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Browse below for news, legal insights, information on presentations and events, and other resources from the Weintraub Tobin legal team.

Upcoming Seminar: The Complex Web of Leaves and Accommodation Laws – Sacramento

Published: July 24, 2012

Download: Leaves & Accomodations.pdf

Summary of Program

Employers continue to grapple with this very difficult area of employment law. It is not enough to focus on just one law when an employee is unable to work or is absent from the workplace due to some medical condition or injury suffered by the employee or his or her family member. Instead, employers need to understand and comply with how the courts, and various federal and state regulatory agencies, are interpreting the interplay between a number of laws like the FMLA/CFRA, ADA/FEHA, PDL, USERRA, and workers’ compensation. This seminar is designed to help employers and HR professionals understand this complex interplay and to provide some practical guidance on administering leaves and absences.

Some of the topics to be discussed include:

  • What Does Each Law Provide: A Summary of the Statutes.
  • A Discussion of the Difference Between “Statutory Leaves” and “Wage Replacement Benefits.”
  • Determining Under What Circumstances the Statutory Leaves and/or Wage Replacement Benefits May Overlap and How to Evaluate and Determine the Employee’s Entitlements and the Employer’s Obligations Under Each Law.
  • The Importance of Engaging in the “Interactive Process.”
  • What are the Courts saying? Recent case law.
  • Effective Documentation: Policies, Leave Administration Documents, and Medical Certifications.

Thursday, August 23, 2012

8:30 a.m. – 9:00 a.m.

Registration and Breakfast

9:00 a.m. – 12:00 p.m.

Program

Location:

400 Capitol Mall, 11th Floor
Sacramento, CA 95814

Parking validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th St.

*This program is also available via Webinar. Please indicate when you RSVP.

************

There is no charge for this seminar.
Approved for 3 hours MCLE Credit;

HRCI credits available upon request

RSVP:

Ramona Carrillo
Weintraub Tobin Chediak Coleman Grodin
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Phone: 916.558.6046
Fax: 916.446.1611
rcarrillo@weintraub.com

Upcoming Seminar: The Complex Web of Leaves and Accomodation Laws – SF

Published: July 13, 2012

Summary of Program

Employers continue to grapple with this very difficult area of employment law. It is not enough to focus on just one law when an employee is unable to work or is absent from the workplace due to some medical condition or injury suffered by the employee or his or her family member. Instead, employers need to understand and comply with how the courts, and various federal and state regulatory agencies, are interpreting the interplay between a number of laws like the FMLA/CFRA, ADA/FEHA, PDL, USERRA, and workers’ compensation. This seminar is designed to help employers and HR professionals understand this complex interplay and to provide some practical guidance on administering leaves and absences.

Some of the topics to be discussed include:

  • What Does Each Law Provide: A Summary of the Statutes.
  • A Discussion of the Difference Between “Statutory Leaves” and “Wage Replacement Benefits.”
  • Determining Under What Circumstances the Statutory Leaves and/or Wage Replacement Benefits May Overlap and How to Evaluate and Determine the Employee’s Entitlements and the Employer’s Obligations Under Each Law.
  • The Importance of Engaging in the “Interactive Process.”
  • What are the Courts saying? Recent case law.
  • Effective Documentation: Policies, Leave Administration Documents, and Medical Certifications.

Thursday, August 9, 2012

8:30 a.m. – 9:00 a.m.

Registration and Breakfast

9:00 a.m. – 12:00 p.m.

Program

Location:

Le Meridien Hotel
333 Battery Street
San Francisco, CA 94111

*This program is also available via Webinar on August 23. Please indicate when you RSVP.

************

There is no charge for this seminar.
Approved for 3 hours MCLE Credit;

HRCI credits available upon request

RSVP:

Ramona Carrillo
Weintraub Tobin Chediak Coleman Grodin
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
Phone: 916.558.6046
Fax: 916.446.1611
rcarrillo@weintraub.com

AAAB Seminar: Recent Changes in California Employment Law

Published: July 9, 2012

Topic:
The Moving Target – Recent Changes in California Employment Law

Summary:
Attorneys from Weintraub Genshlea Chediak Tobin & Tobin will provide a brief overview of the complexities of laws facing employers and discuss important case law developments. Topics include:

  • Why does the California Supreme Court decision in Brinker matter?
  • Who is entitled to what absence (PDL, FMLA,CFRA, USERRA)?
  • 1099 or W-2: Why should you care?

