Every employer must deal with a disgruntled employee at one time or another. However, recent cases demonstrate that the manner in which you deal with these employees can leave you exposed to a variety of legal claims. We will explore some of the issues which have recently made their way through the court system in the hope of alerting you to potential problem areas.
• Your employee hires a lawyer to resolve a dispute with you.
In a recent case, an employee told her boss that she was pregnant. Within a week after her announcement, she claimed that her hours and pay were reduced by half. The employee retained a lawyer to write a letter to her employer, asserting that she was being discriminated against on the basis of her pregnancy in violation of the Fair Employment & Housing Act. Within a week, the employee was fired. She filed a lawsuit, claiming that her employer had retaliated against her, not because she was pregnant, but in retaliation for the letter sent by her lawyer. The jury found in favor of the employee and the Court of Appeal affirmed the judgment, concluding that the employee’s actions in retaining a lawyer to negotiate with her employer on her behalf were protected by the Labor Code.
The lesson to be drawn here is that, once your employee hires a lawyer to negotiate a dispute with you, you must proceed with extreme caution. Firing the employee for hiring a lawyer is illegal.
• Your employee goes on extended workers’ compensation leave and expects you to continue paying his/her benefits indefinitely.
In this case, an employee went out on workers’ compensation leave after she hurt her back. Her employer had a policy to cover employees’ health insurance benefits for the first 12 weeks of leave, citing the fact that employees are allowed 12 weeks of family leave under the Family Medical Leave Act. When the 12 weeks was up, the employee was told that her health insurance premium was her responsibility. The employee filed a complaint with the Workers’ Compensation Appeals Board, claiming that her employer’s actions constituted illegal discrimination against her because she was on leave for a work related injury. The Workers’ Compensation Appeals Board agreed, finding that it is discriminatory to treat an employee who is injured on the job differently than one who is actively working. The employer was ordered to pay the employee’s health premiums, plus a 50 percent increase in her weekly benefits up to a maximum of $10,000 as a penalty.
The moral of this story is that you may not treat an employee who is on leave for a work-related injury any differently than you treat an employee who is still on the job, unless you can justify it with a good business reason. It must be noted that it is very difficult to use the business reason exception and that there is little guidance on what is considered a valid business reason and what is not.
• Your employee testifies against you in a suit brought by another employee.
In this case, an employee gave deposition and trial testimony against his employer in a lawsuit filed by another employee. Thereafter, his employment was terminated. The employee brought a lawsuit, claiming that his termination was in retaliation for his testimony and violated public policy. The Court of Appeal allowed the case to go forward, finding that there is a public policy embodied in the Labor Code which prohibits retaliation against an employee who has taken time off from work to appear in court as a witness.
This case is similar to earlier cases in which employees were allegedly terminated for testifying at an unemployment or workers’ compensation hearing. In nearly every case of this type, the court has allowed the employee to proceed with his/her lawsuit, finding that the right to testify is protected by public policy and that an employee cannot be terminated for doing so. Moreover, if you terminate an employee who has testified within a short period of time after the testimony, even if that termination is based upon a legitimate reason, the employee will likely be able to state a claim for retaliation by arguing that your legitimate reason for termination was a pretext.
The bottom line in each of these cases is that disgruntled employees should be handled carefully to avoid expensive litigation.
Effective October 1, 2000, California’s overtime requirements for veterinarians and certain employees who provide animal care will change yet again. This article will outline the changes in the law, as well as the requirements for implementing those changes. The new law affects not only overtime pay obligations, but also alternative work week schedules and meal periods.
APPLICABILITY OF AMENDMENTS TO WAGE ORDER 5
Wage Order 5 has now been expanded to provide special overtime provisions for workers in the health care industry, which has been defined to include licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care. However, these special overtime provisions do not extend to persons primarily engaged in providing meals, performing maintenance or cleaning services, or perform business office or other clerical functions in a veterinary office. Those employees must still be paid according to California’s basic overtime requirements, which include time-and-a-half payment for all hours exceeding eight hours of work in one day, 40 hours of work in one week, and for the first eight hours on the seventh day of work in a single work week. Double time compensation is required for regular employees for all hours worked in excess of 12 hours in one day and for all hours in excess of eight on the seventh day of work in a single work week.
