On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
In This Issue: NEW LAWS FOR 2016
California has enacted more than a dozen new employment laws, most of which take effect on January 1, 2016. This article summarizes several provisions likely to present the greatest legal exposure for unwary employers.
Many of the new, or amended, statutes will require (or justify) modification of existing workplace policies in the interest of optimizing employer legal compliance and minimizing liability exposure.
Expansion of Kin Care Leave
Labor Code, section 233 is amended to allow employees to use up to half of any yearly accrued sick leave for the following purposes:
- Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee;
- Diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee’s family member; and
- Accommodation of employee/victims of domestic violence, sexual assault or stalking.
“Family member” means a child (whether biological, adopted, foster, stepchild, legal ward or to whom an employee stands in loco parentis), a parent (whether biological, adoptive, foster, stepparent, legal guardian of an employee or his/her spouse/registered domestic partner or person who stood in loco parentis when the employee was a child), a spouse, registered domestic partner, a grandparent, a grandchild or a sibling.
Significantly, the new statute eliminates the legal right of employers to condition the use of sick leave on the provision of doctor’s notes, for example, or other certification intended to verify the legitimacy of an absence. The amendment further prohibits employers from denying a request for sick leave, discharging, threatening to discharge, demoting, suspending or otherwise discriminating against an employee for using, or attempting to use, sick leave to attend to an illness or the preventive care of a family member, or for any other reason specified in Labor Code, section 246.5 (a).
The changes, as summarized above, will likely require modification of existing policies (employee handbooks) and practices to reconcile inherent conflicts between the new sick leave requirements and attendance policies that are designed to minimize absenteeism.
Family-School Partnership Protections
Labor Code, section 230.8 is amended to prohibit employers from firing or otherwise discriminating against employee-parents of one or more children attending kindergarten or grades 1-12, or a licensed day care facility, for taking off up to 40 hours each year, to engage in:
- Finding, enrolling or re-enrolling a child, for up to eight hours per month, if the employee provides reasonable notice to the employer;
- To respond to a school “emergency,” with notice to the employer. An emergency exists if the employee’s child cannot remain in a school or with a child care provider due to:
- A request by the school or provider that the child be picked up;
- Behavior/discipline issues;
- Unexpected unavailability of the school/care provider; or
- A natural disaster, e.g., flood or earthquake.
Significantly, the term “parent” has been expanded to include guardians, stepparents, foster parents, or grandparents of, or persons who stand in loco parentis to, a child. Also, the employer’s right to request documentation to certify employee absence, the term “documentation” is defined to include whatever verification of parental participation the school deems appropriate.
Request for Accommodation
The Fair Employment and Housing Act (“FEHA”) is amended to expand protections for employees requesting accommodation for disabilities or religious beliefs, whether or not the request is granted. Under former law, a mere request for accommodation could not form the basis for a claim for unlawful retaliation.
Piece-Rate Compensation Expanded
Labor Code, section 226.2 has been added, requiring employers to pay piece-rate employees a separate hourly wage for “nonproductive” time worked, in addition to requiring separate payment for rest and recovery periods. Employers must now separately itemize the hours and pay rates applicable to “nonproductive” time and rest and recovery periods on employee paystubs.
This complicated new law warrants careful attention on the part of affected employers, as a means of ensuring necessary modification of written policies and practices to reconcile them with changes in legal requirements.
Whistleblower Families Protected
Labor Code, sections 98.6, 1102.5 and 6310 are amended to expand protection against retaliation for the benefit of not only applicants and employees, but their family members as well. This protection is extended to applicants and employees who have (or are perceived to have) engaged in any protected conduct, as defined by applicable law. Further, liability for violation is extended to any business entity that obtains or is provided workers, even if a third party staffing agency is the direct employer.
Restrictions on E-Verify
Labor Code, section 2814 has been added, which makes it unlawful to use E-Verify to check the employment authorization status of current employees or applicants who have not been offered employment. The statute, which expressly authorizes such use if required by federal law, provides for a civil penalty of $10,000 for each violation.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/