An employee may also take time off work, without fear of losing their job, for:

1.   Time Off For Honorable Activities  –Lab. Code §§ 230.3-.4; 1501-1507.  Employers in California are required to allow employees to take unpaid leaves of absence to serve as volunteer firefighters, reserve peace officers, emergency rescue personnel, or as a member of the Civil Air Patrol.  Any employer who discriminates against an employee for taking time allowed under the law is guilty of a criminal misdemeanor, and the affected employee is entitled to reinstatement, lost wages, and benefits.

2.   Time Off For Donating Organs or Bone Marrow- Lab. Code §§ 1508-1513. Employees are permitted to take paid leaves of absence to donate an organ or bone marrow.  If you work at an establishment that employs 15 or more employees, and have worked there for at least 90 days, you are entitled to take up to 5 business days of paid leave during any one-year period to donate bone marrow, and up to 30 business days of paid leave during any one-year period to donate an organ.

You may, however, be required to use up to two weeks of paid sick leave or vacation time accrued. Upon return from a leave under these provisions, you are entitled to reinstatement in the same or a comparable position of employment.

3.   Time Off to Assist in a Classroom– Lab. Code § 230.8. If you are a parent, guardian, or a custodial grandparent and work for an employer that has 25 employees or more you are permitted to take unpaid time off (or use vacation/personal leave) up to 8 hours per month and 40 hours per school year to participate in your child’s school or day care activities. The penalty for violating this provision is stiff — affected employees can obtain reinstatement, lost wages and benefits, as well as a civil penalty of three times the lost wages and benefits.

 4.   Time Off For Pregnancy –  In California, there may be no cap to the amount of leave an employee can take in connection with her pregnancy and childbirth.  A recent decision by a California Court of Appeal makes clear that the Pregnancy Disability Leave Law (“PDLL”), which allows for up to four months leave for pregnancy-related disability, “augments rather than supplants” other disability leave provisions set forth in the Fair Housing and Employment Act (“FEHA”), as well as leave to bond with a new child under the CFRA.  This means that an employee may be entitled to take up to four months leave under PDLL, up to an additional 12-weeks of leave under CFRA, and any additional leave as a reasonable accommodation under FEHA if the employee is still disabled after exhausting PDLL.

5.   Time Off For Addicts And Those Who Need Help Reading – Lab. Code §§ 1025-26; 1041.   Employers are also obligated to allow employees to take unpaid leave as a “reasonable accommodation” to participate in alcohol or drug rehabilitation programs, or adult literacy programs if they employ 25 or more employees.  The employer must also take reasonable steps to safeguard the privacy of an employee who has informed the employer about enrolling in such a program.

Why Does it Matter?

Many employers ask (or require) employees to sign arbitration agreements. Once signed, the employee gives up their right to sue their employer in court over job-related issues such as wrongful termination, breach of contract, and discrimination. An employee who signs an arbitration agreement promises to pursue legal claims against the employer through arbitration, rather than through a lawsuit. It might not sound like a big deal when you’re starting a new job and settling into a new routine or making friends with the people you work with, but if your rights are later violated at work, that arbitration agreement might come back to haunt you.

So, What are the Pros and Cons of Arbitration?

First, the Cons

You may wonder why you should care where your claims get heard, as long as they are heard somewhere, whether in an arbitration proceeding or a court of law. An arbitration differs from a court case in several ways, and many of these differences work against employees.

Most important, an arbitration is heard and decided by an “arbitrator” — a private citizen (often a retired judge) who is paid by one or both sides to listen to the evidence and witnesses. That means you won’t have a jury hear your story — and juries often decide cases based on sympathy and relate better to an employee than an employer.

In addition, the arbitration process limits the amount of information each side can get from the other (a process called discovery). In employment cases, this generally hurts the employee, because the employer is usually the one in possession of most of the documents and information relating to the employee’s case.

Finally, an arbitration usually cannot be appealed, which makes arbitration awards more final than court verdicts. If you think the arbitrator’s decision is unfair or wrong, you won’t get a second chance to argue your case before a higher court — a second chance that you might have gotten had you gone to a court trial.

The Pros

An arbitration does have some advantages over a court trial. Arbitrations are less formal than court trials, and this informality can make the process easier for all involved, especially employees who are not used to litigation. Also, cases in arbitration are heard and decided much more quickly than court cases, which can take several years from start to finish.

What Should You Do if Asked to Sign an Arbitration Agreement?

Read ALL of the Documents Carefully, or Have them Reviewed

Employees often sign arbitration agreements unintentionally. How can this happen? Some employers give new employees piles of paperwork to fill out on their first day, and some employees, in turn, sign documents without reading them. Although many employers are straightforward and present the arbitration agreement to employees openly in a separate contract, others bury arbitration agreements in other documents, such as an employment contract, a hiring letter, or an employee handbook.

When you sign a contract, letter, handbook acknowledgment form, or any other document from your employer, you agree to all the terms of the document — even the ones that you may not have read. This is a particular problem with handbooks, which might be very long. To protect yourself from unwittingly giving up your rights, don’t sign any document acknowledging you’ve read something unless you actually have read it and understood it completely. And don’t sign any document that says you agree to the terms unless you have read all of the terms and do in fact agree to them.

What if You Do Not Want to Sign the Arbitration Agreement?

If your employer asks you to sign an arbitration agreement, you can refuse, but that may put your job in jeopardy. Usually, an employer can rescind an employment offer if a prospective employee refuses to sign the arbitration agreement. And an employer can fire an at-will employee who refuses to sign one. Therefore, declining to sign the agreement could jeopardize your job.

Some employers will negotiate this point, however, especially if they are more excited about you than they are about arbitration. If you are a highly sought after prospect, or if you are a valued employee in your company, your employer may allow you to refuse to sign rather than give you up.

Another option is to agree to sign, but only if you can negotiate an agreement that is fair to you, as described below.

How Can You Make the Agreement Fair?

If your employer won’t let you refuse to sign, it may allow you to negotiate certain terms of the agreement to make it at least balanced. You may have to consult with an attorney for help negotiating the fairest agreement possible. Here are some provisions that can help create a more balanced arbitration process.

•Choice of arbitrator. You should get as much say in choosing the arbitrator as the employer. Given the power of the arbitrator, and given the fact that you probably won’t get to appeal the arbitration decision, you will want to have rights equal to those of your employer in selecting the arbitrator. You and the employer should have the right to reject at least one arbitrator without having to give a reason.

•Disclosure of information. A potential arbitrator should have to disclose information about his or her business and personal interests so you can make sure that the arbitrator is not biased in favor of the employer. For example, the arbitrator should not be someone who is a stockholder in the company. You and the employer should have the right to reject any arbitrator who has a conflict of interest.

•Costs of arbitration. Because the employer is the one who wants to use arbitration — something that costs money — the employer should have to pay for it.

•Remedies available. Make sure that you can receive through arbitration all of the remedies that you would have gotten if you had filed your claim in a court of law. For example, the agreement should not prohibit you from seeking punitive damages or damages for emotional distress.

•Attorney representation. You should have the right to be represented by an attorney throughout the arbitration process.

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:

Media Formats:

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Transcript (PDF)	View

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.