Is Missing Work to Care for A Grandparent Covered by the Family Medical Leave Act?

Family Medical Leave ActCan you use medical leave to take care of your grandmother? Imagine your grandmother has had hip replacement surgery, and is going to require extensive care for the next several weeks. You approach your boss for some time off and are denied. But what about the Family Medical Leave Act (FMLA), you challenge. Does it not provide time off to care for family members? If you find yourself in a confrontation with your employer over the provisions of FMLA, an employment law attorney may be able to assist.

Family Medical Leave Act (FMLA) Provisions

FMLA provides that eligible employees are allowed to take up to 12 weeks of unpaid, job-protected time off with continued group health insurance coverage in certain circumstances.  The part of the law relevant to this situation is pretty explicit: An employee may take the time off of work to care for a spouse, child or parent with a serious health issue. Grandparents are not mentioned. It looks pretty cut-and-dried. Or is it?

Family Medical Leave Act and Parental Relationships

In fact, the FMLA does have some wiggle room when it comes to defining family relationships.   The law actually provides consideration to those who are able to demonstrate a factual, or in loco parentis relationship. This refers to anyone who has essentially served in a parenting role toward the employee. Now, the law does not specify exactly how that parenting role presents, but some factors might include:

  • Providing food, shelter, and clothing;
  • Addressing medical needs and having health insurance;
  • Providing transportation to and from school.

If an employee can establish that his of her grandparent raised him or her, or, at a minimum, met the above criteria, he or she may have a case for in loco parentis status. If, indeed, the grandparent discharged obligations as in a parent-child relationship when the employee was a minor child, FMLA may cover time off of work now for the employee to care for his or her grandparent.

Of note, the in loco parentis interpretation goes even further. The individual who took on the parenting role does not even have to have a legal or biological relationship to the employee.  Simply showing that that person provided financial support and performed duties typically associated with a parent is generally enough.

Employer Rights

Employers are entitled to documentation of any claims of in loco parentis relationships, of course, just as they may seek documentation showing the need for FMLA in other allowed circumstances. That documentation, however, can simply be the employee’s assertion of the relationship with minimal details. [Read more…]

Employee or Independent Contractor?

contractorLet’s say an employer hires you and suggests that you accept independent contractor status rather than being labeled as a regular company employee. To sell the idea, the simple tax form and reduced monthly deductions you would be required to pay are put on the table. What should you do?

Who Determines Independent Contractor Status?

To be clear, employers are not allowed to make this determination willy-nilly, even though there are noteworthy benefits to employers who engage independent contractors. Hiring an individual as an employee has significantly different requirements for employers than hiring that same individual as an independent contractor. The benefits are so tempting, in fact, that employers could face significant penalties when they erroneously classify an employee as an independent contractor. Several government agencies oversee classification controversies, including the Division of Labor Standards Enforcement (DLSE), and the Employment Development Department (EDD).

Employer Benefits of Hiring Independent Contractors

Tax forms and withholding amounts differ, as well as employer tax burdens. Sometimes employers might prefer to have independent contractors in order to avoid payroll taxes, overtime and minimum wage requirements, rest and meal breaks, worker’s compensations insurance, social security, disability insurance, and reimbursements for business expenses.

Are You an Employee or an Independent Contractor?

Because the law does not specifically call out a definition of an independent contractor, court interpretations and agency precedents must be relied upon to make individual determinations.  The Division of Labor Standards Enforcement (DLSE) starts with the presumption that an individual is an employee, and then applies several tests to determine whether or not independent contractor status is appropriate.

The primary consideration is whether or not the employer has the right to control how tasks are accomplished. For instance, an employee performing janitorial tasks may be required to use particular cleaning products, whereas an independent contractor who performs those same janitorial services is simply held to completing the task by whatever means he or she feels appropriate.

Several other factors are considered, including:

  • Whether or not the individual performing the services does so separate from the employer;
  • Whether or not the individual supplies the space, tools, and materials required for the job;
  • Whether or not specialized skills are required for the task;
  • Whether payment is dependent on time or job completion.

Three factors that indicate an employer/employee relationship, regardless of other factors, include:

  • The primary control of the operation lies squarely with the employer;
  • The duties of the worker are key to the success of the business;
  • Detailed supervision of the work is inessential due to the nature of the work.

[Read more…]

Rideshare Operators Are Having Legal Issues

rideshareLyft, Uber, and other rideshare operations have snagged customers from the taxi industry, leaving cab drivers unsettled and anxious about the future of the taxi business. It seems rideshares have upended the transportation industry, netting billions of dollars. But not everything has been coming up roses in the rideshare business. If you drive a cab and believe you have a legal claim against a rideshare company, consulting with an employment attorney might be advisable.

