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Handling Employees Under the Influence

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Question:

How should I handle an employee who reported to work obviously under the influence of drugs or alcohol? What can/can't I say?

Answer:

Prior to taking any administrative action against your employee, SLG strongly recommends you consult with legal counsel as each case will be different and require separate analysis. The first thing to do in this situation is to relieve the employee from his duties as the employer has a duty to provide a safe working environment for all employees and the general public. As an employer, you are not required to tolerate an employee attempting to function in such a condition. Also, your "zero tolerance" drug and alcohol policy should prohibit employees from reporting to work under the influence of controlled substances (e.g., alcohol, marijuana, methamphetamine, heroin, cocaine, etc.) as well as prescription drugs, which are also often abused. You do not need to say anything specific at first, other than to tell the employee that he appears to be unable to perform his job functions and is being relieved of duty pending further investigation into his condition. Be sure to look for objective indications that the employee is under the influence as the employer will need to be able to articulate a reasonable suspicion that the employee is under the influence should a drug test be necessary.

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OFF-THE-CLOCK WORK? NOT ON MY WATCH (or timesheet...)

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One of the primary lessons from the recent class action frenzy is the importance of policing off-the-clock work. Nearly every class action lawsuit that we have recently seen has included a claim for off-the-clock work, i.e., early arrival, standing in line, donning and doffing, etc. These claims are very attractive to plaintiffs' attorneys as they are easy to allege and difficult to disprove. In this respect, they can be the ideal glue to certify a class action. Relying on time records is no help, because the work is alleged to have happened before or after the recorded work hours. Thus plaintiffs can easily allege that they worked fifteen to thirty minutes before they signed in for their regular work without any hard evidence.

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U.S. Supreme Court Hears Arguments On Whether Employees Should Be Paid For Waiting In Line

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Source: Spencer Soper, Sophia Pearson and Greg Stohr, www.msn.com

Jesse Busk spent a 12-hour shift rushing inventory through an Amazon.com Inc. ("Amazon") warehouse in Nevada to meet quotas... After clocking out, Busk and hundreds of other workers went through an airport-style screening process, including metal detectors, to make sure they weren't stealing from the Web retailer. Getting through the line often took as long as 25 minutes, uncompensated, he and others employed there say...

Those allegations are now before the U.S. Supreme Court in a case that could help redefine companies' reach over hourly workers. On Wednesday [of last week], the top court will hear arguments related to a suit brought by Busk seeking compensation for his time in the security lines.
Busk's December 2010 lawsuit, against both Amazon and a temp agency that provided staff to Amazon, was among the first to challenge the screening practice. Since then, a dozen similar suits have been filed involving Seattle-based Amazon, and more against other retailers...

Back Wages

If the Supreme Court sides with Busk, his case will be allowed to move forward in a federal trial court. Ultimately, Amazon and various staffing agencies it uses could be required to pay as many as 400,000 workers back wages amounting to $100 million or more, according to plaintiffs' attorneys involved in the case.

...If Amazon prevails, employers could feel emboldened to squeeze more time out of workers without pay, pushing the boundaries of a 67-year-old law that defines what constitutes compensable work.

Amazon doesn't comment on pending litigation, said spokeswoman Kelly Cheeseman. "Data shows that employees walk through post-shift security screening with little or no wait," Cheeseman said...

In court filings, Amazon, Integrity and other temporary staffing firms have argued that security-line waits are no different than time spent walking to and from a work area, which courts have determined isn't compensable.

The Supreme Court case is likely to have an impact on several pending lawsuits. Apple Inc., CVS Health Corp., J.C. Penney Co., TJX Cos. and Ross Stores Inc. are all battling court claims involving searches at break times or the end of shifts at distribution centers or stores.

"It's a much bigger deal than just about searches," said Eric Schnapper, a law professor at the University of Washington. "If the court adopts the company's view, it would allow employers to require employees do a variety of tasks once their shift ends."

