California Labor & Employment Law Blog

By Cindy Caplan

In  McCarther v. Pacific Telesis Group, the California Supreme Court ruled that Labor Code Section 233 does not apply where the employer's sick leave policy provides for an uncapped number of paid sick days.

Pursuant to a collective bargaining agreement, Pacific Telesis provided up to five consecutive days of paid "sickness absence" in any seven-day period for an employee's own illness or injury. The company did not cap the amount of sick leave that may be taken by employees.  Two employees filed suit against Pacific Telesis, alleging that its policy violated Labor Code Section 233 because employees were not compensated for kin care time off under the sickness absence policy.

Labor Code Section 233 provides that “[a]ny employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee’s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic employee of the employee.”  The statute defines "sick leave" as "accrued increments of compensated leave."

The Court concluded that, under Pacific Telesis's plan, sick leave was not "accrued" within the meaning of Section 233.  The Court further reasoned that it would be impossible to determine "the sick leave that would be accrued during six months at the employee's current rate fo entitlement" given the nature of the Company's plan.  The Court concluded that Section 233 does not apply to policies in which the employer provides uncapped compensated sick leave.  Thus, where a policy allows for unlimited or uncapped sick leave, the employer is not obligated to provide paid "kin care" leave.  Employers who provide for a specific number of sick leave days per year remain obligated to allow employees to use half of their yearly allowance of paid sick leave to attend to a family member's illness.
 

By Mark Spring

The California Fair Employment and Housing Commission (our San Diego Partner Dave Carothers is one of the Commissioners) recently announced that it will be amending the regulations interpreting/enforcing the California Family Rights Act to take into account the changes that result from the Department of Labor's recently modified federal regulations interpreting the federal Family Medical Leave Act.  Of course, we will continue to keep you updated on the progress of these regulations.  In the interim, the FEHC has published a very useful and detailed comparison between the California CFRA and the federal FMLA, which can be found here.  The FEHC has also published a comparison of  the meaning of the term "disability" under the ADA, the ADAAA, and the California Fair Employment and Housing Act.  That comparison table is here.

By Dorothy Black

On Monday, the U.S. Department of Labor (DOL) published its revised Final Regulations that interpret and assist in clarifying various aspects of the Family and Medical Leave Act (FMLA) including the recently enacted FMLA amendments expanding the Act to cover military families in deployment situations.  The Final Regulations, are published in Volume 73 of the Federal Register and are extremely detailed.  They contain hundreds of pages of material.  If you are responsible for implementing FMLA policies at your workplace, you will want to review them.  For information and a link to a complete copy of the regulations go to:  http://www.dol.gov/esa/whd/fmla/finalrule.htm

The Final Regulations will take effect on January 16, 2009 (which coincidentally is the last workday that President Bush is in office), and some of the highlights include:

Posting Requirements: The requirements for posting notices regarding FMLA leave have been altered and specified including rules on when electronic posting is permissible.

Military Caregiver Leave: Eligible military family members will be able to take up to 26 workweeks of leave in a single 12-month period to care for a covered service member with a serious illness or injury incurred in the line of duty.

Qualifying Exigency Leave: Under the recent FMLA amendments, Families of National Guard and Reserve personnel on active duty are able to take FMLA leave to manage “qualifying exigencies” which were not defined at the time the amendments were enacted.  “Qualifying exigencies” are now defined in the Regulations and include short-notice deployment, military events, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and post-deployment activities.

Light Duty: Time spent in “light duty” work will not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration will be held in abeyance during the light duty period.

Designation of Leave: Once leave is designated as FMLA leave, the employer must promptly notify the employee that leave is being designated as FMLA leave, and in all cases such notification must be made within five business days (a change from the current requirement of two business days). Retroactive designation will be allowed but only where it does not cause any harm or prejudice to the employee.

Waiver of Rights: Employees may voluntarily settle their FMLA claims without court or DOL approval and any rights for claims based on prior conduct can be waived by the employee.  The federal courts of appeal had previously split on this issue.  Prospective waivers of FMLA rights, however, remain prohibited.

Certification Forms: New medical certification forms have been published and different forms are now required for (a) leave requested for the employee’s serious medical condition and (b) leave requested to care for a relative.

