California Public Agency Labor & Employment Blog

California Public Agency Labor & Employment Blog

Useful information for navigating legal challenges

Part-Time Employee Traps For CalPERS Employers

Posted in Retirement

This blog post was authored by Steven M. BerlinerRetirement-Sign.jpg

Given all the recent public employee pension reform changes to absorb, it is not surprising that part-time employees of CalPERS contracting agencies have received little attention.  After all, part-time employees are excluded from CalPERS membership, right?  While that might be the general rule, the exceptions practically swallow the rule.  Your agency needs to be aware of the exceptions to avoid very expensive and time-consuming problems.

Government Code section 20305 sets out the various thresholds that must be reached before a part-time employee must be enrolled as a member in CalPERS.  The general rule is that permanent employees who work in a position requiring less than half time (i.e., average less than 20 hours per week) are not eligible for membership (unless your agency amends its CalPERS contract to enroll part-time employees).  Easy enough.  However, another basic rule is that once an employee is a CalPERS member, he or she remains a CalPERS member, even if they switch employers and/or their status changes from full-time to less than half time.  As a result, it is essential that any applicant for part-time employment be asked if they are a CalPERS member.  If they are, and they are hired, they must be enrolled as a CalPERS member from the first day of employment.

Another trap is the 1,000 hour per fiscal year rule.  Once a part-time employee exceeds that limit, he or she must be enrolled as a member.  Combining this rule with the first one, that “once a member, always a member,” a part-time employee that exceeds 1,000 hours in one fiscal year and never exceeds that threshold again, must nonetheless continue to be enrolled.

Failure to enroll an eligible employee timely can result in a $500 penalty.  In addition to paying employer contributions on the part-time employee’s salary, the employer may also be required to pay the employee contribution.  Since there is no statute of limitations on when an employee (or CalPERS) can pursue retroactive enrollment, it is not uncommon for requests for membership to be made by former employees years after they stopped working for the agency.  Dealing with that problem can be an administrative nightmare, since the employer likely no longer has records of the employees’ salaries.  This is especially true when temporary agency workers or independent contractors are determined to be agency employees. In those cases, merely determining the correct salary to report to CalPERS as compensation can be a challenge.

Government Code section 20305 has several other thresholds for enrolling employees.  Not all can be addressed in one blog post.  However, your agency needs to be aware of the rules and comply.  Since there is no statute of limitations, the problem never really goes away.

Court of Appeal Decision Indicates MOU Language Providing for On-Duty Meal Periods for Commercial Drivers May Protect Against Penalties for Interrupted Lunch

Posted in Wage and Hour

hourglass-small-copy.jpgThis blog post was authored by Paul Knothe.

A recent decision of the California Court of Appeal clarifies that agencies that employ commercial drivers, such as bus drivers, paratransit bus drivers and sanitation truck drivers can protect themselves from meal time penalties by providing for meal periods in their collective bargaining agreements – even if these are “on duty” meal periods.

California Labor Code section 512 mandates completely work-free meal periods of at least 30 minutes every five hours but this does not apply to the vast majority of public agency employees.   However, pursuant to IWC Wage Order No. 9, this requirement does apply to commercial drivers employed by public agencies.  The penalties for violation of this requirement are harsh – one hour’s pay for each meal period missed or encroached on by work.

Subdivision (e) of section 512 provides that the mandate does not apply to certain types of employees, including commercial drivers, if (1) the employee is covered by a valid collective bargaining agreement and (2) that agreement expressly provides for:

  • The wages, hours of work, and working conditions of employees
  • Meal periods for those employees
  • Final and binding arbitration of disputes concerning application of its meal period provisions
  • Premium wage rates for all overtime hours worked
  • A regular hourly rate of pay of not less than 30% more than the state minimum wage.

Araquistain v. Pacific Gas & Electric Company, recently decided by the California Court of Appeal is the first reported decision to address what language is sufficient in a labor contract to meet the requirements of the subdivision (e) exception.

In Araquistain, the contract covering the plaintiffs, who were one of the types of employees referenced in subdivision (e), provided that employees “shall be permitted to eat their meals during work hours.”

The plaintiffs argued that this language did not expressly provide for “meal periods,” as opposed to simply “meals.”   Relying on the California Supreme Court’s Brinker Restaurant decision, the plaintiffs argued that a meal period under section 512(e)(2) must be a period of time “with a beginning and an end” during which an employee is relieved of all duty.   The PG & E collective bargaining agreement provided only that employees were entitled to eat during work hours, and the plaintiffs testified that they ate while working.

The Court rejected the employees’ argument.  It held that, while the term “meal period” as used in section 512(a), which mandates a meal period every five hours, does mean that an employee must be relieved of all duty, it has a different meaning in section 512(e).  As used in section 512(e), which creates the exception, the term “meal period” does not require that the employee be relieved of all duty.  The Court noted that  “subdivision (e)(2) provides an exception to the ordinary rule that an employer must provide meal periods of a specified time after a specified amount of work; that is, it provides that where a collective bargaining agreement meets certain requirements, subdivision (a) ‘do[es] not apply.’  It would make no sense to conclude that subdivision (a)’s requirements apply to an employee who is explicitly exempted from them.”