Legal Issues

Believe it or not, despite the huge earnings of rideshare apps, taxi drivers and others have begun to call attention to some serious concerns with the new system, and as a result, these new companies are facing real legal problems:

  • Regulations that differ from city to city: Taxi companies are quick to note that rideshare drivers are not held to the same standards as cab drivers. Some localities have responded by filing lawsuits alleging deceptive and unfair business practices because rideshare drivers do not adhere to the same regulations as cabbies. In some cases, the regulations of note regard commercial drivers license rules, car inspection expectations, insurance laws, licensing fees, and uniform rates.
  • Airports are losing money on fees and permits in some cities: Airports typically collect revenue through permitting, and some airports are now banning rideshares. In San Francisco, in fact, airport officials were even arresting rideshare drivers for trespassing. It is looking like regulation is going to have to come down quickly in order to avoid more of this type of issue.
  • Insurance is not always verifiable: Despite claims of million-dollar liability policies, several states have warned passengers that they may not be covered in the event of an accident.  Instances involving limited coverage have occurred here in California.
  • Company cars do not necessarily meet ADA standards: When the vehicle you call up on your app is not wheelchair friendly, it can be a real problem. Disabled patrons are denied service because they offer no alternatives for mobility-impaired persons. That means they are not meeting the guidelines established in the Americans with Disabilities Act.
  • Drivers with criminal backgrounds slip through the cracks: In California, over 20 rideshare drivers with felony backgrounds that were quite serious were discovered on the road in 2016.  That led to stricter rules regarding background checks, with heftier fines for companies that hire sex offenders and violent felons or terrorists.

Rideshare Taking Unfair Advantage

The rideshare market is increasing globally, largely because the supply of drivers is endless, since virtually anyone can become a rideshare driver. That fact, combined with unfair regulation discrepancies compared to cab companies, has created a disparity that has left cab drivers wanting more of the transportation pie. [Read more…]

Sick Leave in California

sick leaveDo California seasonal employees accrue sick leave? Let’s say you are a seasonal employee, and you suddenly become ill. Should you show up to work anyway, and risk infecting others? That may seem like a better option than losing a day’s pay, or even your job, right?

The fact of the matter is, you do not have to make that choice if you work 30 hours a week or more. Paid sick leave (PSL) is available to temporary, seasonal, hourly, exempt, and nonexempt employees. California law requires employers to provide at least on hour of paid sick leave for every 30 hours worked. So, take the day off and stay home in bed where you belong! Your employer cannot ask you for a doctor’s note and cannot retaliate against you for using your PSL.  If your employer is not following the law, contact an experienced employment attorney.

What if I do Not Use My Sick Days?

On the other hand, let’s say you are super-healthy and never need to take time off.  What happens to your paid leave? Gone are the days of use-it-or-lose-it. California law allows you accumulate up to 48 hours of unused leave. Even if you can only earn 24 hours of leave each year, hours can be rolled over into the next year. The exception is if employers provide the hours in a lump sum at the beginning of the year. In that case, they are not required to allow a rollover.

Exemptions in the Law

There are, however, exceptions to the rule. Workers who are not entitled to sick leave under this law include:

  • Certain aviation employees, including cabin crew from particular airlines;
  • Home Support Service employees;
  • Construction employees;
  • Employees with a collective bargaining agreement who earn not less than 30% of the state minimum wage.

Compliance with the Law

Employers are required to do several things in order to remain in compliance with California law regarding sick leave mandates:

  • Provide a written copy of the sick leave policy;
  • Display a poster of the sick leave poster;
  • Provide a minimum of 24 hours of paid leave per eligible employee per year;
  • Calculate, track and report employee sick leave balances on pay stubs;
  • Keep sick leave records for at least three years.

Use PSL for Other Circumstances

Employees may use paid sick leave to care for sick family members, too. If your child, spouse, registered domestic partner, parent (or parent-in-law) grandparent, sibling, or grandchild is ill, you have paid time off to provide care. In fact, PSL may be used if you are a victim of domestic violence, stalking, or sexual assault.   [Read more…]

Pregnancy or Career – Can You Have Both?

PregnancyAre you currently pregnant or considering pregnancy? Well the decision to start a family is complex and requires a number of considerations, but pressure from your employer should not be one of them. The law offers specific discriminatory protections for mothers or potential mothers in the workplace. An experienced employment lawyer can help you with issues in the event you feel you are experiencing pregnancy discrimination.