Intermittent Leave: The Regulations now provide that the employer must account for the intermittently scheduled leave using increments no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided it is not greater than one hour. Thus, if employers account for all leave in periods of no less than an hour, they can account for intermittent leave using increments of one hour.  The final regulations further clarify that employers are not required to account for FMLA leave in increments equal to the smallest increment that the employer’s payroll systems are capable of doing so.

Doctor’s Visits: If an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a doctor, the two visits must occur within 30 days of the period of incapacity.  Employees with chronic serious health conditions will be required to visit a doctor at least twice a year for that condition to qualify for FMLA leave.

Bonuses & Awards: Employers will be able to consider FMLA absences in determining bonuses and other incentive awards (such as perfect attendance awards) as long as the employer treats employees taking non-FMLA leave in an identical way.

Notice of Leave: The Final Regulations dictate that employees on leave can be compelled to follow the employer’s usual call-in rules for reporting absences, except emergencies.

Paid Leave: Employees who use paid leave at the same time as family leave must follow the employer’s rules on paid time off.

Fitness for Duty: Employers will be allowed to require “fitness for duty” evaluations to make sure that workers who took FMLA leave can perform the essential functions of their specific job without endangering themselves or others.

Medical Certification Process: An employee’s direct supervisor will no longer be allowed to contact a health care provider for medical certification.

Questions remain for California employers as to how these regulations can be meshed with corresponding CFRA rules and requirements and whether the California courts will begin to interpret CFRA in a manner that is consistent with these FMLA regulations.  Thus, while these regulations help to clarify a wide variety of FMLA issues, in states like California, that have a corresponding family leave statute, these regulations may create at least as many new questions as they answer.

In addition, many feel that Congress and President Elect Obama will enact legislation next year that expands FMLA rights.  Thus, it is possible that some of the provisions of these regulations could be modified and superseded by legislation in 2009 that amends the actual FMLA statute.

In the meantime, those with family leave responsibilities will want to familiarize themselves with these new regulations and make any necessary policy and practice changes on or before mid-January. 

By Connor Moyle

On Monday, the California Supreme Court decided two issues arising under the California Family Rights Act (“CFRA”).  The Court’s decision in Lonicki v. Sutter Health Central addressed the following questions, deciding one in favor of the employer and one in favor of the employee:

1.      When faced with conflicting medical opinions on whether an employee is unable to perform her job, is an employer required to obtain a “tie-breaking” medical opinion in order to preserve its right to challenge the employee’s subsequent CFRA claim?

2.      Can an employee who works a similar job for another employer on a part-time basis still sue based on a claim that she was not capable of performing her job?

Background

The plaintiff worked at a Roseville, California hospital, first in the housekeeping department and then as a certified technician in the sterile processing department.  She claimed her work-related stress greatly increased when the hospital became a level II trauma center in 1997, and when she began working under a new supervisor. 

In July of 1999, the plaintiff left work after her supervisor informed her that her shift was being changed and denied her request for a vacation.  She claimed she was too upset to work and sought medical treatment.  The plaintiff saw a doctor who gave her a note for a one-month leave of absence for “medical reasons” which she presented to her employer.  The defendant hospital then directed her to see another doctor, who determined that she could return to work without any restrictions.  The plaintiff also went to see her primary care physician, who referred her to a psychologist.  She indicated that, based on medical advice, she would not return to work prior to August 27.

The employer determined that it would allow the plaintiff to use paid time off, but directed her to return to work by August 23 or face dismissal.  On August 26, the plaintiff saw a psychiatrist who determined that the plaintiff was “disabled by major depression” and recommended that her medical leave be extended through September 26.  The plaintiff brought the note to the hospital, but the human resources department informed her that she had been terminated for failure to appear at work on August 23 and 24. 

An employer is not required to obtain a “tie-breaker” opinion when the employee’s doctor disagrees with the employer’s doctor.

The CFRA provides for an unpaid leave of absence for up to 12 weeks for several possible reasons including “an employee’s own serious health condition” that “makes the employee unable to perform the functions” of his/her position.  An employer can require the employee to submit certification of a serious health condition from the employee’s healthcare provider.  An employer may also choose to pay for the employee to obtain a second opinion from a healthcare provider designated by the employer if the employer has reason to doubt the validity of the first opinion.  Finally, if the two healthcare providers disagree, the employer may require a third opinion from a healthcare provider approved by both parties.  The third opinion is binding on both parties.

