California’s law regarding employer use of social media precludes an employer from requiring or requesting an employee or applicant to:

(1) Disclose a username or password for the purpose of accessing personal social media;

(2) Access personal social media in the presence of the employer; or

(3) Divulge any personal social media, except an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

California law does not limit an employer’s right to require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Retaliation against a California employee or applicant for not complying with a request or demand by the employer that violates this section is prohibited. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Oregon recently adopted a similar law. On May 22, 2013, Oregon Governor John Kitzhaber signed into law House Bill 2654, making Oregon the tenth state to prohibit employers from accessing employees’ private social media sites. The new law goes into effect on January 1, 2014, and makes it an unlawful employment practice for employers to compel employees or applicants for employment to provide access to their personal social media accounts.

The definition of “social media” includes such standard social media venues as Facebook, Twitter and LinkedIn, as well as newer sites like Pinterest and Instagram, and personal email accounts are also included. In fact, “electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations” is covered under the new law.

Under the new law, employers, including employment agencies (i.e., temp services, etc) are prohibited from “requir[ing] or request[ing] an employee or an applicant for employment to disclose or to provide access through the employee’s or applicant’s user name and password, password or other means of authentication that provides access to a personal social media account.” Passwords and other forms of identification used to provide access to employees’ social media sites are now beyond the reach of employers or prospective employers in Oregon.

In addition to precluding the compelled access to social media accounts, Oregon employers are prohibited from “compel[ing] an employee or applicant . . . to add the employer . . . to the employee’s . . . list of contacts associated with a social media website.” In other words, employers cannot gain access to social media sites by requiring employees and/or applicants to “friend” them or to make them a contact on their social media accounts.

Oregon employers are also precluded from requiring or demanding that “an employee . . . access a personal social media account in the presence of the employer,” thus preventing the employer from viewing an employee’s content by having the employee log on to the site for the employer.

The law also prevents employers from retaliating or threatening to retaliate against employees or otherwise penalizing employees or applicants with any adverse employment action, including failure to hire, because the employee or applicant failed to provide the employer with access to the site by any of the means prohibited by the statute.

There are some limited exceptions to the new law. If the employer provided the social media account, or if the account was provided on behalf of the employer to be used for the employer, then the employee must disclose the user name and password he or she uses to access the account.

The new law does not prohibit an employer from complying with state and federal laws, rules and regulations, or conducting a legitimate employment investigation “for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct,” if the employer has reason to believe, based on specific information, that content of an employee’s personal online account or service is implicated or otherwise involved. The investigating employer may also require an employee to share social media content reported to the employer if it is necessary for the employer to make a factual determination about alleged unlawful work-related misconduct. Even so, the employer is prohibited from requiring an employee to disclose a username, password or other form of access to his or her social media accounts.

Of course, employers may access information and content posted by or about an employee or applicant that is publicly available – for example, the public information on a Facebook account and any content not designated as private by the account holder.

Numerous states have placed social media related laws on their agendas. Washington state recently passed a law similar to Oregon’s statute. And, at the federal level, Rep. Ed Perlmutter (D-CO) introduced the Password Protection Act of 2013 in the U.S. House of Representatives. The federal House bill would amend the Computer Fraud and Abuse Act and make it unlawful for employers to require employees to authorize access to a computer that the employer does not own or operate. Further, the federal House bill provides no exception allowing employers to obtain password-protected social media content that reasonably relates to a workplace investigation into allegations of harassment.

Obama administration continues moving forward to implement health care law by releasing final rules on employment-based wellness programs

WASHINGTON — The U.S.  Departments of Health and Human Services, Labor and the Treasury today issued  final rules on employment-based wellness programs. The final rules support  workplace health promotion and prevention as a means to reduce the burden of  chronic illness, improve health and limit growth of health care costs, while  ensuring that individuals are protected from unfair underwriting practices that  could otherwise reduce benefits based on health status.

The final rules  continue to support participatory wellness programs, which generally are  available without regard to an individual’s health status. These include  programs that reimburse for the cost of membership in a fitness center; that  provide a reward to employees for attending a monthly, no-cost health education  seminar; or that reward employees who complete a health risk assessment,  without requiring them to take further action.

