What's New In Employment Law

The EEOC has finally published its long-awaited final regulation implementing the federal Pregnant Workers Fairness Act (“PWFA”), which is effective on June 18, 2024.

As you may recall, the PWFA “requires covered entities to make reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity.” As usual, the devil is in the details – and the regulation provides 408 pages of details! We summarize key provisions below:

What Employers Are Covered? 

The PWFA covers all employers (including unions and employment agencies) with 15 or more employees anywhere in the universe.

Who is a “Qualified Employee”?

The PWFA provides two definitions of a “qualified employee.” The first is identical to the Americans with Disabilities Act (“ADA”) definition: “An employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position.”

The second definition is unique to the PWFA, and allows an employee or applicant to be qualified even if they cannot perform one or more essential functions of the job, provided that inability is “temporary,” the employee could perform the essential function(s) “in the near future,” and the inability can be reasonably accommodated.

“Temporary” means lasting for a limited time, not permanent, and may extend beyond “the near future.” For conditions related to a current pregnancy, “the near future” means “generally” 40 weeks. As discussed below, the PWFA also covers conditions not related to a current pregnancy. Employers will need to assess on a case-by-vase basis whether a non-pregnant employee will be able to perform the essential function(s) again in the “near future.”

What Conditions Are Covered?

The PWFA requires employers to accommodate an applicant’s or employee’s “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.” The condition need not meet ADA’s definition of a “disability,” and may be “modest, minor, and/or episodic.”

The definition of “related medical conditions” is substantially more expansive than other related laws, including California’s Pregnancy Disability Leave law. In addition to current pregnancies, the PWFA covers past and potential pregnancies, lactation, contraception use, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and abortion, among other conditions. It also includes pre-existing conditions exacerbated by pregnancy.

Which Accommodations Are Reasonable?

The PWFA’s definition of “reasonable accommodation” is similar to the ADA’s, and the final regulation provides several examples of possible reasonable accommodations, including telework, job restructuring, reserved parking, etc.

The regulation also lists four “predictable assessments,” which will not impose an undue hardship in “virtually all cases,” although employers may still individually assess these requests as appropriate:

• Carry or keep water near and drink, as needed;
• Take additional restroom breaks, as needed;
• Sit or stand, as needed, if the employee’s work requires standing or sitting; and
• Take breaks to eat and drink, as needed.

What Constitutes Undue Hardship?

Like the ADA, the PWFA defines “undue hardship” as a significant difficulty or expense for the employer. The regulation outlines some factors employers should consider when determining whether undue hardship exists, which are the same as the factors under the ADA. However, the final regulation also includes several additional factors when evaluating undue hardship related to the temporary suspension of an essential function, including the length of time the employee will be unable to perform the essential function(s) and the nature of the essential function, including its frequency, among other things. 

When May Employers Require Documentation?

Employers may only require documentation under the PWFA if reasonable and required to determine whether the applicant or employee has a covered condition and needs a change or adjustment at work due to a limitation caused by the condition. Even then, however, employers are limited to requiring documentation that is sufficient to confirm the condition; confirm the condition is related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions; and describe the change or adjustments needed at work due to a limitation caused by the condition.

Employers must accept an employee’s self-attestation as sufficient documentation when the pregnancy is “obvious,” or the employee seeks one of the “predictable assessments” discussed above as an accommodation.

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You may read the final regulation and interpretive guidance here, and the EEOC’s “Summary of Key Provisions” here.

Feeling overwhelmed? Join us for our upcoming webinar, Why You Cannot Ignore the Federal Pregnant Workers Fairness Act, on June 4, 2024, from 9:00 a.m. to 10:30 a.m. PST.  You can register here! 

The post EEOC Publishes Expansive “Pregnant Workers Fairness Act” Final Regulation first appeared on Shaw Law Group.

      

For any number of reasons, employers may find themselves lacking sufficient documentation supporting their legitimate, business-related reasons for employment-related decisions. Maybe they’ve been avoiding uncomfortable conversations with an employee. Or HR has an overwhelming workload, and simply cannot add the task of writing a memo summarizing every personnel decision and meeting. Regardless of the reason, below are some practical tips to make documentation less daunting, and to remind you why it is so important!

The Importance of Documentation

Documentation serves many important functions. First and foremost, good documentation guides an employee’s expectations. As we often say, employees who feel blindsided by a disciplinary action or termination often create their own story to explain the “real” reason for the adverse action. Clearly (and honestly!) documenting performance expectations and challenges helps employees understand what is expected of them.

Of course, sometimes employers can do everything right and nonetheless find yourself defending a claim. In those cases, documentation helps both reduce the risk of litigation and provide a defense if a claim is filed.   

