Avoid ADA Violations

ADA - The Americans with Disabilites ActIf you own a business, you are required to follow various specifications related to the Americans with Disabilities Act (ADA). Failure to do so could result in fines, accidents, loss of business, and even lawsuits. Taking note of the most common violations and working to eliminate them can save you more than a few headaches.

Frequent ADA Violations

Access is a key issue addressed by ADA guidelines. Failure to provide it is a serious problem:

  • Number of parking spaces: The law requires a certain minimum number of parking spaces, based on the size of the business and parking lot;
  • Condition of designated spaces: When handicapped parking spaces are on a slope, or when the paint is faded and difficult to see, it is a violation;
  • Van access not in compliance: Vans require larger spaces and/or aisles to enable wheelchair bound individuals the room to maneuver;
  • Signage missing: Reserved spots lack a sign designating them for accessibility;
  • Entry Routes inaccessible: Ramps or curbs are lacking or non-existent, or surfaces are not level;
  • Doorways are inaccessible: Automatic doors are not available;
  • Indoor access to the facility: Tables, counters, and other surfaces are not in compliance with ADA guidelines, or aisles within the building are not wide enough for wheelchairs to maneuver;
  • Floor space not cleared: Objects in aisles and otherwise leaving insufficient room to turn around in a wheelchair;
  • Bathrooms not in compliance: Problems related to missing grab bars, inaccessible sinks, towel dispensers, faucets, mirrors, hand sanitizer or soap dispensers, and toilet seat cover dispensers.

Businesses Most Often Found in Violation of the ADA

Any business is responsible to provide access for disabled individuals. Those businesses most frequented by the public experience the greatest numbers of complaints for non-compliance. In California, the data relating to complaints gives us a window into the businesses most often found to have deficits with regard to ADA accommodations:

  • Sales and/or rental businesses: 41% of complaints;
  • Food and drink establishments: 27% of complaints;
  • Service-oriented businesses: 26% of complaints;
  • Lodging establishments: 4% of complaints;

Employee ADA Training

In addition to the physical accommodations in your building, train employees about the proper way to interact with individuals with disabilities. Remember, they are people who are looking for products or services, just like anyone else. Be aware that not every disability is visible, so courteous, individualized service from your employees will benefit everyone.

  • Individuals with slurred speech will require patience and attention;
  • Those with hearing difficulties may need to see your lips moving as you speak;
  • Individuals of short stature may appreciate employees coming around a counter to interact;
  • Someone with respiratory disabilities or chemical sensitivities may have an adverse reaction to spray cleaners, air fresheners, or other toxins in the air;
  • Persons with psychiatric disabilities may have trouble with social cues, stressful situations, or unexpected delays.

[Read more…]

New California Law Will Change Pay Stub Requirements

Pay StubOn July 22, 2016, Governor Jerry Brown signed a bill that will change pay stub requirements, allowing California employers to include less information on some of your employee wage statements. Assembly Bill No. 2535 amends Section 226 of the California Labor Code, which lays out what information must be listed on your pay stub, and which employees must receive them. The bill creates an additional exemption, regarding which employees must be provided with a list of how many hours they worked – meaning that fewer workers will be entitled to receive such a list.

Under existing law, all employees must be provided with a pay stub either at the time they are paid, or semimonthly. The wage statement must include certain types of information, including:

  • Gross wages earned
  • Net wages earned
  • The number of piece-rate units earned
  • Deductions
  • The dates of the pay period in question
  • The employee’s name, and the last four digits of the employee’s social security number or employee identification number, and
  • The employer’s name and address.

An employer is also required to list the hours that the employee in question worked during the pay period, unless the employee is a) a salaried employee, and b) is exempt from overtime.

What Pay Stub Requirements the New Law Changes

Under AB 2535, which takes effect on January 1, 2017, another group of employees will added to the hours exemption. Employers will not be required to list an employee’s total hours worked if the employee is exempt from the payment of minimum wage and the employee is exempt from overtime.