The rules also  outline standards for nondiscriminatory health-contingent wellness programs,  which generally reward individuals who meet a specific standard related to  their health. Examples of health-contingent wellness programs include programs  that provide a reward to those who do not use, or decrease their use of,  tobacco, or programs that reward those who achieve a specified health-related  goal, such as a specified cholesterol level, weight, or body mass index, as  well as those who fail to meet such goals but take certain other healthy  actions.

Today’s final  rules ensure flexibility for employers by increasing the maximum reward that  may be offered under appropriately designed wellness programs, including  outcome-based programs. The final rules also protect consumers by requiring  that health-contingent wellness programs be reasonably designed, are uniformly  available to all similarly situated individuals and accommodate recommendations  made at any time by an individual’s physician, based on medical  appropriateness.

The final rules  will be effective for plan years beginning on or after Jan. 1, 2014.

Piece-rate employees must be paid separately for work that does not fall within the scope of the work that is the subject of the piece rate.

So, if you’re a brake mechanic and are paid by the brake job (or other repair), but also clean the shop, make appointments, open/close the shop or any other duties that are not related to the brake jobs themselves, you must be compensated for the extra work. The hours spent working on non-piece rate tasks must be paid at least at minimum wage.

For example, in one case, an auto dealership compensated its auto mechanics based on a “piece rate” system. For repairs, the company would pay the employees based on a standard period of time allowed for a repair (flag hours).  The pay rate was significantly higher than minimum wage.  So, if the job took longer than standard hours, there was enough wages to ensure the mechanic earned more than minimum wage.

But the mechanics spent significant time at work NOT performing repairs, such as in training, cleaning, etc.  The dealership would calculate the total hours worked vs. the compensation it would pay for flag hours.  If the pay rate fell below minimum wage, the dealership would make up the difference.  The dealership did not pay a separate hourly rate for non-repair time that would not have been covered under the piece rate.

Hollingsworth v. Perry (Docket Number: 12-144)

Date Argued:03/26/13

For those of you following the same-sex marriage debate, the oral argument heard by the Supreme Court can be downloaded or played by clicking one of the below:

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Health care facilities must comply with California Health and Safety Codes in order to ensure that patients and medical staff are not subjected to an unreasonable risk of health or safety within the facility.  At times, hospital and other medical facility employees observe conditions that run the risk of creating a danger, but often worry that reporting the condition might cost them their job.

Health and Safety Code § 1278.5 protects individuals who lodge complaints about healthy or safety conditions, so that they are not subject to threats or retaliation from the health care facility in which they work. Specifically, the statute prohibits health care facilities from retaliating against or otherwise discriminating against employees, medical staff, or patients for voicing a complaint or grievance regarding the quality of care or conditions at the health care facility.

The legislative history behind the statute gives insight to its purpose: “The Legislature finds and declares that it is the public policy of the State of California to encourage patients, nurses, members of the medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions. The Legislature encourages this reporting in order to protect patients and in order to assist those accreditation and government entities charged with ensuring that health care is safe.” To be held liable under the statute, the facility must satisfy the definition of a health care facility as defined in Health and Safety Code §1250.

 As part of the objective of the statute, retaliation against employees who have complained either to an employer or to the government about the conditions of the premises are entitled to reinstatement, reimbursement, or damages. Retaliation can include: wrongful termination discharge, demotion, suspension, or any unfavorable changes in the terms or conditions of employment of the employee, member of the medical staff, or any other health care worker of the health care facility, or the threat of doing any of these actions. Further, the facility itself can be fined up to $25,000 for each of the violations.

As an example: If a nurse working at a hospital makes a complaint to the Chief of Medicine about the condition of worn out medical equipment which is being used on patients in the hospital, and the hospital Board of Directors finds out about it and subsequently fires the nurse, reduces her hours, or demotes her position, then the nurse would likely have a claim against the hospital for violation of Health and Safety Code § 1278.5.

If you have complained about risks or issues of patient safety or health and feel you have been treated differently at work (terminated, disciplined unfairly, hours reduced, shift changed, received the “cold shoulder” or something similar) give us a call today.

Meal period general requirements: One 30-minute meal period for every five hours worked.

The California Labor Code and various Wage Orders prohibit an employer from employing a non-exempt employee for more than five hours without providing an unpaid meal period of at least 30 minutes. If the employee works more than 10 hours per day, he or she must be given a second 30-minute meal period.

