Vol. 35, No. 8 August 2006
In This Issue
Heat-Illness
Prevention Compliance CD-ROM Available
State Fund Sponsors Free
Heat-Illness Seminars
Employment Forms
California Termination-Pay
Statutes Apply To Day Laborers
California Supreme Court Upholds
At-Will Employment Provision
Employer's Accommodation Ruling
Upheld
"Spanking" Nets $1.7
Million
Learning Spanish Audio
Safety Sheet: Passenger Safety for Agricultural Workers
Passenger
Safety for Agricultural Workers - Spanish
Heat-Illness Prevention Compliance CD-ROM Available
At its meeting in Sacramento on June 15, the California Occupational Safety and Health Standards Board voted 6-0 to adopt a proposed permanent regulation to prevent heat illness in employees working outdoors. The regulation then went to the state Office of Administrative Law, which approved it on July 27. A copy of it is
posted at http://www.fels.org/Laws/GISO3395-Final-Reg.pdf.
FELS has available for purchase a compliance CD-ROM containing a review of the regulation and aids to help agricultural employers comply with it. These aids include safety materials, model company policies and procedures, and useful Web links.
Copies of the CD-ROM may be purchased for $10 each (total price $13.47, includes $2.50 handling and $.97 sales tax). However, FELS subscribers pay only $5 per copy (total price $8.08, includes $2.50 handling and $.58 sales tax).
To order, visit http://www.fels.org/Heat-CD-Order.htm
online, or send your request and payment to:
FELS
2300 River Plaza Drive
Sacramento, CA 95833-3293
State Fund Sponsors Free Heat-Illness Seminars
In 2005, Cal-OSHA investigated 25 cases of heat-related illness in California, with more than half of them involving fatalities and nearly a third involving hospitalization. This year, as of July 27, an estimated 83 people have died of heat-related illness in California, including at least four who succumbed due to heat effects experienced while working in their employments.
State Compensation Insurance Fund is conducting seminars to inform employers and supervisors about the Heat-Illness Prevention regulation recently made permanent by the Cal-OSHA Standards Board, which covers persons working in outdoor places of employment. The complete seminar schedule is posted at: http://www.scif.com/news/072606-HeatIllnessPrevention.html.
Seminars scheduled from August 24 through October 3 include:
August 29
Riverside SCIF District Office
9 - 11 a.m. & 1 - 3 p.m.
Diane Mesa
(951) 656-8461
August 30
San Bernardino SCIF District Office
9 - 11 a.m. & 1 - 3 p.m.
Tanisha Barfield
(909) 384-4969
September 6
Contra Costa Builders Exchange in Concord
9 - 11 a.m. & 1 - 3 p.m.
Lucy Cristobal
(510) 383-4301
September 6
Santa Ana SCIF District Office
9 - 11 a.m. & 1 - 3 p.m.
Ron Ito
(213) 479-5215
September 7
Fresno SCIF District Office
9 - 11 a.m. & 1 - 3 p.m.
Darrin Stephens
(559) 433-2662
September 11
Alameda County Builders Exchange in San Leandro
9 - 11 a.m. & 1 - 3 p.m.
Lucy Cristobal
(510) 383-4301
September 13
Solano-Napa Builders Exchange in Napa
9 - 11 a.m. & 1 - 3 p.m.
Lucy Cristobal
(510) 383-4301
October 3
San Jose SCIF District Office
9 a.m. - 12 noon
Maria Balagot
(408) 363-7584
"The current unprecedented heat wave throughout California underscores the importance of these seminars," said Acting State Fund President James Tudor in a release issued on July 27. "By making these seminars available to the general public during the current heat crisis, we hope to help increase public awareness and offer pertinent information about heat-illness prevention."
Topics to be covered at the seminar include:
• How to prevent heat-related illnesses
• Learning how to recognize the signs and symptoms of heat illness
• Understanding environmental and personal risk factors
• Review of current regulations pertaining to heat illness
• Determining how to respond to heat stress emergencies
All seminars are free of charge, and attendees will receive informational materials.
A well-known cliché in the real-estate profession is that the value of real estate is determined by three factors: Location, Location, and Location.
In the employment arena, the three things used to show compliance with labor standards and avoid liability for non-compliance are: Documentation, Documentation, and Documentation.
Despite the hassle required to document various employment actions, it's still necessary to do so. Preparing and preserving accurate documentation of personnel issues is one of the most important things employers can do to help avoid problems.
Unfortunately for many employers, oftentimes it is only their employees who heed the advice to "document, document, document."
You know your day is headed downhill when you get served with a lawsuit or administrative complaint by a current or former employee. One of the first things your attorney will ask you to do after you've contacted him or her is to send a copy of all documentation about that employee. When your attorney asks you for a copy of those documents, you should have them in good order and readily available.
