Vol. 35, No. 4 April 2006
In This Issue
When
Must Employers Supply Uniforms or Personal Protective Equipment?
Replacing Lost Paycheck
Personal Computer Use and Abuse
Light Duty: Handle With Care
UFW, Krug Negotiate Physical
Exams
Company-Required Leave
Employee's Use of Computer May
Result in Liability
Undocumented Worker's Right to
Workers' Compensation
Safety
Sheet: Keeping Food You Bring To Work Safe
Keeping
Food You Bring To Work Safe - Spanish
When Must Employers Supply Uniforms or Personal Protective Equipment?
During recent Economic & Employment Enforcement Coalition (EEEC) inspections, the question of whether rubber boots are required as personal protective equipment (PPE) has arisen. Other growers have asked whether they must provide employees with helmets for all-terrain vehicles (ATVs) or eye protection for pruners. This article examines these issues and the circumstances under which employers must provide and maintain employee uniforms and PPE.
Uniforms: In its orders setting minimum standards for wages, hours and working conditions for employees in the state, the California Industrial Welfare Commission (IWC) specified the conditions under which an employer must provide and maintain employee uniforms. Section 9(A) of the IWC orders provides in part:
When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term "uniform" includes wearing apparel and accessories of distinctive design or color.
NOTE: This section shall not apply to protective apparel regulated by the Occupational Safety and Health Standards Board.
In its Enforcement Policies and Interpretations Manual, the Division of Labor Standards Enforcement (DLSE) discusses the subject with respect to nurses and their uniforms starting at paragraph 45.5.2, excerpted here:
The Division has historically taken the position, based upon notes of the Commission, that nurses can wear their white uniforms wherever they work, and the employer, consequently, need not provide or pay for them. Other workers in occupations for which the particular white uniform is generally useable would fall into the same category. . . .
If, instead of being professional nurses, the individuals were house-keepers or clerical employees, the rationale contained in the Statement of Basis would not be applicable since a uniform would not be "generally usable in the occupation." Consequently, any uniform (regardless of color) which is required to be worn by an individual in an occupation which would not generally wear that particular uniform, must be paid for by the employer. . . .
The definition of "uniform" and the DLSE enforcement policy are sufficiently flexible to allow an employer to specify basic wardrobe items that are usual and generally usable in the occupation, such as white shirts, dark pants and black shoes and belts, all of unspecified design, without requiring the employer to furnish the items. If a required black or white uniform or accessory does not meet the test of being generally usable in the occupation, the employer may not require an employee to pay for it.
Accordingly, employers wishing to avoid having to provide and maintain employee uniforms should not require employees to wear extraordinary clothing while on the job. Instead, they should tell employees merely to wear clothing and footwear suitable for the working conditions for the job and leave it to the employee to decide what to wear. At the end of this article is a sample employment policy consistent with this concept.
PPE: As noted in the above excerpt of section 9(A) of the IWC orders, the California Occupational Safety and Health (Cal/OSH) Standards Board regulates PPE. Further, the Department of Pesticide Regulation regulates PPE requirements for pesticide handlers. See California Code of Regulations, title 3, section 6736 (Coveralls) and section 6738 (PPE).
Several Cal/OSH standards in California Code of Regulations, title 8, require PPE. Here are some that apply to agricultural jobs:
Section 3380 - Personal Protective Devices: While there are few job-specific PPE requirements, the underlying principle is "performance based." Performance-based standards are standards that require an employer to evaluate the task and the type of exposure expected and, based on the evaluation, determine the injuries likely to befall an employee and take measures to control the hazard by using one or more of three methods, in this order of precedence:
1. Engineering controls (e.g., machine guards)
2. Administrative controls (e.g., training)
3. PPE (e.g., safety glasses)
Take, for example, pruners. While no specific regulation pertains to employees who prune vineyards or orchards, eye protection for them may be required. If, upon considering the potential hazards of branches and flying debris that may contact and injure pruners' eyes (because fully effective engineering or administrative controls cannot be implemented), an employer might determine that eye protection for them is necessary to control the hazard.