WHAT CONSTITUTES A MEAL PERIOD

Unpaid meal periods must meet certain requirements or else they are considered an on-duty meal period, which is counted as time worked and for which the employee must be paid. The Division of Labor Standards Enforcement (DLSE) defines an “on-duty meal period” as: a meal period during which the employee is not relieved of all duty, regardless of length.

CAN YOU WAIVE YOUR RIGHT TO A MEAL BREAK?

In short, yes, but the waiver is required to contain certain elements and is sometimes invalid if you work more than 10 or 12 hours per day.

The employer and employee are permitted to waive the 30-minute meal period in two circumstances:

1. When an employee’s work period for the day does not exceed six hours, the meal period may be waived by mutual consent of both the employer and employee. But neither the employee nor the employer can be forced to waive the meal period. For example, if the employee wants to waive the meal period but the employer does not, then the meal period cannot be waived.
2. When an employee works more than 10 hours per day, the second meal period may be waived if: (a)the employee works no more than 12 hours that day; (b) the employee and employer agree to waive the second meal period; and (c) the first meal period has not been waived.

Department of Fair Employment and Housing: Reorganization and Revision (SB 1038)

SB 1038 reduces the cost to the State by reorganizing and reducing the size of the Department Fair Employment and Housing. Specifically, effective in January, the Fair Employment and Housing Commission is abolished and a Fair Employment and Housing Council within the Department of Fair Employment and Housing will be established. The Council will consist of seven members appointed by the Governor and will have the power to issue regulations. The DFEH will now be able to go directly to court and seek all remedies available there, but must first engage in mandatory dispute resolution, with the DFEH’s internal Dispute Resolution Division, free of change. The bill would also establish a Fair Employment and Housing Enforcement and Litigation Fund in the State Treasury for purposes of depositing attorney’s fees and costs awarded to the DFEH in certain civil actions, which will then be appropriated by the Legislature to offset the costs of the Department.

Religious Discrimination: Grooming and Dress Practices (AB 1964)

This bill includes a religious dress practice or religious grooming practice as a “belief” and “observance” covered by Fair Employment and Housing Act protections against religious discrimination. The bill broadly defines “religious dress practice” to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed, and “religious grooming practice” to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.

The bill specifies that an accommodation of an individual’s religious dress practice or religious grooming practice that would require that person to be segregated from the public or other employees is not a reasonable accommodation. Finally, the bill would provide that no accommodation is required if it would result in the violation of certain laws protecting civil rights.

In signing the bill, the Governor stated: “Sikh Americans are loyal citizens who have been targeted because of widespread ignorance of their religion and culture…The bills I sign today aim to ensure that Californians learn about our Sikh citizens as well as protect all of us from job discrimination based on religious observances.”

Employment of Infants: Entertainment Industry (AB 2396)

Existing law prohibits the employment on a motion picture set or location of an infant under the age of one month unless board-certified pediatric physician and surgeon certifies that the infant is at least 15 days old, was carried to full term, was of normal birth weight, is physically capable of handling the stress of filmmaking, and the infant’s lungs, eyes, heart, and immune system are sufficiently developed to withstand the potential risks. Violation of this provision is a misdemeanor punishable by a fine of $2,500 to $5,000, 60-day jail term, or both. The certification must be provided to the Labor Commissioner, who will consent to the minor’s employment through issuance of a permit. This bill would require the medical certification be provided before a temporary permit for the employment of the infant may be issued.

Amends Section 1308.10 of the Labor Code.

Multiple Employer Welfare Arrangements: Benefits. (SB 615 Calderon)

The federal Patient Protection and Affordable Care Act (PPACA), requires an “essential health benefits package” to be included in any small group or individual market policy issued by a health insurance carrier/issuer.

Existing state law places certain requirements on a self-funded or partially self-funded multiple employer welfare arrangement (MEWA), for the MEWA to provide benefits to any California residents with benefits. Existing law limits those MEWA’s to providing certain benefits, including medical, dental, and surgical.

This bill would, commencing January 1, 2014, prohibit a MEWA from offering, marketing, representing, or selling any product, contract, or discount arrangement as minimum essential coverage or as compliant with the essential health benefits requirement under the federal Patient Protection and Affordable Care Act, unless it meets the applicable requirements under that PPACA.

