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Employment Law Blog

Wednesday, March 11, 2009

What Your Company Should Do If The Employment Non-Discrimination Act Becomes Law

One of the major employment law changes that is likely to come about early in the Obama Administration is the passage of the Employment Non-Discrimination Act. This bill would amend Title VII to prohibit discrimination based upon sexual orientation. Prior versions of this bill included gender identity as well as sexual orientation. However, the current version of the bill know as HR 3685 that was introduced by Representative Frank only includes sexual orientation as a protected class.

Title VII currently does not include sexual orientation a protected class. However, President Obama has indicated that he would like the law to prohibit both sexual orientation as well as gender identity discrimination. Whether gender identity is ultimately included will be something to watch for. Although federal law does not currently include sexual orientation or gender identity as a protected class, many state laws do provide that sexual orientation, gender identity or both are protected classes. Currently, there are 13 states and Washington, D.C. that protect against both sexual orientation and gender identity. These states are California, Colorado,Connecticut, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. In addition there are currently 7 states that protect against sexual orientation but not gender identity. These states are Hawaii, Maryland, Massachusetts, Nevade, New Hampshire, New York and Wisconsin.
For employers located in a state where neither sexual orientation nor gender identity are currently protected classes under state law, how will this new federal law affect your company? An employer would need, at the very least, to do the following:

• Amend their EEO Policy to add sexual orientation as a protected class; and

• Amend their Anti-Harassment Policy to add sexual orientation as a protected class; and

• Amend their Employment Application EEO paragraph to prohibit sexual orientation discrimination; and

• provide training for their managers and employees so that they understand what sexual orientation discrimination and harassment look like to help to prevent it.

Even if ENDA does not include gender identity as a protected class, a recent landmark case has added some protection for those who claim discrimination and/or harassment based upon gender identity. In the case of Schroer v. Billington, David Schroer applied for a position and was hired by the US Library of Congress. Mr. Schroer met with his boss prior to the commencement of employment. At this meeting he told his soon to be boss that he would be “transitioning” to a female and would be a female when he started the job. He told his soon to be boss that his name would be Diane Schroer on his first day of employment and that he would look like a woman. The very next day Mr. Schroer received a telephone call advising him that the Library of Congress was rescinding the offer of employment because he was “not a good fit for the position”.

Diane Schroer commenced a lawsuit under Title VII against the Library of Congress claiming that the decision to revoke the offer of employment was discrimination based on sex under Title VII. Remember that Title VII does not yet and did not when she brought this lawsuit prohibit discrimination based on gender identity. However, Diane Schroer’s attorney claimed that by rescinding the offer based upon Diane’s transitioning to look like a woman, the Library of Congress had discriminated against her based on her sex.
This was a landmark decision because the Library of Congress had alleged at trial in federal district court in Washington, D.C. that it had no liability because transgender people are not covered under Title VII. However, the Court held that the decision to rescind the offer after learning of the employee’s decision to transition from a male to a female, essentially changing genders, was discrimination based upon “sex” under Title VII.

Of course this won’t be an issue if ENDA ultimately prohibits discrimination based upon gender identity as well as sexual orientation. However, if ENDA limits the prohibition to sexual orientation then this is an important landmark decision because it creates precedent that transgender employees might be protected from gender identity discrimination and/or harassment by Title VII in its current version based on Title VII’s prohibition on sex and gender discrimination and harassment.

Submitted by: Melissa Fleischer, Esq.
HR Learning Center LLC
.(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 03/11 at 03:24 PM
Employment Law
Tuesday, February 24, 2009

Won’t you be my neighbor?  Allegations of Non-employee sexual harassment.

An employee complains to HR about being sexually harassed at work by a non-employee.  Can the employer face liability for a non-employee’s behavior?  The short answer yes, under Title VII the employer must investigate and take action to end the harassment.

