Sexual Harassment
Wage and Hour Discrimination
Mr. Dawson has practiced in the labor and employment and work comp fields since 1982. Mr. Dawson has litigated cases throughtout California and in Arizona as well as before the National Labor Relations Board, the Cal and Az. Work Comp. Boards, the Agricultural Labor Relations Board, EDD, the AERB (in Arizona), OSHA and the California State Labor Commissioner. Mr. Dawson represents both employers and employees.
Articles:
Avoid Disability Discrimination When Hiring New Employees
Paying Employees Who Are On Call or Traveling for Business
New FMLA Regulations Change Rules on Notice and Certifications
Avoid Disability Discrimination When Hiring New Employees
© 2009 Nolo
The Americans with Disabilities Act has very strict rules about what you can and cannot do during the hiring process.
Of all the anti-discrimination laws, none confuses employers more than the Americans with Disabilities Act (ADA), especially when it comes to hiring. Employers want to make sure that the person they hire can actually perform the job, but often aren't sure how to explore this issue without running afoul of the law.
If you remember one simple rule, you'll be in good shape: You can ask people about their abilities, but you can't ask about their disabilities. This means that you can ask how an applicant plans to perform each function of the job, but you can not ask whether the applicant has any disabilities that will prevent him or her from performing each function of the job.
One way to ensure that you stay within the rules is to attach a detailed job description to the application or describe the job duties to the applicant during the job interview. Then ask how the applicant plans to perform the job. This approach gives applicants an opportunity to talk about their qualifications and strengths. It also allows them to let you know whether they might need reasonable accommodations to do the job.
Some other rules to keep in mind:
* If you have no reason to believe that the applicant has a disability, you cannot ask whether he or she will need an accommodation (meaning special help or equipment) from you to perform the job.
* If you do have reason to believe that the applicant has a disability (for example, the disability is obvious or the applicant has told you about the disability), you can ask about accommodations.
If you still feel a little lost about which questions are legal and which aren't, see the list of permissible and impermissible questions below.
For a comprehensive guide to hiring and the ADA, refer to the website of the U.S. Equal Employment Opportunity Commission at www.eeoc.gov.
Job Interview Questions That You Can and Can't Ask Under the ADA
The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces the ADA.
According to the EEOC, you should never ask the following questions in a job interview:
* Have you ever had or been treated for any of the following conditions or diseases? (Followed by a checklist of various diseases or conditions.)
* List any conditions or diseases for which you have been treated in the past three years.
* Have you ever been hospitalized? If so, for what condition?
* Have you ever been treated by a psychologist or psychiatrist? If so, for what?
* Have you ever been treated for any mental condition?
* Do you suffer from any health-related condition that might prevent you from performing this job?
* Have you had any major illnesses in the past five years?
* How many days were you absent from work because of illness last year? (You may, however, tell the applicant what your attendance requirements are and then ask whether he or she will be able to meet those requirements.)
* Do you have any physical defects that preclude you from doing certain types of things?
* Do you have any disabilities or impairments that might affect your ability to do the job?
* Are you taking any prescribed drugs?
* Have you ever been treated for drug addiction or alcoholism?
* Have you ever filed a worker's compensation claim?
According to the EEOC, you may ask the following questions in a job interview:
* Can you perform all of the job functions?
* How would you perform the job functions? (If you want to ask any applicant this question, you should ask all applicants this question.)
* Can you meet my attendance requirements?
* What are your professional certifications and licenses?
* Do you currently use illegal drugs?
Paying Employees Who Are On Call or Traveling for Business
© 2009 Nolo
You may have to pay employees for hours they spend on call or traveling.
Under federal law, you must pay your employees for any of their time that you control and that benefits you. Generally, this includes time that the employee cannot spend as he or she wishes, even if that time is not spent working. For example, an employee who has to cover the phones while eating lunch is entitled to be paid for that time, even if the phones aren't ringing.
Sometimes, it can be hard for employers to figure out when an employee is entitled to pay. This article discusses the two areas that give employers the most trouble: on-call time and travel time. We discuss only the federal rules; many states have similar laws, but some give workers the right to be paid in more situations. To check your state's law, contact your state labor department.
On-Call Time
If employees are required to stay on your premises or at a customer's location while waiting for a work assignment, you must pay them even if they do not spend that time actually working. For example, a mechanic who knits a sweater while waiting for a customer to arrive, a corporate trainer who must wait for the client to gather employees and set up equipment, or a secretary who does a crossword puzzle while waiting for an assignment is entitled to be paid for that time.