Below are some of the most common documents/forms that agricultural employers should use.
Time Records: Orders of the Industrial Welfare Commission require employers to record the times when an employee starts and ends work each workday (not just the total number of hours worked), plus the starting and ending times of each meal period (unless all operations cease during it). A sample time sheet is available online
at http://www.fels.org/forms/CrewTimeSheet.pdf and at http://www.fels.org/forms/timecard.pdf.
Employment Policies: An employer must provide employees with copies of various policies and notices such as its policy against sexual harassment and policy related to the federal Family & Medical Leave Act and California Family Rights Act, and should maintain other policies in writing, such as ones specifying employment is at will and its leave-of-absence procedures. A brief employee handbook containing essential and other important policies is available online at
.http://www.fels.org/Forms/EmployeeHandbook-Order-Form-withEngHandbook.pdf
Employee Handbook Receipt: Employers should have employees sign an acknowledgment that they received the employee handbook. Click here for a sample form.
New Employee Checklist: Using a checklist helps ensure new employees receive all essential documents and notices. A sample checklist is available
online at http://www.fels.org/forms/New-Employee-Checklist.pdf
Disciplinary Action: Disciplining or discharging an employee can cause the employee to claim the adverse action was based on any number of unlawful criteria. Having a record of the times an employee was warned or reprimanded helps an employer avoid and defend against those types of claims. Click here for a sample disciplinary form.
Receipt of Equipment: While an employer generally may not deduct from an employee's paycheck the value of lost or broken equipment, an employer can and should keep track of loaned tools and make employees aware of the value of the items. Employees should also acknowledge their responsibility for returning loaned equipment. Click here for a sample form for loaned equipment.
Layoff and Discharge Notices: California Unemployment Insurance Code section 1089 requires an employer to notify each employee of any change in their relationship. Click here for a sample notice - Layoff Notice and Termination Notice.
Payroll Deduction Authorization: Employers may not make any deduction from an employee's payroll without the employee's written authorization. Click here for a sample Payroll Deduction Authorization form.
Leave of Absence: Problems can arise when employees take leaves of absence. An employer should be able to document that an employee requested a leave, whether the requested leave was granted and, if granted, the employee's expected return-to-work date. Click here for a sample Leave of Absence form.
California Termination-Pay Statutes Apply To Day Laborers
The California Supreme Court ruled July 10 that employees hired for a specific job assignment or time period are entitled to be paid their final wages when the employment ends in accordance with the timing requirements specified in the California Labor Code.
Smith v. Superior Court addressed the issue of whether the reference to a "discharge" in Labor Code sections 201 and 203, which imposes a penalty for violation of section 201, requires the termination of an ongoing employment relationship, or whether a "discharge" occurs when an employee is released upon the completion of a specific assignment or end of the time period for which the employee was hired.
Background: The dispute in Smith stemmed from the employment of a hair model with L'Oreal USA for a one-day show. (L'Oreal conceded the existence of an employment relationship for purposes of the motion at issue.) The model was paid the full amount of her agreed-upon wages, $500, more than two months after the hair show. After receiving payment, she sued L'Oreal, contending it had violated section 201, which requires upon an employee's discharge immediate payment of all wages then due, and seeking section 203 waiting-time penalties of $15,000 (i.e., her wages of $500 per day for 30 days).
L'Oreal moved to dismiss these claims on the ground, asserting the model could not collect penalties under section 203 because the employment termination that occurred when she completed the one-day assignment was not a discharge or layoff that would trigger section 201's requirement for immediate payment. The trial court and Court of Appeal agreed with L'Oreal.
Supreme Court Opinion: Reversing the Court of Appeal's decision, the California Supreme Court held the completion of the model's one-day job did trigger section 201's immediate-payment requirement. In its decision, the court first examined the language of the statute at issue. It reasoned that the "very nature of the employer-employee relationship" supports interpreting the term "discharge" to include the situation where an employer releases an employee after the end of a job or service term because it is generally "up to the employer, not the employee, to direct how the assignment is to be executed and determine when it is completed."
The court then analyzed the legislative scheme as a whole, specifically observing that the Labor Code provides various exceptions to section 201's immediate-payment requirement. Those exceptions include situations where an employee is hired for a particular length of time, such as seasonal employment, or for a particular assignment, such as a motion picture. These exceptions would be unnecessary, the court reasoned, if section 201 were limited to dismissal from ongoing employment.
Finally, the court examined the statute's object. In so doing, it looked to the statute's legislative history, which expresses a concern for terminated employees who were forced to travel long distances and wait for payment of their wages.