My company has 83 cell phone stores across the country.  Two of these stores are within about 20 miles of each other in Tennessee. Both of these stores happen to be next to military recruiting offices and the same Recruiter works at both stores.  Recently this Recruiter has begun visiting female associates in our stores and making inappropriate sexual comments.  I had not heard anything about this situation until a few days ago, when the Recruiter’s wife stomped into one of the stores and told the female associates on duty to “stay away from her man.”  It was then that the associates reported to their manager that there has been ongoing inappropriate behavior by the Recruiter.  My little employment lawyer brain buzzed with questions.  What do you do when a non-employee is sexually harassing your employee?  Is there liability?  I had a vague recollection of a case involving a delivery man who repeatedly harassed the secretary at a client company who signed for the packages, the employer knew about the harassment, but, since the delivery man was a non-employee, did nothing to stop it.  In this case, however, the Recruiter is not an employee, a customer or a vendor – he is just a neighbor.  Neighbor or not, under Title VII of the Civil Rights Act of 1964 we may be held liable for sexual harassment by a person not employed by the company.  If one of our employees complains about being harassed by a non-employee, like a customer or a salesman, we can be held liable for failing to investigate and take action to end the harassment.  The bottom line is that the EEOC has taken the position that an employer may be held responsible for sexual harassment by non-employees if the employer knew about the harassment and failed to take immediate action. 

When I hear allegations of harassment, I think C.I.A.:

  Complaint         Investigate             Action

If an employee complains about harassment by a non-employee, you should immediately investigate the complaint.  Like the investigations you are familiar with in employee-on-employee harassment situations, you will need to interview the complaining employee and find out the who, what, when, where, and how the alleged harassment occurred.  Be sure to assure the employee that you will not take any negative actions against the employee for complaining (there will be no retaliation for making the complaint).  At a minimum, ask these questions:

i. Who harassed the employee?  (Because the alleged harasser is a non-employee, you will need to get as much information as possible.)
ii. What happened? (Ask for specific details.)
iii. Where and when did the harassment take place?
iv. Has the employee been harassed by this person before?
v. Are there any other witnesses?  If there are:
          a.  Interview the witnesses
          b.  Tell them that the investigation is to be kept confidential. 
          c.  Assure them that no negative job actions will be taken against them based on any information they provide. 
          d.  Ask them the who, what, when, where, and how.

Take thorough notes during your interviews and ask the employee to read them over and sign them to verify their accuracy. If you find that the complaint is valid, you will need to take action to end the harassment.  This might be problematic, because it is impossible to directly discipline a non-employee.  However, whatever corrective action you take should be focused on protecting the employee against future harassment by the non-employee. 

In this situation, my next step will be to write a letter to the Recruiter’s superior officer explaining the situation and asking for his or her help in preventing any further harassment from occurring.  I am hopeful that this will put an end to our neighbor’s unwanted visits to our stores. 

Mr. Rogers would be disappointed.  I guess this is really a case of “Don’t you be my neighbor.”

Posted by Patrick Della Valle on 02/24 at 10:18 AM
Sexual Harassment • • Member Discussion
Friday, February 06, 2009

California EDD Overwhelmed, Short of Funds As Unemployment Reaches 9.3%

As the unemployment rate in California increased to 9.3% statewide in December 2008, the state agency responsible for administering unemployment benefits, the Economic Development Department (EDD) is overwhelmed. It has a significant case backlog and has drained the unemployment insurance fund.

As reported in the L.A. Times, “the state is paying out $30 million to $34 million a day in benefits. During the week of Jan. 5, its balance fell from about $500 million to $270 million.”

In December, reports the Times, California issued $1.1 billion in assistance checks to 429,000 claimants. Unemployed workers are eligible for payments of as much as $450 a week for up to 59 weeks.