The Court also pointed to the legislative history of the exception, signed into law in 2010, and concluded that the legislation was intended to increase meal period flexibility in certain industries, and to address to some degree the problem that employers were forced to monitor employee meal periods to ensure that the employees were not doing work.

Therefore, the Court found the language that employees “shall be permitted to eat their meals during work hours” does expressly provide for meal periods.    Agencies that employ commercial drivers should check their MOUs to determine if they qualify for the Section 512(e) exception.

California’s New Paid Sick Leave Law Provides Employees With Paid Sick Days Effective July 1, 2015

Posted in Employment, Legislation

Special BulletinThis blog post was authored by Gage Dungy and Stephanie J. Lowe

On September 10, 2014, Governor Brown signed Assembly Bill 1522 (“AB 1522”), codified as Labor Code sections 245 through 249, enacting the Healthy Workplaces, Healthy Families Act of 2014 (“Paid Sick Leave law”).  Effective July 1, 2015, this new Paid Sick Leave law entitles an employee to the accrual of up to three paid sick days in a 12-month period for the diagnosis, care, or treatment of an existing health condition or preventative care for an employee or an employee’s family members.  It also provides paid sick days for an employee for certain purposes related to being a victim of domestic violence, sexual assault, or stalking.  In preparation for the effective changes on July 1, 2015, all California employers should review their current sick leave policies and practices to ensure compliance with the Paid Sick Leave law.  Below is a summary of the Paid Sick Leave law and how it can apply to your agency.

Overview of the Paid Sick Leave Law

Prior to AB 1522, there was no law in California mandating sick leave (paid or otherwise) for employees.  The Legislature’s intent in enacting the Paid Sick Leave law is to ensure that employees can address their own health needs and the health needs of their families and to decrease public and private health care costs by enabling employees to seek early and routine medical care and to address violence, sexual assault, or assault.  

The Paid Sick Leave law requires nearly all employers to provide at least three sick days to each employee per year.  All employers, with at least one employee, are subject to the Paid Sick Leave law, including state and municipal employers.  There is no minimum number of employees needed in a workplace for the Paid Sick Leave law to apply.

The Paid Sick Leave law only exempts the following employees:

  1. Employees covered by a valid collective bargaining agreement if the agreement expressly provides paid sick days or paid leave for sick days, final and binding arbitration of disputes about paid sick days, premium wage rates for all overtime, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate;
  2. Employees in the construction industry covered by a valid collective bargaining agreement;
  3. Providers of in-home support services; and
  4. Employees of an air carrier flight deck or cabin crew members. 

Under the Paid Sick Leave law, an employee is entitled to paid sick days if he or she works in California for 30 or more days within a year from when employment commences.  As a result, the Paid Sick Leave law applies to most any employee – including temporary, extra help, part-time, and seasonal employees who work 30 or more days within a year from when employment commences.  The Paid Sick Leave law does not provide any other eligibility requirements.

Employees accrue paid sick leave at the rate of at least one (1) hour per every 30 hours worked – beginning on the first date of employment or July 1, 2015, whichever is later – up to twenty-four (24) hours [three (3) days] per 12-month employment year.  For employees exempt from overtime requirements, their workweek is considered 40 hours for purposes of the Paid Sick Leave law.  Employees are entitled to request and use accrued paid sick days beginning on the 90th day of employment.  However, an employer may lend paid sick days to an employee in advance of accrual at the employer’s discretion.  The rate of pay shall be the employee’s hourly wage. If the employee in the 90 days of employment before taking accrued sick leave had different hourly pay rates, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay shall be calculated by dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.  An employer shall provide payment for covered sick leave taken by an employee no later than the payday for the next regular payroll period after the sick leave was taken.

The Paid Sick Leave law also requires employers to allow employees to carry over paid sick days to the following year of employment, up to an accrual cap of six (6) days/forty-eight (48) hours of sick leave.  Although sick leave can be carried over year to year within the cap limit, an employer can limit the number of sick leave days used to three (3) days in any one year.

Under the Paid Sick Leave law, an employee may determine how much paid sick leave needs to be used, provided that an employer may set a reasonable minimum increment, not to exceed two hours, for the use of such covered sick leave.  If the need for paid sick leave is foreseeable, the employee shall provide reasonable advance notification. If the need for paid sick leave is unforeseeable, the employee shall provide notice of the need for the leave as soon as practicable.

Employer Obligations Under the Paid Sick Leave Law

To comply with the Paid Sick Leave law, an employer must satisfy the following obligations:

  1. An employer must comply with the sick day accrual, carry over, and use requirements of the Paid Sick Leave law (as outlined above);
  2. An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or discriminate against an employee for using accrued sick days;
  3. At the time of hiring, an employer shall provide each employee with written notice of his or her rights under the Paid Sick Leave law;
  4. An employer shall provide written notice of the amount of paid sick days available on an employee’s itemized wage statement or on a separate writing provided on the designated pay date with the employee’s payment of wages;
  5. An employer shall display a poster in a conspicuous place informing employees of their rights under the Paid Sick Leave law.  Employers can obtain a poster containing all of the required information from the Labor Commissioner; and
  6. An employer shall keep records documenting the hours worked, paid sick days accrued, and paid sick days used by an employee for at least three years.