Seattle-based Amazon, the world's No. 2 online retailer by market capitalization, has built a reputation for selling goods at low prices and delivering them quickly and inexpensively, with tiny margins. That success rides on the company's network of massive warehouses -- more than 40 so-called fulfillment centers in the U.S. alone, according to the company, staffed by 40,000 workers, swelling to 110,000 during the holiday season.

...

Security Checks

Security checks don't meet that "integral and indispensable" test, the Obama administration has argued to the court. Integrity has taken the same view. Both liken screenings to the process of checking in or checking out, something Labor Department regulations say isn't compensable.

"Waiting in line for a security screening is indistinguishable from many other tasks that have been found non-compensable," Integrity's lawyer, Paul Clement, who was U.S. Solicitor General under George W. Bush, argued in court papers.

The company also points to a 2005 Supreme Court ruling that workers at a meat-processing plant didn't get compensation for time spent waiting to put on their protective gear in a changing room. A separate part of that decision said workers were entitled to pay for time spent walking between the changing room and their workstations.

The Amazon workers contend that compensation is due for any required activity done for the employer's benefit. Attorneys for the workers maintain one of their challenges is to get the court to distinguish between security screenings for weapons, which are done for the overall safety of a community, and anti-theft checks, which are done solely for the employer's benefit.

...

Legal Recourse

...When designing a security system, companies have to balance their security needs with their employees' time and convenience, said Barry Brandman, president of Danbee Investigations, a security consulting firm in Fair Lawn, New Jersey. Big companies can speed the process by adding check points, maintaining metal detectors and training security personnel to be efficient, he said.

"You don't want to punish 98 percent of the workforce in order to control the 1 or 2 percent who are problems," said Brandman, who said he wasn't familiar with Amazon's warehouse security procedures. "If you're not concerned about employee morale, you're more likely to have security problems."

Counsel to Management: Employers should be aware that waiting time and walking time have been targeted by class action attorneys. It is important that employers either minimize or account for the time that employees spend performing these tasks. For help or questions concerning your company's practices, please contact The Saqui Law Group.

California Senator Investigates Millions in Obamacare Exchange Contracts

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Source: The following article was written by Tori Richards and appeared in Watchdog.org

California's beleaguered Obamacare exchange is once again in the crosshairs of a state senator who is demanding answers following reports that millions in contracts never went out to bid and instead were awarded to friends of the agency's director.

Sen. Ted Gaines, who is also the GOP candidate for state insurance commissioner on the November ballot, fired off a letter to Covered California Director Peter Lee, asking how the agency "fulfills the public trust when it comes to spending taxpayer dollars."

This latest calamity of nearly $4.4 million in non-bid contracts comes on the heels of a $1.37 million infomercial showing exercise guru Richard Simmons writhing on the floor to promote signups for Covered California in January. Gaines asked for justification of the spending, but when he received what he called a "lackluster" response, he sued for access to records two months later.

The Associated Press released the findings of its investigation over the weekend, reporting that nearly $2 out of every $10 spent went without bids, according to released data covering the time period 2010 through July.

A total of $4.2 million went to a consulting firm, the Tori Group, whose director Leesa Tori worked under Lee at Pacific Health Advantage, a now-defunct insurance exchange business. Nine former Pacific Health Advantage employees, including Tori, work for Covered California. Other no-bid contracts include consultant Yolanda Richardson at $176,500 and $525,000 for a subsidiary of Lee's former job, Pacific Business Group on Health Negotiating Alliance, the AP reported.

In his letter to Lee, Gaines called this news "part of a pattern of irresponsible spending" and "are at the very least unseemly and reek of the kind of cronyism that all public servants should be interested in eliminating. Even the appearance of well-connected consultants and personal friends of decision makers getting bid-free contracts should not be tolerated."

Gaines also included a series of questions aimed at determining how the contracts were awarded. He finished with, "In light of Covered California's highly questionable spending history and shaky financial footing, it's imperative that the public get a full understanding of the Exchange's contracting practices and awards."