Some examples of employees who may fit this exemption are:

  • Outside salespersons
  • Employees working in an executive, administrative or professional capacity
  • Workers who are in their employers’ immediate families (such as someone who works for their spouse, their parent, or their child)
  • Computer software workers who are salaried employees in accordance with Section 515.5 of the California Labor Code (which makes certain software professionals exempt from overtime if they meet certain requirements)
  • People participating in (or working as staff members for) certain live-in rehabilitation programs focused on preventing substance abuse, and
  • Employees working in participation with certain national service programs.

Complying With Pay Stub Requirements

There are penalties for failing to comply with Section 226. An employer can face a fine of $50 for the first pay period in which it fails to provide an employee with the proper information – and $100 per employee per pay period for each violation in subsequent pay periods, up to $4,000. An employee who takes action against an employer regarding a Section 226 violation may be awarded costs and attorney’s fees. If an employer fails to allow an employee to inspect or copy records, the employer may be liable for a $750 penalty to the Labor Commissioner. [Read more…]

Am I An Independent Contractor Or Employee?

independent contractorA common complaint among workers in today’s economy is the eagerness of many employers to label them as an independent contractor. The Department of Labor has now issued a memorandum criticizing the overuse of the term “independent contractor” and clarifying what constitutes an employee under the Fair Labor Standards Act (FLSA).

Economic Realities of Independent Contractor vs. Employee

Courts apply an “economic realities” test to determine if a worker is an employee or an independent contractor. In most circumstances, the test asks the following questions:

  • To what extent is the worker’s output integral to the employer’s business?
  • Does the worker have an opportunity to make or lose money based on his or her managerial skill?
  • What are the relative investments of the employer and the worker? (If the worker has made an investment, this would indicate that he or she is an independent contractor.)
  • Does the work require special skills or initiative? (The Department of Labor cites electricians, carpenters, and construction workers as examples of the types of workers that typically operate as independent contractors.)
  • How permanent is the relationship between the employer and the worker? (If the work is permanent, that would suggest that the worker is an employee.)
  • How much control does the employer exercise (or retain)?

The Department of Labor’s memo emphasizes that the test should be viewed from the lens of the FLSA’s “suffer or permit” standard. This refers to a clause in the FLSA which states, “’Employ’ includes to suffer or permit to work.”

According to the memo, the “suffer or permit” standard means that a worker is an employee if he or she is dependent on the employer. The standard exists in order to broaden the FLSA’s applicability, by expanding the definition of an employer/employee relationship. The memo states that the economic realities test is not determinative, and that the most important factor in determining whether a worker is an employee is whether he or she is economically dependent on the employer.

Other clarifications offered in the memo include:

Even if an employer and worker have an agreement stating that the worker is an independent contractor, this agreement will have no bearing on whether the worker is actually considered an independent contractor or an employee.

Whether a worker receives a 1099-MISC from the IRS (which is intended for independent contractors) is not considered evidence that the worker is actually an independent contractor.

The economic realities test is qualitative, rather than quantitative, meaning that not all of the factors need to be present in order for the worker to be considered an employee. [Read more…]

The NLRB Changes Joint Employment Standards

joint employment, joint employment standardsThe National Labor Relations Board (NLRB) has issued a ruling that adopts a new definition of joint employment. The case revolved around a California labor dispute – but the more expansive definition of joint employment laid out in the decision is expected to have a significant effect on labor cases around the country.

The labor dispute case involved Browning-Ferris Industries of California (BFI), which operates a recycling facility in Milpitas, and Leadpoint Business Services, which provides BFI with employees. A union, Sanitary Truck Drivers and Helpers Local 350, sought to represent the sorters, screen cleaners, and housekeepers who work at the facility. The Union argued that BFI and Leadpoint were joint employers of the employees in question.

A regional director of the NLRB issued a decision stating that Leadpoint was the sole employer of these employees. The ruling used the NLRB’s previous definition of joint employment, which focused on whether the employers exercised the right to control workers in a direct, immediate way (rather than a limited and routine way).

