Answers to our Clients’ Most Frequently Asked Questions
Have a question? We probably have answered it in one of our many informative frequently asked questions (FAQ’s). To find the answers you’re looking for, you can click on “Show Answer.” You can also select a specific category from the drop-down box to narrow the results, or use the search box at the top or bottom of the page to access relevant information from anywhere on the site.
- Page 4
What Actions, if Any, Can a California Company take in Response to Reported Off-Duty Employee Conduct?
You have reported that a supervisor at your Company has heard secondhand regarding an employee’s off-duty conduct from several employees. What is the Company permitted to do?
It depends on the alleged conduct, applicable state and federal laws, Company policies and a number of other factors. Consider starting with answering the following questions:
- Is the conduct lawful or involve potentially illegal conduct?
- Is there an applicable state law that protects the employee’s off-duty conduct?
- What is the risk/cost the employer is seeking to mitigate?
- Is the employer willing to apply the policy consistently? What effect will the policy have on employee morale?
If the alleged off-duty conduct involves cyber-bullying or unwelcome sexual conduct, for example, then the Company will be legally obligated to investigate it. If the off-duty conduct involves employees venting about the terms and conditions of employment on their personally-owned social media accounts, that conduct may be protected under the National Labor Relations Act, that prohibits taking adverse employment actions based on such conduct.
Other protected areas that require further analysis to determine how to proceed involve: union activity, drug, alcohol or marijuana use, political and religious activities and beliefs, off-duty arrests/violence, and moonlighting.
Is a Company Legally Responsible to Indemnify and Pay for the Defense of Accused Supervisor Named in Sexual Harassment Lawsuit?
A California Company is generally vicariously liable for harassment committed by its supervisory employees and perhaps for its non-supervisory employees. In some instances, for example, where the allegations were purportedly committed by a supervisor, liability will be strictly imposed regardless of the employer's participation in or knowledge of the harassment. Retaining one attorney to represent the corporation and the employee is the simplest method of defending a sexual harassment claim. However, this method should generally be used only when an investigation discloses that the employee did not commit the harassment.Otherwise, a conflict of interest between the employee and the employer will exist, especially if indemnity is not provided.
While some conflicts can be waived, the Company should be careful in requesting a waiver from the employee because of the risk that the employee may later contend that he did not receive an adequate defense as a result of the attorney's efforts to defend the Company. There may also be strategic reasons to avoid using the same attorney, e.g., to avoid the suggestion that the Company condones the alleged activity or that the Company will pay any judgment.
If, however, a joint defense is provided, it should be pursuant to a written agreement in which the ground rules are identified, e.g., waiver of possible conflicts, no cross-claims, and sharing of information. The use of a single attorney should also be monitored carefully throughout the litigation for changes in circumstances. If the employee is to retain separate counsel, the Company may suggest possibilities but it should leave the choice to the employee so as to avoid any suggestion that the Company is controlling the defense. The cost of a defense is often prohibitive for the individual; homeowners and Directors & Officers’ insurance policies do not usually cover the cost of defending these suits. For this reason, employees usually seek reimbursement or advancement of their defense expenses from their employer. However, if there is a finding of harassment, the employee generally must repay the defense costs advanced on his behalf. The Company would also generally be barred from indemnifying the employee for his liability because it is hard to conceive of many situations when harassment would be considered to be in the best interests of the Company or to have been committed in good faith.
Can California Employees be held Personally Liable for Violations of Employment Laws?
Generally, employees can be held personally liable for conduct that is outside the scope of their employment. This includes, unlawful harassment on the basis of any of the protected characteristics under federal and state law, such as, sexual or racial harassment; intentional conduct, such as, assault, battery, intentional misrepresentation (fraud), intentional interference with contract, misappropriation of trade secrets; or aiding and abetting. Employees cannot be held personally liable for discrimination, retaliation, negligence or wrongful termination claims, however, if the overlapping evidence can provide support individually for both harassment and discrimination claims, then the jury could find personal liability against the employee who engaged in the conduct.
On October 11, 2015, California Governor Jerry Brown signed into law the “A Fair Day’s Pay Act,” which expands liability for willful wage and hour violations to owners, directors, officers, and managing agents of the employer. Any employer or “other person acting on behalf of an employer” “may be held liable as the employer for” violations of the directives in the California Wage Orders and in various provisions of the California Labor Code. Thus, the Labor Commissioner may now hold individuals liable for certain wage and hour violations, including California’s big six: unpaid overtime, unpaid minimum wage, denied meal/rest breaks, untimely termination compensation, inadequate wage statements, and failure to reimburse for employee business expenses.
An employee can only be held personally liable for punitive damages if s/he is an officer, director, or a “managing agent” which requires much more than just acting as a supervisor.
