Employer Tip of the Month
By the Law Office of Stephen Fiegel
In 2021, SB 572 (Hertzberg), the “enforcement lien” bill added Labor Code 90.8, which went into effect in January 2022. It authorized the Labor Commissioner to create, as an alternative to a judgment lien, a lien on real property to secure amounts due under any final citation, findings or decision.
“The new lien authority provides a practical tool to recover owed wages,” said Labor Commissioner Lilia García-Brower. “It has simplified and expedited the process to get into the pockets of workers and their families the money that is rightfully theirs. The bill requires the Labor Commissioner to include specified information on the certificate of lien to be recorded on the relevant party’s real property and to issue a certificate of release once the amount due, including any interest and costs, has been paid.
An example of how this new lien authority works can be found in a case where the California’s Labor Commissioner’s Office recovered more than $282,000 for wage theft violations affecting 22 car wash workers in Long Beach, who were not paid for the time they were on premises, in some cases up to three hours a day. The workers were not paid overtime or minimum wages. An investigation found that some workers were forced to wait up to three hours before clocking in, while others were only paid for hours when they performed car wash duties and were asked to remain onsite without pay when it wasn’t busy.
The $282,000 recovered paid workers approximately $229,000 for the overtime and minimum wages, liquidated damages and waiting time penalties owed; $53,000 in civil penalties went to the state. The monies were secured after a lien on real property was filed by the Labor Commissioner’s Office on the business.
The Labor Commissioner’s Office opened its investigation in 2017, and a notice of finding was issued by the hearing officer on December 4, 2020. The business made payments totaling $54,272.93 from 2017 to 2020 but eventually stopped making payments. After a judgment was entered for the case at the end of 2021, workers learned that the business was going to be sold and reported this to the Labor Commissioner’s Office. On June 17, 2022, the Labor Commissioner’s Office was able to file a lien on the owner’s real property to ensure workers were paid. One month later, the Labor Commissioner received payment from the business.
The Labor Commissioner’s Office in 2020 launched an interdisciplinary outreach campaign, “Reaching Every Californian.” The campaign amplifies basic protections and builds pathways to affected populations so workers and employers understand legal protections and obligations, and the Labor Commissioner’s enforcement procedures. Californians can follow the Labor Commissioner on Facebook and Twitter.
If you have any further questions or need any additional information about liens of real property to guarantee payments of Labor Commissioner’s judgments, citations, etc., please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.
Employer Tip of the Month
By the Law Office of Stephen Fiegel
Let’s say you found the perfect job applicant for a position within your company and offer the person the job. During a company-ordered medical examination, however, the worker reveals that they have Attention Deficit Hyperactivity Disorder (ADHD) and take prescribed medication to treat it. Can you withdraw the job offer without fear of repercussions? That depends on whether you failed to make any individual assessment of the worker’s medication use or whether it would affect their ability to safely perform the essential job functions of the position. If no such individual assessment was made, you probably violated federal law.
The federal Americans with Disabilities Act (ADA) forbids discrimination against an individual because of disability. It is illegal for employers to discriminate against someone because of a disability, including refusing to hire or accommodate a worker because of use of prescribed medication to help with treatment. An employer cannot rely on broad stereotypes about disability or medication use to justify a decision not to hire a qualified individual with a disability. Thus, it is unacceptable – and unlawful – to refuse to hire someone with a disability because the employer has general reservations about the use of a medication. An employee should not have to decide between pursuing a livelihood or following a doctor’s advice.
If you have any further questions or need any additional information about workplace accomodations, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.
September Employer Tip of the Month:
Presented by the Law Office of Stephen Fiegel
Employer’s Obligation to Employees Who Serve Jury Duty
Recently, I received a notice from the Sacramento County notifying me that I was required to report for jury duty the following week. Unfortunately (or “fortunately” depending on your stance regarding jury duty), I was unable to serve since I am still the primary caretaker for our minor son, and cannot find someone to pick my son up from and watch him after school. But it caused me to start thinking about employer’s obligations when one (or more) of their employees is required to serve, and how informed they are on this subject. As such, I put together this summary of the applicable law on the matter.
The federal Fair Labor Standards Act (FLSA) does NOT require payment for time not worked, including jury duty. This type of benefit is generally a matter of agreement between an employer and an employee (or the employee's representative). Another federal law, however, (the Jury System Improvement Act of 1978), requires employers to give their employees the time off necessary to fulfill their jury duty obligations.
California law does NOT currently require employers to continue paying the salary of employees while they are serving as jurors. However, many employers including state and local government agencies, have a policy which compensates employees for at least part, if not all the time spent for jury service. Also the California Labor Code prohibits an employer from firing or harassing an employee who is summoned to court to serve as a juror. Employees who are harassed or fired can file a claim with the state's Division of Labor Standards Enforcement and employers can also be prosecuted criminally and face misdemeanor charges if found guilty. Federal law also protects prospective jurors while filling their civic duty.
If employers do pay their employee, the employer has the right to require its employees to remit to them the fees received for jury service. Prospective jurors are paid the amount mandated by the California Legislature, $15.00 per day and $0.34 per mile, one way for the second day of service and every day thereafter. There is no pay for the first day of service. Service is defined as physically reporting to the courthouse. Days spent on standby service do not count as payment days.
A juror who is employed by a state, or local government entity or by any other public entity and who receives regular compensation and benefits while performing jury service, may not be paid jury fees. If the juror is employed by a state or local government agency, they are instructed to fill out a Government Waiver Form that will stop the jury payment. Once this form is filled out, they are instructed to return one slip to the jury staff and keep the pink carbon copy for their employer. The legislation did not affect payments for mileage, so jurors will still be paid $0.34 per mile unless that fee is waived.
