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LAW ALERT: Your Employees May Be Required To Have a Food Handlers Card By July 1, 2011

Published: January 26, 2011

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

Before leaving office, Governor Schwarzenegger signed Senate Bill 602 which amended California’s Health and Safety Code to provide that, except in certain circumstances, all “food handlers” must obtain a food handler card on or before July 1, 2011. Before Senate Bill 602, the law generally required an owner or designated employee of a food establishment to successfully pass an approved and accredited food safety certification examination from an accredited certification organization.

Who is a “Food Handler?” The Code defines a “food handler” as “an individual who is involved in the preparation, storage, or service of food in a food facility, other than an individual holding a valid food safety certificate issued pursuant to Health and Safety Code section 113947.3 or an individual involved in the preparation, storage, or service of food in a temporary food facility.”

Who is Not a “Food Handler” for Purposes of the New Food Handler Card Requirement? The Code exempts from the food handler card requirement any employee employed by: a) a certified farmer’s market; b) a commissary; c) a grocery store (except for separately owned food facilities to which the law otherwise applies that are located in the grocery store); d) a licensed health care facility; e) a mobile support unit; f) public and private school facilities; g) restricted food service facilities; h) a retail store in which a majority of sales are from a pharmacy; i) a food facility that is subject to a collective bargaining agreement with its food handlers; and j) a food facility that provides in-house food safety training to all employees involved in the preparation, storage, or service of food IFthe facility uses approved training from another state that has adopted the requirements of Subpart 2-103.11 of the 2001 model Food Code published by the federal FDA, can produce evidence of acceptable training, and the training is provided during normal work hours and at no cost to employees.

What is Required to Obtain a Food Handler Card? Food handler cards will only be issued upon successful completion of an approved food handler training course and test that meet the following requirements: a) provides basic introductory instruction on foodborne illnesses, the relationship between time and food temperature, personal hygiene and food safety, methods to prevent food contamination, and procedures for cleaning and sanitizing equipment and utensils; b) is designed to be completed within 2 ½ hours; and c) the test consists of at least 40 questions regarding the required subjects. The food handler must obtain a minimum score of 70% on the test in order to obtain a food handler card.

The food handler training course and test may be offered through a trainer-led class and test or through self-training and testing. At least one accredited food safety certification test shall be offered online, and at least one training course must be available at no more than $15, including the cost of the food handler card.

What is the Deadline for Compliance? A food handler who is hired prior to June 1, 2011, must obtain a food handler card from a food protection manager certification organization on or before July 1, 2011. Food handlers hired on or after June 1, 2011, must obtain a food handler card within 30 days after the date of hire. Each food handler must maintain a valid food handler card for the duration of his or her employment as a food handler.

Is a Food Handler Card Limited to One Food Facility? No. The food handler card belongs to the employee, not the food establishment and will be recognized appropriately throughout the state. Riverside, San Bernardino and San Diego counties have pre-existing food handler card programs and are exempt from the state mandate. How Long is a Food Handler Card Valid? A food handler card is valid for three years from the date of issuance, regardless of whether the food handler changes employers during that period.

Does an Employer Have to Pay for its Employees to Take the Exam or Obtain the Food Handlers Card? The Code is silent and thus does not require that employers pay for an employee’s time and expense to take the training and test. The only requirement that an employer pay the costs of training is contained in the exception from the food handler card requirement outlined above regarding a food facility that provides in-house food safety training during normal working hours at no cost to employees.

Does an Employer Have to Keep Records? Yes. Each food facility that employs a food handler subject to the law must maintain records documenting that each food handler possesses a valid food handler card and shall provide those records, upon request, to local health department enforcement officers who are responsible for enforcing the new law.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

CMS Issues Proposed Rule To Implement Provider Enrollment Aspects Of Affordable Care Act

Published: November 4, 2010

by Jeanne L. Vance
Healthcare Legal Updates

The Centers for Medicare & Medicaid Services (“CMS”) recently published proposed regulations that would implement provisions of the Patient Protection and Affordable Care Act as amended by the Health Care and Education Reconciliation Act of 2010 (collectively, the “Affordable Care Act”) relating to provider enrollment in Medicare, Medicaid and Children’s Health Insurance Program (“CHIP”). Published in the September 23, 2010 Federal Register, the proposed rules, if adopted, would introduce fingerprinting to the public-program enrollment process, expand provider-types subject to pre-enrollment and post-enrollment on-site agency review, specify details relating to the payment of fees for processing Medicare enrollment and revalidation applications, and provide new mechanisms for the establishment of Medicare and Medicaid enrollment moratoriums.

