California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

New CFRA Regulations Impacting Family and Medical Leave Will Be Effective July 1, 2015

Posted in Employment, FMLA

Breaking-News1.jpg

This blog post was authored by Connie C. Almond and Danny Yoo

In 2008, the U.S. Department of Labor issued revised regulations interpreting the federal Family and Medical Leave Act (“FMLA”).  Since then, California employers have been left uncertain as to which of the changes the Department of Fair Employment and Housing would adopt for similar family care and medical leave under the California Family Rights Act (“CFRA”).

The California Fair Employment and Housing Council (“FEHC”) just issued the final revised CFRA regulations which will go into effect on July 1, 2015.

The new CFRA regulations followed some, but not all, of the 2008 FMLA regulations.  This Special Bulletin highlights the most significant impacts the new CFRA regulations will have on California employers.  Employers can review the full text of the CFRA regulations here.

Here is a summary of the regulations’ highlights:

  • Unlike the 2008 FMLA regulations, the CFRA regulations still do not allow for an employer to require a new medical certification form until the first certification has expired. In other words, the employer cannot ask for a new medical certification if the employee has a certification certifying the employee’s “lifetime” condition.
  • Like the 2012 Pregnancy Disability Leave (“PDL”) regulations, the CFRA regulations state that an employee’s right to maintenance of health benefits under the CFRA is a separate and distinct right from an employee’s right to maintenance of health benefits under the PDL.
  • Similar to the FMLA, employers can only retroactively designate leave as CFRA leave if it provides appropriate notice to the employee and it does not cause harm to the employee.
  • Employees who are receiving disability benefits or partial wage replacement benefits while on CFRA leave are not considered to be on “unpaid leave.” Therefore, employers cannot require those employees to use any accrued paid leave during the CFRA leave.
  • There are new notice requirements that employers will need to implement at their physical worksites and possibly their websites.

Eligibility for Leave

Definition of “spouse.”

The CFRA regulations now expressly include registered domestic partners and same-sex partners in marriage in the definition of “spouse.”  (2 C.C.R. section 11087(r).)

Definition of “key employee.”

The CFRA regulations have essentially adopted the FMLA regulations’ definition of a “key employee.”  Subject to certain notice requirements, an employer can deny a key employee who takes CFRA leave reinstatement to the same or comparable position.

Fraudulently-obtained CFRA Leave.

The CFRA regulations include a “new” permissible defense for CFRA leave that is fraudulently obtained or used.  This is not necessarily a “new” defense, but the regulations now expressly state, “An employee who fraudulently obtains or uses CFRA leave from an employer is not protected by CFRA’s job restoration or maintenance of health benefits provisions.  An employer has the burden of proving that the employee fraudulently obtained or used CFRA leave.”  (2 C.C.R. section 11089(d)(3).)  Employers who suspect fraudulent use of CFRA leave should seek legal counsel if they are going to deny leave (or discipline an employee) based on fraud.

Medical Certification

Definition of “inpatient care.”

An illness, injury, impairment, or physical or mental condition that involves “inpatient care” qualifies as a “serious health condition.”  Previously, “inpatient care” meant an “overnight stay” in a hospital, hospice, or residential health care facility.  The regulations interpreting the FMLA still define “inpatient care” as an “overnight stay.”  (29 C.F.R. section 825.114.)  However, the new CFRA regulations only require an “expectation” that the individual will remain overnight.  (2 C.C.R. section 11087(q)(1).)  This means an individual who is admitted to the hospital with the expectation that he or she will stay overnight, but is discharged later or transferred to another facility, still qualifies as a person with a “serious health condition.”

Recertification.

The 2008 FMLA regulations allow employers to request recertification of a serious health condition at least once every six months, even for lifetime conditions.  (29 C.F.R. section 825.308.)

However, the old and new CFRA regulations only allow an employer to request recertification “[u]pon expiration of the time period the health care provider originally estimated.”  (2 C.C.R. section 11091(b).)  The FEHC did not adopt the FMLA’s recertification provision because “[l]imiting the circumstances for which an employer may seek recertification is necessary to preserve privacy rights and protect employees on CFRA-qualifying leave from the unnecessary burden of being required to repeatedly justify their need for leave when medical authorization for the leave has already been provided.”

As such, because an employee with a serious health condition is likely using FMLA and CFRA leave concurrently, California employers still cannot request a medical recertification from employees with certified lifetime conditions.

Second opinion on medical certification.