According to the EDD, the UI Fund is projected to be in a deficit of $2.4 billion by the end of 2009. The UI Fund is projected to be in a deficit of $4.9 billion by the end of 2010 if changes are not made to the financing structure. The governor and legislature have been discussing increasing employers’ payroll tax contributions. This of course would not be good news for businesses already hit hard by the recession.

When the fund is depleted, the state will be forced to turn to the federal government for loans.

Meanwhile the EDD is overwhelmed by the volume of claims. “Millions of calls to state unemployment insurance processing centers continue to go unanswered,” reports the L.A. Times. “A 30-year-old computer system is overloaded, and stressed clerks are swamped by backlogged applications.”

The backlog is becoming a crisis, reports the L.A. Times. “Although the Unemployment Insurance Appeals Board is supposed to decide within 30 days whether the state wrongly denied an individual’s jobless benefits, less than 4% of complaints are finished by then, the U.S. Department of Labor says.”

In all, a record 68,135 appeals filed by out-of-work people and employers were awaiting action by the board as of Jan. 23.

“California takes longer to resolve unemployment appeals than any other state except Virginia, according to Labor Department data, and the federal government has demanded that the state come up with a plan to fix the mess this month.”

Governor Schwarzenegger’s plan to require state workers to take a two day work furlough each month is expected to exacerbate the problem.

Despite the backlog, employers should continue to promptly review employee claims to determine whether an application should be challenged, and if necessary, an award appealed. An employer has the right to appeal EDD’s decision to pay a claimant. An appeal must be submitted within 20 calendar days of the mailing date of the EDD’s Notice of Determination and/or Ruling.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 02/06 at 01:32 AM
California Employment LawEmployment Law
Saturday, January 31, 2009

California Division of Occupational Safety and Health Reminds California Employers to Post Form 300A

The Department of Industrial Relations’ Division of Occupational Safety and Health (DIR/DOSH) has issued a press release reminding California employers to post at their place of business a summary of work-related injuries and illnesses during 2008.

The Form 300A requires employers to report the number of injuries each year, even if no work-related injuries occurred. Vital information must also include the nature of the injury or illness that the employee suffered, the severity of the work-related incidents and the number of days the employee missed work due to the injury.

The deadline is upon us. According to Cal/OSHA, the summary must be displayed in a visible area from Feb. 1 through April 30 for employee review.  The posting period helps improve safety, according to state officials. “The summary is designed to create safety awareness in the workplace for employers and employees so similar injuries can be prevented in the future,” notes DIR Director John. C Duncan

Which employers must post Form 300a? Employers with 11 or more employees, except those covered in the California low-hazard establishments in the retail, services, finance and real estate sectors. For information about whether your company is an excepted establishment, follow this link to the Cal/OSHA website: List of exempt establishments.

Covered employers must display the totals from the Summary of Work-Related Injuries and Illnesses (CAL/OSHA form 300A) wherever employee notices are usually posted. Cal/OSHA also requires employers to mail or provide the annual summary to employees who do not report at least weekly to a location where the annual summary for their workplace is posted.
If there is more than one business establishment, a separate log and summary must be posted in each physical location that is expected to be in operation for one year or longer.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 01/31 at 12:42 AM
Employment LawOSHA
Friday, January 30, 2009

It’s A Dirty Job…...

We’ve all had the unenviable task of doing it.  We’ve all had to go ahead and bite the bullet and “get ‘er done”.  We’ve probably all had to take a moment to ourselves to regain our composure after we’re done doing it.  But is there ever a GOOD way of making it happen?  Is there a more efficient way of doing it while decreasing the chance of drama? 

What am I talking about, you ask?

TERMINATIONS!!!!  ***Que the high-pitched screams of horror***

It’s almost natural for a person to want to defend himself when he is confronted with some type of misconduct that causes for his employment to be terminated.  Especially when the misconduct is not “gross” in nature (assault, theft, violence, work-refusal, etc.).  So do you allow for the employee to state his case even when you know that the decision is final?  If so, how long do you allow for it to happen without it turning into a remake of “The Great Debators”? 

