Laws for SupervisorsPresented by

Dr. Karen Pence, SPHR-CA

www.trainmetoday.com 1

What Every Supervisor Needs to Know to Stay Out of Trouble

Supervisor Boot Camp

What You Will Learn• Preventing unlawful discrimination • Understanding wage and hour laws• Preventing sexual harassment• Documenting performance• Best hiring practices• Avoiding retaliation• Preventing discharge from leading to lawsuit• Understanding federal and state leave laws• Understanding employee privacy rights• Understanding WC and reasonable accommodation

Fair Employment and Housing Act (FEHA)

Protects employees from discrimination, retaliation and harassment in employment.

FEHA

• Employers are obligated to provide reasonable accommodation to a disabled employee if doing so does not create an undue hardship on the employer

• Employer is not required to remove an essential function of a job, but may be required to remove a non-essential function to enable employee to perform the job’s essential functions

What is unlawful harassment?

Conduct is harassment if it….. is based on a legally protected statuscreates an intimidating or hostile work environmentunreasonably interferes with the individuals workadversely impacts the individuals employment opportunities.

Sexual Harassment is…• When a person is treated unfairly or badly because of their sex or

gender.• Based on sex that is severe or pervasive, offensive and unwelcome

conduct that affects the terms and conditions of the victim’s employment, whether by words, actions, gestures, or physical displays.

• Any unwelcome sexual advance or conduct on the job that creates an intimidating, hostile or offensive working environment.

• Offering employment benefits in exchange for sexual favors• Actual or threatened retaliation• Making or using derogatory comments, epithets, slurs, jokes or

jokes

California Protected Categories(or perceived to be)

• Race • Color • Creed • Religion • Sex• Gender identity • Pregnancy• Child birth • National origin • Ancestry• Age• Marital/domestic

partner status• Physical disability

• Mental disability• HIV & Aids• Medical condition (cancer

and genetic characteristics))

• Vietnam era veteran status• Sexual orientation • Transgender status• The employee's opposition to

any violations of law, association with others protected by law, or any other consideration made unlawful by federal, state or local laws.

• Denial of Family Leave (PFL)

Copyright 2010 HR Coach LLC All Rights Reserved

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California Government Code Section 12950.1

• AB1825Employers with 50+ employees must train

supervisors : - every 2 years - interactive - 2 or more hours

- New supervisors 6 months

OFFICIAL NOTICEINDUSTRIAL WELFARE COMMISSION

ORDER.NO. 5-2001REGULATING

WAGES, HOURS AND WORKING CONDITIONS IN THE

PUBLIC HOUSEKEEPINGINDUSTRY

Effective July 1, 2003 as amendedRevised 10/2006

Department of Labor Standards Enforcement (DLSE)

DLSE adjudicates wage claims, investigates discrimination and public work complaints, and enforces Labor Code statutes and Industrial Welfare Commission orders.

(Adjudicates = judges)

Wage Orders

• Determine wages paid to all employees • Determine hours and conditions of labor

and employment in various occupations• Investigate the health, safety, and

welfare of California employees• Must be posted in workplace

California Wage Orders

• 17 wage orders govern wages, hours and working conditions

• Industry order: specific industries covered under these orders

• Occupational order: apply when a business is not covered by an industry order

• Misclassification of employees results in violation of wage and hour law

© SHRM 1-12

Overtime• Pay for work performed for more than a

certain number of hours in workday and workweek

• Cannot be waived by employee and must be paid authorized or not

• Company defines workweek and workday• Labor commissioner: workweek=Sunday

through Saturday and workday= 12:01am to midnight

Overtime must be paid• Any hours over 8 hours in a workday• First 8 hours worked for any reason on the 7th

consecutive workday in a given workweek• Any hours worked over 40 straight-time hours

in a workweek• Double time: any hours worked over 12 in a

day or any hours worked over 8 on 7th consecutive workday in a week

• Non-worked hours are not counted for OT

Overtime

• It is important for the employer to define the work day and work week in order to calculate overtime

• Do not treat exempt employees like non-exempt employees or risk losing exemptions

Overtime Penalties

• Walmart Corp. fined for OT infractions • Ordered to pay $3.9 mil in OT, waiting time

penalties, and interest• 50,000 former and current employees• Upside: infractions found by Walmart internal

audit and the company notified CA DOL

Exempt vs. Nonexempt

• Nonexempt employees do not meet the exception from overtime pay

• Must be paid overtime• Subject to meal and rest period requirements• Exempt employees do not earn overtime pay