The FMLA regulations (and former CFRA regulations) allow employers to require the employee to obtain a second opinion of his or her own serious health condition, if the employer simply has a “reason” to doubt the validity of the medical certification provided by the employee.  (29 C.F.R. section 825.307.)  The new CFRA regulations now clarify that the employer must have a “good faith, objective reason” to doubt the validity of the medical certification before requiring a second medical opinion.  (2 C.C.R. section 11091(b)(2).)

Notice Requirements

The new CFRA regulations change some of the notice requirements for employers.

Upon receiving a request for CFRA leave, the employer shall respond within five business days.  (2 C.C.R. section 11091(a)(6).)  This is different from the previous requirement of 10 calendar days.  Although the CFRA regulations do not adopt the specific notice requirements set forth in the FMLA regulations – the general notice, eligibility notice, rights and responsibilities notice, and designation notice – we recommend that employers use the same notices for both FMLA and CFRA for administrative ease and to ensure compliance with all notice requirements.  (Please note, however, when requesting medical certification from the employee, we recommend that California employers do not use the DOL’s sample form because it does not take into account the California Confidentiality of Medical Information Act.)

Every employer must post a notice explaining the CFRA provisions and procedures for filing complaints “in conspicuous places where employees are employed.”  (2 C.C.R. section 11095(a).)

In addition, employers must post the notice “where it can be readily seen by employees and applicants for employment.”  (2 C.C.R. section 11095(a) (emphasis added).)  “Electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section.”  (Id.)  Employers may post the CFRA notice on an Intranet site, but employers will also need to post the notice in an area accessible to applicants.

Retroactive Designation of Leave

The FMLA regulations allow the employer to retroactively designate leave as FMLA leave with appropriate notice, provided that “the employer’s failure to timely designate leave does not cause harm or injury to the employee.”  (29 C.F.R. section 825.01.)

Similarly, the CFRA regulations only allow retroactive designation of leave as CFRA leave when the employer provides “appropriate notice to the employee and where the employer’s failure to timely designate does not cause harm or injury to the employee.”  (2 C.C.R. section 11091(a)(1)(B).)

Notably, the “harm or injury” must be caused by the employer’s failure to designate the leave as FMLA or CFRA leave earlier.  This is different from the harm an employee purportedly suffers from not being able to take additional leave time.

Although the regulations do allow for employers to designate leave retroactively, it is imperative employers designate leave and provide appropriate notice to employee as soon as practicable.

Use of Accrued Paid Leave While on CFRA Leave

Although not a change from the prior CFRA regulations, the new regulations clarify that an employer may require or an employee may elect to use vacation or paid time off while the employee is on CFRA leave.  In contrast, an employee may elect or an employer may require an employee to use accrued sick leave only if the CFRA leave is: (1) for the employee’s own serious health condition, or (2) for another reason mutually agreed upon between the employer and employee.  In other words, without employer agreement, employees cannot use sick leave to care for a family member with a serious health condition or for bonding leave.  (2 C.C.R. section 11092(b)(1).)

Use of sick leave to care for family members.

Even if the employer and employee do not “mutually agree” to allow use of accrued sick leave to care for a family member, the employer may still be required to allow the employee to use some of the sick leave for the employee to care for a family member with a serious health condition.  Labor Code section 233 (“kin care leave”) states that employers who provide sick leave “shall permit” employees to use accrued and available sick leave in an amount not less than the sick leave that would be accrued during six months of the employee’s current rate of entitlement.  The employee’s kin care leave to attend to an illness of a child, parent, spouse, or domestic partner could run concurrently with the employee’s CFRA leave.

In addition, AB 1522 (“Paid Sick Leave Law”), effective July 1, 2015, requires employers to provide up to three days of paid sick leave for employees to use for their own illnesses or to care for sick family members.  The overlap between the Paid Sick Leave Law and CFRA will only be for the caring of a parent, child, spouse, or registered domestic partner.  Most likely, this will be the same overlap covered by kin care leave.  (See Question 8 in our Special Bulletin on AB 1522, available here).

Employees receiving disability insurance while on leave.

An employee who is on paid disability leave or receiving Paid Family Leave (a form of insurance provided by the state) concurrently with his or her CFRA leave is not considered to be on “unpaid leave.”  Therefore, the employer cannot require any such employee to use paid time off, sick leave, or accrued vacation.  (2 C.C.R. section 11092(b)(2) and (3).)