One thing I was taught by my old boss (I like to refer to her as the Yoda of HR) was that if you find that it’s been over 5 mins and you are STILL TALKING during a termination, you probably are going to end up saying something that you will regret (aka something that the termed employee can use against the company to dispute the termination).  You know, something like “I’m so sorry” or “I wish this didn’t happen to you” or “I wish it was someone other than you”.  So as a rule, it’s best to keep things within a 5 minute time limit in order to void out any opportunity for something out of line being said.

So with all of that said, how do you balance keeping things short and sweet while also making sure that the termed employee doesn’t feel like the company poured salt into his wound by treating him like a total stranger who hasn’t been working for the company for “umpteen” years?

So please do me a favor and let me know some of your experiences when it came to terminating an employee?  Is there a GOOD way to do it?  What kinds of methods have you used and how well did they work (or not work)?

Once again….....


Posted by Patrick Della Valle on 01/30 at 04:36 PM
Employment Law • • Member Discussion

Lesson for Employers: Never Ignore a Complaint of Sexual Harassment

The Cheesecake Factory, Inc. learned this the hard way when they were recently sued by the EEOC for failing to respond to complaints by male Cheesecake Factory workers that they were being harassed by other male co-workers.  The complaint in this class action alleges that the male workers were continuously harassed since 2004 by other male employees.  The EEOC contends that groups of male employees would sexually assault other male employees and some would grab the male workers crotch area and also go behind them and “grind” up against them as if simulating a sexual act.  The male employees complained to management at the restaurant but management ignored the complaints and allegedly did nothing.  The EEOC attorney for the plaintiffs stated that “[a]ll employees, both men and women, have a right to work in a harassment free workplace”. 

The lesson for employers is clear.  When employees complain about harassment the law requires the employer to take action to eliminate the harassment and ensure that the workplace is harassment free.  The employer must commence an investigation and communicate the results of that investigation to the complainant and the accused.  The employer must then take “prompt corrective action”. Such action can include disciplining the harassers, up to and including, termination.  Depending on the severity of the harassment, prompt corrective action could simply involve a written disciplinary warning.  It really depends on the facts and circumstances of that individual case.  What is most important is that the employer take prompt action that successfully stops the harassment. 

This is true whether the harassment is between members of the opposite sex or the same sex.  In 1998, the US Supreme Court in the case of Oncale vs. Sundowner Offshore Services held that members of the same sex who harass each other are engaging in sexual harassment and that sexual harassment does not have to occur between members of the opposite sex.  So employers should be careful to not ignore complaints of sexual harassment even if they occur between same-sex employees.  Always take complaints of sexual harassment seriously and act immediately to eliminate any possible harassment in your workplace. 

Submitted By:  Melissa Fleischer, Esq.
                HR Learning Center LLC
                .(JavaScript must be enabled to view this email address)

Posted by Patrick Della Valle on 01/30 at 04:31 PM
Employment LawSexual Harassment
Thursday, January 22, 2009

The Calm Before the Storm: How to Keep an “Incident” from becoming a “Situation”.

Hello All,

Before I jump right into it, let me go ahead and paint a picture for you:

It is 8am on a Monday morning and traffic was non-existent (Did everyone take the bus?), the drivers that were on the road gave you the right of way each and every time (Do these people owe me money or something?), the birds are singing your favorite song (my personal favorite is Rainbow Connection by the Carpenters.), and the sun is shining so bright that you swear its smiling like the sun on the front of those old Raisin Bran cereal boxes.  You have a certain amount of guarded optimism because things are so quiet and peaceful.  Well by now it is 11am and you start to think that this Monday may not be so manic after all.  All of your employees are working like a well-oiled machine and there arent any blazing infernos that need to be put out. 