Practical Tips

Whether you are documenting a performance review or a disciplinary action, the following tips make the process less daunting and the end result more useful:

• Be timely – prepare the documentation contemporaneously with the action
• Include all relevant information – remember the five “W”s: Who, What, When, Where, Why?
• Include objective facts, rather than assumptions, labels, legal conclusions, or subjective opinions
• Be specific – include specific examples instead of broad generalizations
• Do not exaggerate

Finally, keep in mind that “documentation” need not be formal. A written memorandum signed by the employee is nice, but may not always be practical. Sometimes the best you can do is send yourself a contemporaneous email summarizing a meeting or conversation. That email is far better than no documentation, and it will benefit the organization if you find yourself defending an employment decision.

Please join us for more performance management tips and guidance in our upcoming interactive webinar on June 18, 2024: “Performance Management with a Modern Spin.” For more information and to register, click here.

The post Documentation for Employers: 101 first appeared on Shaw Law Group.

      

In the four years since the COVID-19 pandemic made “telework” a household name, many employers have permitted employees to stay home or work a hybrid schedule. However, more and more employers are requiring employees to return to in-person work. As a result, we receive a lot of questions on the topic, some of which are highlighted below.

Can We Require Employees to Return to In-Person Work?

Yes!  Even if employees are hired with an understanding that they will work remotely or a hybrid schedule, employers legally can change the arrangement any time, provided the employee is “at will.”  Of course, revoking telework may have moral implications, but that’s generally not a legal issue.  It’s important to keep in mind, though, that when an employee requests remote work as a reasonable accommodation of a disability, employers must approach the question a little differently.  (See below.)

How Much Notice Should We Give to Make Employees Return In-Person Work?

Before requiring remote workers to return to the worksite, employers must review and comply with any applicable agreements. For example, collective bargaining agreements and/or memoranda of understanding may require union employees to be permitted to work a hybrid schedule or require a certain notice period before revoking telework privileges. Employers also may have remote work agreements with their employees that contain similar provisions.

If there are no contractual requirements, then employers should be reasonable in terms of the notice they provide. In many cases, the best risk mitigation tools in an employer’s toolbox are happy employees – treating them with courtesy goes a long way. Requiring employees to return to work “effective immediately” will result in more disgruntled employees than giving reasonable notice.

What About Employees Teleworking as a Reasonable Accommodation?

Employers may not unilaterally remove telework for employees approved to telework as a reasonable accommodation of a disability. Those employees should have separate telework agreements and conditions, the duration of which will depend on the situation.  Of course, employers are not required to approve accommodations for an indefinite duration, so it’s important to set up an internal process to manage these situations.  (If you have questions about reasonable accommodations, join our upcoming two-day workshop, “Effectively Managing Leaves of Absence and Reasonable Accommodations (Advanced Topics)” on September 19, 2024, and September 26, 2024. Obtain more information and register here.) 

How Should We Communicate the Decision?

Employers should provide written notice when revoking a telework arrangement.  The notice should include the date on which employees must return to the worksite, as well as any other necessary details related to logistics – e.g., whether they need to bring laptops back to the office, where they will be working, etc. The notice also should include an explanation of the reason for revoking the telework agreement and identify a point of contact if employees have questions or concerns.

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Many employees want to work at home.  And they may be willing to quit a good job if they aren’t permitted that option.  Employers who want employees to return to in-person work need to explain the benefits of doing so, and show employees how working onsite can benefit their growth and career development, and drive camaraderie and teamwork. 

The post Return-to-Work Considerations first appeared on Shaw Law Group.

      

Last week, the California Supreme Court published a much-anticipated opinion related to when an employer’s control over an employee’s activities constitutes “hours worked.” Although the Huerta v. CSI Electrical Contractors opinion primarily relates to rules governing the construction, drilling, logging, and mining industries covered by Industrial Welfare Commission Wage Order No. 16, the Court emphasized that its analysis of “hours worked” and employer control is widely applicable to other industries.

As you may recall, all wage orders define “hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Wage Order Nos. 4 and 5 also include additional language in the definition).

The Court answered three questions based on the facts at issue:

Question 1: “Is time spent on an employer’s premises in a personal vehicle and waiting to scan an identification badge, have security guards peer into the vehicle, and then exit a Security Gate compensable as ‘hours worked’ within the meaning of … Wage Order No. 16?”

CSI employees underwent daily security checks at a security gate. There were often long lines of vehicles waiting to both enter and exit the worksite, and the exit procedure caused delays of between five and more than 30 minutes. Employees were not paid for the time waiting to enter or exit the security gate.

To determine whether the time employees spent during the exit process was compensable, the Court looked at several factors, including: (1)  the activity’s mandatory nature; (2) the location of the activity; (3) the degree of employer control; (4) whether the activity primarily benefits the employee or employer; and (5) whether the activity is enforced through disciplinary measures.

