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Just When You Thought You Knew it
All!: 2008-2009 Legal Update
Dennis Brown, Esq. and Marlene Muraco, Esq., Littler
 Looking back to the legislation and court cases of 2008,
employers can more confidently prepare their employment
policies and practices for 2009. The recap of the most impactful issues and as well as practical suggestions for
employers include (refer to your jump drive for the full
PowerPoint presentation):
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Federal
ADA Amendments – The spirit of the amendments were
to roll back court interpretations that had strayed from
the original vision of the Americans with Disabilities
Act. Such amendments now bring the ADA closer to the
provisions of CA’s anti-disability laws by broadening
ADA’s scope. When in doubt of disabled status, assume
the employee may be and engage in an interactive process
to determine if reasonable accommodation is possible.
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Federal
FMLA – Though currently for employers with 50 or more
employees, expect that the Obama Administration may push
for dropping the count to 25 or more employees.
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Newly
added: up to 26 weeks to care for a family
member injured in active military duty.
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Newly added: 12 weeks
for qualifying exigencies caused by a family member
being recalled to active duty.
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Revisions: the Federal
FMLA had modifications to eligibility requirements,
serious health condition definitions, notice and
other designation changes. These revisions when
applied to CA employees must take both the CA CFRA
and the Federal FMLA into consideration; therefore
some FMLA revisions are not applicable in CA.
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CA Meal
Periods – The CA Supreme Court is expected to give
guidance to CA employers on many issues related to
breaks/meals, including if the meal must be made
available, or if the meal must be taken. In the
meantime, document compliance and audit regularly.
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Federal
Genetic Information Act – Effective 11/21/09,
regulates and restricts the collection, use or
disclosure of employees’ genetic information. In
conjunction with CA’s standing prohibition against using
such information, apply the same confidentiality
protections as to other types of medical information
under the ADA.
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 Federal
EEOC’s Religious Compliance Assistance – A new
website is aimed at assisting employers with eradicating
religious discrimination.
http://www/eeoc.gov/policy/docs/religion.html.
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CA
Managers NOT Personally Liable for Retaliation –
Though managers can still be found personally
liable for illegal harassment.
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Text
Messages – As technology changes, change your
policies to stay in step! Employers must communicate
there is no expectation to privacy of TMs and
enforce it.
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Medical
Marijuana – The CA Supreme Court ruled that
employers do not have to accommodate medical marijuana
use because it is still an illegal drug under federal
law.
Refer
to your jump drive for the full PowerPoint presentation.
Article written by:
Melissa Irwin, SPHR-CA
Flexible Work Arrangements:
Balancing Individual NEEDS with Employment REGULATIONS
Melissa Irwin, SPHR-CA, TPO Consultant
 In
today’s economy, more than ever, employers are wanting to
evaluate all options in scheduling in order to determine if
they meet the company’s needs, the employee’s needs, and if
it can be accomplished within CA’s employment regulations.
Some flexible options, along with TPO recommendations
include:
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Telecommuting – Focus on clear agreements as to the
very specific arrangement (who pays for what) and a
pre-schedule of “check-ins” to make sure that everyone’s
expectations are being met!
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Reduced
Work Hour/Days – These reductions might be for the
business, or for individual/all employees. Since this
option usually reduces the employee’s pay, give careful
consideration of the employee-relations implications.
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Changing
to Part-time or Casual/On-call Employment Status –
Such changes can put employees into a category where
they do not earn company benefits (vacation, sick,
holidays, health insurance), though they will still earn
legally-required benefits (Workers’ Comp., Unemployment,
Social Security, etc.)
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Alternative Workweeks – If you don’t go through the
hoops, including a secret ballot election and reporting
the results to the State, it is NOT an alternative
workweek and your documents showing 4, 10-hour days will
become proof of 2 hours overtime worked each day! Allow
Make-Up Time for employees who want to request personal
schedules.
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Job
Sharing – Multiple part-time workers can save on
benefits and help tap into the part-time market that
many employees are interested in due to
personal/family/school obligations or as a gentle way
into retirement.
In evaluating
these decisions, the savvy employer will not
be tempted to change the status of a true “employee” to an
“independent contractor”, nor change a position that is
truly non-exempt (required to get breaks, meals and
overtime) to exempt (salaried and not subject to breaks,
meals and overtime).
Refer to your jump drive for the full PowerPoint
presentation.