Interaction with Pregnancy Disability Leave

In 2012, the FEHC published PDL regulations stating that an employee’s right to maintenance of health benefits while on PDL is a separate and distinct entitlement from an employee’s right to maintenance of health benefits while on CFRA leave.  (2 C.C.R. section11044(c).)  The new CFRA regulations reinforce the FEHC’s interpretation that the entitlements under the two leaves are separate and distinct.  (2 C.C.R. section 11092(c)(2).)  This would allow for an employee to potentially receive health benefits for up to 29 1/3 weeks.  Although the CFRA statute (Cal. Gov. Code section 12945.2(f)) arguably allows employers to limit maintenance of health benefit coverage 12 weeks, our recommendation is that employers follow the FEHC regulations and maintain health benefits during both the PDL and the CFRA leave separately.

What Does This Mean For Your Agency?

Update your leave policies.

With the new regulations going into effect on July 1, 2015, this gives your agency time to update its leave policies to comply with the new regulations.

Update your posted notices.

Update the notices posted by your agency in accordance with the updated text in the new regulations.  (See 2 C.C.R. section 11095(d).)  This includes any notices on your website.  However, as stated above, notices should be accessible to both employees and applicants.

Train your managers and supervisors.

Leaves laws are complicated and change frequently.  We suggest that agencies periodically train managers and supervisors regarding the new leaves laws and how they interact with each other.  This is a good year to provide training in light of the new Paid Sick Leave Law and the new CFRA regulations.

On April 2, 2015, we will be hosting a webinar where our attorneys will highlight the most important new requirements under the CFRA for California employers. Updates to definitions, notice requirements, medical certification requirements, and health benefits provisions are just some of the areas that will be addressed.  Register Today >

Note:

If you have questions about this issue, please contact our Los Angeles, San Francisco, Fresno, San Diego, or Sacramento offices.

To receive these Special Bulletins on the day they are released, please send your email address to info@lcwlegal.com.

This article was also published on the firm’s California Public Agency Labor and Employment Blog.  To view other blog posts, please visit www.calpublicagencylaboremploymentblog.com.

Designating FMLA Leave in the Aftermath of Escriba v. Foster Poultry Farms

Posted in FMLA

Medical LeaveWhen the Ninth Circuit Court of Appeals, which covers California, issued its decision in Escriba v. Foster Poultry Farms last year, the decision was viewed as a victory for employers.  Now, however, the decision is raising more questions than answers as employers struggle with designating FMLA leave.

In Escriba, an employee declined to use FMLA when she left work to care for her ill father, opting to use two weeks of vacation time instead.  When the employee was terminated for failing to report back to work after the two weeks, she filed a lawsuit claiming that her termination was unlawful interference with her FMLA rights.  The Court upheld the termination because the employee chose not to have her time off count as FMLA leave and therefore, she was not entitled to job protection under the Act.  The Court concluded that an employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

Straightforward right?  Not so much.  Since the Escriba decision, employers are now unsure what to do when an employee refuses FMLA leave and when the reason for the leave is clearly an FMLA-triggering event.  Are employers now prohibited from designating leave as FMLA when the employee doesn’t want it so designated?  Or, can an employer designate leave as FMLA even if an employee prefers to use another type of leave?

The answer to these questions is that employers may still designate leave as FMLA even if the employee wants it to be considered differently, if the absence is for an FMLA qualifying reason.

First, there is nothing in the Escriba decision that expressly prohibits employers from unilaterally designating FMLA leave.  Escriba is an odd case involving strange facts, and among these is that for whatever reason, the company chose to accept the employee’s request to use vacation time to cover the absence even though the company had information that the leave could have qualified for FMLA.  The Court’s reasoning never contradicts that the company could have designated the leave as FMLA if it wanted, but simply elected not to do so.

Second, the FMLA regulations support an employer’s right to designate FMLA leave if the employee’s absence is for a FMLA-qualifying reason.  The regulations state the employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee.  In particular, under the regulations when the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee, generally within five business days, whether the leave will be designated and will be counted as FMLA leave.  If the employer determines that the leave will not be designated as FMLA-qualifying (e.g., if the leave is not for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), the employer must notify the employee of that determination.

Sometimes employees will attempt to prevent employers from designating FMLA by not providing a medical certification.  If this happens, the employer can still designate FMLA if it has enough information to determine that the leave qualifies under the FMLA.  While obtaining medical certification is strongly recommended, the regulations do not expressly require it.  The regulations state “if any employer has sufficient information to designate the leave as FMLA immediately after receiving notice of the employee’s need for leave, the employer may provide the employee with the designation notice at that time.”  For example, in Escriba, the employee told her employer that she wanted time off to care for her ailing father.  In holding that the employee could refuse FMLA leave, the Court implicitly suggested that the employee’s care for her father was an FMLA-qualifying event even though there was no evidence that a medical certification was provided.

