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In the 1940’s, a soap company in Chicago hired a small crew of firefighters to live on the premises and be available for emergencies. The crew officially worked a nine-hour shift but were also required to sleep in a designated location and respond alarms, if necessary. A legal dispute arose about whether the “on call” time should have been compensated as hours worked. The U.S. Supreme Court ruled that it did, with Justice Robert Jackson stating:

“Of course an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen. Refraining from other activity often is a factor of instant readiness to serve, and idleness plays a part in all employments in a stand-by capacity. Readiness to serve may be hired, quite as much as service itself, and time spent lying in wait for threats to the safety of the employer’s property may be treated by the parties as a benefit to the employer.” Armour & Co. v. Wantock (1944) 323 U.S. 126, 133.

The Supreme Court’s ruling opened the door for a litany of subsequent cases on the issue of “on call pay.” In the days of modern cellphone technology, the issue has become even more complex. After all, with a cellphone in every pocket, a beckoning call from an employer is just seconds away.

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In 1973, the NCAA enacted a rule prohibiting student athlete drug use. Unfortunately, there was no standardized drug test to enforce the rule. At the 1983 Pan American Games in Caracas, Venezuela, several college student athletes tested positive for prohibited drugs, causing great embarrassment for the NCAA and raising questions about competitive fairness. How was the alleged “drug ban” being enforced?

The NCAA needed a solution, which, unfortunately, would invade the privacy of student athletes. In 1986, the NCAA adopted a mandatory drug testing program. Among other things, the drug testing policy required student athletes (1) to disclose medications they may be using and other information about their physical and medical conditions; (2) to urinate in the presence of a monitor; and (3) to provide a urine sample that reveals chemical and other substances in their bodies.

In 1990, a linebacker on the Stanford football team and the co-captain of the Stanford women’s soccer team sued the NCAA, alleging that the drug testing requirements violated their right to privacy. In the landmark case of Hill v. Nat’l Collegiate Athletic Assn. (1994) 7 Cal. 4th 1, 38, the California Supreme Court held that Article I, Section 1 of the California Constitution, which recognizes certain “inalienable rights” including the right of privacy, creates a private right of action against private parties.

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Pregnancy is a life-changing experience. Many blogs cover the physical and emotional challenges of pregnancy, but this post is intended to be a step-by-step of guide to the legal rights of expectant mothers in the workplace.

Morning Sickness

Among the many “joyful” experiences of pregnancy is first trimester morning sickness – a nauseous feeling caused by increased hormones. The term is a misnomer because morning sickness can occur at any time of the day – even during work hours.

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When Thomas Jefferson commissioned an expedition to explore the western frontier in 1803, he called upon two men who, among other things, were valiant record-keepers. Meriwether Lewis, a secretary, and William Clark, a cartographer, spent three years exploring and documenting an unknown territory. Some of the most important things to come from the Lewis and Clark Expedition were their personal journals, which contained invaluable information used by those who followed their trail westward.

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The value of record-keeping cannot be overstated. Advanced civilizations require written language, arts, sciences and government – which all begin with record-keeping. The same can be said about business. While all businesses keep records, there is a significant difference between a cave painting and the Great Library of Alexandria. Unfortunately, some business owners remaining in the stone age of record-keeping, which can create significant liability.

Both Federal and State law require employers to create and maintain employment records. This includes payroll records, employee’s name, address, occupation, hours worked each day and week, wages paid and date of payment, amounts earned as straight-time pay and overtime, and deductions. These records must be maintained for three years. [Lab.C. §§ 226(a), 1174(d), 29 CFR § 516.5]. Other records, such as time and earning cards and work schedules must be kept for two years. [29 CFR § 516.6].

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In April 30, 2018, the world of employment law was shaken by the decision of the California Supreme Court to apply a stricter standard for determining whether a worker was an employee or independent contractor. The new standard, set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, is known as the ABC Test.

Soon after the California Supreme Court published its landmark decision of Dynamex Operations W. v. Superior Court, (2018) 4 Cal. 5th 903, 962 (“Dynamex”), the law firm of Davis & Wojcik APLC experienced an influx of employer consultations at a rate never before experienced by a single court ruling. The immediate application of the ABC Test caught many employers by surprise, and they were eager to know how Dynamex would impact their business. Their concern was well-founded.