California Pregnancy Disability Leave Law
The Fair Employment and Housing Act, and specifically, the Pregnancy Disability Leave Law (PDLL) apply to you if you employ five or more employees. Assuming that you do, PDLL allows her to take up to four months of protected leave. This leave runs concurrently with the Federal Family and Medical Leave Act (FMLA), but not California’s Family Rights Act (CFRA), if you are covered under the family leave laws that apply generally to employers with 50 or more employees. If you are covered under the family and leave laws, she could take up to four months for pregnancy disability/FMLA leave, and still have another 12 weeks of protected leave under CFRA for bonding with a new child after she has the baby.
Issues with Long-Term Disabled Employees Returning To Work Following a Stroke
You have stated, "We employ 52 employees in California. A long-term elderly employee just returned to work after a minor stroke. His doctor provided a release to return to work, but now his supervisors and colleagues are reporting issues with his work. We are concerned for his health and want to handle this right. What do we do?"
Based on your representation that you employ 52 employees, your Company is covered by the Family and Medical Leave Act (FMLA), California Family Rights Act (CFRA), Americans with Disabilities Act (ADA), Fair Employment and Housing Act (FEHA), and, if applicable to the prior leave, California’s Workers’ Compensation Act (WCA) and Healthy Workplaces, Healthy Families Act of 2014.
A minor stroke would qualify as a “serious health condition” for purposes of family and medical leaves (FMLA/CFRA) and as a “disability” under FEHA. Depending on how much time he was out of work and which of these leaves he was on at the time of his return to work would dictate the type of release/second opinion etc. that you could have requested upon his return to work.
Nonetheless, as of this time, supervisors and colleagues are reporting issues with his work that although not specified strongly suggests that you question whether he is currently able to perform the essential functions of his position, with or without reasonable accommodations. While there is not enough information here, for example, as to his position, the essential physical and mental requirements to perform his position, if any reasonable accommodations have been provided or can be provided. Typically, the next step will include addressing the issues with the employee and exploring possibly reasonable accommodations, along with providing his treating physician with a new medical certification to complete, along with his job description, and description of the behavior reported. In some cases, the Company can request that the employee undergo a fitness for duty examination at the Company’s expense.
Employee Submitted Doctor Note Stating Employee Unable to Return to Work for a Month. What are the Company's Rights?
This is one of the most common scenarios. Yet, most employers fail to address physician notes or requests for leave by employees that are legally compliant with all potential federal and state laws that may apply. Given the lack of information initially provided, as is the case here and is typically the case, the onus is on the employer to abide by all potential laws the employee may be eligible for leave. These include:
- Federal and state family and medical leave laws, the Federal Family and Medical Leave (FMLA) and California’s Family Rights Act (CFRA) that generally applies to 50 or more employees;
- Federal and state disability laws, the Federal Americans with Disabilities Act (“ADA”) that generally applies to fifteen or more employees, and California’s Fair Employment Housing Act, that generally applies to five or more employees;
- Federal military leave laws, The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA), that generally applies to employers of any size;
- California Workers’ Compensation Act, (“WCA”) that generally applies to 1 or more employees;
- California’s Pregnancy Disability Leave Law (“PDLL”) that generally applies to five or more employees;
- California’s Organ Donation Leave (“ODL”) and Bone Marrow Leave (“BML”) that generally apply to 15 or more employees;
- California’s School Activities Leave (“SAL”) and Domestic Abuse/ Sexual Assault/Stalking Leave, that generally apply to 25 or more employees;
- California’s School Appearance Leave, Jury Duty/Witness Leave, Victims of Crime Leave or California’s Voting Leave that apply to all California employers;
- California’s Civil Air Patrol leave, that generally applies to 10 or more employees;
- California’s Volunteer Firefighting, Reserve Peace Officer, and Emergency Rescue Personnel Leave, that generally applies to employers with 50 or more employees.
- California’s paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014, that generally applies to all California employers, with limited specified exceptions.
After determining all of the possible leave laws that cover your Company, then each law must be analyzed to determine if the employee is eligible to even qualify for the leave. Some of the federal and state laws run concurrently and others do not. In addition to legal compliance, any Company policies addressing leaves must also be followed by the employer.
Since most of the laws must allow the employee sufficient time to provide the requested information, employers typically must provisionally grant leave until the employee provides the required information. Since you are a California employer, you are likely covered under the Healthy Workplaces, Healthy Families Act of 2014. The number of days of paid sick leave the employee is entitled to is determined by reviewing your Company policy, California’s paid sick leave law, and any local ordinance that applies.
The administrative burden of obtaining the necessary documentation from an employee to certify the need for any of the leaves for which the employee may be eligible for is significant. In addition, an employer must track the employee’s time out on leave. This may seem straightforward, however, many of these leaves of absences provide for “intermittent” leave, which allows the employee to take sporadic leaves of absences in increments as small as 30 minutes. Moreover, an employer has to allow the qualified employee to take the protected leave, regardless of the employer’s current business condition. For example, an employer could already have several employees out on other protected leaves of absences, but still would be required to provide a statutory leave of absence to another employee, thereby making management of the workforce extremely difficult, as could be the case in the example here. Finally, each protected leave of absence brings with it a potential threat of litigation. If an employee is terminated or disciplined in proximity to a recent request or taking of a leave of absence, there is a significant risk of a lawsuit claiming retaliation or wrongful termination.
