A recent Department of Fair Employment and Housing (DFEH) case highlights the potential costs of failing to engage in the interactive process with employees or making adverse employment decision against an employee based on an employee’s disability. The settlement is a reminder that employees should be accommodated so long as they are capable of performing the essential functions of their jobs.
In November 2010, the California Supreme Court clarified that employees may seek what are commonly referred to as Section 203 penalties (referring to Labor Code section 203) for unpaid wages (including meal and rest period violations) for up to three years after the wages were due (which, in many cases, is three years after the last day of employment).
(Or, what are the limits on terminating an employee for what they say on their own time?)
On November 8, 2010, the New York Times reported that the National Labor Relations Board filed suit against an ambulance services company for firing an EMT who complained about, and mocked, a supervisor on the employee’s Facebook page (on her own time and on her own computer). If you’re a private employer in Humboldt County, you should know that there are limits for when you can lawfully terminate an employee for something they’ve said—or published—while off-the-clock.
Complying with HIPAA and Responding to a California Criminal Subpoena for Patient Medical Records
If you’re a healthcare provider in Humboldt County, no doubt you are aware of the complex framework of state and federal laws designed to ensure the privacy of patient records. On occasion, healthcare providers receive requests to produce documents or testify in criminal cases. Generally, in California, there is no doctor-patient privilege in criminal proceedings. However, the state and federal statutes that govern the privacy of patient records still control. It’s a bit of a maze, and one that probably takes hiring counsel to navigate.
Humboldt County employers should be aware that California law provides that every employer, including state and any political subdivisions, provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child, assuming that such breaks do not seriously disrupt the operations of the employer. If possible, the breaks should run concurrently with any break periods already provided to the employee. Breaks that do not run concurrently with the employee’s authorized rest time need not be paid.
California Labor Code section 226 requires that California employers furnish employees with wage statements that contain specific information. Generally, wages statements must include:
(1) gross wages earned;
(2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime;
(3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis;
(4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item;
(5) net wages earned;
(6) the inclusive dates of the period for which the employee is paid;
(7) the name of the employee and (only the) last four digits of his or her social security number or an employee identification number other than a social security number;
(8) the name and address of the legal entity that is the employer; and
(9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.
In Humboldt County, as throughout California, the law requires that all employers “engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (California Government Code section 12940, subdivision (n).) An employer who fails to engage in the interactive process will be liable under the Fair Employment and Housing Act (“FEHA”).
The statute’s phrasing, “in response to a request[,]” makes one think that there must be some formal request by the employee, but that’s just not true. California courts have decided that there are “no magic words necessary” to be used by the employee, and furthermore, the employer’s “obligation arises once the employer becomes aware of the need to consider an accommodation.” In other words, employers must be extremely careful to hear “requests” by employees that the employer engage in the interactive process.
Recently, the U.S. Court of Appeals for the Ninth Circuit published a decision regarding the misidentification of employees as independent contractors. Such a decision by a court could have serious consequences for Humboldt County employers. In short, having your employees acknowledge that they’re independent contractors doesn’t make it so.
In Narayan, et al. v. EGL, INC., et al., No. 07-16487, the employer, “a global transportation, supply chain management and information services company[,]” was a Texas company with driving operations in California. Three of the employer’s California drivers signed agreements for “Leased Equipment and Independent Contractor Services,” which provided that the parties’ intentions were to enter into an independent contractor relationship. Subsequently, the California drivers filed a lawsuit seeking unpaid overtime, expense reimbursement, meal compensation, and reimbursement for unlawful wage deductions—all owed to employees under California law.
The U.S. Department of Labor recently updated its Employment Law Guide, as useful starting point for answering basic employment questions for employers. The updated Guide can be found here.
Remember that many federal laws are not as broad as California employment laws, and employers in Humboldt County must comply with both federal and state laws.
On July 6, 2010, the Janssen Law Firm and attorneys from two other firms received for their clients the largest jury verdict in the United States this year. The case is Lavender v. Skilled Healthcare Group, Case No. DR060264, Superior Court of California, Humboldt County. The plaintiff class is represented by W. Timothy Needham, Michael Crowley, Amelia Burroughs and Patrick Griego of the Janssen Law Firm from Eureka, by Michael Thamer from Callahan, and by Chris Healey and Aaron T. Winn of the Luce Forward firm from San Diego. This is the highest verdict ever achieved against a nursing home chain and one of the highest verdicts in the United States this decade.