CORRECTED LAW ALERT: New Organ and Bone Marrow Donation Leave Law

Published: October 19, 2010

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

On September 30, 2010, Governor Schwarzenegger signed into law the “Michelle Maykin Memorial Donation Protection Act” which adds another statutory leave entitlement to the California Labor Code.

The new organ and bone marrow donation leave law provides for the following:

  • The law applies to employers (persons, partnerships, corporations, associations, or other business entities) that employ 15 or more employees.
  • Employees who are donating an organ to another person may take a leave of absence not exceeding 30 days (and which may be taken in one or more periods) in any one-year. Employees who are donating their bone marrow to another person may take a leave of absence not exceeding 5 days (and which may be taken in one or more periods) in any one year.
  • In order to receive a leave of absence under the new law, an employee must provide a written verification to the employer that shows that the employee is an organ or bone marrow donor and that there is a medical necessity for the donation. Note: the statute does not define “written verification” or provide any explanation of what will satisfy this requirement. However, it is reasonable to assume that a medical certification from a health care provider containing the necessary information will be sufficient.
  • Employers may require that as a condition of an employee’s initial receipt of bone marrow or organ donation leave, that an employee use up to 5 days of earned but unused sick or vacation leave (if any) for bone marrow donation, and up to 2 weeks of earned but unused sick or vacation leave (if any) for organ donation. However, the leave is paid leave and thus, the employer has an obligation to pay the employee for all time off while on leave under this new law
  • The leave taken for organ or bone marrow donation does not run concurrently with any leave taken under FMLA/CFRA.
  • The leave taken for organ or bone marrow donation does not cause a break in the employee’s continuous service for purposes of seniority or benefit entitlements like sick leave and vacation accrual.
  • An employee returning from organ or bone marrow donation leave shall be restored to the position he or she held when the leave began or to an equivalent position.
  • Employers shall not interfere with, restrain, or deny the exercise or the attempt to exercise the right of an employee to take organ or bone marrow donation leave, and may not discharge, fine, suspend, expel, discipline, or in any other way discriminate against an employee who exercises their right to such leave or opposes a practice made unlawful under the new law.
  • An employee has a private right of action in superior court to enforce the new law and a court has the jurisdiction to enjoin an employer from any act or practice that violates the new law.

What Should Affected Employers Do?

  • Update your leave policies (handbook) to include this new statutory leave and distribute a memo to employees advising them of the new organ and bone marrow donation leave.
  • Train your managers and supervisors regarding this new statutory leave.
  • Properly and consistently administer this statutory leave entitlement like all other statutory leave entitlements.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

Meg Whitman’s “Nannygate” Records are a Good Reminder that Employers Should Consult Legal Counsel

Published: October 6, 2010

by Brendan J. Begley

According to recent media reports, California gubernatorial candidate Meg Whitman released employment records to refute allegations that she knowingly hired an illegal immigrant as a nanny and housekeeper in 2000. These documents, which The Sacramento Bee posted at http://blogs.sacbee.com/capitolalertlatest/Diaz%20Forms.pdf, provide a good illustration as to why California employers should use caution before adopting employment applications, forms, or policies of other employers. Regardless of their source, using such materials without first consulting a lawyer may lead to problems.