Just as you start to relax, you receive a phone call from one of your departmental managers stating that an unknown employee has put an Anti-Abortion poster up on the break room wall.  Well you might say to yourself, It is just one poster.  I will just go ahead and have it taken down and not make a big deal (aka ORDEAL) out of it. Well that may work in the short run.  But what if someone already saw that poster and decided that it was their moral duty to go and place some Pro-Choice posters up when he/she comes in the next day?  Or what if you had an employee who because of personal experience, saw the Anti-Abortion poster and became offended by its content prompting them to notify an outside organization?  Would just taking down the poster be enough?  Would doing that cause for that drizzle to turn into a storm?

In my humble opinion, I always make sure to be swift and definite in my actions when it comes to these kinds of things.  I would do the following:

—-Write up a memo reminding all employees of the companys Posting Policy and the impending disciplinary actions that could result from a
  violation of the policy.  I would post up copies of the memo in common areas like the break room, restroom door, time-clock, etc.

—-Depending on the contents of the posting and its severity, I would also consider having a staff meeting to verbally notify all employees about the
  Posting Policy as well.  Again, this may not be necessary.  It would strictly be a judgment call on my part.

—-I would notify all managers of the incident and advise them to keep a look out for any employees who feel the need to express themselves by
  posting things on company property.

—-I would make sure to become even more visible in order to send a silent message that HR is watching.  grin  This doesnt have to be done
  blatantly.  This could be accomplished by simply walking around and speaking to employees about their day or the kind of work that they are

All in all, I really feel as if it is a lot more beneficial to be proactive as opposed to reactive.  Communication with employees is key.  Again, this can be done by written communication and/or verbal communication.  If communication has been established and an employee still violates the policy, he/she cannot say that he/she was not aware or notified of the policy and the consequences of violating it. 

In closing, it is always important to let employees know that freedom of speech is not absolute when it comes to the workplace.  In other words, the workplace is no place for everyone to express their moral, religious, racial, or personal beliefs.  In addition, it is also imperative that we make sure that employees feel like they can come to a place where they do not have to worry about being ambushed by someones beliefs or expressions.  As an HR professional, it is crucial that we nip a potentially volatile situation in the bud before it goes from a little light rain to something similar to a tropical storm.  Being concise and decisive in your actions will go a long way towards taking care of an isolated incident before it becomes a company-wide situation. 

As always, this is an open forum for discussion.  Please feel free to comment with your own professional experiences and how they were handled.  Would you have done anything differently?  How did your employees react to your actions?  As far as my opinion on things is concerned, do you agree or disagree?  Let me know what you think or what you’ve done when faced with this particular situation.

Remember, dont talk about it, BLOG about it! Have a good one!

Jack Carter
HR Professional

Posted by Patrick Della Valle on 01/22 at 03:23 PM
Employment LawHuman Resources • • Member Discussion
Tuesday, January 20, 2009

Department Of Labor Publishes New Military Family “Qualified Exigency” Leave Certification Form

The Department of Labor has published a new form for use in connection with “qualified exigency” leave under the FMLA’s recently added military family leave.

By way of background, on January 28, 2008, President Bush signed into law H.R. 4986, the National Defense Authorization Act for FY 2008 (NDAA).

The NDAA amends the FMLA in two ways. First, it allows an employee to take up to 26 workweeks of leave to care for certain family members in the military who suffer a serious injury or illness in the line of duty.

Second, the NDAA permits an employee to take up to 12 weeks of FMLA leave for “any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” The family member must be a member of the National Guard or Reserves (not regular military).

Recently published regulations define “qualified exigency” to include the following:

(1) short-notice deployments (seven or fewer days notice);
(2) military events (e.g. ceremonies, briefings);
(3) childcare/school (e.g. time making arrangements on account of call to duty);
(4) financial/legal arrangements related to the call to duty;
(5) counseling related to the call to duty;
(6) R & R leave (up to five days);
(7) post-deployment activities (e.g. arrival ceremonies, briefings);
(8) additional activities if permitted by the employer.

