Disability and Accommodation: California’s Fair Employment and Housing Act
According to the U.S. Census Bureau Americans with Disabilities 2010 Report, there are 56.7M people living with a disability in the United States, or nearly 1 in 5 Americans. With such a large number, it is likely that your workplace encounters applicants and employees with some form of a disability.
If you employ five or more employees then you are considered a covered employer under the FEHA, which means that you cannot discriminate or harass an applicant or employee for an actual or perceived disability. It also requires that you reasonably accommodate unless you can show that to do so would cause an undue hardship. Reasonable accommodation requires a timely, good faith, individualized interactive process between you and the employee, applicant or the individual’s representative. This process involves exploring options for allowing the applicant or employee to perform the essential functions of the job.
Sample Prohibited Employment Inquiries:
- Medical or psychological examination or questions
- Asking about mental or physical disability or medical conditions
- Probing into the nature and severity of a mental or physical disability or medical condition
- Questions related to workers’ compensation claims
- Attendance questions that lead to disclosure of medical leaves
Examples of Reasonable Accommodation:
- Modified work schedule
- Job restructuring
- Providing a leave of absence or time off for medical treatment
- Adjusting or relocating a work area
- Allowing employee to work from home
Applicant/employee protections under FEHA are separate and in addition to the rights and responsibilities that employees may be entitled to under the California Family Rights Act, Family Medical Leave Act and Workers’ Compensation laws.
Sierra HR Partners is available to answer any questions.
At a Premium: Paying Employees NOT to Work
As managers and HR professionals, we know that accurately tracking and paying employees’ hours worked can be tricky. The matter becomes even more challenging when you consider certain types of premium pay that may be due to employees when they are not working.
Reporting Time: If an employee reports to work and is furnished with less than a full day’s shift, the organization must pay the employee for half of the regularly scheduled hours, with a minimum of two hours’ pay, but not more than four hours’ pay. If an employee is required to report back to work a second time in the same day, he/she must receive at least two hours’ pay. There are exceptions to this rule including when work is interrupted by an act of God, public utility failure, or threats to the organization. Reporting time also applies if an employee is terminated without notice and is provided with less than half of the usually scheduled shift on the final day.
Split-Shift Pay: A split shift occurs when an employee is scheduled for two distinct work times in one day, such as 7:00am to 10:00am, and then again from 1:00pm to 5:00pm. When there is an unpaid interruption of more than one hour, the employee must be paid an additional premium hour at minimum wage. However, the premium pay is not required if the employee’s pay for hours worked equals at least minimum wage plus the additional hour. For example, an employee earning $9.00 per hour would earn $72 for eight hours worked. With a split-shift premium of one hour, total pay for the day would increase to $81. If the employee’s hourly rate were $10.50, s/he would earn $84 for his/her work hours, and no additional premium would be due.
These types of premium pay are not considered hours worked, and do not count toward calculations for overtime or vacation accrual. Failure to provide premium payments could lead to a claim for waiting time penalties and attorney’s fees, so it is important to understand when they are triggered and how much is due.
Finally, be sure to stay in compliance with Labor Code section 226 by separating actual hours worked from any premium hours on employees’ paycheck stubs.
Are You Ready for 2015?
It’s hard to believe that we are quickly approaching the end of another year. January 1st is just around the corner and with it comes many new laws that will affect your workplace.
If you are a handbook client of Sierra HR Partners or Fishman Larsen and Callister (FLC) you will have the opportunity to learn all about the new laws and court rulings in an in-depth training session offered this month at FLC on December 17 or 18.
A few changes you can expect going into 2015, include:
- Paid Sick Leave law that requires notifying employees of their rights via an employment poster and pay notice effective January 1st
- Fair Employment and Housing Act (FEHA) amendment that protects unpaid interns and volunteers from harassment and discrimination
- Sexual Harassment Training that includes prevention of abusive conduct, also known as bullying. (Sierra HR Partners will be updating our Harassment Prevention training workshops to comply with this new requirement.)
January 2015: Getting at Employee Feedback
Whether it’s from a suggestion box, an employee survey, 360-degree feedback, or a hallway conversation, employee feedback can provide great value to your business. But employee feedback is not always easy to come by.
Giving feedback is likely an integral part of your performance management philosophy. But what does your business do about receiving feedback, and taking constructive action as a result?
Now is a great time to take steps that encourage feedback from all levels. Even if you don’t know where to start, there are many tools and approaches to use if you want to strengthen your organization’s culture by eliciting and productively responding to constructive feedback.
Our team is experienced in preparing and delivering employee satisfaction surveys, focus groups, coaching sessions and goal development. Contact us for more information.
Employment records can really pile up over the years and it may not be clear what you have to retain as an employer, and for how long. To add to the confusion, document retention is governed by multiple acts and California labor codes, including but not limited to FLSA, Title VII, FEHA, ADA, Cal-OSHA and ERISA.
The following chart highlights our recommended retention period by document type. Note that this is not an exhaustive list of all recordkeeping requirements, and timeframes may be longer if litigation or potential litigation is involved. Contact one of our HR consultants with any questions or concerns.
|Applications, resumes, ads, interview notes and assessment forms.
|Employment eligibility (Form I-9)
||3 years from date of hire or 1 year following termination, whichever is later.
|Training completion records
||3 years after termination
|Health plan, benefit files, and insurance policies
|Accident and injury reports
||3 years after termination
|Workers’ comp claim forms
|Child Labor certificates
|First aid records
Changes to California’s Heat Illness Standard
The California Occupational Safety and Health Standards Board has issued an amendment to its Heat Illness Standard, which applies to all outdoor places of employment. If you have employees who work outdoors, or in an indoor environment that lacks air conditioning, it will be important to understand these changes, which became effective May 1, 2015.
One change is that the temperature threshold at which employers must provide shade and allow employees to take a cool-down recovery period has been reduced from 85 to 80 degrees.
The amount of shade provided must be enough to accommodate the total number of employees taking a recovery or rest period. The Standard previously stated shade must accommodate 25% of employees on the shift, and the new requirement may increase the amount of shade you must make available.
Also, employers now have greater responsibilities when an employee takes a cool-down recovery period to avoid heat illness. The amended Standard states that the individual should be monitored for symptoms of heat illness, be encouraged to remain in the shade for no less than 5 minutes, and shall not be ordered back to work until any signs or symptoms of heat illness have abated. If the employee exhibits symptoms of heat illness during the cool-down rest, the employer must provide appropriate first aid or emergency response.
High heat procedures must be taken when outdoor temperatures reach 95 degrees, and the amended Standard provides greater details regarding employers’ responsibilities to ensure effective communication, monitor employees, encourage recovery periods and hydration, and contact emergency medical services when necessary.
Finally, a Heat Illness Prevention Plan must be provided in writing in both English and the language understood by the majority of the employees.