Employers Who Already Have Sick Leave Policies

Many public agencies and private employers currently have sick leave policies in place, whether negotiated in a collective bargaining agreement (CBA) or memorandum of understanding (MOU); or provided by rule/policy.  Employers who already have a paid sick leave policy or paid time off (PTO) policy in place are not required to provide additional sick days if their current policies satisfy the accrual, carry over, and use requirements of the Paid Sick Leave law and they provide no fewer than three paid sick days (24 hours) each year.  The Paid Sick Leave law sets the minimum accrual rate, and therefore, does not prohibit an employer from adopting an accrual rate more generous than one hour per every 30 hours worked.  In addition, if an employer’s current policy does not allow for sick leave to carry over year to year, it must amend its policy to comply with the minimum carry over requirement up to an accrual cap of six (6) days/forty-eight (48) hours of sick leave. 

Intersection of Paid Sick Leave Law with Other Current Laws

The Paid Sick Leave law will intersect with other laws that are currently on the books, including the following:

Labor Code Section 226 – Itemized Wage Statements

Private sector employers are currently required under Labor Code section 226 to provide an itemized wage statement of gross/net wages earned, hours worked, hourly/piece rates, deductions made, dates of pay period, employee name, and employer name and address.  Public sector employers are exempt from Labor Code section 226.  New Labor Code section 246(h) of the Paid Sick Leave law requires that all employers now provide in writing the amount of paid sick leave available (or PTO leave in lieu of sick) either on the itemized wage statement used in compliance with Section 226 or in a separate writing provided on the designated pay date with the employee’s payment of wages.

Labor Code Sections 230 and 230.1 – Prohibition of Discrimination Against Victims of Domestic Violence, Sexual Assault, and Stalking for Taking Leave

Labor Code sections 230 and 230.1 prohibit an employer from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off of work to obtain or attempt to obtain relief.  The Paid Sick Leave law expands on this by providing employees with the ability to use covered paid sick days for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief, to help ensure the health, safety, or welfare of the themselves or their child(ren) because they are victims of domestic violence, sexual assault, or stalking.  The Paid Sick Leave law also provides for an employee who is a victim of domestic violence, sexual assault, or stalking to use covered paid sick leave to attend to any of the following:

  1. To seek medical attention for injuries caused by domestic violence, sexual assault, or stalking.
  2. To obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking.
  3. To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
  4. To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation. 

The Paid Sick Leave law would also prohibit discharge, discrimination, or retaliation against a victim of domestic violence, sexual assault or stalking for using covered sick leave days for these purposes noted above.

Labor Code Section 233 – Sick Leave to Care for a Child, Parent, Spouse, or Domestic Partner

Labor Code section 233 applies to employers who, at their discretion, adopted paid or unpaid sick leave policies.  Section 233 requires employers who provide sick leave to permit an employee to use up to one-half of his or her annual allotment of sick leave to attend to the illness of a child, parent, spouse, or domestic partner. For example, an employee who accrues one sick day per month (12 sick days per year), can use six sick days (half of the annual accrual) to care for a family member. 

The Paid Sick Leave law is broader than Section 233 by also permitting covered sick leave to be taken to care for a parent-in law, grandparent, grandchild, or a sibling, in addition to child, parent, spouse or registered domestic partner as currently required under the terms of Section 233.  This will result in the potential overlap of protected sick leave reasons both under the Paid Sick Leave law and Labor Code section 233.  As a result, employers will need to carefully review their sick leave policies and practices to ensure that they are properly providing sick leave and its protections in accordance with both laws. 

Practical Tips to Comply with AB 1522

Even though the Paid Sick Leave law does not go into effect until July 1, 2015, public and private employers should become familiar with the requirements of this new law now.  They should be ready to meet all of the employer obligations and to post the required notices by July 1, 2015.  If employers have no current sick leave policy in place, they should start drafting a policy to ensure compliance with the Paid Sick Leave law.  For employers who have already adopted a sick leave policy, they should start reviewing their sick leave policies and practices to ensure compliance with the Paid Sick Leave law.  If sick leave policies are adopted through a negotiated CBA or MOU, employers may need to review such policies to determine what amendments need to be made and may be obligated to meet and confer with the applicable bargaining unit to modify such policies.  However, employers will still have to meet the minimum requirements of the Paid Sick Leave law regardless of whether new CBA/MOU provisions can be negotiated prior to the July 1, 2015 effective date.

Employers need to be aware that part-time, extra help, temporary, and seasonal employees may now be entitled to paid sick leaves.  Employers should be prepared to start documenting accrual of paid sick leave for all employees who work at least 30 days from the beginning of employment or July 1, 2015, whichever date is later. Employers should also prepare to enforce the request procedures and employee notice requirements of paid sick days.  Foreseeable sick leave requires advance notification, while unforeseeable sick leave requires notice as soon as practicable.  This will allow employers to differentiate between paid sick leave for permissible purposes and excessive and unexcused absenteeism.  On a similar note, employers may need to examine excessive absenteeism policies and make any adjustments in light of protected sick leave usage under the Paid Sick Leave law. 

Conclusion

The Paid Sick Leave law brings forth major changes in sick leave for all California employers.  Employers therefore will need to ensure that current sick leave policies and procedures are properly updated to ensure that their workplace is prepared to comply with these changes on July 1, 2015.