The Department of Labor’s new form is for employers’ use when determining whether an employee is eligible for this type of leave.

The form can be found here: Link to DOL Qualified Exigency Leave Form

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC
San Diego Employment Law Attorneys

Posted by Christopher W. Olmsted on 01/20 at 11:35 PM
Employment LawFMLA
Wednesday, January 07, 2009

U.S. Department of Labor’s Wage & Hour Division Collects Over $185 Million in 2008

The U.S. Department of Labor’s Wage and Hour Division (WHD) announced in a January 2, 2009 press release its enforcement data for Fiscal Year (FY) 2008. In FY 2008, WHD recouped back wages totaling $185,287,827 for 228,645 workers.

WHD touted this statistic as a “40 percent increase over the FY 2001 figure.” The press release notes: “Since FY 2001, WHD has recouped more than $1.4 billion back wages for over two million workers.”

However, WHD has been the subject of recent criticism, and in its press release WHD failed to note that the 2008 figures represent a decrease from 2007. In FY 2007, WHD collected $220,613,703 for 341,624 workers. (Link to 2007 stats.)

Alexander J. Passantino, acting administrator for the Wage and Hour Division, offers the statistics in support of his request for additional funds to increase enforcement measures. “These continued strong enforcement results demonstrate that our comprehensive approach is working. We also urge Congress to provide the funds we have requested in the president’s FY 09 budget to hire additional investigators.”

President-elect Obama is likely to fulfill Passantino’s wishes, although Passantino will probably not be around to see it happen. In July 2008, responding to a Government Accountability Office report , Senator Obama sent a letter to Secretary of Labor Elaine Chao, expressing concerns that the Department of Labor is not fulfilling its mission to prevent and remedy violations of federal minimum wage and overtime laws. In his letter, he was critical of Mr. Passantino’s testimony before a Senate committee.

“GAO’s conclusions about how the Department exercises its responsibilities to working Americans raise serious, but addressable, issues. Fixing these problems may require bipartisan cooperation, or in some cases additional funding, but other needed reforms are in the sole discretion of the Department, and can be instituted unilaterally.”

In December 2008, President-elect Obama named Democratic Rep. Hilda Solis of California to serve as labor secretary.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 01/07 at 12:37 AM
Employment LawFLSALabor Law
Sunday, December 21, 2008

U.S. Department of Labor’s OSHA Reports Successful Enforcement Year In 2008

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) reports that it continued to exceed enforcement goals during Fiscal Year (FY) 2008. In its press release, the agency reports that its emphasis on identifying and eliminating serious safety and health hazards has resulted in an unprecedented 80 percent of all violations issued being in the most serious categories.

Among the DOL’s statistics:

87,697. Number of logged violations of OSHA standards and regulations for worker safety and health in 2008.

67,052. Number of 2008 OSHA violations cited as “serious.”

12. Number of criminal referrals for wrongdoing under the Occupational Safety and Health Act made in 2008.

38,515. Number of OSHA worksite inspections in 2008, surpassing the agency’s goal for the year by 2.4 percent. On average, 4,000 more workplace inspections were completed each year (38,515) between FY 2001-2008 as compared to the prior administration FY 1993-2000 (34,508).

3,800. Number of worksites targeted by the DOL for unannounced comprehensive safety inspections.

“Workplace inspections and issuing citations are a critical part of OSHA’s balanced approach to improving workplace safety, but the real test of success is saving lives and preventing injuries,” said acting Assistant Secretary of Labor for OSHA Thomas M. Stohler in the December 19, 2008 press release. “According to preliminary numbers for 2007, the workplace fatality rate has declined 14 percent since 2001, and since 2002, the workplace injury and illness rate has dropped 21 percent - with both at all time lows. This year’s inspection numbers show that the strategic approach used by OSHA - targeting highest hazard workplaces for aggressive enforcement while also using education, training, and cooperative programs to improve overall compliance - can help achieve significant reductions in workplace injuries, illnesses and fatalities.”