Date:
July 17, 2012

Time:
5:30 p.m. – 7:30 p.m.

Place:
America California Bank, 417 Montgomery Street, San Francisco, CA 94104

Speakers:
Paul E. Gaspari
Charles L. Post
Weintraub Tobin

Registration & Fees (beverages and light snacks are complimentary with registration):

a) Current AAAB members – FREE admission. Please send us an e-mail at “events@aaabankers.org” with your name and contact phone number to register for the event.

b) Non-Members – $15. Please follow this link to register and attend the event at a $15 non-member rate: Register & Pay Online

c) SPECIAL: Become a member of AAAB and receive 50% off $30 annual AAAB membership fee (valid through 12/31/2012) and attend the event for only $5 (attend all future event except Annual Dinner – FREE). Please follow this link to register and pay for a discounted membership/event fee of $20: Register & Pay Online

Upcoming Webinar: Independent Contractor v. Employee?

Published: July 5, 2012

Summary of Program

If it Walks Like a Duck, Quacks Like a Duck, It’s a Duck!

The risks involved in misclassifying a worker as an independent contractor rather than an employee have always been serious. A number of federal and state agencies regulate the proper classification of workers and have the authority to impose significant monetary and non-monetary sanctions against employers who get the classification wrong. However, due to a number of new laws and regulatory enforcement procedures that have gone into effect in the last year, it is now more important than ever that employers get the classification right.

This informative webinar will cover the legal landscape of independent contractor status. Topics will include:

  • A summary of the various tests applied by federal and state agencies to determine independent contractor status;
  • A summary of the enforcement authority of various federal and state agencies and the sanctions they may impose on employers;
  • The due diligence employers must engage in before classifying a worker as an independent contractor;
  • The federal Department of Labor’s new $25 million “Misclassification Initiative” designed to work closely with state agencies to investigate misclassifications and take enforcement action; and
  • California’s new law imposing monetary and non-monetary sanctions against employers (and certain individuals) who willfully misclassify workers as independent contractors.

If you or your company is currently using independent contractors, this is a webinar you cannot afford to miss.

Wednesday, July 18, 2012
9:30 a.m. – 11:00 a.m. – WEBINAR

This informative session will take place via webinar only. Login details will provided approximately one week prior to the webinar.

There is no charge for this webinar.

RSVP TO:

Ramona Carrillo
Email: rcarrillo@weintraub.com
Telephone: (916) 558.6046

SCOTUS Hands Employers Huge Health Care Obligations

Published: June 29, 2012

Yesterday, the Supreme Court of the United States ruled that the Patient Protection and Affordable Care Act of 2010 as amended by the Health Care and Education Reconciliation Act of 2010 is constitutional. The decision came down in the cases entitled, National Federation of Independent Business et al. v. Sebelius, No. 11-393 (June 28, 2012), Department of Health and Human Services et al. v. Florida et al., No. 11-398, and Florida et al. v. Department of Health and Human Services et al., No. 11-400). There, the 5 to 4 majority decided that the law is constitutional as an exercise of Congress’ power to tax, despite the congressional record stating it is not a tax. In California, where statutes that say “penalty” are later determined by courts to be “wages” these types of word games come as no surprise.

The overall effect of the Court’s decision: all existing provisions of the Act, such as the coverage of adult children up to age 26 and the prohibitions on lifetime benefit limits, remain in effect. More importantly, the penalties on larger employers for failing to provide minimum essential coverage and availability of coverage through government-sponsored exchanges will become effective as scheduled, on January 1, 2014.

What Should An Employer Do When an Employee on FMLA Leave Says They Will Not be Returning to Work?

Published: June 28, 2012

Question: An employee is out on FMLA leave to care for her newborn baby. Before her leave ends, she notifies her employer that she actually does not intend to return to work. Does the employee still have any restoration rights? Can the employer recover any health care premiums they paid during the employee’s FMLA leave?