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

9th Circuit Says Control Is Key In Determining Independent Contractor Status

Posted in Employment

truckMany public agencies supplement their workforce with independent contractors.  Since independent contractors who perform services are not employees, agencies do not have to pay them according to the requirements of the Fair Labor Standards Act (FLSA). If the contractor does not meet the qualifications for “independent contractor” status, the worker must be treated as an employee for FLSA purposes. Often, employers mistakenly believe that they have properly designated an individual as a contractor because they have a services contract that says the worker is an independent contractor.  However, job titles and contract terms do not determine whether a worker is truly a contractor.

The 9th Circuit Court of Appeals, which covers California, recently held that the most important factor in determining whether a worker is an employee or independent contractor is control.   In Ruiz v. Affinity Logistics Corp., truck drivers of the company sued for unpaid wages and other benefits under the FLSA and California law.  The drivers argued that Affinity wrongfully classified them as independent contractors, and that instead they should have been classified as employees.  In order to determine whether the truck drivers were employees or independent contractors, the Court of Appeals considered a number of factors and held that the most important factor is whether the employer maintains the right to control the work being performed by the worker.  The more control the employer has over the worker’s manner and means of work, the more likely it is that the worker is an employee as opposed to an independent contractor.

The Court of Appeals in Ruiz held that the truck drivers were misclassified as independent contractors because the company exercised significant control over their work.  The company decided the days the drivers worked and retained discretion to deny requests for days off.  It set the drivers’ rates and did not permit them to negotiate it.  In addition, the company set the drivers’ routes and told them not to deviate from them, required them to report to the company’s warehouse and attend meetings, and required them to wear uniforms and follow the company’s grooming and dress code.  The company also supervised the drivers while they were loading their trucks and required them to call their supervisors every two or three steps.

The Court also concluded that the secondary factors in the applicable test for determining whether an employer-employee relationship exists also weighed in favor of finding that the drivers were employees.  These factors include:

  1. whether the worker is engaged in a distinct occupation or business;
  2. the kind of occupation and whether the work is done by a specialist without supervision or under the principal’s direction;
  3. the skill required in the occupation;
  4. whether the principal provides the tools and place of work;
  5. the length of time for which services are performed;
  6. the method of payment, whether by time or by job;
  7. whether the work is part of the principal’s regular business; and
  8. whether the parties believe they are creating an employer-employee relationship.

The factors examined by the 9th Circuit to determine independent contractor status are similar to the “totality of circumstances” test adopted by the U.S. Department of Labor (DOL) when evaluating contractor status for purposes of the FLSA.  Although the DOL has indicated no single factor is regarded as controlling, the factors considered under the test include:

  1. the nature and degree of control by the employer; 
  2. the extent to which the worker’s services are an integral part of the employer’s business;
  3. the permanency of the relationship;
  4. the amount of the worker’s investment in facilities and equipment;
  5. the worker’s opportunities for profit and loss; and
  6. the level of skill required in performing the job and the amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor.  

Despite the multiple factors a court will examine, the answer to the question of whether a worker is a bona fide independent contractor will often turn on one factor: control.  If your agency is currently using independent contractors, consider seeking legal advice regarding whether the classification is proper.  In addition to having substantial FLSA consequences, improperly classifying workers as contractors can result in liability under other laws such as the Public Employees’ Retirement Law, the Affordable Care Act, workers’ compensation laws and anti-discrimination and harassment laws.

Tips from the Table: Using Conceptual Agreements to Avoid Impasse

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.

5 Lessons I Learned at Harvard’s Kennedy School This Summer

Posted in Lessons Learned

Harvard_University_Widener_LibraryThis summer I had the opportunity to attend Harvard Kennedy School of Government’s Senior Executives in State and Local Government course.  It is a 3-week class designed to help state and local government officials, and those of us who serve them, effectively manage operations and employees; and to hone skills to exercise leadership in an environment where agencies face greater scrutiny from a skeptical public, and where the need for services continues to grow despite the relatively scarce resources available.

Among the approximately 60 participants in the class, there were City Managers, police and fire personnel, lawyers who work with or for public agencies, human resources professionals, elected officials, and others.  In many ways, being in this class felt like being back in college again.  We lived with roommates in the dorms on Harvard’s campus, ate campus cafeteria food paid for with our Crimson Cards, completed homework and group projects, participated in daily study groups, and attended over 30 lectures taught by the accomplished faculty at the Harvard Kennedy School.

When some of my colleagues at my firm suggested I write about my experience this summer, I struggled to try to synthesize what I learned so as to present it in a way to benefit the clients we serve.  In an attempt to impart practical information that can be incorporated into our daily routines, I decided to develop a list of 5 primary lessons I learned:

1. Have a vision.

In class one day, Professor Marty Linsky said: “If you care enough about something, you’ll do something about it.”

As I thought about this comment during the class, and in continuing to think about the statement more since being back in California, it struck me how critical this seemingly straightforward sentiment is in our respective professions.  Without a vision, we risk working without a focus or purpose, and thereby setting ourselves up for feeling aimless or unfulfilled in our positions.

Figuring out what we care enough about to take risks for is the penultimate challenge to establishing a vision.  The ultimate challenge is to devise a plan that helps us execute the vision.  I challenge to think about what your vision is.  What will you leave behind at your agency?  What will you be remembered for?