The plaintiff in Lonicki argued that she had a “serious health condition” that made her unable to perform her job and that Sutter improperly denied her CFRA leave.  Plaintiff argued that the hospital was precluded from challenging that Plaintiff had a serious health condition because it had not exercised its option to obtain a third medical opinion under the CFRA’s dispute resolution procedures. 

The Court rejected the plaintiff’s argument and determined that, under the statutory language of the CFRA, an employer merely has the option to request a tie-breaking opinion if the first two doctors disagree.  Failure to do so does not prevent the employer from challenging a later claim that the employee suffered from a serious health condition that rendered her unable to do her job.  The court partially relied on several federal opinions reaching similar conclusions under the Family Medical Leave Act (“FMLA”) and declined to follow other federal authority to the contrary.

An employee who performs a substantially similar job for another employer can still claim that she was unable to perform her job.

During her “leave” from Sutter and at the time of her termination, the plaintiff worked part-time at another hospital performing duties substantially similar to those she performed for Sutter.  The trial and appellate courts in Lonicki both determined that Sutter was entitled to summary judgment on the plaintiff’s CFRA claim because the plaintiff’s ability to work part-time at another hospital performing substantially similar duties conclusively demonstrated that she could also perform her job for the defendant.  In a sharply divided and surprising opinion, the Supreme Court disagreed and determined that the plaintiff could bring her claim despite holding a similar second job. 

In reaching its conclusion, the Supreme Court determined that the Court of Appeal erred in holding that an employer must grant medical leave under the CFRA only if the employee is unable to perform her essential job functions “generally, rather than for a specific employer.”  Instead, the Supreme Court stated, the relevant inquiry was whether the plaintiff’s alleged serious health condition rendered her unable to do her job at the defendant’s hospital. 

The Court noted that the difference between a part-time job and a full-time job may be significant to a CFRA inquiry because an employee may be able to work a part-time job despite suffering from a “serious medical condition” that renders the employee unable to work full time.  The Court also pointed out that the alleged sources of plaintiff’s job-related stress (mainly a particular supervisor) were unique to her job with the defendant.  Consequently, the Court determined that the plaintiff’s ability to work part time at another hospital did not conclusively establish her ability to perform similar duties at the defendant’s hospital.  As a result, the Court reversed the award of summary judgment.

In a dissenting opinion joined by two other Justices, Justice Chin criticized the Court’s holding on this issue, stating that it was inconsistent with the legislative purpose and history behind CFRA’s enactment.  According to Justice Chin, allowing employees to obtain and hold substantially similar alternative employment while claiming inability to work their usual job, is fraught with potential for abuse.  Indeed, under the Court’s ruling, an employer faced with this situation potentially would be required to continue providing benefits for an employee on leave, even if the employee was performing work for, and being paid by, another employer.

Implications

The Court’s determination that holding a similar job does not prevent an employee from claiming she was unable to perform her job for a particular employer means that employers will find summary judgment harder to obtain in similar cases.  It also means that employers may face liability if they terminate an employee on leave simply because the employee obtains alternative employment during that leave.  Many employers have policies providing for termination of employment in these circumstances, and such policies are problematic in light of the Court’s ruling.     

Additionally, employers should not interpret Lonicki as an indication that “tie-breaker” opinions are always unnecessary or inadvisable when faced with conflicting medical opinions regarding a claim of entitlement to leave.  Although Lonicki makes clear that California law does not require an employer to seek a “tie-breaker” opinion, the decision does not control future decisions by federal courts addressing the same issue under the FMLA.  Furthermore, because a tie-breaker opinion binds both parties, requesting the opinion may often provide a relatively inexpensive means of resolving disputes in their early stages.  Consequently, employers should not adopt any blanket policy regarding whether to seek a “tie-breaker” opinion and should evaluate each case on its own facts.

Posted by Kendra D. Miller

This month the Department of Labor issued proposed regulations pertaining to the Family and Medical Leave Act of 1993 ("FMLA") in an attempt to reflect case law and statutory developments, as well as to clear up ambiguities that have come to light, during the past 15 years.  Some of the most significant proposals are discussed below.  Click here to link to an article posted on our web-site that discusses these proposed regulations in greater detail. 

--Impact of Failure to Designate: The regulations propose to delete the regulation, previously invalidated by the United States Supreme Court, which provides that if an employee takes a paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee's FMLA entitlement. 