The Bureau of State Audits has labeled Covered California a high-risk entity as it faces a deficit of $78 million in the next fiscal year because federal grants will be eliminated. An agency spokesperson has said in the past that Covered California is a new state agency and as such, is on track to becoming self-sufficient. Spokesperson Lizelda Lopez could not be reached for comment for this article.

Gaines is challenging a first-term Democratic opponent for insurance commissioner. It's an uphill battle, but if Gaines wins the state Legislature's most vocal Obamacare opponent will likely make Lee's life a hellish existence by shining a greater spotlight on the inner workings of Covered California.

Federal Court Rules PAGA Representative Actions (Class Actions) Can Be Waived In Employee Arbitration Agreements

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Background

The Private Attorney General Act ("PAGA") is a provision of the California Labor Code that allows plaintiffs to bring representative claims for civil penalties on behalf of other aggrieved employees for an employer's violation of the California Labor Code. PAGA essentially deputizes aggrieved employees and permits them to seek penalties for labor code violations that could otherwise only be assessed by the state.

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California Governor Okays Bills to Regulate Groundwater Amid Drought

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The following article was written by Aaron Mendelson and
appeared in Yahoo News

California Governor Jerry Brown signed a package of bills on Tuesday to regulate California's stressed groundwater supplies amid a drought that is expected to cost the state $2.2 billion in lost crops, jobs and other damages, with no end in sight.

The bills will allow the state to take over management of underground aquifers and water accessed via wells, and aim to tighten oversight of water at a time when groundwater levels are shrinking in the third year of a catastrophic drought.

"We have to learn to manage wisely water, energy, land and our investments," Brown said as he signed the bills despite opposition from some farm and agricultural industry groups. "That's why this is important."

Farmers in California's agricultural heartland rely on water from wells to irrigate their crops when the state cuts back on supplies from streams and the fragile San Joaquin-Sacramento River Delta.

About a million Californians rely on private wells for drinking water, many of which have gone dry as groundwater levels have receded. But while California uses more groundwater than many other states, it lacks the oversight common elsewhere.

Recent studies have shown groundwater levels receding throughout the Southwest, prompting concern among environmentalists and others that usage needs to be better regulated.

The bills Brown signed will require that hard-hit groundwater basins adopt sustainability plans by January 2020, although high and medium priority basins not considered subject to critical overdraft will have an additional two years.

All groundwater plans must achieve sustainability within 20 years of adoption, and local agencies managing them must report to the state Department of Water Resources every five years.

The bills also outline enforcement mechanisms, and the regulations are expected to cost the state roughly $5.5 million in annual costs by the 2017-2018 fiscal year. Some costs would be offset by fees.

Some agricultural companies and farm groups had argued against the bills, which they called hastily written, saying they would impose rigid guidelines on farmers while failing to address needs of agricultural water users in the Central Valley.

"While there is legitimate concern about the over-drafting of some groundwater basins, this massive expansion of state authority will not solve the problem," said Connie Conway, the Republican Minority Leader in the state Assembly.

In November, California voters will vote on Proposition 1, the $7.6 billion "water bond" intended to improve water supplies in the state.

Pending California Legislation (Part 2 of 2)

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Please note that the status of the bills may change daily. Governor Brown has until September 30, 2014 to sign or veto legislation in his possession or the legislation becomes law without signature.

 

SB 25 Agricultural Labor Relations: Dispute Resolution

Steinberg (D-Sacramento)

SUMMARY: Existing law provides that within 60 days of a decision by the Agricultural Labor Relations Board taking effect, a party may file an action to enforce the order, using specified procedures. Existing law provides that during the pendency of any appeal of the board's order, the order may not be stayed unless the appellant demonstrates that he or she is likely to prevail on the merits and that he or she will be irreparably harmed by implementation of the board's order.