ADOPTING AN ALTERNATIVE WORK SCHEDULE
Before using the special overtime provisions in the new Wage Order, the employer must adopt a valid alternative work schedule. The rules regarding adoption of such a schedule must be strictly followed, or the schedule will be null and void and you will be liable for overtime payments and penalties. To adopt a valid alternative work schedule, you must do the following:
- Submit a written proposal for an alternative work week schedule to all affected employees in the work unit. The proposed alternative schedule must specify the number of days in the work week and the duration of the shift. The actual days worked within the alternative schedule need not be specified, so long as the employer schedules the actual work days and the starting and ending time of the shift in advance of the work week and provides employees with reasonable notice of any changes. Either a single work schedule or a menu of work schedule options, from which each employee in the work unit may choose, may be included in the proposal.
- An alternative schedule may not exceed 12 hours of work in a day or 40 hours of work in a week. Moreover, the schedule must provide for at least four hours of work in any shift.
- The proposed alternative schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds vote of the affected employees in the work unit. The election must be held during regular working hours at the employees’ work site. A work unit may include a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit. A work unit may consist of an individual employee as long as the criteria for an identifiable work unit is met.
- Prior to the secret ballot vote, the employer must make a disclosure in writing to the affected employees which includes the effects of the proposed arrangement on the employee’s wages, hours and benefits. Such disclosure shall include a meeting, duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative schedule. Failure to hold such a meeting or provide the written disclosure will make the election null and void.
- The results of any election conducted to adopt an alternative schedule shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final and the report of election results shall become a public document. The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer.
- Employees affected by a change in work hours resulting from the adoption of an alternative schedule may not be required to work those new hours for at least 30 days after the announcement of the final results of the election. An employer must make a reasonable effort to accommodate employees who are eligible to vote in the election and who cannot work the alternative schedule, as well as employees who cannot work the alternative schedule because of their religious beliefs.
NOTE: An alternative schedule may be repealed by the affected employees. Upon a petition of one-third of the affected employees, a new secret ballot election shall be held and a two-thirds vote of the affected employees is required to reverse the alternative work week schedule. Such an election need not be held more than once every 12 months.
OVERTIME PAY OBLIGATIONS
Once an alternative work week is properly instituted, eligible employees working the alternative schedule may be paid overtime as follows:
- An employee who works more than 12 hours in a work day shall be paid double time for all hours in excess of 12.
- An employee who works in excess of 40 hours in a work week shall be paid at one-and-a-half times the employee’s regular rate of pay for all hours over 40 in a work week.
- Time-and-a-half must be paid for all hours worked in excess of the alternative work week’s scheduled hours.
- Double time must be paid after eight hours of work in one day on a day when an employee is not regularly scheduled to work.
The new Wage Order also makes provisions for meal periods, allowing eligible employees who work shifts in excess of eight hours a day to waive the right to one of their two meal periods. Those rules are as follows:
- A 30-minute meal period must be provided after five hours of work, unless the total hours of work for the day are not more than six hours, in which case the meal period may be waived by the mutual consent of the employee and the employer.
- Unless an employee is relieved of all duty during the 30-minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period is permitted only when the nature of the work prevents an employee from being relieved of all duty and when the employee and employer agree in writing to an on-the-job paid meal period.
- A second meal period must be provided after 10 hours of work, unless the employee’s total hours of work for the day are less than 12 hours, in which case the second meal period may be waived by the mutual consent of the employee and employer, but only if the first meal period was not waived.
- Veterinarians, registered veterinary technicians and unregistered animal health technicians providing animal care who work shifts in excess of eight hours total in a work day may voluntarily waive their right to one of their two meal periods. In order to be valid, such a waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer. The employee may revoke the waiver at any time by providing the employer with at least one day’s written notice. The employee shall be fully compensated for all working time, including an on-the-job meal period, while such a waiver is in effect.
Q & A:
Q: What areas of employee relations will the new Wage Order affect?
A. Alternative work week schedules, payment of overtime compensation to certain employees and meal periods.
Q: When does the new Wage Order become effective?
A: October 1, 2000.
Q: Will the new Wage Order allow me to put all my employees on 12-hour shifts without payment of overtime?
A: No. Only veterinarians, registered veterinary technicians and unregistered animal health technicians providing animal care may adopt an alternative work week that provides for 12-hour shifts without the payment of overtime. Other workers, such as clerical workers and workers who provide primarily services relating to feeding or cleaning cannot work 12-hour shifts without the payment of overtime. Those employees must still be paid according to regular overtime rules, which require overtime payment for all hours worked in excess of eight hours in a day or 40 hours in a week.