--Eligibility Period: The proposed regulations would amend the requirement that an employee be employed by an employer for at least twelve months in order to be eligible for the FMLA to provide that, although the twelve months of employment need not be consecutive, employment prior to a continuous break in service of five years or more need not be counted, with two exceptions.

--Light Duty: The proposed regulations state that time spent on "light-duty" assignments would not be counted towards the total 12 weeks of available FMLA leave.

--Releasing FMLA Rights: The proposed regulations would allow employees to waive their FMLA rights in a contract, in response to case law holding that employees could not release past FMLA claims in severance agreements.   

--Comment Re FMLA Amendment Pertaining to Military Leave: The proposed regulations also ask for public comment about final regulations referenced in a prior blog posting regarding an amendment to the FMLA, enacted on January 28, 2008, in Section 585(a) of the National Defense Authorization Act for FY 2008, which provides leave to eligible employees of covered employers to care for injured service members and because of any qualifying exigency arising out of the fact that a covered family member is on active duty or has been notified of an impending call to active duty status in support of a contingency operation. 

Note that the proposed regulations discussed in this article are not yet final.  The public has until April 11, 2008 to submit comments to the DOL about the proposed revisions to these regulations.  Visit the DOL's website to view the proposed regulations and to learn how to submit comments.  In the meantime, please contact us directly to discuss any questions you may have relating to these proposed regulations.

Earlier this week President Bush signed into law HR 4986, the National Defense Authorization Act for 2008.  Section 585 of this statute amends the Family and Medical Leave Act ("FMLA") in a number of significant ways.

Effective immediately, a spouse, child, parent or next of kin of a member of the Armed Forces (including a member of the National Guard or Reserves) may take up to 26 work-weeks of leave to care for the soldier if he is "undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness."  A "serious injury or illness" is defined as one that was incurred in the line of duty and may render the soldier medically unfit to perform the duties of his office, grade, rank or rating.  The U.S. Department of Labor ("DOL") is expected to issue comprehensive guidance regarding the rights and responsibilities of parties under this new legislation in the not-too-distant future.

The new legislation also permits an employee to take FMLA leave for any "qualifying exigency" – as that term will be defined by the DOL in forthcoming regulations – arising out of the fact that the employee's spouse, child or parent is on active duty, or has been notified of an impending call or order to active duty, in the Armed Forces.  Note that this provision of the statute is not effective until the DOL issues final regulations defining "qualifying exigency."  Although the DOL has stated that it is still preparing these regulations, it has encouraged employers to provide this type of leave to qualifying employees in the interim, even in the absence of such guidance.

Please contact us directly if you have any questions regarding steps you must take to comply with HR 4986.

Given that California's Presidential Primary will take place on Tuesday, February 5, 2008, employers should review their policies regarding "Time Off to Vote" to ensure that they are in compliance with state law.

California Elections Code section 14001 requires employers to post a notice 10 days before any "statewide election" advising employees of their right to take paid leave for the purpose of voting (a statewide election is one in which all voters have an opportunity to vote on at least one common race or issue).  This notice must be posted either in the workplace, or where it can be seen by employees as they enter or exit their place of work.  Click here to review and download Time Off to Vote notices in both English and Spanish.

Note that employees are eligible for paid time off only if they do not have sufficient time outside of working hours to vote (keeping in mind that voting hours are from 7 a.m. to 8 p.m.).  Employees are entitled to a maximum of two hours paid leave, and employers may require that this time be taken only at the beginning or end of their shifts.  Employers may also require employees to give advance notice that they will need to take time off for voting.

Please contact us directly to discuss any questions you may have relating to your obligations to provide Time Off to Vote.

Recent legislation signed by Governor Schwarzenegger creates new rights for the spouses of deployed soldiers.  Specifically, Assembly Bill 392 requires employers of 25 or more employees to grant up to 10 days of unpaid leave to qualified employees (meaning those who work an average of 20 or more hours per week for the employer and who are married to members of the U.S. armed forces deployed during a period of military conflict to an area designated as a combat theater or zone, or members of the National Guard or reserves deployed during a period of military conflict).  Employees are eligible to take this time off only during "qualified leave periods," defined as periods during which the soldier-spouses are on leave from deployment.  Employers may not retaliate against employees for requesting or taking the leave provided by this new statute, which goes into effect immediately.

Please contact us directly to discuss any questions relating to the effect this new law may have on your workplace.