Nevertheless, employers who want to designate FMLA leave without medical certification should proceed with extreme caution and consult with legal counsel.  Improperly designating FMLA leave when no qualifying reasons exist could lead to an FMLA interference claim.

Beware! General Law Cities and Special Districts Must Comply with California Minimum Wage Laws for Employee Travel Time

Posted in Wage and Hour

 

hourglass-small.jpgThis blog post was authored by Megan Lewis

Public agencies are exempt from most, but not all, California’s wage and hour laws. Generally, the federal Fair Labor Standards Act (“FLSA”) governs public agencies’ wage and hour obligations. But general law cities and special districts are also subject to California’s minimum wage laws for some employee travel time.

Here are some common questions (and answers!) to help you navigate this confusing, and still developing, issue.

• When is travel time compensable for general law city or special district employees?

There is no simple answer that can cover every scenario, but these are some general principles.

General law cities and special districts are not required to pay employees for their commute time in their personal vehicles between home and their regular work locations. If an employee uses a take-home vehicle to commute and is very restricted from using the agency vehicle for personal use, such as not being allowed to run personal errands or transport others during the home-to-work commute, then the travel time may be compensable, depending on how restricted the time is.

Likewise, where an employee travels to a non-regular job site, any additional time it takes the employee to reach the new location in excess of his or her normal commute time is generally compensable.

Where an employee is required to travel out-of-town for work, the employee is entitled to be compensated for travel time to and from his or her destination. This includes time spent driving or as a passenger (in a car, airplane, bus, taxi, etc.), as well as time spent buying a ticket, waiting to board, and the like. However, if the employee took his or her regular meal period or engaged in purely personal pursuits (i.e., stopping at a tourist attraction to sightsee along the way), the agency may deduct that time, although this area of the law is still evolving.

• Does travel time have to be paid at the same rate as other types of work?

Not necessarily. General law cities and special districts can establish a separate rate of pay for travel, as long as the rate does not fall below the state minimum wage requirements, but they must do so before the employee engages in the travel. However, where an employer has agreed to pay a fixed hourly rate of pay for any work performed, which is often the case for public agencies, travel time must be paid at that regular hourly rate, or, if applicable, the required overtime rate.

• If we are paying for travel time, do we still have to reimburse expenses?

Yes! Employers have an independent obligation to reimburse employees for expenses incurred in the course of employer-required travel. The employer’s payment of travel expenses, meal expenses, conference expenses, etc. does not offset or negate the employer’s obligation to pay for the employee’s actual travel time.

Travel time is one of the trickiest areas of wage and hour law for all agencies. If your agency does not have a current policy regarding when employee travel time is compensable, we recommend working with legal counsel to develop a policy that is in compliance with the laws applicable to your specific agency.

Tips from the Table: Must-Have Items in Your MOUs

Posted in Labor Relations, Negotiations

We are excited to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.

Appellate Law – The Final Judgment Rule and its Exceptions

Posted in Litigation

Gavel-and-Books.JPGMany times, parties to a lawsuit receive trial court rulings in the midst of the litigation that are unfavorable, oppressive, and seem to them to be demonstrably wrong.  The parties want to appeal immediately, but their counsel will say that cannot happen, citing the “Final Judgment Rule.”  The rule certainly sounds dark and fateful.  Perhaps courts intend it to be, because the rule serves to deter disgruntled litigants from appealing while the trial court case is ongoing, and typically requires those litigants to wait months, or even years, to appeal.  So what is this rule?  And perhaps more importantly, what are ways to gain access to an appellate court early without offending it?

The Final Judgment Rule (sometimes called the “One Final Judgment Rule”) is the legal principle that appellate courts will only hear appeals from the “final” judgment in a case.  A plaintiff or defendant cannot appeal rulings of the trial court while the case is still ongoing.  For example, a party that loses its motion to compel discovery, motion for summary judgment, or demurrer cannot appeal these decisions, at least not until a final judgment has been entered in the case, concluding the lawsuit in the trial court.  The Final Judgment Rule has existed for hundreds of years, and serves the purpose of promoting judicial efficiency – cases would practically never end if the party who lost a motion while the case was pending could appeal it, wait for a decision from the court of appeal, and then continue with the trial court case.