Federal Protections

The Pregnancy Discrimination Act (PDA) prohibits workplace discrimination related to pregnancy. That means that being pregnant cannot influence any decisions regarding hiring, pay, job assignments, training opportunities, layoffs or firing. Additionally, benefits relating to health insurance or leave cannot be determined based on this status.

Physical Limitations

If your pregnancy interferes with your ability to perform duties normally associated with your position, your employer must provide alternate assignments, disability leave, or other leave just as it would for any other temporarily disabled employee. If your pregnancy results in additional health issues, such as preeclampsia, for example, the law requires reasonable accommodations.  These types of medical conditions are covered disabilities under the Americans with Disabilities Ace Amendments Act of 2008.

Reasonable Modifications

Modifications must be based on individual circumstances and needs.  Some common accommodations that might be required include:

  • Eliminating non-essential functions (such as heavy lifting) from the workload for a period of time;
  • Allowing frequent restroom breaks;
  • Modifying daily schedules to accommodate morning sickness;
  • Allowing an employee to be seated when standing might normally be expected.

What is Harassment and Discrimination?

Clearly, harassment, intimidation, and any discrimination surrounding pregnancy or childbirth is unlawful. Any behavior that creates an offensive or hostile work environment due to its frequency or severity, or that results in an unfavorable job action, may be actionable. Refusing to provide reasonable accommodations could also be considered discrimination.

Pregnancy and Maternity Leave

If an employer allows disabled persons to take disability leave with or without pay, the same must be offered for pregnancy-related issues. Pregnancy cannot be singled out with special rules or procedures. In addition, the Family Medical Leave Act (FMLA) of 1993 allows any new parents up to 12 weeks of paid or unpaid leave for the care of a new child, given the employee has worked for a year prior to the requested leave.

Finally, the Fair Labor Standards Act (FLSA) provides that nursing mothers must be afforded the time and private location (not just a bathroom) to express milk. [Read more…]

Telecommuting – Legal Considerations

telecommuting

Work from home ad made by post it

Telecommuting seems like a no-brainer for many companies these days. Well over 30 million people in this country work from home at least once a week, and that does not include the three million self-employed people who work from home most of the time. The number of e-commuters is expected to approach 70 million in the next year! If your company is one that is considering this move, an experienced employment lawyer can help you get your ducks in a row so the transition works smoothly for everyone involved.

Telecommuting – A Popular Trend

Telecommuting has become a fantastic compromise for companies and their employees. This practice has increased by over 80% in recent years. The freedom that workers enjoy in terms of scheduling work may even increase productivity. Workers avoid horrendous California commutes, eliminating the stress other workers cannot avoid. Companies do not have to worry about providing a workspace, which can save big bucks. No wonder so many companies are looking to expand work opportunities to include telecommuting. However, employees and employers alike should be aware of serious considerations with regard to this this modern-day work arrangement.

Legal Considerations of Telecommuting

  • Confidentiality: Companies should do everything possible to ensure that company information remains confidential; nondisclosure agreements are highly recommended. Beyond that, the home work area should be relatively private, and companies must guarantee that they can retrieve files at any time from employees who work at home. Likewise, employees must understand that their work may be monitored at any time.
  • Security: Employees need a secure, encrypted network with a reliable firewall. It is the only way sensitive information can be protected.
  • Wages: Although salaried employees may not face additional issues, hourly employees may be eligible for overtime pay. Businesses must necessarily establish a clear-cut means for tracking hours.
  • Liability Issues: Employers must understand that if an employee is injured at home, it may be deemed the employer’s responsibility. Damage to property or to a third party during telecommuting work that is caused through the negligence of the employee could be deemed the employer’s responsibility, as well. Frequently in these situations, homes are considered an extension of the workspace by the courts. Consider, too, that many telecommuters conduct their business from coffee shops and other public spaces. It is critical that clear guidelines exist as to where and when work may be done for the company.
  • Discriminatory Practices: Telecommuter opportunities must not be limited to particular workers, such as only young or female workers.
  • ADA Implications: The Americans With Disability Act provides for reasonable accommodations for disabled employees. This may include telecommuting for some positions within the company.
  • Divergent Laws: Since employees may not be located in the same geographical area, the possibility of encountering different laws, around taxation, for example, must be considered.
  • Written Policies: It is more important than ever to devise policies addressing these and other issues, and put them into writing. Making sure everyone is on the same page with regards to expectations from the start will help employers and employees avoid conflicts down the road.