The NLRB’s Reversal on Joint Employment Standards

The NLRB overturned the Regional Director’s decision and found that BFI and Leadpoint are joint employers. The NLRB concluded that it is relevant whether a putative employer has the authority to control the terms and conditions of employment, even if the employer does not actually use that authority. The NLRB’s ruling clarifies that the correct test for whether joint employment exists is “whether one statutory employer possesses sufficient control over the work of the employees to qualify as a joint employer with another employer.”

Under the ruling, entities are considered joint employers if:

  • They are both employers within the meaning of the common law, and
  • They share or codetermine those matters governing the essential terms and conditions of employment.

The factors that the NLRB examined in order to determine the answers to these questions included hiring, firing, discipline, supervision, direction of work, hours, and wages. After considering these factors, the Board concluded that BFI shared and co-determined the terms and conditions of employment, and thus, was a joint employer along with Leadpoint.

Why the Joint Employment Standards Change?

The ruling states that the new standard was previously used by the NLRB and courts for years, and that it is based on the common-law definition of an employment relationship. According to the opinion, the common-law test for an employment is based on the right to control and not on whether that control is exercised.

The ruling argues that the previous standard was significantly narrower than the common-law standard. It also states that, under the old standard, employees could be deprived of their right to bargain effectively simply because there were two employing firms involved in their work arrangements instead of one. [Read more…]

Social Security Disability and the Americans With Disabilities Act

social security disabilitySocial Security disability and the Americans With Disabilities Act. The Americans With Disabilities Act (ADA) requires many employers to provide reasonable accommodations for employees with disabilities. It also prohibits employers from discriminating against qualified individuals with disabilities. Many people are familiar with the basic provisions of the ADA, without actually understanding how it defines the term “disability.”

One likely source of confusion is the Social Security Disability program, which has a very different standard for determining who is disabled. Social Security Disability provides benefits for individuals who have worked in the past, but are no longer able to work because of disabilities. Anyone who has applied for Social Security Disability benefits can tell you that the Social Security Administration has extremely strict standards for qualification.

What many people don’t realize is that not all government agencies use the same standard for what constitutes a disability – and the ADA’s standards for a disability are far less strict than those of the Social Security Administration. In order to qualify for Social Security Disability benefits, an applicant must demonstrate that their disability is so severe that it prevents them from working altogether. The ADA, on the other hand, applies to people who are capable of working, so its definition is far broader.

The Language of the Americans With Disabilities Act

Under Section 12102 the ADA, the term “disability” means, with respect to an individual:

  • A physical or mental impairment that substantially limits one or more of an individual’s “major life activities”;
  • A record of such an impairment; or
  • Being regarded as having such an impairment.

The expression “major life activities” includes a wide variety of activities, such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, thinking and working.

It can also refer to what the ADA calls “the operation of a major bodily function.” Section 12102 includes the following examples: “Functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

It is important to note that, as stated in the third bullet above, an individual can be protected by the ADA even if he or she does not have a disability that meets these requirements. The ADA prohibits discrimination based on the belief that an individual has a disability. This means that, for example, if an employer incorrectly assumes that an applicant for a typist position is HIV-positive, and refuses to hire him or her on that basis, this would violate the ADA, regardless of whether the employee actually is HIV-positive. If the applicant was regarded as having a disability, and was denied the job on that basis, then it does not matter whether the employer’s assumption was correct.

Violations of the Americans With Disabilities Act

If an employer has discriminated against you on the basis of a disability (or perceived disability), or is refusing to provide you with reasonable accommodations, you may have a valid ADA claim.

You may also have recourse at the state level. California has its own laws prohibiting discrimination, which are some of the strictest in the country. If you live or work in the Santa Rosa, Petaluma, Ukiah or Lakeport area, contact our experienced labor law attorneys at Beck Law P.C.,  to schedule a consultation and learn more about your legal options.

Pregnancy Leave in California

pregnancy leave, pregnancy leave in california, labor lawLooking for information on pregnancy leave in California? Pregnant employees are protected by the Family and Medical Leave Act (FMLA), a federal law that guarantees medical leave for eligible workers. (The FMLA also guarantees medical leave for workers in other situations, such as when an employee’s spouse, child or parent has a serious health condition).