Moreover, the Final Judgment Rule greatly reduces appellate court workloads by tending to make it so that only very important issues are ultimately presented to those courts.  If a party loses a motion early in the trial court case, they may certainly feel wronged.  But in the weeks or months afterward, the case may settle, the issue may fade in importance, or the trial court might actually decide to change the ruling, making appellate review unnecessary.  Postponing review conserves appellate court resources, and those of the parties as well.  In addition, postponing appellate review allows the appellate court to rule on all the challenges to the trial court’s decisions at the same time, thereby further promoting efficiency.  The appellate court will not have to consider “piecemeal” appeals.

The Final Judgment Rule may make sound policy sense.  But it is not much comfort to a litigant who has lost an important motion in court many months before the actual trial will start and cannot immediately appeal the bad ruling.

There are, however, some ways around the Final Judgment Rule.  Here are examples of four significant ways, and the circumstance under which each is available.

  1. Petition for Writ of Mandamus:

This is the classic method for obtaining relief while a litigation matter is still ongoing.  This type of petition to an appellate court seeks a “writ of mandamus” (sometimes also called a “writ of mandate”), essentially an order from the appellate court to the trial court directing it the trial court to change its decision or take some other action.  This type of writ is available in both federal and state courts.

The advantage of a petition for writ of mandamus is that it is available to overturn essentially any ruling or order made by a trial court, even though the lawsuit is still ongoing.  The disadvantage of this type of petition, however, is that it is entirely discretionary in the court of appeal.  The court of appeal is free to turn down any writ petition, even one that clearly has merit, and the court of appeal denies the overwhelming majority of petitions for writ of mandamus seeking review of trial court orders.  The state court percentage of accepted petitions is low and the number is even lower in federal court.  The reason these writs are so often denied on this summary basis (i.e., without even considering whether they raise a valid legal point) is that courts of appeal rarely see any reason to depart from the underlying principles of the Final Judgment Rule.

There are particular types of scenarios in which appellate courts are more likely to decide a writ on the merits.  One is when issues of privilege or confidentiality are concerned.  For example, when a trial court orders a litigant to disclose sensitive personnel records of individuals or information in which the litigant claims attorney-client privilege, the need for appellate review is immediate.  If the litigant obeys the trial court’s order, then the disclosure will be made, and the alleged harm done, before any appellate court can determine whether the trial court’s ruling in fact was correct.  It is widely understood that in these scenarios, appellate courts will more likely choose to intervene in the midst of litigation.

Another example is when the issue raised by the writ petition is one of great public importance, and when the party who files the petition can persuade the court that the public would be well served by the appellate court immediately reviewing and providing guidance on that particular issue without waiting for the case to conclude.

  1. A Preliminary Injunction Ruling:

The parties can also immediately appeal a trial court’s ruling granting or denying injunctive relief.  Trial courts have the power to issue preliminary injunctions at the beginning of a case that can operate to preserve the status quo.  For example, a trial court can order that a public college must stop enforcing a rule that supposedly stifles student First Amendment free speech rights.  Trial courts can make these orders based on an initial showing by the plaintiff, at the beginning of the case, that they are likely to succeed on the merits of their claim, that they are likely to suffer irreparable harm if the preliminary injunction is not granted, and that general equities and the public interest support issuance of the injunction.

Not only are these types of orders for injunctive relief by trial courts (either granting or denying) immediately appealable, but in the federal appellate courts, appeals of injunctions are given priority over other types of cases.

  1. Rulings on Anti-SLAPP Motions:

An immediate appeal is also available from a state trial court’s ruling on what is known as an “anti-SLAPP motion.”  This type of motion can be used by a defendant, including a public entity, in response to a lawsuit that challenges conduct by the defendant in furtherance of the defendant’s right of petition or free speech as defined by the anti-SLAPP statute.  (SLAPP stands for “Strategic Lawsuit Against Public Participation,” and is meant to refer essentially to meritless lawsuits brought against persons or organizations to punish them for and/or deter them from speaking out on important issues or petitioning the government for redress.)  The statute defines protected activities very broadly.  Indeed, courts have interpreted the definition to include government statements in various types of proceedings, including internal investigations conducted by public entities as to their employees.  (Hansen v. California Dept. of Corrections and Rehabilitation.)

If the anti-SLAPP statute applies in a given context, then the defendant can make a motion at the outset of the case to have a trial court determine if there is any “probability” of success on the claim.  If the plaintiff cannot present evidence making this showing of a “probability,” then the trial court rules in favor of the defendant.  If the defendant wins the motion, the trial court will require the plaintiff to pay the defendant’s attorneys’ fees and costs.  Thus, another very important way to have an appeal heard early in state court is to bring an anti-SLAPP motion.