Written Commission Agreements for Employees in California (AB 1396)

[Already enacted]           An employer who enters into an employment contract with an employee involving commissions as a method of payment must put the employment contract in writing and set forth the method by which the commissions will be computed and paid. So, beginning next year, an employee commission agreements: (1) be in writing; (2) set forth the method by which the commissions are required to be computed and paid; and (3) contain a signed receipt for the contract from each employee.

Amends Section 2751 and repeals Section 2752 of the California Labor Code.

If you have any questions that arise about these new bills signed by Governor Brown in September 2012, or you feel your employment rights are being violated in any respect, give Adams Law a call at 805.845.9630.

A Los Angeles jury has returned a verdict of $3.5 million against drug store chain Rite Aid Corporation in a recent disability discrimination case.

According to the complaint filed, Martha Palma had worked for Rite Aid for years and had been a store manager at one of its stores in Los Angeles. She was fired months after being diagnosed with a “non-work related serious disability” in late 2010.

Ms. Palma filed claims for disability discrimination, retaliation for complaining of discrimination and harassment, and failure to engage in the interactive process, according to the statement. A jury in Los Angeles Superior Court found in her favor on each of these claims.

At trial, Ms. Palma testified that Rite Aid “treated her differently and terminated her because of the stigma related to employees with disabilities,” Shegerian said in a public statement. “She testified that despite being able to perform her job duties, the defendant never tried to discuss accommodations with her, instead manufacturing a false reason to terminate her[] and then fired her.”

Judicial interpretation of the enforceability of arbitration clauses in the context of class action claims for wage and hour violations, such as the failure to pay overtime, missed meal and rest breaks and misclassification as an independent contractor or exempt, continues to evolve.

In 2011, the U.S. Supreme Court issued its opinion in AT&T Mobility LLC v. Concepcion, which generally prohibits states from requiring additional due process before enforcing arbitration agreements. Since that opinion was issued, however, California lawyers and jurists have called into question the continuing validity of an earlier decision, Gentry v. Superior Court.

In Gentry, the California Supreme Court set forth a four part test to analyze whether class action arbitration waivers are enforceable. Some California courts continue to apply the four-part “Gentry test,” while others consider it inconsistent with the objective of enforcing arbitration agreements according to their terms, as set forth in Concepcion.

In its recent decision in Truly Nolen of America v. Superior Court, a California Court of Appeal initially calls into question the validity of Gentry, but ultimately holds that in the absence of an express or implied agreement among the parties regarding class arbitration, ordering the arbitration of statutory employment claims on a class wide basis was “questionable.”  The Truly Nolan plaintiffs were pest control technicians who claimed that they were misclassified as exempt from overtime pay.

On appeal, the court agreed that under Concepcion, class action waivers in employment arbitration agreements should be enforced, even if class arbitration would be “more efficient” than individual arbitration. The appellate court noted, however, that because Concepcion addressed class action waivers in the context of consumer claims, rather than statutory claims, Gentry remains good law.

As it stands, employees will likely have to satisfy the more rigorous four-part test to compel class action arbitration over their employers’ objections, and will have to set forth specific facts and not a generalized statement about the benefits of class wide arbitration. Notably, this new case may impact plaintiffs’ ability to rely on consideration of “public policy” when seeking to avoid individual arbitration of their wage and hour claims.

If you have questions regarding whether you are owed overtime pay, are properly classified as an independent contractor or properly exempt as an employee earning a “salary,” please give us a call. We’ll be glad to examine whether any of your employment rights are being violated.

Basic Leave Entitlement
FMLA requires covered employers to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for the following reasons:
• For incapacity due to pregnancy, prenatal medical care or child birth;
• To care for the employee’s child after birth, or placement for adoption or foster care;
• To care for the employee’s spouse, son or daughter, or parent, who has a serious health condition; or
• For a serious health condition that makes the employee unable to perform the employee’s job.

Military Family Leave Entitlements
Eligible employees with a spouse, son, daughter, or parent on active duty or call to active duty status in the National Guard or Reserves in support of a contingency operation may use their 12-week leave entitlement to address certain qualifying exigencies. Qualifying exigencies may include attending certain military events, arranging for alternative childcare, addressing certain financial and legal arrangements, attending certain counseling sessions, and attending post-deployment reintegration briefings.