[Read more…]

Forced Retirement? Not so Fast!

forced retirementAre you being targeted for forced retirement? You enjoy working. You show up every day, ready to tackle the next project that comes your way. So, you are more than a little surprised when your boss suggests that retirement is something you should seriously consider. As time progresses, you find less significant tasks being assigned to you, and you notice younger employees eagerly attacking projects that used to be in your domain. Your employer is gently compelling you to ease on out the door. You start to question yourself: Are you too old for the job? Before you concede to your employer’s pressure to leave, you should really consult a knowledgeable employment attorney.

Forced Retirement – Legal Protections

Before you comply with the not-so-subtle forced retirement suggestion to pack up and leave, consider this: Federal law protects workers from being pushed out of a job with the Age Discrimination in Employment Act (ADEA) of 1967. Although some may view 65 as the desirable age for retirement, workers cannot be discriminated against due to their age. They certainly cannot be forced into a retirement that they do not want. The law applies to individuals aged 40 and older who work for a private company with at least 20 employees, or for any government entity. Not only are you protected from being forced out; if you are capable of performing your duties, your employer cannot demote you, insist you take a position with les responsibility, lower your pay, or move you into part-time work.

What About Benefits on the Job?

Older workers must be provided access to the same benefits as all other workers, as well. Even if you are eligible for Medicare, your health insurance benefits cannot be reduced. Beyond health care, other opportunities cannot be denied simply because of your age. You must have equal access to:

  • Training opportunities;
  • Prospects for promotions;
  • Lateral movement in the company.

Exceptions: BFOQ

On the other hand, if your employer can demonstrate that your age is a bona fide occupational qualification (BFOQ), they may have grounds to discriminate. This is an unusual circumstance and is difficult to prove. (One possibility might be in casting for a commercial requiring a child actor). The employer, who has the burden of proof, must show three key facts:

  • The job qualifications expected are reasonable and essential to the functioning of the business;
  • Individuals over a particular age limit could not perform those duties with efficiency and safety;
  • The practicability of assessing fitness for the job on an individual basis is unreasonable or impossible.

[Read more…]

Are Arbitration Agreements Enforceable?

ArbitrationWhen you were hired by your current employer, were you required to sign an arbitration agreement? The agreement stated you would use an arbitrator to deal with any workplace-related legal claims, rather than going through the courts. At the time, it seemed a minor issue—just another piece of paper you signed in order to get the job you wanted. Now, you may find yourself regretting that signature. Perhaps a group of employees has asked you to join in a class action lawsuit against your employer, fighting for employee rights. You believe in the cause—but there is the matter of that pesky arbitration agreement you signed. What now? An experienced employment lawyer can help you to understand both your rights and your responsibilities in this situation.

The Arbitration Process

Pursuing a remedy to workplace issues through an arbitration process has benefits, to be sure.  For instance, the proceedings are often much speedier. Disputes among parties can be raised over the phone with an arbitrator, instead of through the motions required in the court system. Besides saving time, arbitration can save everyone a lot of money. Employees, in particular, save money because employers are required to pay all arbitration fees in California. Arbitration is also a more private venue than the court, and no public records will be filed.

Federal Ruling

The 9th Circuit court recently issued an opinion striking down mandatory class waivers (Morris v. Ernst & Young). In this case, the plaintiff had signed an arbitration agreement spelling out that “covered disputes pertaining to different employees will be heard in separate proceedings.”  Nonetheless, the plaintiff claimed that he and others had been wrongfully labeled as exempt from overtime pay, and filed a class and collective action against his accounting firm, Ernst & Young.  The court found that agreements that take the rights of the worker to obtain federal relief from a work-related claim are untenable, and ruled for the plaintiff.

Arbitration Agreement Uncertainty in California Law

On the other hand, the California Supreme Court has upheld arbitration agreements that include class action waivers (Iskanian  v. CLS Transportation Los Angeles, LLC.).

This leaves us with some ambiguity regarding the enforceability of arbitration agreements that include class action waivers. The federal court clearly states that employees do have a right to band together to pursue work-related claims. The state court differs. So, is an arbitration agreement enforceable in the state of California?

In general, a well-drafted agreement that is implemented fairly and appropriately should be enforceable. What makes an agreement unenforceable? The courts have found certain factors to be non-starters such as:

  • Agreements that require employees to waive statutory damages;
  • Agreements that require employees to waive statutory remedies;
  • Agreements that do not allow the employee to recover attorney’s fees if successful;
  • Agreements that contain class action waivers, precluding employees’ rights to band together to ensure their rights are preserved and protected.