  1. Qualified Immunity Decisions:

Another judicial determination that is often immediately appealable, in the midst of litigation, is a federal trial court’s decision on the defense of qualified immunity.  This is a defense available to individuals who are officials or employees of government agencies and are named personally in federal civil rights lawsuits.  In general, the defense of qualified immunity applies when the individual defendant is challenged for actions he or she took relating to an area of law that is unclear or unsettled.  If it is sufficiently difficult for the individual to tell what is constitutionally prohibited in the situation in question, then this defense will apply.  Qualified immunity will not provide a defense to claims for declaratory or injunctive relief against the individual, but it will serve as a defense to a monetary damages claim.

If the trial court either grants or denies a motion based on qualified immunity in the middle of the case, then either side respectively can appeal the determination, if the appeal involves essentially legal questions such as whether the plaintiff’s alleged rights at issue were sufficiently unclear to merit applying the defense.  The defense applies in a wide variety of cases brought against government officials and employees.  Significantly, individual defendants can claim the qualified immunity defense in wrongful termination cases in which the former employee claims violation of his or her constitutional free speech or due process rights.

Each of these four ways to obtain appellate review on an interlocutory basis — i.e., in the middle of the case — are available to public entity defendants.  This gives public entities a unique ability in many cases to structure the defense to obtain immediate access to an appellate court, and thus have important matters resolved before the case concludes.

For other litigation posts on related issues, see prior LCW posts: “Anti-Slapp Motions As A Litigation Resource For Public Employers,” “Extending Qualified Immunity To Private Individuals,” and “Appellate Law — What Are Amicus Curiae Briefs?”

PERB Expands Right to Union Representation to Interactive Process Meetings

Posted in Personnel Issues

Sonoma DecisionThe Public Employment Relations Board (PERB) recently held in Sonoma County Superior Court (Sonoma) that employees are entitled to union representation at interactive process meetings.  With this ruling, PERB expressly overturned prior precedent on this issue.

Before the Sonoma ruling, PERB recognized a right to union representation in individual meetings with the employer primarily only in the context of investigatory or disciplinary meetings, i.e. Weingarten rights.  Under the ADA and FEHA, interactive process meetings are held between employees and employers in order to explore potential reasonable accommodations to assist an employee with a disability to perform essential job functions.  They are not disciplinary or investigatory meetings.  As a result, PERB has previously held that the right to representation does not apply to interactive process meetings.  Notably, in an analogous situation where the employee was represented by a workers’ compensation attorney, the California Court of Appeal has found that an employer may be required to allow the employee’s attorney to participate in the interactive process.

However, in Sonoma, PERB explains that the right to representation is not limited to Weingarten rights.  Many years ago, the California Court of Appeal affirmed PERB’s decision in Redwoods Community College District recognizing that the right to representation is broader than Weingarten rights. In fact, the collective bargaining statutes administered by PERB support the right to representation in the additional context of grievance processing and arbitration.   This is because grievance-type meetings are a product of collective bargaining, and the grievance procedure is the mechanism by which collective bargaining agreements (CBAs) are enforced.

PERB stated in Sonoma that interactive process meetings are not traditional Weingarten meetings because they are not disciplinary or investigatory meetings.  Further, they are not grievance meetings because they do not arise out of a negotiated grievance procedure or other claim that the employer has violated the CBA.  PERB reasoned that interactive process meetings most closely resemble grievance meetings.  Like a grievance meeting, an interactive process meeting may involve the terms and conditions of employment in which all parties have an interest.

Importantly, for the employee, the interactive process meeting could result in the loss of his or her job.  In addition, there are many potential reasonable accommodations that could intersect with the terms of a CBA (e.g. seniority rights).  PERB noted that a union representative can serve a useful function in explaining, defending and asserting the employee’s rights and the possible consequences of refusing offered accommodations.  The representative, who can bring to the meeting a familiarity with the CBA, could also assist the employer in identifying conflicts between a proposed accommodation and the CBA.

PERB’s decision in Sonoma does not hold that employees are entitled to representation at all meetings affecting wages, hours and other terms and conditions of employment.  But it is reasonable to view PERB’s reasoning in the case as signaling PERB may soon further clarify or possibly expand the right to representation at individual meetings between employer and employee.

IRS Releases Final Affordable Care Act Information Reporting Forms

Posted in Healthcare

Affordable Care Act

This blog was authored by Shardé C. Thomas

The Internal Revenue Service (“IRS”) recently released the final versions of the information reporting forms that Applicable Large Employers (i.e. large employers subject to the employer mandate) and employers sponsoring self-insured plans are required to file annually under the Affordable Care Act (“ACA”).  The final forms do not contain significant revisions to the previous version of draft forms.