FMLA also includes a special leave entitlement that permits eligible employees to take up to 26 weeks of leave to care for a covered service member during a single 12-month period. A covered service member is a current member of the Armed Forces, including a member of the National Guard or Reserves, who has a serious injury or illness incurred in the line of duty on active duty that may render the service member medically unfit to perform his or her duties for which the service member is undergoing medical treatment, recuperation, or therapy; or is in outpatient status; or is on the temporary disability retired list.

Benefits and Protections
During FMLA leave, the employer must maintain the employee’s health coverage under any “group health plan” on the same terms as if the employee had continued to work. Upon return from FMLA leave, most employees must be restored to their original or equivalent positions with equivalent pay, benefits, and other employment terms.
Use of FMLA leave cannot result in the loss of any employment benefit that accrued prior to the start of an employee’s leave.

Eligibility Requirements
Employees are eligible if they have worked for a covered employer for at least one year, for 1,250 hours over the previous 12 months, and if at least 50 employees are employed by the employer within 75 miles.
Definition of Serious Health Condition

A serious health condition is an illness, injury, impairment, or physical or mental condition that involves either an overnight stay in a medical care facility, or continuing treatment by a health care provider for a condition that either prevents the employee from performing the functions of the employee’s job, or prevents the qualified family member from participating in school or other daily activities.

Subject to certain conditions, the continuing treatment requirement may be met by a period of incapacity of more than 3 consecutive calendar days combined with at least two visits to a health care provider or one visit and a regimen of continuing treatment, or incapacity due to pregnancy, or incapacity due to a chronic condition. Other conditions may meet the definition of continuing treatment.

Use of Leave
An employee does not need to use this leave entitlement in one block. Leave can be taken intermittently or on a reduced leave schedule when medically necessary. Employees must make reasonable efforts to schedule leave for planned medical treatment so as not to unduly disrupt the employer’s operations. Leave due to qualifying exigencies may also be taken on an intermittent basis.

Substitution of Paid Leave for Unpaid Leave
Employees may choose or employers may require use of accrued paid leave while taking FMLA leave. In order to use paid leave for FMLA leave, employees must comply with the employer’s normal paid leave policies.

Employee Responsibilities
Employees must provide 30 days advance notice of the need to take FMLA leave when the need is foreseeable. When 30 days notice is not possible, the employee must provide notice as soon as practicable and generally must comply with an employer’s normal call-in procedures.

Employees must provide sufficient information for the employer to determine if the leave may qualify for FMLA protection and the anticipated timing and duration of the leave. Sufficient information may include that the employee is unable to perform job functions, the family member is unable to perform daily activities, the need for hospitalization or continuing treatment by a health care provider, or circumstances supporting the need for military family leave. Employees also must inform the employer if the requested leave is for a reason for which FMLA leave was previously taken or certified. Employees also may be required to provide a certification and periodic recertification supporting the need for leave.

Employer Responsibilities
Covered employers must inform employees requesting leave whether they are eligible under FMLA. If they are, the notice must specify any additional information required as well as the employees’ rights and responsibilities. If they are not eligible, the employer must provide a reason for the ineligibility.
Covered employers must inform employees if leave will be designated as FMLA-protected and the amount of leave counted against the employee’s leave entitlement. If the employer determines that the leave is not FMLA-protected, the employer must notify the employee.

Unlawful Acts by Employers
FMLA makes it unlawful for any employer to:
• Interfere with, restrain, or deny the exercise of any right provided under FMLA;
• Discharge or discriminate against any person for opposing any practice made unlawful by FMLA or for involvement in any proceeding under or relating to FMLA.

Enforcement
An employee may file a complaint with the U.S. Department of Labor or may bring a private lawsuit against an employer.
FMLA does not affect any Federal or State law prohibiting discrimination, or supersede any State or local law or collective bargaining agreement which provides greater family or medical leave rights.

FMLA section 109 (29 U.S.C. § 2619) requires FMLA covered employers to post the text of this notice. Regulations 29 C.F.R. § 825.300(a) may require additional disclosures.