Article written by:
Melissa Irwin, SPHR-CA
Why Do They Do That?:
Understanding Employee Communication & Motivation
LaTonya Olivier, SPHR-CA, GRP TPO Consultant
When faced with challenging and difficult
employees, it is easy to get emotional and fall into
non-productive behaviors. Understanding individual employee
communication styles can help you choose a more effective
response. In this workshop we explored the “whys” behind
both supervisors’ and employees’ behaviors along with
concrete ways to set up positive outcomes. Employees seek
one of four “rewards” at work and we will learn how to
structure our messages to set up more “win-win” situations
and halt escalating situations. Review the four choices
for dealing with a difficult person; Understand how the four
basic individual communication styles affect interactions;
Learn about the four “rewards” people seek at work and how
to use them to create positive outcomes.
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What do
Employees Want From Work
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Live
- Employees need to have basic physical needs
met. Included in this category are things like
compensation, safety at work, a reasonable work
space based on physical attributes, etc.
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Love
– Employees are looking for a sense of respect,
acceptance and even status within a group of
individuals so that they feel that are a part of the
whole and have a sense of community.
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Learn
– Employees need knowledge and growth in their
careers. Formal training, interesting and
challenging assignments and work experiences fulfill
this need.
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Legacy - Employees want to know they have made a
difference. They like to teach others and see that
their ideas and outcomes are useful.
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Four Types
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Orange – Life is a
game for these employees. They are naturally
charming and spontaneous. These employees are born
entertainers.
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Maroon – A strong
sense of right and wrong guides these employees.
They are dependable and very loyal. These employees
focus on preserving traditions and values.
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Blue – Sincerity
and compassion guide these employees. They are
natural romantics and nurturers. These employees
value integrity and community.
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Aqua
– Problem solving is important to these
non-conformist employees. They are abstract thinkers
who love to investigate. These employees value
intelligence and are true visionaries.
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Hot Tips
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Let the
small stuff go.
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Tackle
hard conversations head-on.
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Get
advice from peers or supervisors.
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Tailor
your message to what this type can “hear” and
values.
Refer to your jump drive for the full PowerPoint
presentation.
Article written by:
LaTonya Olivier, SPHR-CA
A Brand New (Work) Day: Coming
Workplace Change in the Obama Era
Richard Leasia, Esq.
 In this dramatic overview of what may lie
ahead with the new administration in terms of labor, Mr.
Leasia noted the close financial ties of the Obama campaign
to labor, which may point the way towards a push for
fundamental labor law and practice change at the federal
level. This could include rolling back many of the Bush-era
employer-friendly initiatives in favor of the rights of
workers and unions.
It was also pointed out that key administration players have
close labor ties, including the new Secretary of Labor, a
number of former Clinton Administration appointees, leaders
in the Obama Transition Team and congressional leaders who
sit on key labor committees.
Some of the
things Mr. Leasia targeted for monitoring include:
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DOL
(Department of Labor) focus on a rollback of union
financial disclosure rules
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New
record-keeping obligations from EEOC, along with stepped
up hiring to address the backlog of filed complaints
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Three NLRB
(National Labor Relations Board) appointments that will
give Democrats a clear majority on that body
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An EFCA
(Employee Free Choice Act) passage push to make it
easier for unions to organize
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A review of
NLRA (National Labor Relations Act) and FLSA (Fair Labor
Standards Act) regulations and procedures
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Push for
passage of the RESPECT Act (Re-Empowerment of Skilled
and Professional Employees and Construction Trade
Workers) which seeks redefine ”supervisor” to make many
of them eligible for union membership
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Possible
expansion from 50 to 25 employees as the threshold for
FMLA coverage
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A Healthy
Families Act which would mandate paid sick days
According to the
presenter, employers should take an interest in Washington
politics in the area of labor and be vigilant by letting
elected representatives know about employer needs.
Refer to your jump drive for the full PowerPoint
presentation.
Article written by:
Susan Kettmann, SPHR-CA
Reductions in Force
Todd K. Boyer, Esq. and Michele M. Babb, Esq.
Information was take-home for this workshop which explored
necessary considerations when downsizing a workforce. The
key idea was to plan and execute carefully, beginning with
the selection of clear and legal layoff Criteria and a
thorough evaluation for unintended disparate impacts.
Helpful strategies for avoiding layoffs and terminations
were identified: attrition, hiring freezes, voluntary
retirements and other means to legally garner voluntary
resignations. The federal WARN Act, which applies to large
(100+) employers who are considering layoffs was reviewed at
length. The presenters wrapped things up with a realistic
discussion of workplace violence concerns and release
agreement considerations.
Article written by:
Susan Kettmann, SPHR-CA
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