For example, the Voluntary Candidate Questionnaire form that Whitman had her nanny submit inquires about the applicant’s medical history (e.g., “have you ever been told that you have Arthritis, Diabetes, Hernia, Emotional Problems, . . . Cancer, Heart Disease,” etc.). It also asks about the applicant’s marital status, and potentially pries into the applicant’s sexual orientation, not to mention other seemingly private topics that may not be job related in many instances. Posing such inquiries to applicants or employees in the Golden State can increase an employer’s exposure to claims alleging disability discrimination, marital-status discrimination, or sexual-orientation discrimination – particularly if the employer is covered by the California Fair Employment and Housing Act or other anti-discrimination laws. The fact that the former head of a major publicly traded corporation utilized such a form does not mean that the form is suitable for all types of employers or positions.

In sum, employers who have not had an attorney review their application or other employment forms or policies for some time would be well advised to do so before 2011, when many new laws governing the workplace go into effect.

Don’t Miss the Oct. 8, 2010 Deadline to Post Your New “Notice to Employees–Injuries Caused By Work”

Published: September 24, 2010

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

Pursuant to California Division of Workers’ Compensation (DWC) regulations, employers must post the new DWC 7 Notice adopted effective June 2010, no later than October 8, 2010. The DWC 7 form is the “Notice to Employees – Injuries Caused by Work.” This Notice provides employees with information on workers’ compensation coverage and where to get medical care for work injuries. The Notice must be posted in English and Spanish at each California work site in a conspicuous location frequented by employees during the hours of the work day.

Usually the DWC 7 form is included in an employer’s complete California and Federal Employment Poster that is updated each year. However, if employers wait to post the new DWC 7 form when they update their Poster at the beginning of 2011, they run the risk of penalties. California law provides that failure to provide employees with this Notice is a misdemeanor that can result in a civil penalty of up to $7,000 per violation.

Employers can obtain a copy of the new DWC 7 (6/10) Notice by going to: www.dir.ca.gov/dwc/forms/DWCForm7_2010.pdf

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

LAW ALERT: Ninth Circuit Rules Disability Accommodations Must be Both Reasonable and Effective

Published: September 9, 2010

by Brendan J. Begley
The Labor & Employment Law Blog

A recent opinion from a federal appellate court serves as yet another cautionary tale for employers in the area of disability accommodations. The Ninth U.S. Circuit Court of Appeals’ decision in EEOC v. UPS Supply Chain Solutions suggests that employers must take proactive steps to ensure that accommodations being provided to a given disabled employee are not only reasonable but effective. The outcome in this case also underscores the need to commence and continue the interactive process and to consult with legal counsel promptly when confronted with disability-accommodation requests or issues.

Mauricio Centeno, who was deaf since birth, worked as a junior clerk in the accounting department at a UPS facility in California. He was able to perform his job duties without a sign-language interpreter. However, he sent a number of email messages to his supervisors between 2002 and 2005 requesting a sign-language interpreter to assist him in department meetings. UPS agreed to provide an interpreter at monthly meetings but not weekly ones. Additionally, UPS arranged to provide Centeno with notes or other summaries of discussions at the weekly meetings. UPS also urged him to refer to a dictionary to learn the meaning of any words in those notes or summaries that he did not understand, even though he reported that he did not comprehend some written communication.

At one point in April 2005, Centeno “said an inappropriate word and made an inappropriate gesture” to some coworkers who had angered him. UPS provided a sign-language interpreter upon meeting with Centeno to discuss the incident, and also during a subsequent meeting to explain terms that Centeno did not understand in a written warning given to him. However, UPS did not provide a sign-language interpreter in a later meeting to explain terms that Centeno did not comprehend in the company’s sexual-harassment policy and in a quiz concerning the application of that policy.

In performance reviews between 2002 and 2006, supervisors repeatedly criticized Centeno for failing to obtain training on an Excel spreadsheet program. However, Centeno could not understand the written materials regarding use of the Excel spreadsheet. After setting a December 2007 deadline for Centeno to complete such training, UPS ultimately provided a sign-language interpreter to assist him – but not until September 2007.

Although there is no indication that UPS ever disciplined Centeno inappropriately, the EEOC filed a lawsuit in federal court alleging that UPS had failed to reasonably accommodate Centeno’s disability. The lower court dismissed the case without a trial, ruling that UPS was not required to provide a sign-language interpreter to accompany Centeno during regular staff meetings, routine disciplinary sessions, or training seminars. However, the appellate court ruled that a jury trial was needed to decide whether UPS had provided reasonable accommodations.