Section 3380 provides:
Protection where modified by the words head, eye, body, hand, or foot means the safeguarding obtained by means of safety devices and safeguards of the proper type for the exposure and of such design, strength and quality as to eliminate, preclude or mitigate the hazard.
PPE must be distinctly marked so as to facilitate identification of the manufacturer.
The employer must assure the employee is instructed and uses PPE in accordance with the manufacturer's instructions.
The employer must assure that all PPE, no matter whether provided by the employer or employee, complies with applicable standards.
The employer shall assure PPE is maintained in a safe, sanitary condition.
PPE must be of such design, fit and durability as to provide adequate protection against the hazards for which they are designed.
PPE must be reasonably comfortable and not unduly encumber the employee's movements necessary to perform his work.
Section 3381 - Head Protection: The question of helmets for ATV operators was answered several years ago in a letter from Cal/OSHA. In that letter, then-Chief of Cal/OSHA, Dr. John Howard, noted:
The ATV's are covered in two sets of regulations. The first regulation is Article 13, Agricultural Operations, in §§ 3437, 3440, and 3441 as Ground-Driven Components and/or Self-Propelled Agricultural Equipment. The second regulation set is in Articles 25 and 27 concerning various types of vehicles where §3650(c), Industrial Trucks, General, deals best with the ATV. The referenced ANSI/ASME B56.8-1988 Safety Standard for Personnel and Burden Carriers addresses "any personnel carrier that does not exceed 35 miles per hour" and lays out a required comprehensive safe-driving program.
None of these regulations require helmet use. However, §3441(a) requires mandatory comprehensive training in the use and handling of operating agricultural equipment. In addition, Section 3203(a), Injury and Illness Prevention Program (IIPP), requires implementation of an effective IIPP. Implementation of these programs may require the use of a hard hat or helmet to prevent injury depending on the usage of the ATV.
Cal/OSHA Consultation Manager David Bare conveyed the same observations. However, he pointed out that Cal/OSHA evaluates each situation to determine the potential for injuries and the use of appropriate PPE for that situation - applying, in essence, a "performance based" standard, which Bare believed would generally require that ATV operators wear helmets. Bare gave two reasons for his conclusion:
First, the state requires motorcycle drivers to wear helmets while on public roads and property. Second, ATV manufacturers in their owner's manuals recommend the use of helmets. Because both the state and ATV manufacturers believe that helmets are important safety devices, Cal/OSHA reasons that a strong correlation exists between their use and the prevention of serious head injury if an were to accident occur.
Section 3381 provides:
Employees working in locations where they risk receiving head injuries from flying or falling objects and/or electric shock and burns shall wear approved head protection. When head protection is required, the employer shall ensure that approved protective helmets are selected and used in accordance with their demonstrated resistance to impact and electrical hazards.
Each approved protective helmet shall bear the original marking required by the ANSI standard under which it was approved. At a minimum, the marking shall identify the manufacturer, ANSI designated standard number and date, and ANSI designated class of helmet.
Where they risk injury from hair entanglements in moving parts of machinery, combustibles or toxic contaminants, employees shall confine their hair to eliminate the hazard.
Section 3382, Eye and Face Protection, provides:
Employees working in locations where they risk receiving eye injuries such as punctures, abrasions, contusions, or burns due to contact with flying particles, hazardous substances, projections, or injurious light rays that are inherent in the work or environment shall be safeguarded by means of face or eye protection. Suitable screens or shields isolating the hazardous exposure may be considered adequate safeguarding for nearby employees.
The employer shall provide and ensure that employees use protection suitable for the exposure.
Where exposed to injurious light rays, the shade of lens to use in any instance shall be selected in accordance with a chart titled "Filter Lens Shade Numbers for Protection Against Radiant Energy."