In addition to establishing a vision, it is important to write a vision statement that you revisit periodically to help you assess your work toward achieving the vision, and to help you periodically consider whether it continues to be the vision you want to pursue.

2. Set priorities like you did in college: major in one, and minor in one or two others. 

It is easy to fall into the trap of trying to do too much.  We find ourselves committing to too many tasks, and some of us puzzle over when we will finally learn to say no.   If you desire to advance your vision, it will be very important not to over-commit or try to do too much.  By setting your own priorities, you will set an agenda for yourself that allows you to determine what tasks help promote your vision, and what tasks serve as a distraction from your vision.  The challenge is to identify what tasks will help you achieve your goals, to stick to those tasks, and to diplomatically turn down the ones that serve as detractors.

3. Take time to think about how to change things to reach your desired result. 

Once you have a vision in mind, it is important to devise a plan to help you accomplish it.  First, identify what goals you want to accomplish.  Then, evaluate what barriers, hurdles or constraints exist that threaten your ability to achieve your goals.  Next, assess what resources you have available to help you reach your goals.  Finally, develop a strategy to help you execute a plan to meet the specified goals.  It sounds like basic advice, but a failure to put the time in on the front end to plan will hinder your ability to recognize internal and external challenges to accomplishing your goals.

4. Whatever your task is, figure out what group dynamic is effective.

Arguably, you are far less likely to be successful in achieving your goals if you are trying to forge ahead on your own.  You need resources, including people, to help you.  Similarly, to be successful in promoting your vision, you typically must work with a collective or group to help you advance your mission.

While working with other people, particularly teams or groups, it is important to pay attention to the dynamics.  Every group has its own set of forces that are informed by the unique personalities of the group members, their positions or jobs, their current and past experiences in professional settings, their personal history, and so on.

Given the diverse nature of groups, it is important to spend time thinking about what the group dynamic is that you are confronted with, and to be flexible in how you work with a particular group.  Your strategy for achieving your goals will be affected by the conditions that exist within a particular group.  If you do not spend the time to evaluate the group dynamics, you may forge ahead with a strategy that suits your needs, but is not conducive to the interests of the group whose support you are trying to solidify.  Think creatively about how to work with your group rather than trying to work around your group.

5. Don’t underestimate the use of humor.

The occasional injection of humor can bring a welcome amount of levity to otherwise difficult situations.  But it is important to be aware of when using humor is and is not appropriate.  Doing work on yourself to hone listening and communication skills will help you understand when humor is appropriate and when it diminishes your ability to be effective.

Although these 5 lessons I have identified for you appear simple on the surface, it takes a good amount of time, reflection, and planning to put the lessons into practice.  The reward for incorporating these lessons into your professional life is a deliberate vision marked by a set of goals whose fulfillment will result in a more satisfying professional experience.

Retired Employees Not Likely To Trigger Affordable Care Act Penalties As Long As The Employer Adopts The Look Back Measurement Method Safe Harbor

Posted in Retirement

Retirement-Sign.jpgThis blog post was authored by Heather DeBlanc

As employers begin to prepare for the Affordable Care Act’s (“ACA”) Employer Mandate scheduled to take effect January 1, 2015, two main questions arise relating to retired employees who return to work:

Can retired employees subject the employer to a penalty? – Yes!

Should employers offer health coverage to retired employees? – Probably not.  Doing so would be in excess of post-retirement and CalPERS could reinstate the retiree to CalPERS membership. Instead, the employer should adopt the Look Back Measurement Method Safe Harbor.

The ACA does not carve out an exception for retirees who return to work. They are considered employees and, if they meet the definition of “full time” under the ACA’s employer mandate, they could potentially trigger a penalty to an employer. However, in order for a full-time employee to trigger a penalty, that employee must purchase coverage through Covered California and receive a government subsidy. If a retiree is eligible for Medicare, he or she will not qualify for a subsidy and therefore will not trigger a penalty.

To qualify for a subsidy through Covered California an individual must have an annual household income between 138% and 400% of the Federal Poverty Level, not be eligible for other public health coverage such as full-scope Medi-Cal, premium-free Medicare Part A, or military coverage, and must not have affordable access to health insurance through an employer. Therefore, any retiree over age 65 who returns to work will be eligible for Medicare and therefore will not typically trigger a penalty.  Any individual receiving any retiree health benefits will also not trigger a penalty because they will already have health coverage through a source other than Covered California.

When a retiree age 65 or younger returns to work, a new dilemma arises for those employers who are CalPERS members. Under the CalPERS system, a retired person may serve without reinstatement from retirement and without loss of retirement benefits in limited circumstances, which we discussed on the following blog posts – “California Legislature Enacts Further Changes To Post-Retirement Employment For PERS Retirees” and “CalPERS Issues Circular Letter Clarifying Uncertainties Raised By AB 1028 On Post-Retirement Employment And Raising New Ones.” In order to avoid reinstatement, the employee must not receive any benefits or compensation in lieu of benefits. Also, the retiree must not work more than 960 hours in any fiscal year. The dilemma occurs when a retiree averages over 30 hours of service in a given month, thereby making him or her full-time for purposes of the ACA. If that employee is not offered affordable coverage, he or she could trigger a potential penalty by obtaining subsidized coverage through Covered California.