This bill would provide that an action to enforce the order of the board may be filed within 60 days whether or not the other party is seeking judicial review of the order. The bill would also increase the evidentiary threshold for the court to grant a stay of the board's order and require the court to make written findings supporting any order granting a stay of the order during the pendency of the appeal.

PASSED Senate 05/06/14

PASSED Assembly 08/19/14

Not signed into law yet.

SB 477 Foreign Labor Contractors: Registration

Steinberg (D-Sacramento)

SUMMARY: This bill would change the definition of a foreign labor contractor to mean a person who performs foreign labor contracting activity, as defined. The bill, on and after July 1, 2016, would require a foreign labor contractor to register with the Labor Commissioner and would impose certain conditions for registration, including payment of specified fees. The bill would further require persons knowingly using the services of foreign labor contractors to obtain foreign workers to disclose specified information to the commissioner.

PASSED Senate  6/30/14

PASSED Assembly 08/25/14

Not signed into law yet.

SB 1087 Farm Labor Contractors: Sexual Harassment

Monning (D-Monterey)

SUMMARY: This bill would prohibit a license to operate as a farm labor contractor from being granted to a person who, within the preceding 3 years, has been found by a court or an administrative agency to have committed sexual harassment of an employee, or who, within the preceding 3 years, employed any supervisory employee whom he or she knew or should have known has been found by a court or an administrative agency, within the preceding 3 years of his or her employment with the applicant, to have committed sexual harassment of an employee.

This bill would additionally authorize the Labor Commissioner to revoke, suspend, or refuse to renew a farm labor contractor's license if the licensee has been found by a court or an administrative agency to have committed sexual harassment of an employee, or has employed a supervisory employee whom he or she knew or should have known has been found by a court or an administrative agency, within the preceding 3 years, to have committed sexual harassment of an employee.

This bill would increase the license fee paid by an applicant from $500 to $600, thereby making an appropriation. The bill would require the amount attributable to the fee increase to be expended by the Labor Commissioner to fund the Farm Labor Contractor Enforcement Unit and the Farm Labor Contractor License Verification Unit.

PASSED Senate 05/29/14

PASSED Assembly 08/14/14

Not signed into law yet.

Counsel to Management: For questions regarding the pending California legislation, please contact The Saqui Law Group.

 

 

New Laws Place Additional Burdens on California Employers

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AB 1522: Paid Sick Leave

Gonzalez (D-San Antonio)

SUMMARY: This bill enacts the Healthy Workplaces, Healthy Families Act of 2014 to provide that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days for prescribed purposes, to be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th day of employment.

The bill authorizes an employer to limit an employee's use of paid sick days to 24 hours or 3 days in each year of employment. The bill prohibits an employer from discriminating or retaliating against an employee who requests paid sick days. The bill requires employers to satisfy specified posting, notice, and recordkeeping requirements and defines terms for those purposes.

STATUS: Signed into law 09/10/14.

AB 1443: FEHA Protection Expanded to Unpaid Interns

Skinner (D-Berkeley)

SUMMARY: This bill provides that discrimination against any person in the selection, termination, training, or other terms or treatment of that person in an unpaid internship, or another limited duration program to provide unpaid work experience for that person, or the harassment of an unpaid intern or volunteer, on account of the factors described above is an unlawful employment practice.

STATUS: Signed into law 09/09/14.

AB 2053: Abusive Conduct Training for Supervisors

Gonzalez (D-San Antonio)

SUMMARY: Existing law also requires employers, as defined, with 50 or more employees to provide at least 2 hours of training and education regarding sexual harassment to all supervisory employees, as specified. Existing law requires each employer to provide that training and education to each supervisory employee once every 2 years.

This bill additionally requires that the above-described training and education include, as a component of the training and education, prevention of abusive conduct, as defined.

"Abusive conduct" means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute abusive conduct, unless especially severe and egregeous.

STATUS: signed into law 09/09/14.