Required eye protection for employees requiring vision correction shall be provided by safety spectacles with suitable corrected lenses, safety goggles designed to fit over spectacles, or protective goggles with corrective lenses mounted behind the protective lenses.
Employees may not wear contact lenses in working environments having harmful exposure to materials or light flashes, except where special, medically approved precautionary procedures have been established for the protection of the exposed employee.
Section 3383, Body Protection, provides:
Body protection may be required for employees whose work exposes parts of their body, not otherwise protected as required by other PPE orders, to hazardous or flying substances or objects.
Clothing appropriate for the work being done shall be worn. Loose sleeves, tails, ties, lapels, cuffs, or other loose clothing that can be entangled in moving machinery shall not be worn.
Clothing saturated or impregnated with flammable liquids, corrosive substances, irritants or oxidizing agents shall be removed and shall not be worn until properly cleaned.
Section 3384, Hand Protection, provides:
Hand protection shall be required for employees whose work involves unusual and excessive exposure of hands to cuts, burns, harmful physical or chemical agents or radioactive materials which are encountered and capable of causing injury or impairments. Hand protection, such as gloves, shall not be worn where there is a danger of the hand protection becoming entangled in moving machinery or materials. Wrist watches, rings, or other jewelry should not be worn while working with or around machinery with moving parts in which such objects may be caught, or around electrically energized equipment.
Section 3385 - Foot Protection: Several cases filed by California Rural Legal Assistance attorneys have resulted in dairy operators agreeing to provide milkers with rubber boots. While these settlements are not binding on other dairy operators, they do point to potential liability for dairies.
Section 3385(a) provides: "Appropriate foot protection shall be required for employees who are exposed to foot injuries ... or who are required to work in abnormally wet locations." (Emphasis added.) Cal/OSHA officials have informally stated that this means that milkers must wear waterproof footwear when working on milking-barn floors with inadequate drainage.
Accordingly, dairy operators need to provide and maintain rubber "slip-on" shoe covers, rubber boots, or similar waterproof footwear for milkers who work in barns with floors so wet that their feet would become wet if not protected by waterproof footwear.
Similarly, employers should provide and maintain protective footwear for employees, such as irrigators, who work in other types of abnormally wet locations.
Section 3385(a) provides in full:
Appropriate foot protection shall be required for employees who are exposed to foot injuries from electrical hazards, hot, corrosive, poisonous substances, falling objects, crushing or penetrating actions, that may cause injuries or who are required to work in abnormally wet locations.
Subsection (b) provides:
Footwear that is defective or inappropriate to the extent that its ordinary use creates the possibility of foot injuries shall not be worn.
Indemnification of employee for expenditures in discharge of duties: One remedy available to an employee where an employer did not provide a required item, such as goggles or rubber boots, lies under Labor Code section 2802, subdivision (a). It provides:
An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.
Here is a sample employment policy:
Clothing and Footwear
Wear clothing and footwear appropriate for the job function you are performing. Wear only footwear that entirely covers your feet. Do not wear open-toe shoes or sandals.
The company does not require you to wear any garment or footwear of any distinctive design or color. You must purchase and maintain at your expense your own garments and footwear.
Question: If an employee loses a payroll check, can the employee be charged a processing fee for cutting a new check and stopping payment on the initial check?
Answer: The obligation to pay an employee's wages for work performed rests with the employer. The law prohibits a deduction of anything from an employee's wages not required by law without a voluntarily executed written authorization from the employee.
Indeed, it is the negotiation of the check that offers evidence that the employer has satisfied its legal obligation to pay.
Employees sometimes lose or misplace checks before the checks can be banked. If checks are received by mail, the chances of one being lost or stolen increase. For example, mail may be misdirected by the postal service or stolen from the employee's mailbox.
When employees report a lost or stolen check to an employer, there may be a question as to the truth of the report, and there is, of course, the question of the cost of replacing the lost check and stopping payment on the previously issued check.