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 12/21 at 08:33 PM
Employment LawOSHA
Friday, December 19, 2008

With Wage Garnishments On The Rise, Employers Must Avoid Retaliatory Discharges

During these tough economic times, as employees fall into debt, employers may see an increase in wage garnishments. Can an employer terminate an employee if the wage garnishments become a nuisance?

The answer is: “It depends.” Federal law, as well as California law, protects employees from termination on account of garnishment for “one indebtedness.” An employer is not restrained from taking adverse action against an employee on account of garnishment for more than one indebtedness.

<u>Federal Law</u>

In the federal Consumer Credit Protection Act, found in Title 15 of the U.S. Code, section 1674 prohibits an employer from discharging any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness. A willful violation of the section may result in criminal penalties, including a fine of up to $1,000, or imprisonment of up to one year, or both.

Although the federal act provides a criminal sanction as the only penalty for violation of the prohibition, some federal courts, including in the 9th Circuit have interpreted the law to allow an employee to file a civil lawsuit seeking back pay.

The term “one indebtedness” refers to a single debt, regardless of the number of levies made or the number of proceedings brought for its collection. A distinction is thus made between a single debt and the garnishment proceedings brought to collect it. A creditor, in seeking to collect a debt, may garnish wages on multiple occasions. Yet because the creditor seeks to collect a single debt, the employee would be protected by the federal law.

According to legislative commentary, if several creditors combine their debts in a single garnishment action, the joint amount is considered as “one indebtedness.” In the same vein, if a creditor joins several debts in a court action and obtains a judgment and writ of garnishment, the judgment would be considered a single indebtedness for purposes of this law. Also, the protection against discharge is renewed with each employment, since the new employer has not been a garnishee with respect to that employee.

<u>California Law</u>

The California Labor Code provides similar protection to employees. Section 2929 provides: “No employer may discharge any employee by reason of the fact that the garnishment of his wages has been threatened. No employer may discharge any employee by reason of the fact that his wages have been subjected to garnishment for the payment of one judgment.”

An employee discharged in violation of California Labor Code Section 2929 may continue to collect wages for up to 30 days after the date of termination.

California law is thus more explicit than federal law with respect to a private right of recovery. The legislative commentary associated with Section 2929 states that the civil penalty is intended to aid in the enforcement of the prohibition against discharge for garnishment of earnings provided by the federal Consumer Credit Protection Act of 1968. The civil penalty under Section 2929 benefits employees, notes the commentary, by providing a more effective method of securing compliance than the criminal sanction provided by the federal law.

Excessive garnishments may subject an employee to discipline. The legislative commentary observes: “Some employers have a rule that the employee will be given warnings for the first two garnishments and will be discharged for the third garnishment in a year. Where at least two of the actions relate to separate debts, discharge would not be prohibited by the law since the warning and discharge would be based on garnishment for more than one indebtedness.”

Employers should thus exercise caution before taking adverse action against an employee whose wages have been garnished.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 12/19 at 12:49 AM
California Employment LawEmployment LawLabor Law
Sunday, December 14, 2008

California Assembly Leader Makes Employment Law Reform Demands In Midst Of Budget Negotiations

In the midst of the California budget mess that pits Democrats against Republicans, Assembly Republican leader Mike Villines has published a list of demands to be met before GOP politicians agree to discuss new taxes.  As reported by the Sacramento Bee, here, Villines has taken the position that Democrats have to capitulate to GOP demands for the 8-hour work day, meal breaks, looser environmental regulations, permanent budget cuts and a stiff spending cap, among other things.

The Bee quotes Villines: “We think you have to do these reforms first, cuts first and make sure that you’re doing an economic package that puts people back to work,” Villines said. “Then you have a discussion about revenue - and only then.”