If employees must be on-call elsewhere, you must pay them for those hours over which they have little or no control and which they cannot use for their own enjoyment or benefit. If you place significant restrictions on an employee who is on call, that employee should be paid. There are few hard and fast rules in this area -- but generally, the more constraints you put on an employee, the more likely it is that he or she should be paid.
Here are some factors a court or agency might consider when deciding this issue:
* How many calls an employee gets while on call: The more calls an employee has to respond to, the more likely he or she is entitled to pay, particularly if any of the calls require the employee to report to work or give advice or guidance over the phone.
* How long an employee has to respond after a call: If you require employees to report in immediately after being paged, for example, they have a better argument that they should be paid for their time.
* Where an employee can go while on call: Employees who must stay within a limited distance from work are more likely to be entitled to compensation.
* What employees can do while on call: If you set a lot of rules for on-call workers, such as a ban on alcohol or a requirement that they respond quickly and in person to calls (which can be difficult if the employee is out running or taking the kids to school), you may have to pay for this time.
Travel Time
Although you do not usually have to pay an employee for time spent commuting, you must pay for travel time if that time is part of the job. For example, if your employees are required to go out on service calls, the time spent traveling to and from the customers must be paid. Also, if you require employees to take employer-provided transportation from a central location to the worksite, you may have to pay for this time.
Even if an employee's job does not ordinarily involve travel, you may have to pay for travel time if the employee is required to come to the workplace at odd hours to deal with emergency situations.
Special rules apply to employees who occasionally travel to another location for business. The rules depend on whether the trip includes an overnight stay.
One-Day Trips
If you send an employee on a one-day business trip, you must pay for the time the employee spends traveling. However, you can subtract the time it takes the employee to get to the airport or public transportation hub as commuting time, even if it takes the employee longer than his or her ordinary commute to the worksite.
Example
Tom lives in Greenbrae, California, and regularly commutes to his job in San Francisco. His commute takes about 1/2 hour each way by bus. His employer sends him to Los Angeles for a business trip. Tom leaves home at 6 a.m. to catch an 8 a.m. flight. He spends all day with a customer in Los Angeles, then dashes off to the airport to catch his 6:30 p.m. flight, which lands at 8 p.m. Tom arrives home by 9 p.m. He is entitled to be paid for 12 hours of work; the time he spends commuting between his home and the airport is considered noncompensable commuting time, even though it's quite a bit longer than his usual commute.
Overnight Trips
When an employee spends more than a day out of town, the rules are different. Of course, you must pay the employee for all of the time he or she spends actually working. However, whether you have to pay the employee for time spent in transit depends on when the travel takes place.
Employees are entitled to pay for time spent traveling during the hours when they regularly work (the period of the day they regularly work), even if they ordinarily work Monday through Friday but travel on the weekend. For example, if Tom usually works 9 to 5, and leaves the office at 3 p.m. to catch a flight for an overnight business trip, he should be paid for the two remaining hours in his day, but not for the rest of the time he spends traveling that evening. But if Tom returns home on a 10 a.m. Saturday flight that takes four hours, he is entitled to be paid for all of that time. Even though he traveled on the weekend, the flight took place during his ordinary hours of weekday work.
New FMLA Regulations Change Rules on Notice and Certifications
© 2009 Nolo
by Lisa Guerin
Find out what the new FMLA rules require.
On November 17, 2008, the Department of Labor (DOL) released new regulations interpreting the Family and Medical Leave Act (FMLA). These regulations provide first-time rules for the military family leave provisions passed earlier in 2008. They also make significant changes to the existing rules for other types of FMLA leave, particularly regarding notice requirements and medical certifications. The new regulations are scheduled to go into effect on January 16, 2009.
Military Family Leave
In January 2008, Congress passed a law creating two new types of FMLA leave: “qualifying exigency” leave, which allows family members of those who are called to active duty to take time off to handle immediate issues, and military caregiver leave, which allows employees to take time off to care for family members who suffer a serious illness or injury while on active duty military service. The new regulations explain in detail what constitutes a qualifying exigency, how much time off employees can take for these types of leave, what notice and certification employees must provide, and more. To learn about these provisions, see Family and Medical Leave for Military Family Members.