These costs cannot be passed on to the employee, as the law considers them a part of the natural cost of doing business.
Limits on Deductions: Section 224 of the Labor Code allows deductions when authorized in writing by the employee, but that authorization is limited to insurance premiums; hospital or medical dues; or other deductions not amounting to a rebate or deduction from the wage paid to the employee.
Section 224 consequently may not be relied upon to allow an employer to deduct from an employee's pay an amount that is for the use or benefit of the employer.
Unanticipated Deductions: The California courts have held that section 221 of the Labor Code is "declarative of a strong public policy against fraud and deceit in the employment relationship. "Even where fraud is not involved, however, the Legislature has recognized the employee's dependence on wages for the necessities of life and has, consequently, disapproved of unanticipated or unpredictable deductions because they impose a special hardship on employees"
Burden of Proof: The employer may have a cause of action against the employee for recovery of costs associated with the reissuance of a payroll check. Such employee actions might include the employee's dishonesty, as where the employee actually cashed the check or signed it over to someone else, but lied about not receiving it.
In such action (in small claims court or superior court), of course the employer would bear the burden of showing that the actions of the employee resulted in the loss suffered by the employer.
(Reprinted with permission of California Chamber of Commerce, "The Labor Law Helpline" (800) 348-2262 or e-mail helpline@calchamber.com.)
Personal Computer Use and Abuse
Are your employees blogging at their desks? If you do not know what blogging is yet, you should.
A blog is an online journal that typically chronicles some aspect of the blogger's life, frequently in intimate detail. People blog about everything from politics, to their favorite TV shows, to their struggles with health problems. Sounds harmless enough, right? The problem is that some people spend literally hours every day writing their own blogs or reading those created by others. It is a very hot trend. According to Blogcount.com, there are over five million blogs on the web, roughly two million of which have been active in the last 30 days.
Why should this concern you? The dangers are similar to e-mail, only much worse. If one of your employees blogs, what information might he or she reveal about your company? At least with e-mail, there is some comfort in that its distribution is fairly limited. But blogs are, by definition, both public and freely accessible by anyone with an Internet connection.
With new technology, the alternatives for employee communication are increasing. Now, employees can express themselves through blogs and web sites, and can communicate using instant messaging on their computers or text messaging on cell phones.
Employers must be careful when they try to regulate what employees do in their off-duty time. For example, employers are generally prohibited from taking action against employees based on their off duty political activity. Thus, an employer cannot penalize an employee for posting on a political blog. Labor-relations laws generally entitle employees to solicit their co-employees for unions during their non-working time and have often treated e-mail communications as solicitations. However, the National Labor Relations Board (NLRB) has also acknowledged employer property rights, but it has not clearly established rules to govern non-business use of employer computer systems and networks. Generally speaking, however, if an employer allows any non-business use of the system, the employees will be entitled to use the system to promote unionization, as long as they are not doing so during their working time.
Employers may control the disclosure of trade secrets. Employers should have employees with access to proprietary information that is kept secret to maintain its value sign confidentiality agreements as to those trade secrets. Disclosure of trade secrets on a blog could be a breach of such an agreement.
Generally, employees have the right to discuss their terms and conditions of employment, and employers cannot prevent them from discussing their workplace complaints, their wages, or their benefits publicly.
Employers have the right to regulate activities during work time. Generally, an employer has the right to expect its employees to work during work time and may enforce a policy against non-work-related discussions during working time. Employers may also enforce policies against non-business use of company computers. However, employers must be sure that this policy is consistently enforced. For example, if employees are allowed to instant message each other about upcoming school fundraisers, then they will be entitled to instant message each other about unionizing or to complain about their terms and conditions of employment.
Employers must keep abreast of rapid changes in the law. The law in this area is changing rapidly, and employers must be aware of the changes as they seek to control employees' activities in cyberspace. For example, there may be circumstances where an employee's negative blogging about the company crosses the line and loses legal protection. In such a case, the employer may be able to take action against the employee.