Answer: While employees are generally entitled to be restored to the same or equivalent position following their return from FMLA leave, the Department of Labor regulations provide that in this situation, when an employee gives unequivocal notice of his or her intent not to return to work, the employer’s obligations under FMLA to maintain health benefits and restore the employee cease immediately. However, beware that unequivocal notice means that the employee leaves an employer with no doubt that they will not return.

Under the regulations, the employer may also recover health care premiums paid during a period of unpaid FMLA leave in this situation, unless the employee is not returning due to “circumstances beyond the employee’s control” – a phrase which the DOL advises should be broadly construed, but which does not include a situation where an employee simply chooses to stay home with her “well, newborn child” (rather than one with a serious health condition).

Word to the Wise: Employers who choose to recover health care premiums when permitted to do so should be cautious that they do this for all employees who indicate they will not return after an FMLA leave. An employer who only recovers health care premiums from a new mom, but not for a male employee who does not return to work after FMLA leave, may be faced with a claim of gender discrimination even if the different treatment is inadvertent.

Partnerships Beware! Partners May Have Claims for Unlawful Retaliation under FEHA

Published: June 1, 2012

by James Kachmar

On May 16, 2012, a California Appellate Court issued its ruling in Fitzsimons v. California Emergency Physicians Medical Group and held that a partner could state a claim for unlawful retaliation against her partnership under the California Fair Employment and Housing Act (“FEHA”).

The defendant medical group (“CEP”) was a California general partnership with approximately 700 partners, including plaintiff. Plaintiff claimed that she was demoted and retaliated against for complaining that several CEP “officers and agents” had sexually harassed female employees of CEP’s management and billing subsidiaries. After the first phase of a jury trial, the jury determined that plaintiff was a partner and not an employee of CEP. The trial court dismissed her FEHA claim against CEP, holding that FEHA did not apply to retaliation claims brought by a partner against the partnership because a partner was “not in an employer-employee relationship.”

The appellate court concluded that the trial court erred and reversed its ruling. The Court reasoned that the employees who were sexually harassed were employed by CEP and that FEHA “makes it an unlawful practice for CEP to retaliate against ‘any person’ for opposing that harassment.” (The Court noted that FEHA’s Federal counterpart, Title VII of the Civil Rights Act, was much narrower in that it uses the term “employee” instead of the broader terms, “any person.”)

The Court observed that, while the partner may not be able to state a FEHA claim for harassment directed at her, she was protected under FEHA for reporting harassment of employees of CEP. In fact, the Court held that, given that FEHA is intended to protect a civil right in seeking and obtaining employment, “the court must construe FEHA broadly, not … restrictively.” The Court further concluded that allowing plaintiff’s FEHA claim to continue would further FEHA’s policy of protecting employees from unlawful harassment in the workplace.

In light of the Fitzsimons ruling, partnerships need to remain vigilant about possible unlawful retaliation claims being brought not only by their employees, but also by their fellow partners. Seeking legal advice and acting quickly to investigate claims of harassment and/or retaliation can help reduce the likelihood and severity of potential FEHA claims.

Upcoming Seminar: Mandatory AB1825 Sexual Harassment Prevention Training

Published: May 29, 2012

Download: Seminar-Jun6_no-crop.pdf

Summary of Program

The regulations regarding California’s Mandatory Sexual Harassment Prevention Training for supervisors require that certain employers provide training to their supervisors every two years.

The Labor and Employment Group at Weintraub Genshlea Chediak Tobin & Tobin is offering a two hour in-person training session that will comply with all the requirements outlined in the regulations, including things like:

  • an overview of sexual harassment laws;
  • examples of conduct that constitute sexual harassment;
  • lawful supervisory responses to complaints of harassment in the workplace;
  • strategies to prevent harassment in the workplace; and
  • practical and inter-active hypotheticals and examples to help illustrate what sexual harassment, discrimination, and retaliation can look like.

If you are an employer with 50 or more employees, and have supervisors who have not yet been trained, this training is a must. We look forward to hearing from you and helping you comply with your continuing sexual harassment training obligations.