In order to mitigate potential penalties, employers are making sure to adopt the Look Back Measurement Method Safe Harbor. This safe harbor allows an agency to measure hours of service of an employee over a period of 12 months. If the employee averages 30 hours of service over 12 months (i.e. 1560 hours of service), then the employee will be deemed full-time during a period of time called the stability period which follows the 12 month measurement period. Because retirees are limited to 960 hours in a fiscal year, it is unlikely that a retiree who returns to work under this circumstance would ever reach the 1560 threshold. If the employer sets its measurement period to coincide with the fiscal year, then it can be certain that these employees will never hit 960 hours, let alone 1560 hours. Those employers who measure hours of service for 12 months starting in November, could have a scenario (however, unlikely) where an employee whose hours remain under 960 hours during the fiscal year, but reach 1560 hours during the measurement period. Nonetheless, by adopting the Look Back Safe Harbor, the employer can avoid having a retired employee trigger a penalty for a single month during which that employee averages 30 or more hours of service. This is one of many reasons an employer should adopt the Look Back Measurement Method Safe Harbor. For more information on the ACA’s Employer Mandate and the Look Back Measurement Method Safe Harbor, please see the following links:
“Your Questions Answered: The ACA’s Final Regulations on the Employer Mandate”
“ACA’s Final Regulations on the Employer Mandate”

Campus Free Speech – A Review of Policies Can Avoid Litigation

Posted in Education, First Amendment

College Campus Free Speech

It has been 50 years since the Free Speech Movement began at UC Berkeley in 1964, and approximately 40-50 years since near-riotous conditions overwhelmed college campuses in the late 1960’s and early 1970’s.  In our own time, it is about three years since the 2011 Occupy events and large-scale tuition protests erupted on college campuses.  This year, in contrast, may be a quiet Fall of 2014 on college campuses (although one never knows).

There is one exception though, and it is a significant one – lawsuits.  There is a fair chance colleges will see an increase in expensive lawsuits brought by students or outsiders to challenge campus policies in the name of free speech.  Challenges are expected to involve policies that impose definitions of the campus areas where expressive activities may take place, those that require students or outsiders to wait several days before access to those areas, and those that require permits for area use.  Targeted policies may also include those that impose prohibitions on speech in the form of student codes of conduct or harassment policies.  At an increasing pace, civil rights lawyers are already filing these types of lawsuits, and prominent commentators and journalists are joining the debate – often on the side of those challenging college policies.

A lawsuit was recently brought by students at the University of Hawaii at Hilo against administrators for allegedly restricting speech activities to a small area of campus, and prohibiting a student from distributing literature outside the area.  Another lawsuit was brought against a community college in southern California asserting that its free speech areas on campus were too small and that the school had a harassment policy applicable to students that was overbroad.  Both lawsuits were filed in federal courts.  They ask that the challenged policies be found illegal and that the plaintiffs be paid damages and their attorneys’ fees.  These types of cases can attract substantial media attention, which in turn can lead to public outcries (well-founded or not) against the university or college for having supposedly engaged in censorship.

A major proponent of these lawsuits is the Foundation for Individual Rights in Education (“FIRE”), a campus free speech advocacy group headquartered in Philadelphia.  FIRE announced at a press conference in Washington D.C. on July 1, 2014, that it was supporting four separate civil rights lawsuits filed that day against institutions of higher education in different parts of the country for alleged free speech violations.  FIRE stated ominously that they expected more lawsuits of this type to be filed against colleges soon.

Colleges and universities can take measures to protect themselves against such lawsuits, and at the same time insure they are advancing principles of free speech, by a careful review of existing policies governing freedom of expression on campus.

The following are key policy items to review:

Free speech areas or zones:  Many public colleges have “time, place, and manner” regulations which require that speech activities by students or outsiders — such as demonstrations, picketing, leafleting, rallies, and other similar activities — take place in particular identified areas of campus.  However, free speech areas or zones that are too small, or so remote that speakers do not have sufficient access to audiences on campus, can result in claims of free speech violations.  If a college chooses to limit expressive activities to specific areas, it must ensure that the size and location of those areas provide ample access to passersby on campus and opportunities to draw spectators.  The areas should not be situated in a way that unreasonably deprives the speakers of meaningful access to their intended audiences.  The college’s specification of areas as limited or designated public forums ideally should correspond to the way students and outsiders already use those areas for free expression.

Many constitutional rights advocates believe that public colleges should not be able to limit speech activities to specific zones on campus at all, especially when the speakers are students.  Case law may issue in the next year to provide further guidance on this point.

Permit Requirements:  Colleges should be mindful of prior restraint concerns.  A prior restraint exists when the exercise of protected expression is contingent upon pre-approval or licensing by government officials.  Prior restraints are not unconstitutional per se, but Courts will review them very carefully to see if they meet a number of stringent legal tests.

Prior restraint concerns can arise if a college requires students or outsiders to obtain permits in advance to use the speech areas, and if those permits involve some oversight or review process.  If administrators are authorized to review activities or materials to decide whether the speech activities are “appropriate,” or words to that effect, there can be serious constitutional problems, as this type of vague standard would effectively allow administrators to censor speech.