Employers must keep abreast of rapid changes in technology. While the methods for employee communication are expanding constantly, so are security measures for computer systems. There are now tools that will do everything from screening out offensive e-mails from company servers to tools that will record every keystroke on an employee's computer. However, employers must consult with legal counsel before implementing monitoring, as it can implicate California's broad right of privacy and could even be considered illegal wiretapping in some circumstances.
What it Means for Employers: Revisit your computer usage policy to make sure it covers blogging. It might also be a good time to make sure your employees are well acquainted with your computer policy, as well as other policies that a blogger could be tempted to breach, such as your confidentiality and workplace-conduct policies.
If computer abuse is a significant problem in your workplace, you may wish to consider monitoring employees' computer use. There are a number of products on the market that allow employers to monitor employee computer use, but they must be implemented with an understanding of California's strict privacy laws.
Employers' labor relations strategy should also take into account employee computer use and potential monitoring of communications. While the NLRB has not issued a conclusive ruling on the subject, it is likely that internal email communications, instant messaging, or other computer communications will be treated as "solicitation" by the NLRB. Generally, while employers may prohibit solicitation during working time, they cannot bar it altogether from the workplace. Further, no-solicitation policies must be implemented and enforced consistently, or they can trigger unfair labor practice charges.
(By Patrick Moody, Attorney, Barsamian, Saqui & Moody, one of two law firms contracted by Farm Employers Labor Service to provide legal help to FELS subscribers under the FELS Group Legal Services Plan. Visit the firm's Web site at http://www.theemployerslawfirm.com/firm. The goal of this article is to provide employers with current information on labor and employment laws. Its contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with Barsamian, Saqui & Moody at (559) 248-2360 in Fresno, (916) 782-8555 in Sacramento, or toll-free at (888) 322-2573, for individual responses to questions or concerns about any given situation.)
(Editor's note: An article titled Temporary Light-Duty Position Needn't Be Made Permanent on the opinion in Raine v. City of Burbank appeared in the Feb. 2006 issue of FELS Newsletter. Jennifer Brown Shaw's article on the same opinion, reprinted here with permission, explores the case in more depth, explains its related implications for employers, and makes several worthwhile suggestions for employers to consider.)
Early this year, a California court of appeal concluded employers are not required to make temporary light-duty positions permanent as an accommodation under California's Fair Employment and Housing Act (FEHA). The court's decision in Raine v. City of Burbank provides clarification on an important question and highlights issues employers should consider in deciding whether and how to administer light duty programs. The good news is this: light duty, handled appropriately, may provide benefits to both employers and employees.
What is the Difference Between "Light Duty" and "Reasonable Accommodation"?
Light duty typically involves either (1) excusing an employee from performing the essential functions (defined as the fundamental duties of the job) of his or her job, or (2) creating a new position, on a temporary basis, for the employee. Neither of these actions is required by the reasonable accommodation obligation imposed on employers by federal and state disability laws. Disability laws only require employers to remove the marginal functions of a position or to transfer an employee to an existing vacant position as reasonable accommodations. These distinctions are important and are precisely what led the court of appeal in Raine to conclude employers are not required by the FEHA to make light-duty positions permanent.
An examination of the facts of the Raine case illustrates how these principles work in practice. Mark Raine, a sworn police officer for the City of Burbank, suffered an on-the-job injury to his knee. The injury interfered with Raine's ability to run, jump, kneel and lift-activities he conceded were essential to his performance as a patrol officer. The City assigned Raine to a light-duty position working at the police department's front desk while he recovered from his injury. The front-desk position traditionally had been reserved for injured police officers recovering from temporary ailments or was performed by civilian technicians, who received less pay and benefits than sworn officers.