IRS Test for Independent Contractors

• 1. Instructions 11. Reports• 2. Training 12. Payment• 3. Integration 13. Expenses• 4. Personal Services 14. Tools• 5. Assistants 15. Investment• 6. Length of Relationship 16. Profit• 7. Work Hours 17. Multiple jobs• 8. Amount of Work 18. Availability• 9. Location 19. Termination• 10. Sequence of Work 20. Liability

Rest and Meal Periods

• All non-exempt entitled– 10 minutes of rest for every 4 hours worked– Not required if total hours worked are 3 ½ or less– Paid time worked– Penalty for failing to provide rest periods: 1 hour

of pay at employee’s rate of pay for each workday rest period is not provided

Rest and Meal Periods

• All non-exempt entitled– No less than 30 minutes for any work up to 5

hours– 6 and out requires no meal break by mutual

consent– “on duty” meal breaks are counted as time

worked– Employers cannot require employees to remain

on premises during meal periods

Reporting Time Pay

• Each work day an employee is required to report to work but is not put to work, the employee must be paid for half the scheduled day’s work (but not less than 2 hours nor more than 4 hours)

• NOTE: an employee is scheduled to work 8 hours, only works 1 hour-employer pays 4 hours (one hour worked + 3 hours reporting pay)

Reporting Time Pay

• If an employee reports to work a second time on a scheduled work day and works less then 2 hours, employee must be paid 2 hours at regular rate

• Exceptions: threats to employer’s property, failure of public utilities, acts of God, employee’s request to leave for personal reasons, employee reports to work unfit for duty

Off the Clock Work

• It is the employer’s duty to exercise its control and ensure that work is not being performed if the employer does not want to pay for the work being done

• Simply put, employers cannot sit back and accept work without compensating employees for their work

Off the Clock Work

• What is not a defense to off the clock work…– Arguing that employees acted voluntarily– Arguing that employees agreed not to seek

proper compensation

Off the Clock Work

• Implement and enforce a policy prohibiting off the clock work

• Caused by misconceptions about what constitutes compensable working time;

• Improper recordkeeping practices;• Supervisory misconduct;• Payroll cost pressures

Off the Clock Work

• Must be compensated for…– Unauthorized overtime– Work before clock in and after clock out– Work done off site– Changing into uniform/safety equipment

before/after shift begins/ends– Work done while on meal and/or rest periods

Best Practices

• Adopt and enforce a well-publicized policy• Eliminate “no overtime” policy• Establish reporting procedures when

employees are asked to work off the clock• Train managers and employees• Require employees to certify timesheets for

time worked, meal and rest periods, and any inaccuracies

Payment of Final Wages• Termed or laid off:

– All wages including accrued vacation paid immediately

• Quit w/o 72 hours notice:– All wages including accrued vacation paid within 72 hours

of quitting (count weekends and holidays when calculating)

– Employee may request final wages be mailed

• All wages (unless mailed) paid at place of termination and by direct deposit (if pre-authorized)

Payment of Final wages

• If an employer willfully fails to pay employee, the employee may be entitled to receive “waiting time” penalties of a day’s pay for every day the employee has to wait for payment of wages, up to a maximum of 30 days’ pay

How to Hire without Discriminating

Use Consistent Practices◦ i.e., personnel

requisition, employment application, etc.

►Job Descriptions►Clear communication

and direction►Avoid EEO issues later

Uniform Guidelines on Employee Selection Procedures

Recruiting Sources & Methods

►Employee Referral►Advertising►Agencies►Associations►Networking►Schools►Word of mouth

Risks of Recruiting from Competitors

►Existing Employment Agreements►Interferences with prospective economic

advantage►Covenants not to compete►Anti-solicitation provisions►Use of confidential information►Use of trade secrets

A warm body that becomes a morale problem and future plaintiff is NOT better than NO body at all.

Hiring

Negligent Hiring

If an employee is injured as a result of conduct by another employee, the employer may be liable if it

knew or had reason to know that the employee was unfit for the job or if the employer failed to use

reasonable care to discover whether the employee was fit for the job.

Best Practices Hiring Procedures

• Ensure that recruitment practices do not discriminate – Don’t award or – penalize for membership in a protected class

• Use standardized selection criteria– JOB DESCRIPTIONS– INTERVIEW PROCESSES

• Select candidates based on merit

Best Practices Hiring Procedures

Background and reference checks

Pre-employment testing (BFOQ) – Basic Math

Medical examinations (only after an offer of employment).