To avoid prior restraint concerns, many institutions do not require any license, permit, or pre-authorization, and instead simply ask that those using designated areas check in and provide contact information before doing so.  Also, many colleges do not have any waiting period for use of free speech areas.

Insurance or indemnification requirements:  Insurance or indemnification requirements may also present constitutional free speech problems.  Some public colleges require all those who wish to engage in expressive activities, such as rallies, demonstrations, or picketing, to provide proof of insurance, or to indemnify the college for any accidents or injuries resulting from their activities.  Such requirements present First Amendment concerns because they limit those who are able to use the areas, sometimes regardless of whether they actually engage in an activity that risks property damage or injury.  A review of case law involving cities and counties which have imposed such policies can be useful to colleges in formulating these types of requirements.  But care must be taken in determining precisely how they are structured.  The best course from a constitutional perspective is not to impose insurance or indemnification requirements.

Vague or Overbroad Standards in Student Codes of Conduct or Harassment Policies:  If a college has rules that – even if well-meaning – encompass too much speech as potentially prohibited, then a court may find that the rules violate the First Amendment.  Examples include “bullying” policies that, among other things, contain a prohibition on simply “offending” anyone.  Another example might be a sexual harassment policy that contains overly broad definitions of the types of speech that are included.  This type of language is potentially broad enough to encompass speech that normally would never be considered harassment and that instead would traditionally be considered protected.

To avoid challenges, policies on student conduct and harassment should include prohibitions that are concise, clear and narrowed to conduct of legitimate concern to the college.  The college should avoid subjective terms that could confuse reasonable people about what is actually prohibited.  In addition, policies should be reviewed to determine if anyone could reasonably construe any provision as discriminating against particular viewpoints.

Carefully crafted policies and procedures are the key to winning free speech challenges. The best litigation strategy is, obviously, to put such policies into effect before any dispute arises.

One other important point: in California, it is not just public colleges and universities that must insure that policies comply with constitutional free speech principles.  By statute, private universities must do so as well, insofar as the policies apply to students.  California Education Code section 94367 provides: “No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or . . . the California Constitution.”  There is scant case law interpreting section 94367, which has been in effect since 1992.  But it is clear that the language means that private colleges and universities must also respect the free speech rights of their students, and insure that defensible policies are in place.

We will report on the recently filed cases as developments occur, especially if they generate new law that will be relevant to colleges and universities in their policies affecting free speech on campus.

Applicability of ACA “Contraceptive Mandate” to Religious Non-Profits an Open Question in Wake of Recent Supreme Court Decisions

Posted in Healthcare

Healthcare.jpgThis blog post was authored by Jessica Frier

The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., while limited in scope to closely-held private companies, is of interest to religious non-profits as well as for-profit employers.

The ACA requires health insurance providers to cover preventive health services, including FDA-approved contraceptives, without charging co-pays, deductibles, or co-insurance, often referred to as the “contraceptive mandate.”

A key difference between closely-held corporations like Hobby Lobby and religious non-profits is that faith-based non-profit employers are eligible for an accommodation that allows them to shift the burden of complying with the contraceptive mandate to a third-party administrator or insurer, an accommodation not available to closely-held for-profit employers.

To invoke the accommodation and avoid civil penalties, a religious non-profit must file a self-certification form stating (1) that it “opposes providing coverage for some or all of any contraceptive services required to be covered under [the regulation] on account of religious objections, (2) [that it] is organized and operates as a nonprofit entity, [and] (3) [that it] holds itself out as a religious organization.”  (45 C.F.R. section 147.131(b).)

A series of cases challenging the accommodation and exemplified by Little Sisters of the Poor v. Sebelius, are working their way through the circuit courts and headed for likely Supreme Court review.  The plaintiffs, religious non-profit employers, contend that signing a self-certification form to qualify for the “eligible organizations” accommodation, and then delivering those forms to an insurer or third-party administrator unduly burdens their free exercise of religion.

A few days after issuing the Hobby Lobby decision, the Supreme Court issued an injunction ruling that Wheaton College of Illinois, a religiously-affiliated non-profit institution, need not use the form (EBSA Form 700) prescribed by the government to invoke the accommodation, and need not send copies of the form to health insurance issuers or third-party administrators, until a final decision is made on the college’s appeal of the contraceptive mandate.

The order can be found at Wheaton Coll. v. Burwell.  LCW will continue to monitor and report on this developing area of the law.

What Does The Affordable Care Act Have To Do With Independent Contractors?

Posted in Wage and Hour

This blog post was authored by Jennifer Rosner and Heather DeBlanc.hourglass-small-copy.jpg

When we think of the Affordable Care Act (“ACA”), we invariably think of health insurance.  The ACA mandates that any employer with 50 or more full time equivalent employees may face penalties unless it offers affordable health insurance to its full-time employees.  This ACA requirement applies to employers with 50 or more full time employees, including full-time equivalents (referred to in ACA as “applicable large employers”).  The ACA defines full time employees as those who average 30 or more hours of service per week.