After Raine had worked six years in the light-duty position, his physician concluded he would never physically be able to return to his patrol position. The City engaged in the interactive process with Raine and concluded he could not perform the essential duties of the sworn officer patrol position. The City subsequently advised Raine he could no longer continue in the front desk position unless he agreed to change his status to that of a civilian technician. Raine declined because he would be required to forfeit his police officer retirement benefits if he continued to be employed by the City after accepting a disability retirement. After taking a disability retirement from his patrol position, Raine sued the City for failure to accommodate, contending the City should have kept him in the front desk position permanently while maintaining his status as a sworn officer.
In concluding the City had no obligation to make the light-duty position permanent as a reasonable accommodation, the court of appeal agreed with the City that employers would be dissuaded from creating light-duty positions if they were required to maintain those positions indefinitely. In the court's view, it was unreasonable to require the City to make the temporary position permanent, even though the City had a history of filling the position with temporarily injured officers. By demanding the City make the position permanently available to him as a sworn police officer, Raine was essentially asking the City to create a new job, something the FEHA does not require.
Contrary to Raine's assertions, his request did not constitute a reasonable accommodation as a "job restructuring." The court noted Raine was asking to reclassify the front-desk position from a civilian position to a sworn officer position, "effectively, a new position that retains the benefits afforded to sworn officers but without the attendant essential functions of the sworn-officer position."
In response to Raine's assertion that the City could not show converting the temporary position to a permanent position imposed an undue hardship, the court reasoned that undue hardship did not factor into the analysis. A showing of undue hardship permits an employer to avoid providing reasonable accommodations. Converting the temporary position into a permanent position, according to the court, was not a reasonable accommodation. Therefore, the City was not even required to demonstrate undue hardship.
Are Employers with Workers' Compensation Light-Duty Programs Required to Provide Vacant Light-Duty Positions to Employees Whose Disabilities Are Not Work-Related?
"Light duty" was originally developed in the workers' compensation setting to reduce workers' compensation costs and liability by returning occupationally-injured employees to work, benefiting both the injured employee and the employer. Notably, employers are not required by disability or workers' compensation laws to create "light-duty" positions, although many workers' compensation insurance carriers require such programs.
If an employer adopts a light-duty program for employees with work-related injuries, it may be required to offer light duty to employees whose disabilities are not work-related. The Equal Employment Opportunity Commission ("EEOC") has taken the position that an employer who reserves dedicated light-duty positions for employees with occupational injuries is required to reassign an employee with a non-occupational disability to a vacant, reserved light-duty position as a reasonable accommodation. The employer cannot show that reassignment to the position is an undue hardship simply because the reassignment would reduce or eliminate the number of vacant, reserved light-duty positions available for occupationally-injured employees.
On the other hand, if an employer's light-duty program only involves modifying an employee's existing duties and no specific and separate positions are reserved for work-related injuries, the employer is not required to extend temporary light-duty to a non-occupationally injured employee. The rationale for this distinction is that an employer has a duty to accommodate a disabled employee by moving the employee to a vacant position. If a reserved light-duty position is vacant, the disabled employee is entitled to that position as an accommodation.
What Should Employers Do? The Raine decision emphasizes the need for clear communication between employers and employees regarding temporary light-duty assignments. Employers should inform employees placed on light duty in writing that the assignment is temporary and specify a defined time when the light duty will end. For example, a policy could provide that light duty extends for only for a specified number of weeks or when the employee reaches maximum medical improvement, depending on the employer's business needs.
If light duty involves the temporary removal of essential functions from the employee's regular job instead of placing the employee in a different position, employers should document how the essential functions will be handled. Documenting how the reassigned duties will be performed makes it more likely the employee will not perform tasks which are incompatible with medical restrictions and assist the employer in defending against any claims that the employee was required to perform those tasks despite those restrictions.
