Tuesday, May 21, 2013

Will California Mandate Paid Family Leave

Several years ago the state enacted paid family leave.  It wasn't really a leave.  It was a means by which an employee could get paid while on an unpaid leave of absence for family reasons.  It did not mandate that employers provide time off.  But if an employer did provide time off, the employee could apply to EDD, much like unemployment, for replacement wages for 6 weeks.

I recall the push for the paid family leave.  We were told that only employees paid into the leave.  We were also told that an employer was under no obligation to give the time off.  Only employers of 50 or more workers were obligated to give employees time off under the FMLA or CFRA.  Smaller employers would not be burdened with a leave obligation.

Now, several years later our legislators are demanding that all employers provide time off, with a guaranteed reinstatement right.  You can read about SB 761 here.  Another burden. Another obligation.  Another basis for a lawsuit.  It's only fair ... Right?

Does Raising Minimum Wage Improve Conditions?

Over the past few weeks I have watched political advertisements for Leticia Perez as she vies for a spot in the California House of Representatives.  The ads are sponsored by the Democratic Party, which in California, is a very left-leaning group.

The ads show two women, one portrays a student, the other a single mom.  They both suggest that they need an increase in the minimum wage to make ends meet.  But does increasing the minimum wage have the intended impact of putting more money in the hands of workers?

This recent article in the Boston Herald shows how students are adversely affected by minimum wage increases.  If the article is accurate, the suggestion by the Perez campaign that minimum wage increases will help starving students is off the mark.  While some students may find work, and earn more money, more are priced out of the job market.

So what is the key to increased wages for workers?  In my observations, the following are a few factors affect a worker's ability to earn more money:

1) Good daily habits of arriving to work on time and leaving personal affairs to after hours.  I am amazed at how many people don't or can't make it to work regularly or who can't make it on time regularly.
2) Actually working during the day and taking initiative.  Don't wait for the boss to tell you what to do.  Figure out what needs doing and do it.  Greater productivity results in greater profit which translates to higher wages.
3) Improving job skills.  This can be done on the job or through education.  A person with more job skills can be given more responsibility.  More responsibility means more money.  When you can more, the company can prosper financially.  Again, that results in higher wages.
4) Learn how to work with others.  Get along.  Don't complain, whine or whimper.

As an employer, I want to keep the best employees.  I will will pay them good wages to staying with me.  It's not minimum wage increases that result in real wage increases, it is a person's personal habits, job habits and interpersonal skills.  Sounds like personal responsibility to me, not mandatory pay increases.

Tuesday, May 14, 2013

The Family Flex Act of 2013 (H.R. 1406) -- Impact in CA

I have had several clients ask about the impact of the Family Flex Act of 2013 if it passes Congress and is signed by the President.  The Act permits an employee to bank up to 160 of overtime hours to be used as compensatory time off (CTO).  It's a concept that the Fair Labor Standards Act already recognizes for public employees.  The Act allows an employee of a private employer to take time off (1.5 hours for each hour of CTO) instead of taking overtime pay. 

First, the bill must be enacted.  I can't see that happening.  President Obama opposes it.  Unions oppose it.  A Democratically-held Senate is not likely to pass it. 

Second, if it did pass, what would be the effect in California?  Nothing.  Nada.  Zilch.  Rien.  Zero. 

In the land of left wingers, our nanny state won't allow employees the option of taking CTO.  California assumes that employees can't think and act for themselves to choose CTO or overtime pay.  California assumes that employers are out to get the little guy (employees) instead of providing them with a meaningful choice. 

The argument against the Act and CTO is that the employer will require employees to take CTO instead of pay, when the employee is relying desperately on the income.  However, the Act does not allow for CTO unless the employee agrees to it before working the overtime. 

I have employed workers who wanted more time off in lieu of pay.  It's not out of the realm of reasonableness as unions would have us think.  And if an employee does not want CTO, then the employee can say no to that option. 

Once again you can thank our politicians. 

Friday, May 10, 2013

Can You Or Your Company Be Liable If Your Text Causes A Crash?

It was bound to happen.  A lawsuit against the texter for distracting a driver who crashed into a motorcycle. 

A young couple who had started to date exchanged over 60 text messages while the male was driving.  Distracted by a text (I wonder what the paramour wrote), he crashed into a motorcycle severely injuring two persons. 

The trial court dismissed the claim against the texter.  However, the motorcyclists appealed.  And now a New Jersey appellate court is struggling to answer the question of liability for the texter. 

The case raises significant issues.  From a workplace perspective I wonder if the company can be held liable if its employee knows that another person is driving, and the employee, as part of his/her job, sends a text message distracting the driver. 