Best PracticesHiring Procedures

Background ChecksInvestigative and Consumer ReportingAgencies Act (ICRAA)– Obtain applicant’s consent– Give proper notice– Give applicant an opportunity to

request a copy of the report– Adverse Action Notice– Privacy

• Industrial Wage Orders (IWC)

Any person under the age of 18 who is required to attend school under the provisions of the Education Code

Employment of Minors

Best PracticesEmployment of Minors

• Always obtain work permits prior to starting work.

• Understand that children are not allowed to work with machinery that may be unsafe.

Interview and Hiring Tips

►Always use an Employment Application for all candidates with background check authorization form, notice of drug testing, arbitration, etc.

►Eliminate applications with employment gaps and frequent job change

►Warranty of truth ►Review to be sure it is signed.

Interview and Hiring Tips

►Basic Skills Testing►Essay►Math►Spelling►Computer

►USE ONLY FOR ACTUAL SKILLS NECESSARY FOR THE JOB

Griggs vs. Duke Power

Interview and Hiring Tips

►Check references►Background investigation►Verify education

►Physical/drug and alcohol testing

Interview and Hiring Tips

►Ask open ended questions►Don’t ask illegal questions►Ask receptionist’s opinion►Use more than one interviewer

►Pre job related questions – allows for conflicting statements and getting to the point

►Avoid the “Halo” effect

Making the Offer

►Verbal Offer►Never use the language “temp to perm”. No long term

promises►Offer Letter

►Standard, consistent, fair, clear, contingent on successful completion of pre-employment documents, tests and inquiries, salary stated in computational terms

►Employment Agreement►Benefits Briefly

►What can be expected►Handling applicants not hired

►Thank You Letters

Making the Offer

►Never ask for a driver license and social security card as proof of work authorization.

►Do say that they are required to read the I-9 Form and provide proof of work authorization. Let them know that if they need an interpreter one will be provided.

►Accept the documents unless they are not authorized.

• Employment at will• Wrongful termination

(1) in violation of an expressed or implied contract;(2) in violation of an implied duty of good faith and fair dealings;(3) in violation of public policy.

Wrongful Discharge & Critical Documentation Requirements

Discipline, Corrective Action, Performance Improvement, etc.

• No California laws specific to discipline!

• Courts see progressive discipline more favorably.

• Management Malpractice– Intentional infliction of

emotional stress– Severe ridicule, threaten

or humiliate

Best PracticesEmployee Discipline

• Investigate to establish facts• Document the investigation• Ensure consistent application of policies and

procedures• Avoid unlawful considerations in disciplinary

decision making• Make sure the punishment fits the crime

Occupational Safety and Health Act, 1970

• Requires employers to maintain reporting and record keeping systems that monitor job-related injuries and illnesses.

• The act covers all employers and employees, except:

» Self-employed persons

» Family farms where only family members work

» Workplaces already protected by other federal statutes

» State and local governments

Record KeepingAll employers must report any accident that results in the death of any employee or the in-patient hospitalization of three or more employees to the nearest OSHA office within eight hours.

Occupational injuries and illnesses must be recorded if they result in:

– death

– loss of consciousness

– days away from work

– restricted work activity or job transfer

– medical treatment beyond first aid

Safety Programs

• Safety programs need the support of top management to be effective

• For a safety program to be effective, all employees, supervisors, and managers must receive adequate safety training.

• Employees should never perform a job until they have been authorized to do it and have received adequate job instruction.

• Accident statistics indicate that new employees are much more likely than long-term workers to be involved in an accident.

Accident Investigations

• Whenever an accident occurs, it should be carefully investigated as soon as possible to identify the causes and to assess what steps can be taken to prevent future accidents.• The accident scene should be examined• Anyone who witnessed the accident should be

interviewed• Accident reports must be completed and available for

inspection

Employer Responsibilities• Train employees• Provide safe work environment by ensuring employees

receive training on any tools or machines• Warn employees of hazards• Establish safe operating procedures• Report within 8 hours: serious injury or illness or death• Keep records (Log 300) of work related injuries and illnesses • Post CAL/OSHA posters of employee rights and Form 300A

(summary of injuries and illnesses)• Provide employees access to their medical records and

exposure records• Do not discriminate against employees exercising rights

WORKERS’ COMPENSATION

Provides income continuation and reimbursement of accident expenses for employees who are injured on the job regardless of who was responsible for the accident.