Most employers are familiar with the provisions of the FMLA, particularly the requirement that eligible employees must be permitted to take up to 12 workweeks of leave in a 12-month period for the birth of a child, and for caring for the child during its first year of life. (The requirement also applies to employees who adopt children or become foster parents, who are eligible for the work leave within one year of the placement of a child.)

Unfortunately, some California employers are unaware that pregnant employees also have protections on the state level. The California Family Rights Act (CFRA), which provides many of the same protections as the FMLA, is just one of the state laws that provides benefits for workers who are pregnant, and/or have new additions to their families.

California Pregnancy Disability Leave Act

Under California’s Pregnancy Disability Leave Act (PDLA), an employee can take up to four months off from work due to medical conditions related to pregnancy, with a guarantee that their job will be protected. This leave time can be taken intermittently – meaning that an employee does not have to take all of this leave time at once. Another important element of this legislation is that an employee who is taking pregnancy disability leave is entitled to continue receiving any health benefits that they typically get through their employer.

Workers are eligible for pregnancy disability leave if they work for employers with five or more employees. Many employees who are ineligible for the protections of the FMLA and the CFRA are covered by the PDLA.

Family Temporary Disability Insurance

California also has a program that provides temporary insurance benefits to workers who take leave for certain family-related reasons – including employees with new children. The provisions of the program, which is called Family Temporary Disability Insurance (FTDI), are laid out in Section 3301 of California’s Unemployment Insurance Code.

FTDI allows eligible workers to receive up to six weeks of wage replacement benefits if they take time off from work to care for a child who was born within the past year, or for a child who was placed with them via adoption or foster care. The amount received per week is based on the employee’s salary.

Responding to Pregnancy Leave Discrimination

If you are pregnant, or recently had a child, and your employer has denied you the rights to which you are entitled under federal or California law, it is important that you seek legal advice as soon as possible. The employment and labor law attorneys at Beck Law P.C. in Santa Rosa have handled many cases over the years dealing with the rights of employees with families. You can call or email our office today to schedule a consultation.

Amendments to California’s Sick Leave Law Are Passed

Amendments-to-California's-sick-leave-law-are-passedOn July 13, Governor Jerry Brown signed into law amendments to California’s sick leave law; the Healthy Workplaces, Healthy Families Act of 2014. The law (also known as Assembly Bill 1522) greatly increased the number of workers in California who are eligible for paid sick leave. The amendments make substantial changes to the law – many of which are favorable to California employers.

The amendments (which are contained in Assembly Bill No. 304) include the following changes to the Healthy Workplaces, Healthy Families Act:

  • They add an important stipulation to a provision in the original law. The provision stated that employees who work in California for 30 or more days within a year of beginning their employment are entitled to paid sick days (at a rate of at least one hour for every 30 hours worked). The new amendments require that an employee do that work for the same employer in order to qualify for the accrued sick leave.
  • They allow an employer to provide for employee sick leave accrual on a basis other than one hour for each 30 hours worked – provided that the accrual is on a regular basis, and the employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment.
  • They allow an employer to limit an employee’s use of paid sick days to 24 hours or three days in each year of employment, or a calendar year, or a 12-month period.
  • They require employers to calculate paid sick leave based on an employee’s regular pay rate, or by the total wages divided by the total hours worked in a 90-day period, or the wages for other forms of paid leave.
  • They state that if an employee is rehired within one year of the end of their employment, then the employer is not required to reinstate the employee’s accrued paid time off, if the employee was paid off for their time when their employment ended.
  • They make a clarification regarding the original law’s rule that an employer is required under the original law to keep records for three years documenting an employee’s hours worked and paid sick days accrued. The amendments clarify that the employer is not obligated to inquire into (or record) the purposes for which an employee uses sick leave or paid time off.
  • They allow some employers who provided paid sick leave or paid time off to employers prior to January 1, 2015 to keep their old policies, so long as they make available an amount of leave applicable to employees that may be used for the same purposes and under the same conditions as specified in this section.