Under California law, "government employees" include those employees working for the state of California, the Regents of the University of California, a county, a city, district, public authority, public agency, and any other political subdivision or public corporation in the state.
If an employer does not have a policy to pay employees who are off on jury duty, the employees are free to use any available leave (like sick or vacation time) if they wish to be compensated while they’re serving on a jury. Furthermore, employers may not discharge or otherwise penalize an employee for taking time off to serve on a jury or trial jury if the employee, prior to taking time off, gives reasonable notice to the employer that he or she is required to serve.
Q. Can an employee seek a postponement of jury service?
A. Yes, recognizing that some businesses may be seasonal, the courts will allow in most cases one postponement of service to a date chosen by the employee. The deferred date can be up to 6 months from the original date. this enables employees to select a more convenient time to serve.
Q. If a business cannot afford to let their employees serve. Is there anything the employer can do to get the employees out of their jury service?
A. The courts understand that jury service may pose challenges to both employers and their employees, and that is why the one-day or one-trial system has been adopted. However, the employer has a legal obligation to let the employee serve without fear of harassment or dismissal resulting from jury service.
Q. Can the employer stay in communication with its employee during a trial?
A. An employer is free to communicate with its employee during trial recess at the employee's discretion. However, the employer is not permitted to communicate in any way about the trial with the employee.
If you have any further questions or need any additional information about jury duty leave, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.
OSHA Unveils a Program to Protect Workers from Heat Hazards
By Stephen Fiegel Esq.
In April, the Occupational Safety and Health Administration (OSHA) announced a new national emphasis program to reduce “workplace heat-related illnesses and injuries”, and to immediately “improve enforcement and compliance efforts, while continuing long-term work to establish a heat illness prevention rule.” The program takes effect immediately.
In a press release, the Secretary of Labor Marty Walsh stated:
“Tragically, the three-year average of workplace deaths caused by heat has doubled since the early 1990s. These extreme heat hazards aren’t limited to outdoor occupations, the seasons or geography. From farm workers in California to construction workers in Texas and warehouse workers in Pennsylvania, heat illness–exacerbated by our climate’s rising temperatures–presents a growing hazard for millions of workers.”
OSHA plans to increase its enforcement of heat-related workplace safety. OSHA will “proactively initiate inspections in over 70 high-risk industries in indoor and outdoor work settings when the National Weather Service has issued a heat warning or advisory for a local area. On days when the heat index is 80 F or higher, OSHA inspectors and compliance assistance specialists will engage in proactive outreach and technical assistance to help stakeholders keep workers safe on the job. Inspectors will look for and address heat hazards during inspections, regardless of whether the industry is targeted in the [National Emphasis Program].”
These new steps taken by OSHA are designed to make sure that workers go home safe at the end of the day, so employers should be ready to work with OSHA personnel to safeguard that workers do not suffer heat-related injury. Employers should pay special attention to new hires that have yet to become acclimated to workplace heat and workers over sixty, who are generally less able to handle heat. However, all workers that are subject to heat in the workplace should be monitored for heat-related illness.
OSHA has published warnings on heat exposure that emphasize keeping an eye out for heat-related problems before they become serious Some of the heaviest types of work include:
Symptoms of Heat-Related Illness
OSHA lists the symptoms of heat-related illness as “thirst, irritability, a rash, cramping, heat exhaustion, or heat stroke.” Signs of heatstroke include “unconsciousness, confusion, disorientation, or slurred speech.” Other symptoms include a very high body temperature and a rapid heart rate. If a worker suffers from heatstroke, cool him or her down immediately and call 911.
Heat exhaustion is just what it sounds like, a worker can no longer work because he or she is too tired from the heat to continue working. A worker suffering from heat exhaustion may experience nausea or vomiting, as well as a higher than normal body temperature and a high heart rate. Allow the worker to rest, give water, and cool him or her down. For the other symptoms, the remedy is to cool the worker down, give water, and allow him or her to rest. Provide water to workers in hot environments so they may maintain a healthy electrolyte balance.
By working together, OSHA’s program will ensure that workers know their rights and employers meet their obligations in order to protect workers from the growing dangers of extreme heat. Because OSHA plans to step up enforcement efforts with this new program, employers should make sure that their employees are protected from heat-related illnesses in the workplace.
If you have any questions regarding OSHA’s new program to reduce workplace heat-related illnesses and injuries, or if you need additional information about this program, please check out my website at www.employment-law.net or contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.
Holiday Leave: Are Employees Entitled to Paid or Unpaid Holiday Leave?
With another holiday approaching and more to follow, some private-sector employers may believe they are required by law to provide their employees with either paid or unpaid holiday pay. Well, they are not. No California or federal law mandates that an employer must close its business on any particular day, if at all. Every employer may select which days, if any, it chooses to be open and closed for business. If an employer closes its business on holidays and gives its employees time off from work with pay, it is done so simply as a result of (1) a company policy or practice, (2) the terms of a collective bargaining agreement, or (3) the terms of an employment agreement between the employer and employee.
Moreover, if the employer does stay open on a holiday and schedules its employees to work that day, the employer is not obligated to pay the employees anything but their regular pay and any overtime premium for all overtime hours worked. For example, if an employee works 8 hours on the Memorial Day holiday, and then works a total of 40 hours during that workweek, the employer is not required to pay the employee a special premium for working the holiday. Accordingly, if you give your employees holidays off with pay, they should be grateful for this discretionary and generous benefit.
If you have any questions regarding holiday leave or need additional information, please check out my website at www.employment-law.net or contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.