What about the implications of the ACA on independent contractors?  Many public entities use independent contractors for services such as maintenance, security, building inspection, planning, engineering, janitorial and pest control.  Under the ACA, independent contractors do not count as employees when determining whether an employer meets the minimum threshold as a large employer.  Also, an independent contractor is not counted as a full-time employee who could trigger a potential penalty or impact the penalty calculation.  The ACA’s “individual mandate” requires that all individuals, as of January 1, 2014, have health insurance or face penalties (unless exempt due to low income or religious beliefs).  However, an employer will not be penalized for failing to offer coverage to its independent contractors.

Has your agency correctly classified its independent contractors?  When you strip down the title, are they really just employees in disguise?  The IRS recently issued a final audit report estimating that employers misclassify millions of workers as independent contractors instead of employees, thus avoiding the payment of employment taxes.  However, correctly determining who is an employee and who is an independent contractor can often be a cumbersome task.  Simply because a worker has been labeled as an independent contractor is not sufficient proof of independent contractor status.  Indeed, the IRS and other governmental agencies are not bound by any agreement between the worker and the agency classifying the worker as an employee or an independent contractor.  Similarly, the fact that a worker is issued a 1099 form rather than a W-2 form is also not determinative.  (See S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341; see also Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864.)

The ACA incorporates the ERISA definition of an “employee” as “any individual employed by an employer.” (29 U.S.C. § 1002(6)).  However, this doesn’t clearly define the term “employee” for compliance purposes.  Final regulations refer to the common law “employee” definition of “right to control.”  (26 C.F.R. § 54.4980H-1(a)(7).)  The common law “employee” definition determines whether a worker is an “employee” or “independent contractor” based on whether the agency has the “right to control and direct the worker in the way of when, where, how and what work is performed.”

To help determine whether a worker is an employee under the common law rules, the IRS has identified 20 factors that may indicate whether the employer can exercise enough control to establish an employer-employee relationship.  These factors, set forth in Revenue Ruling 87-41, were based on the circumstances that courts have identified and relied upon to assess whether an employment relationship exists.  Not all of the factors must be present to find an employment relationship, but the factors are guidelines used to assess whether an individual is an employee or an independent contractor.  An employer must weigh the following:

  • Is the worker required to comply with instructions on where, how and when the work is to be done?
  • Is the worker provided training to perform the job in a particular manner?
  • Are the services performed an integral part of the organization’s operations?
  • Must the services be rendered personally?
  • Does the business hire, supervise and pay assistants to help the worker on the job?
  • Is there a continuing relationship between the worker and the business?
  • Does the organization set the work schedule?
  • Is the worker required to devote his/her full time to the organization?
  • Is the work performed at the company’s place of business or at specific places designated by the company?
  • Does the organization direct the sequence in which work is performed?
  • Are oral or written reports required to be submitted?
  • Are payments to the worker made by the hour, week or month?
  • Are travel and lodging expenses reimbursed?
  • Does the organization furnish tools and materials?
  • Does the worker have an investment in the equipment or facilities?
  • Does the worker stand to realize a profit or loss as a result of the work?
  • Does the worker work exclusively for the organization?
  • Does the worker work predominantly for the organization or are services available to the general public?
  • Can the worker be discharged for reason other than nonperformance of contract provision?
  • Can the worker terminate the relationship without liability?

There are significant consequences which could follow if agencies misclassify a worker as an independent contractor who, in fact, is an employee.  If an independent contractor is misclassified, the agency must, among other things, withhold state and federal income taxes, enroll him or her as a CalPERS member when the worker meets eligibility requirements and provide workers’ compensation insurance coverage.  It would also be responsible for offering the employee (and his or her dependents) health insurance to avoid penalties if the employee is considered full-time under the ACA.

Moreover, if an IRS audit reveals that an employer has misclassified its independent contractors and reclassifies those workers as W-2 employees, the employer could be subject to penalties for failing to offer healthcare coverage.  That penalty is $2,000 per year multiplied by the number of full-time employees (less 30, or less 80 during 2015 only) if the large employer is not offering coverage to substantially all (95%, or 70% during 2015 only) of its full-time employees and their dependents.  If the large employer does offer coverage, but the coverage does not meet ACA standards for minimum value and affordability, the employer could be required to pay a fine of $3,000 for each full-time employee who receives coverage through Covered California and obtains a government subsidy.  On the other hand, if the worker is truly an independent contractor, the worker will not trigger a potential penalty and will not be considered full-time for any IRS penalty determination.  Independent contractors are obligated to make arrangements to pay their own taxes and to provide their own benefits.

The ACA also provides strong whistleblower protection for employees or independent contractors who reasonably believe they are misclassified.  (29 U.S.C. § 218c).  That section defines protected activity quite broadly.  Protected activity includes providing (causing to be provided or about to provide) to the employer, information relating to certain violations of the ACA.  In sum, employees may be engaged in protected activity even if they do not actually complain and even if they are not ultimately correct about whether their employer violated the ACA.

As a result of the strong whistleblower protections, employers must be vigilant about properly classifying their employees.  If an independent contractor is found be an employee, then the employer must determine whether that employee is full or part time.  Under the ACA, an employee can only be classified as part-time if he is reasonably expected to have less than thirty hours of service per week.

In order to reduce potential exposure to liability, large employers should implement procedures for auditing employee classifications and ensure they have properly classified any independent contractor.  Accordingly, if you have independent contractors, you should review your written agreement(s) and conduct a legal analysis of their functions to determine whether the independent contractor has been properly classified.