Wednesday, June 6, 2012

9:00 a.m. – Registration and Breakfast
9:30 a.m. – 11:30 a.m. – Training

Charge: $50 per supervisor

Location

Weintraub Genshlea Chediak Tobin & Tobin

400 Capitol Mall, 11th Floor, Sacramento, CA

Parking validation provided. Please park in the Wells Farego parking garage, entrances on 4th and 5th Streets

RSVP TO:

Ramona Carrillo
Email: rcarrillo@weintraub.com
Telephone: (916) 558-6046

Is Compliance with an Attendance Policy an Essential Function of the Job?

Published: May 9, 2012

Attendance at work seems like an obvious requirement to keep a job, right? The unfortunate answer often given by lawyers to that question is, “it depends.” In the employee-friendly state of California, permitting telecommuting or exemptions to an attendance policy may be a reasonable accommodation if a person has a disability. However, recently, the Ninth Circuit Court of Appeals confirmed that predictable attendance can be an essential function of certain jobs; in this case, the job of a neo-natal intensive care unit (“NICU”) nurse.

In Samper v. Providence St. Vincent Medical Center (9th Cir. 10-35811 4/11/12), Monica Samper was a part-time NICU nurse who sought an accommodation from her employer which would have exempted her from Providence’s attendance policy. Providence’s attendance policy quite generously permitted five unplanned absences of an unlimited duration during a rolling twelve-month period for full-time employees (“Policy”). In addition, absences related to family medical leave, jury duty, and bereavement leave were not counted under the Policy.

Although Samper was a part-time employee, Samper regularly exceeded the number of unplanned absences for full-time employees throughout her employment. Since at least 2005, Samper’s attendance problems were due to her fibromyalgia, a condition that limits her sleep and causes her chronic pain. Due to her disability, Providence provided multiple accommodations to Samper to assist her. In 2002, Samper was placed on work plans to manage her continued absences. However, her attendance problems continued. In 2005, Providence agreed to allow Samper to call in when she was having a bad day and move her shift to another day, and she did not have to find a replacement for her missed shift. This flexibility, however, yielded no results. In 2006, Providence met with Samper again and agreed to yet another accommodation – Samper’s two shifts-per-week would not be scheduled on consecutive days. Again, Samper’s attendance did not improve and she received another verbal warning. Samper then requested a complete exemption from the Policy, which was not granted. In 2008, Providence scheduled another meeting to discuss Samper’s attendance, but Samper was … wait for it … characteristically absent. After Samper essentially broke the last straw on the camel’s back, her employment was terminated for her repeated attendance problems.

Of course, like any good terminated employee, Samper filed suit alleging, among other things, violation of the ADA due to failure to accommodate. The district court granted summary judgment in favor of Providence, reasoning that Samper was unable to adhere to Providence’s Policy, and, therefore, she was not qualified for her position. The district court also held that exempting Samper from the Policy was unreasonable. The Ninth Circuit Court of Appeals affirmed this decision stating that “[t]he common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse.” Further, Providence provided evidence to meet its burden of proof, including demonstrating “attendance” and “punctuality” as listed “standards of performance” in the written job description, and providing a declaration from Samper’s supervisor attesting to the problems unscheduled absences cause for patient care. Thus, it was not only commons-sense, but evidence from Providence, which led the Court to hold that Samper’s regular, predictable presence to perform specialized, life-saving work in a hospital context was an essential function of her job and that Samper’s accommodation that would allow her to miss work whenever she felt she needed to, and apparently for as long as she felt she needed to, was not reasonable, and could, quite literally, be fatal.

The Ninth’s Circuit’s ruling is a nice reminder that even in our high-tech world where telecommuting is possible for many employees, for some jobs, a person’s actual presence in the workplace is essential. For example, some jobs require employees to work as part of a team, interact with customers or clients, or work with equipment on-site. However, the usual caveat exists that this is not a free pass to require strict adherence to attendance policies and terminate employees whenever there is a violation. Employers still must be aware that exemptions to attendance policies may be a reasonable accommodation required under the ADA depending on the job at hand.