Employee requesting 12 Weeks of Family and Medical Leave. Is the Company Required to Provide it?
If you meet the definition of covered employer and the employee meets eligibility requirements, then yes. The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) - applicable to employers with 50 or more employees - contain overlapping and sometimes conflicting employee rights and employer obligations regarding California family leave. The FMLA and CFRA both require covered employers to provide time off for personal illness, to attend to the illness of a family member and in connection with the birth or adoption of a child. While this is generally unpaid leave, depending on the type of leave taken and your policies, the employee may elect or be required to use accrued and unused vacation and/or sick time. Though this sounds simple, FMLA leave act and CFRA issues are among the most litigated of all employment law cases and can result in large liabilities.
Is Denial of Paid Sick Leave for Employee Physical based on Company Policy Unlawful?
You have asked, "One of our hourly non-exempt non-union manufacturing workers who has been employed in our California warehouse for over a year asked to use four hours as paid sick leave for a physical. I told him that he cannot just take four hours off and we do not provide paid sick time. The employee told me that was illegal. Is that true?"
Based on the facts, it appears to be a violation of the Healthy Workplaces, Healthy Families Act of 2014. All employees who work at least 30 days for the same employer within a year in California, including part-time, per diem, and temporary employees, are covered by this California law with some specific exceptions, that do not appear to apply here.
Generally, the law requires employers to provide and allow employees to use at least 24 hours or three days of paid sick leave per year and caps accruals at 48 hours.
However, at least seven California cities have enacted their own paid sick leave ordinances, offering employees in those cities even more paid sick leave than the California law. Those cities include: San Francisco, Oakland, Emeryville, Los Angeles, San Diego, Santa Monica, and Berkeley, so it is important to make sure that you comply with these local ordinances also.
Under California's paid sick leave law, employees can take paid sick leave for themselves or a family member, for preventive care or diagnosis, care or treatment of an existing health condition; preventive care includes annual physicals. The employee may decide how much paid sick leave he or she wants to use (for example, whether you want to take an entire day, or only part of a day). The employer can require the employee to take a minimum of at least two hours of paid sick leave at a time, but otherwise the determination of how much time is needed is left to the employee. Retaliation against an employee for exercising his/her rights is also against the law. In these situations, we counsel and updating your written policies and processes to ensure compliance going forward.
Unqualified Exempt Employee Required to Train under Supervisor is Claiming Wage and Hour Violations While Not Even Working.
You state, "One of our newly hired exempt salaried employees who is still in the probationary period oversold his/her qualifications. We are now requiring that the employee participate in additional training, while performing tasks that must be reviewed by his supervisor. He is rarely at his desk, not responsive to criticism, stays late and is always emailing about his breaks, despite being a salaried employee. He is now telling co-workers that the Company is violating wage and hour laws. What can we do?"
The unqualified, under performing employee who knows just enough about the laws to create claims is always troublesome to employers. The key is to manage the situation correctly from the outset and not allow issues to snowball as is the case here that now puts the Company on the defense.
If the employee oversold his/her qualifications for an exempt position that now requires him/her to participate in training and perform tasks assigned under tight supervision, then the employee must be reclassified as a non-exempt employee during the interim time period. That said, it does not mean the employee can manipulate the wage and hour laws by goofing off during work hours and purposefully delay or miss breaks creating liability. Since the employee’s duties during this time period have now changed, it is important to obtain a signed document, such as a performance improvement plan, that sets forth exactly what is expected of the employee, addressing the issues that you have identified, including, designated work hours, break times, and required authorization for working overtime, as well as setting a firm date for re-evaluation.
Since the employee has now claimed that the Company has violated wage and hour laws, you have an obligation to investigate this also. If the employee is claiming unpaid overtime, breaks etc., the employee still has the burden of proving it. It is critically important that you properly document everything that has occurred from hiring until now, substantiate all of the shortfalls, and investigate the wage claims giving every benefit to the employee to refute retaliation claims.
Anonymous Sexual Harassment Complaint Involving Executives who are Demanding Action. What Should the Company Do?
Anonymous or not, a California employer is legally obligated to conduct a prompt, thorough investigation of potential unlawful harassment claims, regardless of who made them. The mere fact that the complaint was anonymous strongly suggests that the complainant fears retaliation. Your statement that “the accused executives are demanding action” suggests that the accused executives have been informed of the allegations, but either they have not been informed (preferably in writing) or have blatantly disregarded the admonition of no retaliation. The accused persons are prohibited from retaliation against any person who has complained, any person believed to complain, any person who experienced, observed or witnessed alleged unlawful conduct, or any person who participates in any way in an investigation of the allegations.