In particular, the Ninth Circuit was persuaded by the fact that Centeno “did not have an opportunity to express his questions . . . or share his ideas with the rest of the department” at the weekly meetings. Thus, the Court of Appeals ruled that a jury should determine “whether the agendas, contemporaneous notes, and written summaries contained information sufficient to enable a [hearing-impaired] person reading those documents to enjoy the same benefits and privileges of attending and participating in the weekly meetings [sessions and seminars] as other employees.”

Likewise, regarding the Excel training, the appellate court said a jury would have to weigh the facts to decide whether UPS improperly delayed in terms of providing Centeno “with the accommodation he needed in order to receive the training.” Finally, the Ninth Circuit opined that reasonable jurors “could conclude that . . . UPS was aware or should have been aware that Centeno needed an . . . interpreter to understand the Anti-Harassment Policy” even if he did not expressly request such an interpreter at that time. Although “an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers,” the appellate court concluded that “an employer cannot satisfy its obligations under the ADA by providing an ineffective modification.”

While this case involved a deaf employee, the decision should not be viewed as applying only to accommodations for hearing impairments. On the contrary, the opinion highlights the importance of monitoring accommodations provided to an employee to make sure that they are enabling the employee to realize all the benefits and privileges of employment. Similarly, it is vital for employers to make sure that a disabled employee is given all reasonable tools that are needed to understand workplace policies and procedures. It is not sufficient that the accommodations merely enable the employee to avoid discipline.

This decision also reinforces the need to engage the interactive process right away, to monitor periodically the effectiveness of any accommodation provided, and to consult with legal counsel regarding what may or may not constitute a reasonable and effective accommodation. Taking such steps may seem onerous, but they often help employers to reduce their exposure to disability-discrimination claims. At the same time, such precautions are usually economical by comparison to the costs associated with litigation.

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Brendan J. Begley is an associate at Weintraub Genshlea Chediak and spearheads the firm’s Appeals and Writs group and is a member of the firm’s Labor and Employment and Litigation groups. He represents management in workplace law and litigation, and he is an Appellate Law Specialist certified by the State Bar of California Board of Legal Specialization.If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Brendan J. Begley at (916) 558-6024. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.

“Same Actor” Defense

Published: August 26, 2010

by Charles L. Post

I was recently asked something of a “desert island” question. Instead of being asked what 10 records or 10 movies I would take to a desert island, I was asked, “If an employer could only do one thing to reduce its exposure to employment discrimination liability, what should it do?” Shooting from the hip, I said, “Whenever you can, have the same actor who hires an employee be the person who disciplines or terminates them.” This practice or strategy doesn’t immunize an employer against discrimination claims, but: “Where the same actor is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” The rationale underlying this doctrine is that from the standpoint of the alleged discriminator, it “hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological cost of associating with them), only to fire them once they are on the job.” (Horn v. Cushman & Wakefield Western, Inc.) This concept has also been applied where the alleged discriminator promoted the plaintiff before taking later adverse action against him or her.

A recent California Court of Appeals case, Nazir v. United Airlines, states the rule in a useful way for employers. “The same actor inference is neither a mandatory presumption (on the one hand) nor a near possible conclusion for the jury to draw (on the other). Rather, it is a strong inference that a court must take into account on a summary judgment motion. The upshot of this rule is that by having the same actor(s) who make hiring or promotion decisions also make discipline and termination decisions, the employer can increase the burden a current or former employee must meet in order to prevail against the employer. “When the allegedly discriminatory actor is someone who is previously selected the plaintiff for favorable treatment, it is very strong evidence that the actor holds no discriminatory animus, and the plaintiff must present correspondingly stronger evidence of bias in order to prevail.” (Nazir v. United Airlines, Inc.)