SB 1360: Rest and Recovery Periods Counted as Hours Worked

Padilla (D-Los Angeles)

SUMMARY: This bill provides that a rest or recovery period mandated pursuant to a state law, including, but not limited to, an applicable statute, or applicable regulation, standard, or order of the IWC, the board, or the division, shall be counted as hours worked, for which there shall be no deduction from wages. The bill would declare that provision to be declaratory of existing law.

STATUS: Signed into law on 06/28/14.

Counsel to Management: For questions regarding the new California legislation, please contact The Saqui Law Group.

 

Pending California Legislation (Part 1 of 2)

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Please note that the status of the bills may change daily. Governor Brown has until September 30, 2014 to sign or veto legislation in his possession or the legislation becomes law without signature.

AB 1897 Labor Contracting: Client Liability

Hernandez (D-West Covina)

SUMMARY: This bill would require a client employer to share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers' compensation coverage. The bill would prohibit a client employer from shifting to the labor contractor legal duties or liabilities under workplace safety provisions with respect to workers provided by the labor contractor.

PASSED Assembly 05/29/14

PASSED Senate 08/27/14

Not signed into law yet.

AB 1660 Driver's Licenses: Nondiscrimination

Alejo (D-Watsonville)

SUMMARY: Existing law requires the Department of Motor Vehicles (DMV) to issue an original driver's license to a person who is unable to submit satisfactory proof that the applicant's presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency.

This bill would additionally make it a violation of the California Fair Housing and Employment Act (FEHA) for an employer or other covered entity to discriminate against an individual because he or she holds or presents a driver's license issued under these provisions or to require a person to present a driver's license, except as specified.

The bill would making conforming changes to FEHA to specify that discrimination on the basis of national origin includes, but is not limited to, discrimination on the basis of possessing a driver's license granted under these provisions.

The bill would also prohibit a governmental authority, or agent of a governmental authority, or person acting on behalf of a governmental authority, from discriminating against an individual because he or she holds or presents a license issued pursuant to those provisions. The bill would provide that an action taken by an employer to comply with any requirement or prohibition under the federal Immigration and Nationality Act is not a violation of law.

PASSED Assembly 05/01/14

PASSED Senate 08/26/14

Not signed into law yet.

AB 1634 OSHA: Violations

Skinner (D-Berkeley)

SUMMARY: This bill would prohibit the Division of Occupational Safety and Health Administration (OSHA) from granting, for serious violations, a proposed modification to civil penalties for abatement or credit for abatement unless the employer has abated the violation, as specified, or has submitted a statement to the division in accordance with existing law, and would additionally require supporting evidence with the statement where necessary. The bill would authorize the division to grant such a modification only if the violation has been abated, as specified, or the signed statement and supporting evidence is received within 10 working days after the end of the period fixed for abatement.

The bill would generally prohibit the stay or suspension of a requirement to abate the hazards affirmed by the decision or order during the pendency before the appeals board of a petition for reconsideration of a citation for a violation that is classified as a serious violation, repeat serious violation, or willful serious violation.

The bill would authorize the appeals board to stay or suspend an abatement, upon petition by the employer, only if the employer demonstrates that a stay or suspension will not adversely affect the health and safety of employees.

PASSED Assembly 05/28/14

PASSED Senate 08/27/14

Not signed into law yet.

Counsel to Management: For questions regarding the pending California legislation, please contact The Saqui Law Group.

 

Fast-Food Workers Protest to Raise Minimum Wage to $15 an Hour

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Source: CBS Los Angeles (losangeles.cbslocal.com)

Police said 10 protestors were arrested Thursday during a march downtown Los Angeles, California, for higher wages. About 300 employees and supporters in Los Angeles, as well as in more than 150 other cities, were taking part in sit-ins at McDonald’s, Wendy’s, Burger Kings and other chain locations as a more “militant” phase of the “Fight for $15″ movement.

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