Read about the case here

Thursday, May 9, 2013

The NLRB Took It In The Shorts ... Again

The National Labor Relations Board (Board) has not been lucky in court.  Just two days ago the DC Circuit Court of Appeal held that the Board's posting rule was unlawful.  Issued in August 2011, the Board's posting rule required private-sector employers to post a notice informing employees of their rights under the National Labor Relations Act.  The notice was on 11 x 17 poster board with large bold letters Employee Rights.  The notice instructed employees of their right to form or join a union, engage in concerted activity and strike.  The notice also instructed workers what actions the Board deemed illegal for employers to do.  (Yes, in bold language.)  Obviously, employers were not anxious to post this type of notice. 

The Board intended to enforce the posting rule by:  (1) Deeming the failure to post an unfair labor practice; (2) considering the failure to post evidence of anti-union animus; and (3) tolling the statute of limitations on an ULP charge by six months. 

The United States District Court for the District of Columbia struck down some parts of the enforcement provisions, but concluded that the Board had the authority to enact the rule.  (In another case, a district court in South Carolina vacated the rule in its entirety last year.) 

The Court of Appeal focused on employers’ free speech rights.  It held that employers have the right to speak about an issue or not to speak about an issue at all.  Enforcing the rule would violate free speech rights.  Accordingly, the enforcement provisions of the rule were struck down.  Since the rule’s enforcement procedures were struck down, and there was no way to enforce the rule, the court concluded that the rule was invalid as well.  In a concurring opinion, one of the justices concluded that the Board lacked statutory authority to even enact the rule. 

The courts have not been kind to the Board lately.  I reported in an earlier blog about the Noel Canning case.  That was the court decision that concluded President Obama’s recess appointments to the Board were unconstitutional.  Click here if you want to read the government’s Petition for Certiorari. 
For some reason, I just don't feel sorry for the NLRB. 

Tuesday, May 7, 2013

What is All the Fuss About the Want Ad

The news has reported on a want ad for a line could at FARMBloomington.  The news is reporting that the want ad is over the line, "horrible"  and "way out of line."  It imposes too many demands on line cooks who are underpaid and overworked.  Read the story here

I don't buy it.  While a few of the 44 entries do merit some scrutiny, most of the entries appear to be valid requirements of any job.  For example, it asks employees to show up early and work hard through the shift.  It asks employees not to complain and to do things the right way without cutting corners. 

I know many employers who would be thrilled if employees arrived at work on time ... regularly, did not take so much sick time, worked smartly throughout the day, and maintained a positive attitude.  Rather, they often get stuck with complainers, whiners and blamers. 

I had an interesting conversation with my 10 year old boy as we were working last Saturday.  I told him I was sorry that our work was taking so long, and that it was hot, and that we were not getting to the fun part of Saturday soon enough.  He responded, "Don't worry dad.  Don't you say that work is supposed to be hard?  That's what makes work work." 

Wow!  Now if we could only teach our employees that work is difficult, and fulfilling as well. 

Monday, May 6, 2013

When the Obligation to Engage in the Interactive Process Arises

California recently amended its regulations pertaining to employment discrimination.  The regulations are worth reading.  Just click here.  One of the points that employers must realize is when the obligation to engage in the interactive process arises. 

Section 7294(b) provides three situations when the obligation arises. 
  1. When the employee or applicant requests an accommodation.
  2. When the employer becomes aware of the need for an accommodation.  This awareness can come through observation or from a third party. 
  3. When the the employee with a disability has exhausted leave under the California Workers’ Compensation Act (yeah right, is there an expiration date for work comp leaves???), CFRA or the FMLA, or another federal, state, employer-provided leave provision and yet the employee or his/her health care provider indicates that further leave is necessary before the employee can perform the essential functions of the job. 
This third situation requires employers to determine whether an additional leave would allow the employee who has exhausted his/her leave entitlement to perform the job.  This is a very frustrating obligation imposed by the law.  CFRA and FMLA both provide for 12 weeks of leave.  A PDL leave of absence is up to four months (or 17.3 weeks -- I know, what is .3 of a week?).  How much additional time must be provided?  I think the answer is -- a reasonable amount that does not cause an undue hardship.  (Not much help is it?) 

What the regulations also make clear is that an indefinite leave of absence is not reasonable.  (Section 7293.9(c).)  Indefinite leave can be when the health care provider says, "I have no clue when (s)he can return to the workplace."  More frequently, it is when the employee continues to provide you with notes indicating the employee can return in 30 days.  Before the 30 days expire, you receive another note.  This often continues. 

If this happens, consider telling the employee and his/her health care provider that the successive notes constitute an indefinite leave of absence, and that a more accurate prognosis is required.  That usually gets some action from the employee to return quickly or for the health care provider to acknowledge that a return is not imminent.