This strategy is not a magic wand. It does not render employers invulnerable to discrimination claims. That fact is illustrated by the Nazir case where the Court of Appeal closely examined the facts presented on motion for summary judgment and determined that the “same actor” defense did not protect the employer. That said, the “same actor” inference is such that it merits strategic consideration by employers. Can we the employer, without increasing the burden or complicating the administration of the hiring and employee management process, involve the same actors throughout the employment management process? This strategy would require employers to include supervisors (along with an executive or HR representative) in the hiring process and involve those same persons in discipline and termination decisions. Many companies already have such policies but as the cases discussing the “same actor” inference demonstrate, such a strategy may help reduce an employer’s exposure to employment discrimination liability.

Weintraub Lawyers Win Appeal Before the Ninth Circuit

Published: May 6, 2010


The Labor & Employment Law Blog

On May 5, 2010, the Ninth Circuit Court of Appeal issued an Opinion, to be published, in the case titled Porter v. Winter (9th Cir. 07-171250). Attorney Charles L. Post prepared and submitted the briefs and attorney Lizbeth V. West appeared and argued before the Ninth Circuit on behalf of Appellant, Ronald Porter.

Ronald Porter, a former civilian employee of the Navy, brought a complaint before the Equal Employment Opportunity Commission (“EEOC”) alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The EEOC found the Navy liable for retaliation, but not gender discrimination. Porter sought to recover the attorney’s fees and costs he incurred in the Title VII administrative proceedings, but the Navy awarded him only a fraction of the amount he requested. After reviewing the Navy’s fee decision, the EEOC slightly increased the award.

Porter filed a complaint in district court challenging the amount of attorney’s fees awarded to him in the Title VII administrative proceedings. The district court dismissed the complaint for lack of subject matter jurisdiction, reasoning that it did not “have jurisdiction to adjudicate solely a claim for attorney’s fees without a claim of a substantive violation of Title VII.” Porter appeals that ruling. We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s decision de novo. Armstrong v. N. Mariana Islands, 576 F.3d 950, 954 n.4 (9th Cir. 2009).

We conclude that, under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney’s fees incurred in Title VII administrative proceedings. Accordingly, we reverse. For a full copy of the Opinion, visit http://www.ca9.uscourts.gov/datastore/opinions/2010/05/05/07-17120.pdf

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Charles “Chuck” Post and Lizbeth “Beth” West are shareholders in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Chuck’s practice includes counseling employers in all areas of employment law and representing management in the defense of wrongful termination, discrimination, harassment, trade secret, employee mobility and other employment disputes. He has extensive experience defending multi-party complex litigation involving misappropriation of trade secrets, unfair competition, and corporate raiding. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. Chuck and Beth also provide training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Charles L. Post or Beth West at (916) 558-6000. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

LAW ALERT: Cobra Subsidy Extended Yet Again

Published: April 19, 2010

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

President Obama signed H.R. 4851 into law on April 15, 2010. The new law amends the American Recovery and Reinvestment Act of 2009 (“ARRA”) yet again to extend the 65% COBRA premium assistance through May 31, 2010.

The COBRA subsidy was originally provided as part of the ARRA in 2009. If an employee is involuntarily terminated on or before May 31, 2010 and is otherwise eligible for COBRA, he or she is eligible to receive a 65% subsidy in his or her COBRA premiums. This means the former employer pays 65% of the health insurance premium under COBRA and the employee pays the remaining 35%. Employers can then apply for a tax credit for the portion of the COBRA premium they pay.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.

LAW ALERT: COBRA Subsidy is Extended Again

Published: March 4, 2010

by Lizbeth (Beth) V. West
The Labor & Employment Law Blog

On March 2, 2010, President Obama signed the Temporary Extension Act of 2010 (H.R. 4691) that, among other things, extends the eligibility period for the COBRA subsidy provided in the American Recovery and Reinvestment Act (ARRA) for an additional 30 days.

The new legislation extends the eligibility date for the COBRA subsidy from February 28, 2010 to March 31, 2010.

The COBRA subsidy provisions under the ARRA provide that eligible employees (those who are “involuntarily terminated” within the stated period) pay 35% of the premium costs and employers pay the other 65%. The employer can then file for a federal tax credit for the premium subsidy it pays.

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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.