Can This Affect Your Business?

If you have concerns about what these amendments mean for your company’s policies, or you are considering making a change to your policies based on the passage of the amendments, it is highly advisable that you speak to an attorney. The employment and labor law attorneys at Beck Law P.C. in Santa Rosa are available for consultation. You can call or email their office today.

California’s New Child Labor Regulations

child labor regulationsCalifornia’s new child labor regulations. As of January 1, 2015, California has new protections for victims of child labor law violations. Assembly Bill 2288, also known as the Child Labor Protection Act of 2014, has become Section 1311.5 of the California Labor Code.

The legislation reads as follows:

  • “The statute of limitations for claims arising under this code shall be tolled until an individual allegedly aggrieved by an unlawful practice attains the age of majority. This subdivision is declaratory of existing law.”

(“Tolling” a statute of limitations simply means suspending it. So, for example, let’s say an employer in California violates a child labor law, thus giving a 16-year-old employee a cause of action, and the statute of limitations for the particular offense is 3 years. The employee would be able to file a claim until he or she turns 21. This is because, with regard to the statute of limitations, the clock would not start ticking until the employee turns 18.)

  • “In addition to the other remedies available, an individual who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to an adverse action, or in any other manner discriminated against in the terms or conditions of his or her employment because the individual filed a claim or civil action alleging a violation of this code that arose while the individual was a minor, whether the claim or civil action was filed before or after the individual reached the age of majority, shall be entitled to treble damages.”

(Treble damages are, effectively, triple damages. Laws such as this one allow for victims of certain violations to receive three times their “actual” damages. So if an employee files a claim alleging that his or her employer violated a child labor law, at a time when the employee was a minor – and the employer subjects the employee to retaliation for filing the claim – then the employee will be entitled to three times the damages that he or she would otherwise receive.)

  • “A class ‘A’ violation, as defined in subdivision (a) of Section 1288, that involves a minor 12 years of age or younger shall be subject to a civil penalty in an amount not less than $25,000 and not exceeding $50,000 for each violation.”

(A class “A” violation is when an employer violates California’s child labor laws in such a way as to present an imminent danger to minor employees, or a substantial probability that death or serious physical harm would result therefrom. Under Section 1288, a class “A” violation carries with it a civil penalty of $5,000 to $10,000 for each and every violation. Under the new legislation, that amount is increased to $25,000 to $50,000 if the employee involved is 12 or under.)

Seeking Legal Counsel Regarding Child Labor Regulations Issues

If you are believe that you were subjected to violations of child labor laws as an employee – or if you are an employer, and you have been accused of violating a child labor law – you may benefit from the advice of a qualified attorney. You can schedule a consultation with the employment and labor law attorneys at Beck Law P.C. in Santa Rosa by calling or emailing their office today.

The Ninth Circuit Rules on Binding Arbitration Agreements

binding arbitration, arbitrationsIt has become extremely common for employers to encourage their new employees to sign binding arbitration agreements, in which they waive their right to a jury trial. (These agreements are intended to compel the employees to resolve any future disputes they have with the company via arbitration, which is generally cheaper than going to court.)

Some employers request that their employees sign a binding arbitration agreement directly, but others take a different approach. They simply include an arbitration agreement in their employee handbook, and then ask their employees to sign a statement agreeing to the terms of the handbook.

The advantage to the latter approach is that if the employer decides to update certain aspects of its arbitration agreement, it can revise the handbook, and then ask employees to acknowledge the changes – rather than asking them to sign brand new arbitration agreements.

Court Challenges to Binding Arbitration Clauses in Employee Handbooks

However, one problem that employers have had with this approach is that in some cases, courts have ruled that it is insufficient. One such case was Nelson vs. Cyprus Bagdad Copper Corporation, in which the Ninth Circuit Court of Appeals held that an employee was not compelled to arbitrate, despite an arbitration clause in the company’s employee handbook.

