Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.

 

Announcements

You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners. More details about the events and Human Resources 4U can be found on my website.

 

 

Employee Handbook Updates 2013: There have been significant changes to CA employment laws in the past two years. If you haven’t updated your Employee Handbook recently and you are interested in having me update your employee handbook, please contact me.

 

Special Bulletin: New FMLA Poster Requirement

Employers with 50 or more employees are required to display an updated federal family leave poster starting March 8. It can be found on the Resources page of my website. Here is a link to the poster.

 

Speaking of FMLA, here is a FMLA fact sheet

What employers are covered? Those with 50 or more employees in 20 or more workweeks in the current or preceding calendar year

 

What employees are eligible? An individual who has been employed for at least 12 months with his or her current employer and has worked at least 1250 hours during the previous 12 months. The is now also a mandatory note stating that special hours of service eligibility requirements apply to airline flight crew employees.

 

What’s provided to employees?

• Up to 12 weeks of unpaid leave in a 12-month period for the serious health condition of the employee or a family member, for the birth or adoption of a child, or because a child, parent or spouse of the employee has been called to active duty in the military
• Up to 26 weeks of unpaid leave during a 12-month period to care for a spouse, child or parent who is an injured member of the military (a “covered servicemember” now also includes veterans discharged in the last five years).

What are examples of a serious health condition?

• Pregnancy or prenatal care
• Chronic, long-term or permanent medical conditions
• Any condition that causes at least 3 consecutive days of absence combined with 2 or more treatments by a health care provider
• Any condition that causes a period of incapacity of any length combined with inpatient care
• A “serious injury or illness” for current servicemembers and veterans “are distinct from the FMLA definition of ‘serious health condition.”

What are an employer’s responsibilities?

• To restore an employee returning from leave to the same or a substantially equivalent position to the one the employee held prior to taking leave
• Must inform employee of FMLA rights
• Grant intermittent leave where requested

What are an employee’s responsibilities?

• Provide at least 30 days of notice where the need for leave is foreseeable
• Provide as much notice as possible where the need for leave is not foreseeable

Can an employee substitute paid leave? Yes — an employer can require or an employee can voluntarily elect to use paid leave benefits during FMLA leave

 

What are the potential penalties?

• Back pay
• Reinstatement or promotion
• Benefits
• Attorneys’ fees

Top FMLA tips

• Notify employees of their FMLA rights in employee handbook
• Provide written documentation to employees regarding an employee’s obligations for leave and consequences for failing to satisfy those obligations
• Provide employees with the medical certification required for leave and, if necessary, the certification required to return to work following leave ASAP
• Post the required FMLA poster
• FMLA leave can’t count towards no-fault attendance policies

 

CA Supreme Court Ruling Good News for Employers

One out of every 973 employees in CA files an employment discrimination claim. The average legal cost through trial is $150,000 and the average jury verdict won is $205,000.

 

The California Supreme Court recently issued a significant ruling in a discrimination case. Though not a complete win for employers, the case, overall, provides helpful language for employers on the issue of liability for discrimination claims.

 

The case addresses what happens when an employer terminates or takes some other type of adverse action against an employee for a legitimate business reason, such as poor performance, but there is also evidence that the employer engaged in discriminatory conduct against the employee.  This is usually referred to as a “mixed motive’ case: the employee has evidence of unlawful discrimination; the employer has evidence that it would have made the same decision anyway.

 

The Supreme Court significantly changed the liability landscape in such cases by ruling that “when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, back pay, or an order of reinstatement.”

 

But an employer is not completely free. The Court fittingly noted that the intent of the Fair Employment and Housing Act (FEHA) is to prevent discrimination from occurring at work. In those cases where unlawful discrimination played a substantial factor in the adverse action, the employer does not get a complete defense to liability by showing it would have made the same decision anyway.

 

The employee could be awarded declaratory relief (relief stating that the employer engaged in an unlawful practice), injunctive relief (an order stopping further conduct), and, when appropriate, reasonable attorneys’ fees and costs.

 

Factoids

• The top reason people look for a new job is lack of career progress (27%), dissatisfaction with their manager/supervisor came in at 22% 
• Over 40% of employers say they expanded their workforce in 2012 compared to 27% in 2010 
• 95% of organizations say they are planning to give some form of pay increase. 
• 60% of companies say they are expecting an increase in voluntary turnover as the economy continues to improve.