Immediately after the Dynamex decision was published, the employment world was left wondering whether the ABC Test would be applied retroactively. Thanks to the U.S. Court of Appeals for the Ninth Circuit, we now have an answer.

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In the classic novel The Scarlet Letter, author Nathanial Hawthorne depicts the story of a woman who was forced to wear a scarlet letter ‘A’ on her dress so the townspeople could publicly shame her for adultery. The major theme of The Scarlet Letter is the suffering of individuals from social stigmatizing – a vice that has only increased since the novel’s publication in 1850.

In recent years, the “Ban the Box” movement has sought to eliminate similar stigmatisms about convicted criminals who, after paying their debt to society, find it difficult to secure employment due to prejudice. The goal of this movement is to decrease discrimination against applicants who may have a criminal history. In 2015, President Obama “banned the box” on applications for federal government jobs. Currently, eleven states have mandated the removal of conviction history questions from job applications for private employers. In 2017, California passed multiple statutes that prohibit employers from considering expunged criminal records in hiring decisions.

Davis & Wojcik APLC recently settled an employment case against a major automotive company that withdrew its offer to hire a prospective employee after the corporation unlawfully investigated the employee’s expunged criminal record. The criminal conviction occurred more than ten years prior and was not the type of crime that affected the position.

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The Family and Medical Leave Act (FMLA) is a federal law that provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee. 29 USC § 2601 et seq.

The California Family Rights Act (CFRA) is the California equivalent of FMLA and provides similar protections. Gov.C. § 12900 et seq. Under FMLA and CFRA, both the mother and father are entitled to leave to bond with the newborn even if the newborn does not have a serious health condition. See 29 CFR § 825.120(a)(2).

The New Parent Leave Act (NPLA), which became effective on January 1, 2018, applies to smaller employers with 20-49 employees. (FMLA and CFRA cover 50 or more employees). Gov. C. § 12945.6. The NPLA requires employers with at least 20 employees to provide up to 12 workweeks of parental leave for eligible employees to bond with a new child within one year of the child’s birth, adoption or foster care placement.

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California law prohibits discrimination against job applicants and employees on the basis of age, race, color, religion, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), national origin, ancestry, mental and physical disability (including HIV and AIDS), medical conditions (such as cancer and genetic characteristics), marital status, genetic information, sexual orientation, gender (including gender identity and gender expression), and military and veteran status.

In order to avoid the appearance of discrimination, employers should limit requests for information during the pre-employment process to those details essential to determining a person’s qualifications to do the job. The following are some general guidelines that employers and employees should know regarding the employment application process.

NAME: An employer should never ask questions about an individual’s name that require the applicant to disclose ancestry, national origin, race, religion or marital status, (i.e., asking for an applicant’s “maiden” name, or asking questions about the origin of a name, rather than simply asking if other names have been used). However, it is acceptable to ask an applicant’s name or previous name for purposes of checking their past work record.

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Breaking up is hard to do. There can be many reasons why an employer finds it necessary to end the employment relationship. It could be for performance reasons, a reduction in force or realignment of duties. Under any of these circumstances, it is not to easy to tell an employee that they are unemployed. Administering the termination in a legally improper way will only make it worse. Here are a few legal tips for administering a termination.

Required Documents

After the decision has been made to terminate an employee, there are certain legal requirements that must be met. For example, federal law requires that all employers with 20 or more employees provide a Consolidated Omnibus Budget Reconciliation Act (COBRA) notice and election form to employees who are participating in the employer’s group health plan the day before the termination and to any of the terminating employee’s dependents on the plan. Cal-COBRA must be offered to both terminated employees of small employers (2-19 employees) and terminated employees covered under federal COBRA when their 18 months of federal COBRA coverage expires.

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Here are some fun facts about lunch. The origin of the word lunch (luncheon) comes from the anglo-saxon word, “nuncheon,” meaning “noon drink.” In Spanish, the word for lunch is almuerzo. In German, lunch is mittagessen. Hobbits call it Elevenses. In California, however, lunch is called… mandatory.

The Basics

Under California law, employers must provide employees with no less than a thirty-minute meal period for shifts exceeding more than five hours. A second meal period is required if an employee works more than ten hours per day. Labor Code § 512. An employer is not required to police meal periods. However, an employer must do more than simply make meal periods available. The employer must relieve the employees of all duty, relinquish control over their activities and must not impede or discourage employees from taking a meal period.

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