The first reporting deadline is February 28, 2016, as to the data employers collect during the 2015 calendar year.  The first deadline is March 31, 2016, for employers filing electronically.  If an employer is filing 250 or more returns, the employer is required to file electronically.  The reporting provides the IRS with information it needs to enforce the Individual Mandate (i.e. individuals are penalized for not having health coverage) and the Employer Mandate (i.e. large employers are penalized for not offering affordable minimum value health coverage to full-time employees).  The IRS will also require employers who offer self-insured plans to report on covered individuals.

Employers must provide annual written statements identifying reported information to all employees on whom the employer is reporting by January 31st, beginning in 2016.

Forms 1094-C, 1095-C, 1094-B, and 1095-B can be found on the IRS website.  Instructions for forms 1094-C and 1095-C can be found here.  Instructions for forms 1094-B and 1095-B can be found here.  The IRS has also published a brochure summarizing the new reporting requirements, which can be found here.

Which Forms Do I File? 

Employer Description                                                 Applicable Forms
Applicable Large Employer Offering Fully-Insured Coverage 1094-C and 1095-C (except Part III)
Applicable Large Employer Sponsoring Self-Insured Coverage 1094-C and 1095-C (incl. Part III)
Applicable Large Employer Offering Self-Insured Coverage to Non-Employees (e.g. retirees/COBRA qualified beneficiaries) 1094-C and 1095-C1094-B and 1095-C
Small Employer (non-ALE) Sponsoring Self-Insured Coverage 1094-B and 1095-B
Small Employer Offering Fully Insured Health Plans Not Applicable

More Information

You may find additional information on the ACA at http://www.lcwlegal.com/ACA.  The reporting forms will also be discussed during the LCW Annual Conference at the seminar entitled, “The Affordable Care Act – An Administrative Nightmare?”

Your Employee Is On-Call, But Is Your Employee “Working”?

Posted in Employment, Wage and Hour

hourglass-small-copy.jpg

This blog post was authored by Jennifer Palagi.

The term “on call pay” is subject to various interpretations.  There is on-call pay where an employer pays an employee a flat rate or small hourly amount to be available to the employer, such as $100 per week or $2 per hour.  But wage and hour law may require all of the on-call time to be paid, at least at minimum wage, if the time is considered “controlled.”  As with many wage and hour areas, the issue as to whether the on-call time must be paid depends on the factual circumstances surrounding situation.  This area is often complicated by an agency’s on-call policy/agreement.  In the event of a later claim, a clear on-call policy can be essential in determining whether the parties characterized the time spent waiting on-call as actual work.

Employers must generally pay employees for actual work performed for the employer, whether the work is performed on the employer’s premises or off-site.  The key factor is whether the employee is actually engaging in work.  For example, an on-call employee who is not required to remain on the employer’s premises, but merely required to notify the employer where he or she may be reached, is not working compensable hours under the FLSA so long as the employee is not prevented from effectively using the time to engage in personal pursuits.

The Ninth Circuit has held that the two predominant factors in determining whether an employee’s on-call waiting time is compensable overtime are:

(1) the degree to which the employee is free to engage in personal activities; and

(2) the agreements between the parties.

Engaged to Wait or Waiting to Be Engaged?

The proper inquiry into the first factor is whether an employee is so restricted during on-call hours as to be “effectively engaged to wait.”  The Ninth Circuit has provided an illustrative, non-exhaustive list of factors to be analyzed in determining the degree to which an employee is free to engage in personal activities while on-call:

(1) whether there was an on-premises living requirement;

(2) whether there were excessive geographical restrictions on employee’s movements;

(3) whether the frequency of calls was unduly restrictive;

(4) whether a fixed time limit for response was unduly restrictive;

(5) whether the on-call employee could easily trade on-call responsibilities;

(6) whether use of a pager could ease restrictions; and

(7) whether the employee had actually engaged in personal activities during call-in time.

What Did You Say?

The second factor involves evaluating the agreements between the parties.  An agreement between the parties which provides at least some type of compensation for on-call waiting time may suggest the parties characterize waiting time as work.  Conversely, an agreement pursuant to which the employees are to be paid only for time spent actually working, and not merely waiting to work, may suggest the parties do not consider waiting time to be work.  Although it is important to note that the parties’ agreement is a predominant factor, but not a controlling factor.