[Read more…]

Teacher Tenure and Job Security

teacher tenureTeacher tenure is one of the most controversial issues in education today. Teacher tenure proponents claim that tenure provides educators a needed safety net. That more expensive teachers with time in the system will not be terminated in favor of cheaper, less experienced teachers. Nor will experienced teachers feel pressured to keep their opinions to themselves, fearing political or personal vendettas.

On the other hand, opponents of teacher tenure argue that ineffective teachers get locked into classroom positions that do not benefit students and schools. Regardless of where you stand on the issue, the California Supreme Court has upheld current tenure laws, refusing to hear Vergara vs. California appeal, a case that challenged teacher tenure. That being said, under what circumstances can teachers be fired? If you are a California educator who is facing dismissal, but feel it is unjustified, an experienced employment attorney may be helpful.

What is Teacher Tenure?

Tenure is essentially an unspoken, and literally unnamed in the law, policy giving professors and teachers a permanent contract. Educators prefer the term permanent status. But what does permanent mean? Well, permanent means permanent—assuming no severe misconduct or evidence of incompetence occurs, the job is guaranteed.  But that caveat is an important one:  Teachers may still be fired for just cause, meaning that if there is a clear reason, termination proceedings may be undertaken.

While opponents to the tenure system cite red tape and bureaucratic nightmares as impediments to ousting poorly performing teachers, the law really just requires due process. If administrators can prove that a teacher is not performing the job at acceptable levels, the tenure system requires that evidence of the shortcomings is well documented and that an impartial study of the facts of each individual case occurs.

What is Due Process With Regards to Teacher Tenure?

Due process was developed in order to protect students and schools from anything that interferes with students’ rights to a quality education. Due process exists to ensure that decisions relating to schools / teacher terminations are based on educational goals, not personal or prejudicial reasons. Every year, tenured teachers are dismissed when clear evidence makes termination defensible.

Teacher Termination Procedure

State law requires that teacher firing decisions be based upon behavior, performance, and overall fitness for the job. The process is necessarily lengthy and detailed:

  • Specific examples of concerns must be documented;
  • Teachers must be given written notice of the concerns and have 90 days to correct any problems;
  • If issues are not resolved, written dismissal charges must be approved by the school board;
  • Teachers may then request a hearing to be held within 30 days;
  • The school board must serve the employee with an accusation as per the Administrative Procedure Act (APA);
  • Teachers may then request a second hearing with the State Office of Administrative Hearing within 60 days;
  • A three-person commission consisting of one administrative judge and one appointee from the district and one from the teacher hears the case;
  • Teachers may further appeal to the state Court of Appeals.

[Read more…]

Part-Time Workers Eligible for More Hours

part-timeAre you a part-time employee in San Jose who would love a few more hours, but who has not been able to convince your employer to give you more time on the job? If so, Measure E might just make you smile.

Measure E Voted in

This measure, approved by voters in November, came into effect in March 2017. It requires that employers with 36 or more employees must give current part-time employees more working hours if more work is available. That is in direct contrast with some employers’ previous decisions to simply hire additional part-time workers.

The law impacts all part-time workers, including temporary workers and subcontractors. The limit to the law is that the additional work may not be at overtime or premium rates; nor does the law override collective bargaining agreements.

For franchises and chains owned by the same employer, the number of employees is determined by adding the combined number of employees at each location of the business, including those businesses located outside of San Jose.

Workplace Definitions

Anyone who has completed a minimum of two hours of work is considered an employee and is entitled to minimum wage in California.

An employer is one who exercises control over the schedule, wages, or working conditions of workers, and either pays San Jose business taxes or is legally exempt from those taxes, including insurance companies, banks and nonprofit organizations.

Enforcement Provisions

You must post in your workplace a bulletin in multiple languages outlining the new work hour requirements and provisions. Non-compliance could result in fines and penalties to the employer, or potentially even a civil action.

Exemptions to the Part-Time Law

For employers with 35 or fewer employees, the ordinance does not apply.

An additional exemption is allowed for hardship. An employer may be granted a hardship exemption for as much as 12 months at a time, if said employer can establish that they have attempted to comply with the law but that compliance would be either impractical, futile, or impossible.

Impacts Outside of San Jose

This initiative led to the introduction of the Opportunity to Work Act. This legislation contains language similar to that of the San Jose measure, but would apply to employers with 10 or more employees. The proposed law is quite a bit more restrictive, in that this measure contains language addressing retaliation, and does not provide hardship exemptions. Employers and employees alike are keeping an eye on this legislation to see how it falls out. [Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.