Accordingly, the court concluded that a discharge occurs, for purposes of section 201, upon an involuntary termination of an ongoing employment relationship or when an employee is released after the completion of a specified job or time period. The court, however, expressly declined to opine as to whether L'Oreal had acted willfully in the late payment of wages under section 203 so as to make the imposition of waiting-time penalties appropriate.
Implications For Employers: After Smith, it is critical that California employers timely pay employees upon employment termination, even where an employee was hired only for a specific project or duration. With limited exceptions, this means that employees who are involuntarily terminated and those who quit after having given their employer 72 hours' advance notice must be paid immediately upon termination; employees who quit without giving 72 hours' advance notice must be paid within 72 hours after their employment has ended. Failure to comply with these timing statutes may result in significant penalties for employers.
(Source: Orrick, Herrington & Sutcliffe LLP, Employment Law Alert)
California Supreme Court Upholds At-Will Employment Provision
California employees were put on alert by the state Supreme Court that at-will jobs are just that: Employers don't need a reason to fire you. The unanimous ruling is good news for the business community and clarifies an area of the law that had gotten increasingly murky because of conflicting appellate court opinions in recent years.
The Case: The company, Arnold Worldwide, fired Brooke Dore in 2001 without cause, 28 months after he had moved from Denver to take the job. He claimed his contract implied he could only be discharged for good cause. Much of Dore's case rested on his claim that a letter by Arnold Worldwide executives defining "at will" as a right to terminate employment "at any time" was an implied-in-fact agreement that he could only be fired for good cause.
That argument wasn't a stretch, either. State appellate courts reached the same conclusion in three other employment cases in the last 21 years.
Unfortunately for Dore, the Supreme Court repudiated those rulings and went with the one appellate decision that had held otherwise.
"We disagree with Dore," Justice Kathryn Mickle Werdegar wrote, "that the verbal formulation 'at any time' in the termination clause of an employment contract is per se ambiguous merely because it does not expressly speak to whether cause is required. As a matter of simple logic, rather, such a formulation ordinarily entails the notion of 'with or without cause.'"
In a separate concurring opinion, Justice Marvin Baxter practically scoffed at Dore's argument, saying his at-will employment could hardly have been more evident. "No rational person could believe this language meant both parties were obliged to continue the employment relationship except upon 'good cause,'" he wrote. "The words 'at will' and 'at any time,' as used in the letter, would make no sense if the parties really meant the opposite - that good cause was required for termination."
In his separate concurrence, Baxter addressed the issue of extrinsic evidence in the abstract by arguing that the high court should reconsider its 1968 ruling in Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. That opinion said latent ambiguity in contracts may be exposed by extrinsic evidence that reveals more than one possible meaning. "The effect," Baxter wrote, "is that, despite their best efforts to produce a clear written agreement, parties can never confidently conduct their affairs on the basis of the language they have drafted." He practically welcomed a challenge to Pacific Gas, saying he was "open" to a "comprehensive re-examination in an appropriate case." Justice Carol Corrigan concurred.
(Source: Mike McKee, The Recorder, Aug. 7, 2006.)
Employer's Accommodation Ruling Upheld
A recent decision, Williams v. Genentech, is very favorable to employers. In its May 9 opinion, the California Court of Appeal rejected an employee's claim that she was entitled to accommodation of her disability in the form of a new supervisor or the maintenance of her position while she was off work for an indefinite period of time.
The employer's policy stated it would not guarantee an employee's return to position from a medical leave extending beyond 12 weeks. The policy also provided that, if an employee was replaced during a leave of absence, the employee would be given 60 days to obtain a different position within the company. If the employee was not hired into a position within 60 days, the employee would be separated from employment.
While the employee was off work, she requested to be assigned to a different supervisor when she returned. After conducting a thorough investigation of the employee's claims that the supervisor was inappropriately criticizing her, the employer determined the supervisor acted appropriately. Eventually, when the employee had been off for more than 12 weeks, during which time her physician stated she was "totally incapacitated" and refused to set a return date, the employer filled her position. Four months later, the employee stated she was ready to return to work. Because the employee was unable to locate an open position for which she was qualified during the 60-day period set by policy, the employer separated her.
The employee sued, claiming the employer violated disability laws by failing to accommodate her request for a different supervisor, filling her position while she was on a leave of absence, and not providing her a position upon her return to work. The Court affirmed summary judgment of these claims, ruling that the employer had provided a reasonable accommodation by granting the employee's extensions for leave and holding her position open for more than 12 weeks consistent with its policies.
In a key part of the decision for California employers, the Court found that replacing the employee was appropriate because of the number of times the employee had extended her leave, the uncertainty of the employee's return date during her seven months leave, and the employer's showing of hardship in covering vacations and leaves due to Plaintiff's absence. In addition, because the employer granted the leave of absence and could not be required to provide a stress-free environment, the employer had no obligation to grant the employee's request for a new supervisor.