Ultimately, whether employees are entitled to be paid for every hour they are on-call requires a fact-intensive analysis and must be determined on a case-by-case basis.  Therefore, it is essential to understand the appropriate circumstances under which non-exempt employees can be designated as “on-call”, how to properly structure on-call assignments and how to effectively draft on-call policies/agreements in order to avoid triggering hourly compensation requirements.  Employers should also periodically evaluate the on-call assignments and how often employees are called out so they can make sure the organization is operating efficiently and employees are paid properly.

Let’s Talk About Sex (in the Workplace)

Posted in Employment, Workplace Policies

829px-Symbols-Venus-Mars-joined-togetherWe are closing in on the thirtieth anniversary of the seminal decision that defined sexual harassment in the workplace.  In 1986, the United States Supreme Court opined in Meritor Savings Bank v. Vinson that when a boss coerces a subordinate into having sex, it’s against the law—in particular, a violation of Title VII of the Civil Rights Act of 1964.  By 2006, twenty years later, AB 1825 established mandatory sexual harassment training for California employees.  But, this post is not about unlawful sex or sexual harassment in the workplace, as that topic has been well covered over the past three decades.  So, let’s talk about sex in the workplace that is lawful (or at least starts that way) but nonetheless ends up in litigation, and whether a fraternization policy is the employer’s metaphorical shield against a lawsuit.

In a 2013 survey conducted by the Society for Human Resources Management, the number of employers with fraternization policies increased from twenty to forty-two percent since 2005.  Ninety-nine percent of those surveyed prohibit romantic relationships between supervisor and subordinate.  Even though the supervisor/subordinate relationship could start as consensual, the risk for employers associated with these types of relationships is significant.  When one person is in a power position, whether male or female, the subordinate will generally be in a position of vulnerability.  Additionally, a supervisor engaging in a consensual relationship with a subordinate risks his or her employment when the subordinate claims the relationship was not consensual.  This type of claim happens—frequently.

In the California case Barbee v. Household Automotive Finance Corporation, a national sales manager was terminated from his employment because he was involved in a consensual relationship with a subordinate.  The employer’s policy required supervisors to notify management of such relationships so the employer could evaluate whether there was a conflict of interest.  The sales manager did not follow the company’s policy.  When management learned of the relationship, the sales manager was allowed to end the relationship or resign.  He did neither and was terminated.  In reaching its conclusion that the sales manager’s claims against the employer failed, the court aptly noted that employers are “legitimately concerned with . . . possible claims of sexual harassment . . . created by romantic relationships between management and non-management.”  The court also noted that widely accepted community norms support a finding that supervisors do not have “a privacy right to engage in intimate relationships with their subordinates.”

The fraternization policy in Barbee did not stop the employer from being subject to a lawsuit.  In fact, the terminated sales manager sued the company for various causes of action, including invasion of privacy.  The policy did, however, ultimately serve as a metaphorical shield, by putting an end to the lawsuit — as Perseus’ shield put an end to Medusa.

As in Barbee, California courts since have consistently found that employers have an interest in prohibiting supervisor/subordinate romantic relationships.  However, it is less clear whether employers may restrict relationships in other circumstances, such as those involving relationships between co-workers or between company employees and clients or customers.  A policy that strictly prohibits co-workers from dating possibly could violate the employees’ Constitutional right to privacy.  Barbee established that there is no reasonable expectation of privacy for supervisor/subordinate romantic relationships; however, the same is not necessarily true for some other types of workplace relationships.

Several California court decisions affirm that individuals, including in the employment context, have a recognized right to privacy in their sexual relationships or habits.  Employers, nevertheless, still have options.  For example, if co-worker romantic relationships interfere with the employer’s business, the employer may be able to take reasonable action to correct the situation—employers should use caution though in disciplining employees under these circumstances.

When an employer drafts or reviews its fraternization policy, there are some key elements to consider:

  • Clearly define what types of subordinate/supervisor relationships are prohibited;
  • State what behavior is acceptable in the workplace regarding romantic relationships;
  • Describe consequences for violating the policy; and
  • Offer employees the opportunity to understand the implications of the policy and how to comply.

Although fraternization policies may be a daunting task to develop, and unpalatable to employees, even a diminutive shield is better than none.

Tips from the Table: Effect of Retirement Costs on Negotiations

Posted in Labor Relations, Negotiations

We are proud to continue our video series – Tips from the Table. In these monthly videos, members of LCW’s Labor Relations and Negotiations Services practice group will provide various tips that can be implemented at your bargaining tables. We hope that you will find these clips informative and helpful in your negotiations.