Employee Notice Requirements
The FMLA requires employees to give notice of their need to take FMLA leave. Here are some of the changes the new regulations make to these requirements:
* The new regulations require employees to give notice 30 days in advance if their need for FMLA leave is foreseeable, just as the old regulations did. Now, however, an employee who does not give 30 days’ notice must explain why such notice was not practicable, if the employer requests.
* Employees still have to give as much notice as is practicable when they need leave for an unforeseeable reason. However, the regulations now state that it should be practicable to give this notice within the deadlines and following the procedures prescribed by the employer’s usual notice requirements for missing work.
* An employee who has already used FMLA leave for the same reason must refer either to that reason or to the need for FMLA leave when giving notice.
* An employee who wants to substitute paid leave available under a company policy for unpaid FMLA leave must meet all of the requirements of company policy. For example, if an employer requires two weeks’ advance notice for vacation requests, an employee must give notice two weeks in advance to substitute vacation time for FMLA leave—even if the employee needs FMLA leave for an emergency that wasn’t foreseeable two weeks in advance. The employee is still entitled to FMLA leave for that time, but may not substitute paid leave. This is a major change from the old rules, which allowed employees to take paid leave as long as they gave the notice required by the FMLA, no matter what the employer’s policy required.
Employer Notice Requirements
Employers must give employees a series of notices about their rights under the FMLA and their obligations when using leave. The new regulations divide these notice requirements into four separate documents:
* A general notice, which must be posted conspicuously (it can be done electronically, as long as it’s accessible to employees and applicants). This notice must also be distributed to employees, either as part of the employee handbook or other written materials or as part of the paperwork given to each new hire.
* An eligibility notice, which must be provided to employees who request FMLA leave. The notice must indicate whether the employee is eligible for leave; if not, the notice must state at least one reason why the employee is ineligible (for example, that the employee has not yet worked for the employer for 12 months). This notice must be provided within five business days after the employee’s request.
* A rights and responsibilities notice, which provides a variety of information about FMLA leave, including whether the employer will require a medical certification and/or fitness for duty certification, payment of healthcare premiums, using paid leave, and more.
* A designation notice, which either designates time off as FMLA leave or notifies the employee that time off will not be designated as FMLA leave. For FMLA leave, the notice must indicate how much leave will be counted against the employee’s 12-week entitlement, if the amount of leave is known. If the amount of leave is unknown, the employee can request a written statement of how much leave has been counted against his or her entitlement no more often than every 30 days. This written statement can be a notation on the employee’s pay stub.
Certifications
The new regulations create a number of new forms for certification of a qualified exigency, a serious illness or injury (for military caregiver leave), an employee’s own serious health condition, and a family member’s serious health condition.
The serious health condition certifications request information that is largely similar to what the old form requested. However, the new regulations change the certification process somewhat:
* If the employer is permitted to request additional information from the employee’s workers’ compensation provider, in accordance with a paid leave policy or disability plan, or in connection with an ADA-covered disability, the employer may consider that information in determining whether the employee has a serious health condition.
* Once the employer receives a certification, it may contact the health care provider directly to authenticate the certification (that is, to verify that the form was completed or authorized to be completed by the person who signed it) or to clarify it (that is, to understand the handwriting or the meaning of a response on the form). The employee’s direct supervisor may not be the person who contacts the employee’s health care provider.
* If the employee submits a certification form that’s not in English, the employee must translate it upon the employer’s request.
* An employer may request recertification every six months for an ongoing condition.
* An employer may require an employee to submit a fitness for duty certification that specifically addresses the employee’s ability to perform the essential functions of the job, but only if the employer informs the employee of this requirement and provides a list of essential job functions with the designation notice.
The new regulations make a number of other changes as well. All of these changes have garnered mixed reactions: Employer advocates applaud them (although some wish they had gone further); employee advocates criticize them (although the military family leave provisions have had a better reception).
Because they are scheduled to take effect before a new administration takes office, these regulations won't be rescinded by the Department of Labor before they become effective. The question going forward is what Congress will do: The Congressional Review Act gives Congress the right to overturn recently finalized regulations, and some members of Congress are no doubt eager to look at a number of regulations issued in the last months of the Bush administration. Stay tuned.
DISCLAIMER:
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues. No electronic communication with the Law Office of Larry Dawson on its own will generate an attorney-client relationship, nor will it be considered a privileged communication. This web site is a California electronic media advertisement. It is not intended to be an advertisement or solicitation outside the state of California.