When light duty ends, employers should continue to engage in the interactive process to determine if any reasonable accommodations exist, including those which may return the employee to his or her regular position or to a vacant position. Occupationally-injured employees whose light-duty period ends should not automatically be terminated or sent to vocational rehabilitation without engaging in the interactive process. Changes to the employee's condition or the company's workforce or business which occurred during the light-duty period may give rise to new opportunities or ideas for accommodation.
Employers should also carefully consider whether to extend light duty to employees whose conditions are not work-related and not expected to change. Light duty is intended to keep employees working while they recover, with the goal of returning them to their regular positions. Placing employees with permanent impairments on light duty may lead to disagreements about whether the modified duty involved the removal of essential or marginal functions.
Finally, employers should first consider whether modifying an employee's existing job by removing non-essential functions is possible before reassigning an employee to a vacant light-duty position. Disability laws require an employer to attempt to accommodate an employee in his or her existing position first before considering reassignment or other accommodations.
Whether an employer should adopt a light-duty program and the parameters of such a program requires consideration of many factors, including the nature of the employer's business, the size of its workforce, and any requirements set by its workers' compensation carrier. In making these decisions, employers should consult with experienced legal counsel.
(Jennifer Brown Shaw, Esq., is a partner of Jackson Lewis LLP, 801 K Street, Suite 2300 Sacramento, CA 95814, (916) 341-0404.)
UFW, Krug Negotiate Physical Exams
Farm workers represented by the United Farm Workers union are at odds with Charles Krug Winery over the St. Helena winery's proposal to require physical tests of all fieldworkers.
Krug's chief financial officer said the old contract, which expired on Dec. 31, allowed for physical testing of prospective employees only, but the winery wants all field workers to undergo physical exams.
"Basically our contention is that our workers' demands are high," The winery's CFO said. "Our contention is that it's not fair to put a worker in a position to be hurt. The other thing is that the contract currently has the company do it with prospective employees; it should be for all employees."
A UFW spokesman said the proposal might lead to unfair treatment of older employees. "It's discrimination because of the age of most of the workers," said Casimiro Alvarez, UFW regional director of the Napa-Sonoma area. "Most of them are 50, 60-years old. The workers are ready to do anything to pressure the company to sign a fair contract."
(Source: Carlos Villatoro, Staff Writer, Napa Valley Register)
As a cost-cutting measure, employer often want to implement a required unpaid leave program. Here are some issues to consider before implementing such a plan.
An employer can mandate time off without pay for both exempt and non-exempt employees; however, there are important differences concerning notice and salary.
Notice is important for non-exempt employees' morale and personal planning, but no specific time is required. Exempt employees - that is, executive, administrative and professional employees - should receive reasonable notice of unpaid weeks.
Mandated Paid Vacation: The State Labor Commissioner has determined that in mandating use of vacation by exempt employees, an employer must give as much notice as possible, but generally at least 90 days. While this position deals with paid vacation, employers should give serious consideration to equal notice for mandated weeks off without pay.
Employee's Use of Computer May Result in Liability
The New Jersey Appellate Division recently indicated that employers should become pro-active in enforcing corporate policies that prohibit improper Internet access or computer usage.
In Doe v. XYC Corp., the court held that an employer on notice of an employee's use of a workplace computer for an illegal purpose - to access child pornography - has an affirmative duty "to investigate the employee's activities and to take prompt and effective action to stop the unauthorized activity, lest it result in harm to third parties."
The Court stated that merely telling the employee to stop such activity is insufficient because child pornography poses a threat to children. According to the Court, an employer who uncovers evidence that an employee is engaging in such activity has a duty to report it to the authorities and to take strong measures to stop it, including discipline or termination.
The Four-Part Test for an Employer's Duty to Take Action: The Appellate Division established a four-part test which, if satisfied, will confer a duty of reasonable care upon an employer to stop the intentional criminal conduct of an employee. To satisfy this new standard, a plaintiff must prove that the employer has:
(1)The ability to monitor its employees' Internet access;
(2)The right to monitor its employees' computer usage;
(3) The actual or implied notice of its employee's criminal activity; and
(4) An affirmative duty to stop the employee's continuing criminal activity.