The United States Court of Appeal for the Fourth Circuit recently ruled that the right to assert a claim based upon a past violation of the Family and Medical Rights Act of 1993 (“FMLA”) may not be waived. In a divided opinion, a panel for the Fourth Circuit rejected the Department of Labor’s interpretation of its own regulation, which would have allowed parties to waive the right to assert a claim based upon a past violation of the FMLA. Taylor v. Progress Energy Inc., ___ F.3d ___ (4th Cir. 2007). The regulation stated that “employees cannot waive, nor may employers induce employees to waive their rights under FMLA.” 29 C.F.R. 825.220(d). 

The Fourth Circuit found the Department of Labor’s interpretation of its own regulation was plainly erroneous because the DOL had previously presented differing interpretations of the regulation and because the regulation did not specifically exclude remedial rights –such as the right to assert a claim– from the scope of the regulation. Thus, the court found that, like proscriptive and substantive rights under the FMLA, remedial rights were not able to be waived.  

While this ruling of the Fourth Circuit, which covers West Virginia, Virginia, Maryland, North Carolina, and South Carolina is not controlling in the California-based Ninth Circuit, the decision reflects reasoning that may be considered in the Ninth Circuit should the issue arise.  Were the Ninth Circuit to adopt the Fourth Circuit's reasoning, employers' ability to obtain effective employee waivers of the right to sue under the FMLA in severance agreements and other settlement documents could be substantially hindered.   For a link to the text of the Fourth Circuit’s opinion in Taylor v. Progress Energy Inc., ___ F.3d ___ (4th Cir. 2007), click here.

Posted by Nancy G. Berner

San Francisco’s much publicized Paid Sick Leave Ordinance will become effective on June 6, 2007, following the conclusion of the four month transition period.  The Office of Labor Standards Enforcement has issued rules and frequently asked questions to assist employers and employees as they attempt to implement the program and understand how it affects them both.  Click here to review this new information.

Employers are now subject to penalties for failure to follow the requirements of the Paid Sick Leave Ordinance for their employees working in San Francisco, and must plan accordingly. For specific questions concerning compliance, please contact us directly.

As part of its monthly "HR Roundtable" series, Carlton DiSante & Freudenberger recently hosted seminars in Los Angeles, Irvine and San Diego to educate HR professionals about handling employee leave issues. The seminars covered the often confusing interplay between the various California and federal leave laws, including the Family and Medical Leave Act ("FMLA"), the California Family Rights Act ("CFRA"), the Pregnancy Disability Leave law ("PDL"), and the new "Kin Care" and "California Paid Family Leave" laws.
The following are a few of the more challenging questions posed by seminar participants:

Elective Surgery
Q: If an employee has elective surgery that is not medically necessary, can that constitute a "serious health condition" entitling the employee to leave under the FMLA or CFRA?

A: "Yes." Neither statute contains an exclusion for elective procedures, such as cosmetic surgery. Thus, so long as the procedure (including the recovery process) involves a course of ongoing medical treatment or "incapacity" that is sufficient to meet the definition of a "serious health condition" the leave rights under the statutes are triggered. It is true, however, that an employer can require up to 30 days' advance notice when the employee has discretion over when the procedure is scheduled.

"Kin Care" Leave
Q: Under California's "Kin care" law (which generally requires that employers authorize the use of up to half of an employee's paid sick leave for the care of sick family member), if an employee gets 10 days a year of paid sick leave and uses 8 of the days for his own illness, would he only have two sick days remaining? Or, if he needed to care for a family member, would the employer be required to give him an extra three days of sick leave so that he can actually use a full five days of sick leave for kin care?

A: The employee would have only two days of paid sick leave left to use. This is because the statute (Labor Code § 233) only applies to paid sick time that is already "accrued" and "available" for use. The statute does not require employers to give extra days of paid sick leave that would not otherwise accrue under the employer's existing policy. Thus, since the employee in the example is only allowed to accrue a maximum of 10 paid sick days per year, the Kin Care law would not give him any additional sick days and he would have only two remaining (regardless of whether he uses them for his own illness or to take care of a family member).

Posted by Mark Spring and David Osborne

1. What is the May 1, 2006 strike that I have heard about and should I be concerned?
May 1 is known as the International Day of the Worker in Mexico. Opponents of recent immigration legislation are using this day to call for "The First American Strike" or "Great American Boycott," a worker strike and boycott to protest recent congressional attempts to crack down on illegal immigration. The strike is meant to underscore the value of Latino workers to the nation's economy and rally against the recently introduced federal legislation. All employers should be concerned about this strike as it is expected to garner unprecedented support from the immigrant workforce and those that support their causes.

