include:

– Crush injuries resulting from defective machinery
– Injuries resulting from lack of personal protective equipment. Examples include burn injuries, injury to the eye, skin, etc.

– Electrical shocks caused by unsafe equipment

– Injuries resulting from lack of training or supervision on how to use the equipment safely and efficiently.

When employees sustain injuries at work resulting from faulty equipment, they are often eligible to make faulty equipment injury claims. It is necessary for the injured party to seek legal advice as soon as possible following an injury caused by faulty equipment at work.

Social Media and Firing in California

social media

Social media presents an unprecedented way for people to share information. Posts are instant, and discussions on hot topics can be started. But with it comes the possibility of having posts that negatively affect businesses, as can happen when the posts expose bad business practices. Or it can happen when employees share complaints about poor work conditions, putting the company in bad light.

 

What are the employment policies regarding the use of social media in California? 

Seeing the effects that bad use of social media by their employees may have on business, some companies may have rules to curb it. Rules and regulations may involve not allowing employees to use social media during working hours.

Or the company may control what workers post on social media to ensure it conforms with company rules and is unlikely to hurt the business’s image. But companies need to be cautious when imposing the rules, lest they put the business in trouble, in case an employee decides to sue the company over such.

 

Can an employee be dismissed over a social media post? 

The answer is, yes, it is possible. A majority of states have the ‘at-will’ employment. It means that the employer and employee have equal rights to terminate an employment contract at will. This law gives an employer powers to lawfully terminate an employee’s’ contract based on a post they made on a social media platform. But other laws may still apply which may make such a termination illegal.

 

What laws may prohibit termination over a social media post? 

A termination based on ‘ at-will’ employment laws may be challenged if: 

  • The contract signed between the employer and employee states the grounds for summary dismissal. If termination from posts made on social media is not indicated in the contract, the employee may have reason to challenge the dismissal.
  • The labor guidelines issued by the NLRB (National Labor Relations. Board) indicate otherwise. The board issued a statement that seeks to protect employees who engage in discussions involving work-related issues, But the employee has to prove that others contributed to the discussion for the board’s protection guideline to apply.
  • If the affected person is a state employee. The First Amendment grants the right to express oneself freely, and employees can use it to argue against a termination they received for expressing themselves on social media. But this right doesn’t legally bind employers in the private sector.

 

Seeking legal redress in case of termination over a social media post? 

The legality of a termination an employer made on the basis of a media post would depend on various factors; the local laws of the state of California, the clauses contained in the employment contract, and the nature of the post. To decide to challenge the termination or not, the affected employee would need the advice of a lawyer. The lawyer would interpret for them the protection the law offers them, and what laws their employer violated by firing them.

Informative Details About The Child Labor Laws In California

child labor

Child labor laws are meant to protect the children from exploitation. These laws safeguard the rights of the children by stipulating how the children can be employed. In California, these laws were drafted at the end of 19th century and beginning of the 20th century. This is after factories started to have a huge demand for labor where they started hiring children.

 

Under 12 Years Old

According to the California child labor laws, all children under the age of 12 cannot be employed at all except under very special circumstances. The children who are between the ages of twelve and sixteen can be employed in certain jobs. The laws also stipulate that these children can only be employed for limited numbers of hours.

The children who are between sixteen years and eighteen years can be employed for a limited number of hours provided their working environments are not hazardous. Even these laws are very strict there are some exceptions such as when employed by parents and aforementioned child actors.

 

Agriculture

These laws are different when it comes to agricultural employment. In this category of employment, the children who are above 12 years and above can be employed for a limited number of hours provided their parents approves. The laws state that this type of employment can only happen after school hours.

This is meant to ensure that the children get time to attend school. Children working in agricultural jobs in California are usually exposed to various kinds of harm such as the pest sides used on plants. These hazards usually increase the chances of these children being affected by various health conditions.

In fact, most of the children who work in agricultural jobs usually do not complete high school. Such children are also compelled to work for longer hours where they at times work for more than ten hours. It is the duty of the employer to ensure that the children who work in such jobs are not exploited.

 

Child Actors

When it comes to child actors there are also concerns that the children might be exploited. The laws allow the parents to control the earnings of the children who are acting. This is helpful especially because some of these children make substantial amounts of money. In some cases, the earning made by children who act usually leads to bitter disputes in case of a divorce.

Most of these California laws are usually complemented by the state laws for children who are employed. The laws which are stricter are the ones which are usually applied in case of a dispute.

In case one intends to employ a child it is advisable to consult a qualified attorney. This is because the attorney will have a better understanding of the California child labor laws. Therefore, understanding these labor laws meant for children can significantly help in avoiding the legal issues that might arise from not following the set laws while employing children.

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.

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