The Court decided that the time was compensable because of the “indicia of employer control” – the exit procedure was mandatory and onsite, required employees to perform specific and supervised tasks, and primarily benefited the employer.

Question 2: “Is time spent on the employer’s premises in a personal vehicle, driving between the Security Gate and the employee parking lots, while subject to certain rules from the employer, compensable as ‘hours worked’ or as ‘employer-mandated travel’…?”

CSI employees were not paid for the 10 to 15 minutes they spent driving between the employee parking lot and security gate at the start and end of each shift. Notably, there was only one road in and out on the private land where they were working, and employees were required to obey posted speed limits and rules restricting music volume and prohibiting honking horns.

The Court held that the drive time may be compensable as employer-mandated travel, but not as “hours worked.” In the Court’s view, the employer’s level of control over the employee is irrelevant to determine whether time is compensable as “employer-mandated travel.” Instead, Wage Order 16 requires employees to be paid for any travel undertaken at the direction and command of the employer after the employee’s arrival at the “first location,” if the employer requires the employee’s presence. Factors relevant to this analysis include, (1) the purpose served by the employee’s presence at the location; (2) the activities occurring at the location; and (3) the amount of time spent there at the location.

The Court did not have sufficient facts to rule on whether employees’ time driving from the security gate to the parking lot was “employer-mandated travel.” The Court was clear, though, that the drive time was not compensable “hours worked” because there was insufficient indicia of employer control. The rules in place during that drive time were designed to ensure “safe, lawful, and orderly conduct while traveling on the employer’s premises,” which are “necessary and appropriate in virtually every workplace.”

Question 3: “Is time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities compensable as ‘hours worked’… when that time was designated as an unpaid ‘meal period’ under a qualifying CBA?”

The Court answered this question in the affirmative, and ruled that time spent on a designated “unpaid meal period” is nonetheless compensable as “hours worked” if the employer prohibits the employee from leaving the employer’s premises or a designated area during the meal period, and if this prohibition prevents the employee from engaging in otherwise feasible personal activities.

The collective bargaining agreements (CBAs) applicable to CSI employees included an unpaid 30-minute meal period. However, CSI did not permit employees to leave the site for meals. Instead, employees were required to take their meal periods at designated areas near their worksite, and were not paid for the time.

The Court stated that it had insufficient information to rule on whether employees’ meal periods were so restricted as to be compensable “hours worked.” However, it confirmed the rule that “an unpaid, off-duty meal period requires that the employee ‘(1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.” (Emphasis in original).

There’s lots to learn from this decision.  The takeaway?  Employers must ensure they compensate employees for all hours worked.  Depending on the circumstances, time spent undergoing entry and exit procedures may qualify as hours worked.  And employer-mandated travel must always be paid under California law. 

Hmmm…we need a webinar on this one!  Stay tuned for more information soon!

Read the full opinion in Huerta v. CSI Electrical Contractors here.

The post Paid Work Time Just Got More Complicated! first appeared on Shaw Law Group.

      

We’ve all been there. It’s a busy afternoon. You receive an employee complaint via email. You think to yourself, “What do I do now?” The short answer: If there are key facts you do not know, you need to investigate the complaint.

Once an employer is on notice of potentially improper work-related conduct, they have an obligation to conduct a prompt, thorough, and impartial investigation, and to take prompt and effective corrective action. In fact, the failure to promptly investigate can form a basis for a legal claim, so it is important that employers and supervisors know that there are no “off-the-record” complaints.

Although it may be tempting, employers should never determine that a complaint is without merit until they have investigated. Of course, not all investigations look alike – sometimes, it may be a quick conversation to resolve a misunderstanding. For example, if the allegation is that an employee circulated an inappropriate email, the investigation may be as simple as reviewing the email and confirming the sender’s identity. On the other hand, a complaint of a “hostile work environment” often requires numerous witness interviews. If the evidence is clear or the employee has already admitted to the alleged conduct, though, there may be no reason to do an investigation.

Finally, investigations should never end with a finding of “inconclusive,” or “it was a he said/she said.” Just like an umpire in a baseball game, investigators must call a ball or strike. The good news, though, is that the standard is only “more likely than not,” rather than “beyond a reasonable doubt.” And, even if the investigator ends up making the wrong call, there is no risk of liability if the investigation was conducted appropriately.

Need help? Join us for our upcoming three-day internal investigation intensive workshop, “Conducting Effective Internal Investigations.” This program covers investigation fundamentals and includes a mock investigation and interactive session on writing effective investigation reports. Click here to learn more and register.

The post Some Thoughts on Internal Workplace Investigations first appeared on Shaw Law Group.