2. How can I prepare for and respond to this strike in a manner that allows me to continue operating my business but limits my legal exposure?
A. Employers Can Enforce Their Attendance Policies.
You can certainly enforce your existing attendance policies in responding to employees who do not show up for work on May 1. However, you should refrain from aggressively enforcing their attendance/absenteeism policies beyond normal enforcement. Employers who deviate from their normal attendance/absenteeism policies to severely discipline their employees for being absent on May 1, 2006 may be liable for improperly interfering with their employees' political activities.
B. Do Not Demean The Strike Or Threaten/Demean Employees Who Support Or Want to Participate In the Strike.
Being exasperated by the strike is understandable, but employers need to be careful to ensure that their reaction cannot be interpreted as demeaning the strike or the individuals who voice support for the strike. In addition to potential liability for interfering with their employees' political activities, employers' conduct that could be construed as demeaning or threatening to their employees may be used as evidence of discriminatory animus for disparate treatment claims.
C. Communicate With Your Employees About the Strike Up Front.
Talk to your employees, so you can determine the impact of the May 1, 2006 strike on your operations. If you are in the retail industry, restaurant industry or another service industry that serves the general public, then the impact may not be as severe because May 1 is a Monday. Mondays are generally light days for many service industries, and you may have staff members who normally do not work on Mondays. You can determine who wants to take off May 1 and who is not interested in taking off May 1. Some employees who generally do not work on Mondays may be willing to "pick up an extra shift."
If Monday is not a light day for your industry, you should still communicate with your employees to determine who wants to come to work. You may need to have your operations open on Sunday, have some employees work overtime on Monday, or make other operational adjustments, but if you communicate with your employees beforehand, you will at least have the opportunity to plan for the day rather than simply responding to the situation on May 1.
D. Remind Employees About Your Attendance Policy.
Remind employees about your absenteeism/attendance policy, your policy for requesting days off, your no show/no call policy, and your policy on falsifying the reason for being absent. Consistent enforcement of such policies are not considered to be discriminatory or improper.
E. Provide May 1, 2006 Off To As Many Employees As Your Operations Allow.
Provide May 1, 2006 off to those employees who follow the procedure for requesting the day off to the fullest extent your operations allow. If you revise your schedule to allow employees to have the day off - Document it! If you provide the day off to a large number of employees who properly requested it off - Document it! You want to demonstrate that you provided the day off to as many people as your operations would allow if you get sued by those employees who did not get it off. Use objective criteria such as seniority to decide which employees get the day off if you have more employees requesting the day off than you can accommodate.
F. Be Creative in Your Staffing For May 1, 2006.
Look at your staffing needs on May 1, 2006 and find creative ways to solve them. Can you have your operations open on Sunday and provide Monday off to everyone? Can you pull employees from other departments? Do you have departments that can go dark on Monday? Can you provide those department's employees some training that will allow them to perform the essential duties that must be completed on May 1, 2006?
For example, if you are a manufacturer and expect most of your workforce to be absent on Monday, can you have your employees work on Sunday? If you are in the restaurant industry and most of the workers that you expect to be absent on May 1, 2006 are kitchen employees, can you do food preparation on Sunday? Will one of your food servers volunteer to be a dishwasher on Monday?
G. Explain Why You Cannot Provide The Day Off To Those Employees Whose Requests You Cannot Honor Because Of Your Operational Needs.
After looking at creative ways to schedule and staff your gaps, you may still not be able to accommodate everyone's request to have the day off. For those employees whose requests you cannot accommodate, explain that you cannot honor their requests because of your operational needs. Also remind them that you expect them to be at work on May 1, 2006. Provide them copies of your absenteeism/attendance policy, your no show/no call policy, and your policy on falsifying the reason for being absent.
H. Enforce Your Absenteeism/Attendance Policy In The Same Manner As You Have In the Past.
If you have been lax or inconsistent with enforcing your attendance policies, May 1, 2006 is not the day to get tough. If you do decide to discipline employees for missing May 1, look at other factors in determining the appropriate discipline: How frequently has the absent employee been absent in the past; what is that employee's past disciplinary record and performance; how long has the employee been employed by you; how effectively have you communicated your attendance policy to your employees; and what progressive discipline or other corrective actions have you used for past violations. Make sure the discipline you impose for the May 1, 2006 absence is equivalent to the disciplinary measures you normally impose for such violations.
I. If Your Business Is At Risk of Not Having Enough Workers, Consider Incentive Pay or Other Incentives to All Workers that Work on May 1.
If you have credible information that leads you to believe that you are not likely to have a sufficient number of workers to operate your business, consider offering incentives. For example, employers can offer incentive pay such as double time or bonuses to all workers who work on May 1. If you are supporting the strike but need your workers to come to work, you can offer to make a donation to the primary political group organizing the strike, the Immigration Solidarity Network, for each worker that comes to work on May 1 as an incentive to encourage your workforce to come to work (click here for a link to the Immigration Solidarity Network). The two keys to lawfully implementing such incentives are to (1) make sure that you really have a legitimate risk of not having enough workers to operate your business efficiently before implementing any incentive program, and (2) make sure that you offer the incentives to every single employee that works on May 1 - do not limit the incentive only to those employees whom you believe will not come to work. Such limitation could be prima facie evidence of discrimination.
J. Remember To Properly Review Your I-9 Forms
May 1, 2006 may not be the day to review your I-9 Forms, but the immigration debate has also put pressure on U.S. Citizenship and Immigration Services ("USCIS") to more aggressively enforce the immigration laws that are currently on the books. As a result, employers face the heightened risk of aggressive government enforcement, the material disruption to their operations a raid may cause and criminal liability for their corporate officers. On the other hand, employers who overreact to such risks and who improperly target employees when performing an I-9 audit may face claims of discrimination under the Immigration Reform and Control Act of 1986. Employers interested in such audits are therefore advised to retain legal counsel.