When the employee was hired, he signed the following statement:

“I have received a copy of the Cyprus Bagdad Copper Corporation Handbook…and understand that the Handbook is a guideline to the company’s policies and procedures. I agree to read it and understand its contents. If I have any questions regarding its contents I will contact my supervisor or Human Resources Representative.”

The Court ruled that arbitration cannot be compelled unless the employee has knowingly agreed to waive his or her right to a jury trial. And because the statement above did not mention that the handbook contains an arbitration clause – or that signing the statement constituted a waiver of the right to a judicial forum – the Court ruled that the employee had not knowingly made such a waiver.

Ashbey vs. Archstone Prop. Mgmt.

But what if an employee signs an agreement to abide by the terms of a handbook, and the agreement itself mentions the duty to arbitrate? In May 2015, the Ninth Circuit ruled that such an agreement is enough to compel arbitration.

In Ashbey vs. Archstone Prop. Mgmt., the Court ruled that an employee waived his right to a jury trial when he signed an agreement that contained the following language:

“I acknowledge that I have received directions as to how I may access the Archstone Company Policy Manual, including the Dispute Resolution Policy. I understand that Archstone can administer, interpret, discontinue, supplement, amend or withdraw any of the employment and personnel policies and procedures set forth in this Company Policy Manual. I understand that it is my responsibility to understand the Archstone Company Policy Manual, including the Dispute Resolution Policy, and to adhere to all of the policies contained herein.”

The Court held that because the agreement “expressly notified” the employee about the dispute resolution policy – and did so twice – it was sufficient to compel arbitration. The Court also held that it is not a requirement for the statement to actually list the terms of the policy.

Crafting an Effective Binding Arbitration Agreement Policy

If you want to feel secure that your company’s arbitration agreements will stand up in court, the employment and labor law attorneys at Beck Law P.C., in Santa Rosa can help. You can call or email our office today to schedule a consultation.

Training on Prevention of Abusive Conduct – New Rules for California Employers

prevention of abusive conduct, labor lawAssembly Bill (AB) No. 2053, “prevention of abusive conduct”, signed into law by California Governor Jerry Brown has added new requirements for employers regarding their harassment policies. AB 2053 amended Section 12950.1 of the California Government Code, which lays out necessary elements in the employee training programs that are required for employers with more than 50 employees. As a result of the new bill, these employers will be required to include training for supervisors on “prevention of abusive conduct.”

What Does “Abusive Conduct” Mean?

AB 2053 contains a definition of abusive conduct. It reads:

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

While the law requires employers with more than 50 employees to provide training to avoid abusive conduct, it does not actually ban abusive conduct in the workplace. This is to say, it does not create a cause of action for employees who have been subjected to abusive workplace conduct. (However, many forms of abusive conduct were already illegal under other statutes, such as sexual harassment laws.)

Other Requirements of Section 12950.1, Prevention of Abusive Conduct

Under the previously existing requirements of Section 12950.1, California employers with more than 50 employees must provide their supervisory employees with at least two hours of “classroom or other effective interactive training and education regarding sexual harassment.” The training must occur within 6 months of when the employees assume their supervisory positions.

The training must be offered to supervisory employees at least once every two years, and it must include “practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.” It must also be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation.

12950.1 contains language making it clear that if any particular individual at a workplace does not receive the training, that will not in and of itself cause their employer to become vulnerable to an action alleging sexual harassment. It also states, however, that simply providing the training will not insulate an employer from liability in an action alleging sexual harassment.

(In other words, a sexual harassment suit will not be automatically successful just because a supervisor wasn’t given the proper training. But at the same time, an employer cannot claim that a supervisor cannot be guilty of sexual harassment just because he or she received the training.)

Advice on Meeting the Requirements of 12950.1

AB 2053 went into effect on January 1, 2015 – so if you are a California employer with more than 50 employees, and you have not yet updated the trainings that are given to your supervisors, it’s time to make some changes. If you have any questions about how to comply with the requirements of the new legislation, you can call or email the employment and labor law attorneys at Beck Law P.C., in Santa Rosa Labor Lawyer, to schedule a consultation.


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