WC Cal Labor Code 132a

• Illegal to discriminate against, discharge, or threaten to discharge an injured employee for filing a WC claim or having a job injury

• May not fire, threaten to fire, demote, or otherwise treat an employee differently from others solely because he/she filed a claim, intended to file, or got injured at work

When an incident occurs

• Protect the company by handling the injured employee with respect and compassion

• Get the employee to your clinic or the doctor the employee pre-designated prior to injury

• Give the employee Workers’ Compensation Claim form (DWC Form 1)

• File First Report of Occupational Injury or Illness with WC carrier within 5 days of incident

• Report all incidents resulting in death, more than 24 hours of hospitalization, or loss/disfigurement of significant body part to CAL/OSHA within 8 hours

• It is prudent to treat an injured worker on leave as any other employee has been or is treated who needed time off in terms of job reinstatement, healthcare coverage, etc.

LEAVES OF ABSENCE

• Pregnancy Disability Act (CA)• FMLA/CFRA (over 50 employees)• Workers’ Compensation• Alcohol and Drug Rehabilitation (CA) • Military Leave (Fed)• School Visitation Leave (CA)• Jury and Witness Duty (Most)• Voting Time off (Fed)• Volunteer Firefighter (over 50 Fed)

The Federal Family Medical Leave Act (FMLA)

• The FMLA requires employers to provide eligible employees with 12 weeks of family or medical leave in a 12-month period and to continue whatever health plan benefits it offers during the leave.

• Employees may take this leave for their own serious health condition or for that of a spouse, child or parent.

The California Family Rights Act (CFRA)• Leave for pregnancy disabilities

is a separate leave and is available in addition to the employee’s leave entitlement for other "serious health conditions" under the CFRA.

• The CFRA does provide up to 12 weeks of leave in a 12-month period because of the birth of a child (child bonding leave).

• For all leaves except pregnancy disability, CFRA leave runs concurrently with FMLA leave.

The California Fair Employment And Housing Act (FEHA)

• The FEHA imposes employer obligations in, among others, two distinct areas: physical and mental disabilities, and pregnancy. Obligations with regard to physical and mental disabilities are substantially similar to those imposed by the ADA.

Coordinating Leaves of Absence

There are no shortcuts•Workers’ Compensation-Not a protected leave status but reinstatement may be required under 132a

•FEHA/ADA- Reasonable accommodation may include leave above and beyond guaranteed under CFRA/FMLA. Commonly arises after FMLA leave is exhausted.

•CFRA/FMLA- Time off to recover from workplace injury generally runs concurrently with CFRA/FMLA. Right to reinstatement

Coordinating Leaves

If either or both FEHA and CFRA come into play with WC injury, consider the following requirements•Medical documentation•Fitness to RTW•Light duty and reasonable accommodation•Benefit continuation during absence•Reinstatement

Supervisors and managers can be held individually liable for violating leave laws. This means that if you do not handle a situation properly, you – and not just the company – could end up being sued by a disgruntled employee. For this reason, it is

critical for you to understand leave law basics and be proactive in reporting potential leaves or

qualifying situations to the company’s human resources manager and/or benefits administrator.

Do’s• LISTEN FOR BUZZWORDS. It is your responsibility, not the employees, to

know when the laws apply and how to respond.• NOTIFY YOUR HUMAN RESOURCES MANAGER immediately when

employees request or use time off for legally protected reasons. • Understand what absences or events are FMLA – qualifying• Document absenteeism and monitor for possible FMLA-qualifying

illnesses or injuries• Report possible FMLA qualifying events to your human resources manager

or benefits administrator as soon as you learn of them and direct employees there for follow-up.

• Remember that an employee does not need to use the term “FMLA” when requesting leave. It’s up to the law – and managers – to determine whether the FMLA applies (and management better not get it wrong).

Do’s• Know your company’s FMLA policy to better understand how

your company handles FMLA leave.• Be open minded and even creative when considering requests

for reasonable accommodation.• Apply the same performance standards to a disabled

employee as you do to everyone else. The disabled must do their jobs adequately or they are subject to the same consequences as others.

• Be aware that there are countless disabilities you can’t see, mental and physical. Watch your words and your jokes, you don’t know as much about your colleagues as you think you do.

• Ask your Human Resources manager for more information.

Don’t

• Consider an employee’s leave as a negative factor in any employment decision, such as hiring, promotion, disciplinary action or termination. FMLA cannot be counted against someone under “no fault” attendance policies.

• Dismiss an employee’s request for a reasonable accommodation.

• Ask unnecessary questions regarding an employee’s medical condition.

• Discuss an employee’s disability with another employee unless it is a need to know situation.

• Make reference to a person’s disability – either casually or in jest.

Look for “Red Flags”

• Birth• Adoption• Foster parent• Ongoing or serious

health problem• A disability• A sick relative• Religious holiday• On the job injury

• Military service• Jury Duty• Witness Duty• Voting

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