The list of employment law reforms are as follows:


Employee Schedule Flexibility (perhaps referring to the 8 hour overtime rule)

Expanding Health Care Options for Employees (Health savings accounts)

Reducing Unwarranted Litigation (not clear what this means)

Overtime for high way earners (again, not clear)

Meal and Rest clarification (referring to the ensure vs. provide debate)

Eliminate “needs test” to allow more apprenticeships

As pressure mounts to reach a deal, political horse-trading of this sort may take place. Even so, commentators seem to think that employment law reform is wishful thinking.

Submitted by:
Christopher W. Olmsted
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 12/14 at 02:45 AM
California Employment Law
Friday, December 05, 2008

Department of Labor Publishes Summary of FMLA Amendments

The Department of Labor has published a four page general summary of the new FMLA regulations. The summary provides a good overview of some of the more significant changes.

The summary can be downloaded in pdf format from this link: DOL Summary of New FMLA Regulations

I have also published a somewhat more extensive summary on my website. Please follow this link: Barker Olmsted & Barnier Summary of FMLA Regulations

Posted by
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 12/05 at 12:30 AM
Employment LawFMLA
Wednesday, November 26, 2008

IRS Announces 2009 Standard Mileage Rates

The IRS has announced a new mileage rate effective January 1, 2009. The rate will decrease slightly, to 55 cents per mile.

“The mileage rates for 2009 reflect generally higher transportation costs compared to a year ago,” said the IRS in a press release, “but the rates also factor in the recent reversal of rising gasoline prices. While gasoline is a significant factor in the mileage rate, other fixed and variable costs, such as depreciation, enter the calculation.”

The IRS notes that the business mileage rate was 50.5 cents in the first half of 2008 and 58.5 cents in the second half.

Employers must generally reimburse employees for business-related travel expenses, including mileage. Often the IRS rate is adopted as the standard reimbursement rate, although this is by no means the exclusive method. Last year, for example, the California Supreme Court ruled that it is permissible in some circumstances to reimburse expenses by means of enhanced compensation. (Gattuso v. Harte-Hanks Shopper, Inc.)

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Patrick Della Valle on 11/26 at 11:39 AM
Employment Law
Friday, November 21, 2008

Have You Prepared Your Termination Checklist?

Once a termination decision has been made, your follow through should not be haphazard. Get organized before informing the employee. Below is a list of 24 issues to get you started:

1. Have handbook and all written procedures been followed?
2. Is there a written employment agreement? Collective bargaining agreement?
3. Are any wages due?
4. Has the employee accrued unused vacation or paid time off benefits?
5. Has the employee incurred unreimbursed expenses?
6. Are there any needed deductions from the final paycheck?
7. Is the final paycheck ready to be delivered at the time of termination?
8. Are there any advances, loans, or negative vacation bank?
9. How will the termination affect stock options?
10. Is the employee entitled to a “golden parachute” or other termination payout?
11. Are there COBRA rights?
12. Is the employee an officer or director (and what steps must be taken to remove them)?
13. Are there concerns for any discrimination, whistleblower or disability claims? (Consult with your labor/employment attorney).
14. Has the employee reported all industrial injuries (workers’ compensation)?
15. Should you offer a severance package?
16. Should you seek a release agreement?
17. Will the company offer outplacement?
18. Will the company provide reference letters?
19. What company property must the employee return?
20. Has IT staff made arrangements to block access to the company system?
21. Has the employee complied with your trade secret/proprietary information agreement?
22. Is “damage control” with customers necessary?
23. Any security issues?
24. When, where, how and with whom will you notify the employee?

These are just the basics. Review your company policies and procedures and tailor the list to suit your particular needs.

Please feel free to share your questions or comments.

Submitted by:
Christopher W. Olmsted, Esq.
Barker Olmsted & Barnier, APLC

Posted by Christopher W. Olmsted on 11/21 at 01:52 AM
Employment LawHuman Resources
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