(Source: Jennifer Shaw, Shaw Valenza LLP, 520 Capitol Mall, Suite 630, Sacramento, CA 95814, Main Number: 916-326-5150, www.shawvalenza.com, Blog: http://shawvalenza.blogspot.com)
A Fresno County jury recently awarded $1.7 million to a woman who was spanked by her supervisors during "motivational" exercises at a local alarm installation company. The claimant had worked at the company's Fresno office for five months before quitting and filing her claim.
The employer had a practice of using motivational exercises in which employees were spanked with a competitor's yard sign while other employees looked on an cheered. The practice grew out of competition between various sales teams, in which the winning team would poke fun at the losing team, throw pies at them, make them wear diapers, feed them baby food, and spank them with the competitor's sign.
The company admitted the practice, but said that the claimant was a willing participant, and that the process was not discriminatory in that it was applied equally to men and women. The company also said that the reason the claimant quit was because she was passed over for a promotion, not because of the spankings.
An interesting point for employers to note is that the claimant hired an "expert" in human resources management (a professor at Fresno State University), to testify that the employer's investigation of the claim was insufficient, and was geared toward damage control rather than trying to get to the bottom of the complaint and stop the conduct. He also reviewed the employer's personnel practices, and testified that the supervisors who spanked other employees received only a verbal warning, but that a saleswomen who missed work because her grandfather was gravely ill received a written warning.
Three other women had previously reached out of court settlements with the company. The company offered this claimant $150,000 to settle, but she refused. At trial, the company put on evidence that the claimant was an admitted drug addict who had been arrested twice for shoplifting. The company also put on evidence that the claimant had sued her previous employer for harassment, and that shortly after that case settled, she sued the alarm company.
The jury decided that three of the alarm company's supervisors were personally liable to the claimant. Two supervisors who had actually spanked the claimant were ordered to pay her $50,000 apiece. A third supervisor, who allegedly knew of the spankings but did nothing about it, was ordered to pay the claimant $100,000, even though he had never spanked her!
What This Means For Employers: Even though there are a number of issues in this case that are clearly subject to reversal on appeal, this case can teach employers several valuable lessons. First, never, ever have a company policy that involves humiliation and spanking as a motivational practice. Regardless of anything else, you will be, and probably should be, sued for such a policy.
Second, keep in mind that when the claim ends up in court, plaintiffs' attorneys have been hiring so-called "experts" to come in and tear down the company's policies and procedures in general, and to criticize the company's investigation of the particular claim. Regardless of how prepared you are to deal with complaints, and how well you address the complaint, you will invariably do something that an outsider will be able to criticize and say does not measure up to the legally required response from an employer.
Third, do not necessarily rely upon the fact that the claimant may have a background making him or her seem unsympathetic (such as drug addiction, arrests, and prior lawsuits) as an indication that you will win the claim. Juries will frequently overlook such items when the employer has engaged in conduct that seems inherently wrong.
(By Patrick Moody, law firm of Barsamian, Saqui & Moody (BS&M), one of two law firms contracted by FELS to provide legal help to FELS subscribers under the FELS Group Legal Services Plan. The goal of this article is to provide employers with current labor- and employment-law information. Its contents should neither be interpreted nor construed as legal advice or opinion. The reader should consult with BS&M 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 a given situation. Visit BS&M's Web site at www.theemployerslawfirm.com/firm/.)
There has been a mounting interest on the part of farm employers in learning a little Spanish, based on a desire to better communicate with their Spanish-speaking employees. So it is that a few years ago a Spanish Language Project was begun at the University of California Cooperative Extension, based on the following principles:
1) provide tools that will help farmers learn Spanish naturally;
2) focus on learning by first listening;
3) focus on learning by repeating after native Spanish-speakers;
4) preserve the correct use of the Spanish language;
5) avoid the use of slang of "Spanglish";
6) where several correct words are available, provide those used in Mexico;
7) where several correct words are available, provide words of more universal usage; and
8) provide a neutral sounding (audio) Spanish that avoids regional accents.
While the dictionary has been available on-line for several years, the audio portion of the project is now taking form. So, if you would like to download the audio tracks and listen to either on your computer or in your pickup's CD player, this may well be of interest to you. The first lessons are already available on the Web. They include strategies for learning Spanish so you sound like a native speaker as well as several practice audio tracks to work on rolling your erre and pronouncing some of the more difficult vowels and consonants. The project is a public service of the University of California, and is available at
http://www.cnr.berkeley.edu/ucce50/ag-labor/spanish/ or http://tinyurl.com/gmn9w. If you would like to get involved in terms of giving suggestions as to what words or expressions you would like translated, or for more information, contact farm advisor Gregorio Billikopf at gebillikopf@ucdavis.edu