The first two elements are relatively simple to establish. Nearly every employer has the technological ability to monitor its employees' Internet access because, according to the court, "monitoring" can be as simple as a search of the employee's computer in the employee's absence to check the history of Web sites recently visited. The employer here also had a network log system that could identify Web sites visited and software is generally available for monitoring employee usage, as well.
The second element is also readily met because an employee has no expectation of privacy in his email or Internet usage as a matter of law when his employer maintains a written policy prohibiting computer misuse and reserves the right to monitor e-mail usage and Internet access.
Information "Known Or Attributable" to the Employer: The third element focuses on whether the employer "knew, or should have known" that an employee is using an office computer for an illegal purpose, in this case to access child pornography. The employer's "knowledge" will be broadly construed to include implied knowledge, based upon all of the "known facts that would inform a reasonably prudent person." The Court concluded that upon receiving reports of improper computer usage, the employer had sufficient notice of possible illicit conduct, such that it was under a duty to investigate further. As the Court stated, "[w]e can reasonably assume that such reporting was not simply intended as an idle gesture but was intended to trigger an investigation" to determine whether an offending employee needed to be disciplined. The Court concluded that such an investigation would have revealed the "full scope" of the employee's child pornography activities. Thus, the Court imputed knowledge of those activities to the employer, even though it never conducted that investigation and did not have that information.
The Duty to Prevent an Employee's Continuing Illegal Conduct: Most significant, the fourth element of the test sets out the employer's duty to act affirmatively to prevent an employee from continuing his illegal activities. The Court noted the general duty of an employer to control and prevent its employee from harming others. Child pornography "by its very nature" constitutes a threat to "others" - the children who are the subject of such activities. In these circumstances, the Court concluded, the potential risk of harm to others reasonably should have been foreseeable by the employer. Due to the unquestionably illegal nature of the possession or viewing of child pornography and the harm it inflicts on children, the Court concluded that the employer "had a duty to report Employee's activities to the proper authorities and to take effective internal action to stop those activities, whether by termination or some less drastic remedy." Although this kind of conduct is outside the scope of employment, the employer still has a duty to act where the activity occurs either on the employer's premises or by use of its property (in this case, a computer).
(Source: Law & the Workplace, Proskauer Rose LLP, www.proskauer.com)
Undocumented Worker's Right to Workers' Compensation
An undocumented alien injured on the job is entitled to workers' compensation, a California appellate court ruled, rejecting an argument that federal immigration law preempts state labor law for undocumented workers. (Farmers Bros. Coffee v. W.C.A.B.)
The California Court of Appeal affirmed a decision by the state's Workers' Compensation Appeals Board that an undocumented alien was an employee for purposes of entitlement to workers' compensation. It was undisputed that Rafael Ruiz was unauthorized to work for Farmers Brothers Coffee when he was injured, but the court pointed to California Labor Code section 1171.5, which states that all protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, "are available to all individuals regardless of immigration status." The court rejected the employer's argument that the federal Immigration Reform and Control Act of 1986 (IRCA) preempted state protections for Ruiz.
For purposes of enforcing state labor and employment laws, section 1171.5 states that a person's immigration status is irrelevant to the issue of liability. Further, in any proceedings or discovery undertaken to enforce those laws, it prohibits any inquiry into a person's immigration status, unless clear and convincing evidence shows that such an inquiry is necessary to comply with federal immigration law, the court added.
The only express preemption provision in the federal statute deals with state or local laws imposing penalties on those who employ, recruit, or refer for a fee undocumented aliens, Justice J. Gary Hastings wrote for the court.
By contrast, the purpose of the California Workers' Compensation Act "is to furnish, expeditiously and inexpensively, treatment and compensation for persons suffering workplace injury, irrespective of the fault of any party, and to secure workplace safety," he wrote.