3.Where can I get more information about this strike?
You can get more information about the strike at either of the following websites (which are run by the strike organizers): www.immigrantsolidarity.org or www.actionla.org. If you have any legal questions about how to respond to the strike, you should contact your employment law attorney. At Carlton, DiSante, & Freudenberger, you should contact the following individuals:
San Diego - David Osborne - dosborne@cdflaborlaw.com
Irvine - Chris Carlton - ccarlton@cdflaborlaw.com
Los Angeles - Brian Van Vleck - bvanvleck@cdflaborlaw.com
San Francisco - Heather Sager - hsager@cdflaborlaw.com
Sacramento - Mark S. Spring - mspring@cdflaborlaw.com

Posted by: Mark S. Spring

California employers may now deduct partial-day absences from an exempt employee's accrued vacation without fear of rendering the employee non-exempt. Although partial-day deductions have been permitted under federal law for a number of years, California law had been in limbo since a 2002 opinion letter from the Division of Labor Standards Enforcement (DLSE) suggested that such deductions may jeopardize exemptions under the "salary basis" test and expose employers to significant risks of having to pay overtime to exempt workers. Conley v. Pacific Gas & Electric, decided in July 2005, confirms that employers can now make partial-day deductions from vacation or PTO banks and also suggests employers may have more control over when employees can use vacation time than previously thought.

In Conley, a group of exempt PG & E employees filed a class action, disputing PG & E's classification of all exempt PG & E employees. Arguing that PG & E's express and documented policy of deducting partial-day absences from the banked vacation of exempt employees rendered them non-exempt as a matter of law, the employees claimed years of unpaid overtime. The trial court disagreed and refused to certify the class. The Court of Appeal affirmed and found for the employer.

Although the Court agreed that a reduction in actual compensation for partial-day absences would defeat exempt classification, they found no such reduction in Conley. The Court of Appeal distinguished the Conley situation in stating that by deducting from banked vacation, the employer was not reducing compensation, only requiring that employees use accrued vacation when they were actually on vacation.

For employers ready to implement policies related to this new ruling, a bit of advice:

(1) The ruling applies only to accrued vacation or PTO; employers still may not deduct from an exempt employee's pay for partial-day absences. If the employee has exhausted his or her accrued vacation leave, the employer may be required to give an exempt employee additional time off for partial-day absences.

(2) The Conley court defined "partial-day" as "four hours or more in a single day." Making deductions in smaller increments have yet to be tested in the courts.

(3) Finally, employers should probably wait until September 2005 to make sure that the Conley decision is not further appealed to the California Supreme Court before finalizing and implementing any new policies related to partial day deductions.