A recent California Court of Appeal case reaffirms the importance of employers proactively notifying employees of their right to medical leave under the California Family Rights Act .  In Faust v. California Portland Cement Company, the plaintiff, a lube specialist in the company's Mojave plant, took medical leave for psychiatric and back conditions.  Faust claimed that his psychiatric condition was triggered by fears of retribution from his coworkers for having blown the whistle on internal theft and misconduct.

Nearly seven weeks into Faust's leave, the company fired him for failing to provide sufficient information regarding his condition and continued need for leave.  The company's human resources manager had, on multiple occasions, telephoned and sent correspondence to Faust requesting an immediate response; the concern was that his healthcare provider's note was insufficient verification of his condition. 

Faust never responded to these entreaties personally; rather, his wife left a voicemail with the human resources manager to contact her, Faust's physician, or his worker's compensation attorney for more information.  The company never followed up with any of these individuals.  Faust, for his part, had been told by his psychiatrist to stay away from "stressful situations" and thus avoided calling back the company himself.  Moreover, his attorney had advised him that it was unnecessary to for him to personally respond to the company's correspondence given that it was required to contact either his attorney or physician for issues relating to his injuries. 

Faust's termination led to his filing of a civil action, in which the trial court granted the employer's motion for summary judgment.  On appeal by Faust, the company asserted that it was justified in firing Faust because he failed to do his part in verifying his continued need for leave. 

The Court of Appeal disagreed and highlighted the company's undisputed failure to provide Faust with notice of his leave rights under the CFRA, despite having been given sufficient information from Faust regarding his condition to trigger such notice.  This, the court emphasized, is the threshold issue and an employer must refrain from taking adverse action against an employee for failure to provide advance notice of CFRA protected leave where the employer itself failed to furnish the employee with notice of his or her right to CFRA leave.

Additionally, the court held that it was the company that unreasonably failed to communicate with Faust, and not the other way around.  While the court conceded that the company may have been right to avoid speaking with Faust's wife and physician due to privacy concerns, there was nothing preventing it from contacting his attorney.  Accordingly, this case further defines (or muddles, depending on one's perspective) the line separating employee privacy concerns and the obligation of employers to go the extra mile in communicating with employees regarding the status of their leaves under the CFRA.

In the ever-changing world of San Francisco's Paid Sick Leave Ordinance, the city's Office of Labor Standards Enforcement has issued a set of draft Rules implementing the new law, along with a third set of revised Frequently Asked Questions (FAQs) designed to clarify the significant ambiguities in the ordinance.

Clearly, the draft rules and the newly revised FAQs were intended to address questions that most likely came from temporary employment or staffing agencies, although the new guidelines will impact all employers whose employees spend any time working in San Francisco.

One of the more noteworthy topics covered by the new guideliness has to do with how to apply the requirements to employees who work for employers based outside of San Francisco but who perform work in the city.  The draft rules state that employees who live in San Francisco and who work at home are covered for all work they perform from home.  Employees who visit San Francisco only for conferences or conventions are covered only if they work in the city for at least 7 days per calendar year.  Employees who perform work in the city on an occasional basis are covered by the Ordinance only if they perform at least 30 hours of work in San Francisco within a calendar year.  Employees who primarly work outside the city but who drive through the city as part of their jobs are not covered unless they make a stop in the city in order to perform work.  If that's the case, then those employees are covered for all time spent in the city, including time spent driving within city limits.

The new guideliness also address a number of other issues, including how to handle employees who have breaks in their employment and what is reasonable in terms of advance notice for paid sick leave.

The OLSE is currently accepting public comment on the recently revised FAQs and the draft rules.  Those interested in submitting comments may email the OLSE at PSL@sfgov.org.  In addition, the OLSE has scheduled a series of public hearings to discuss the new guidelines.  A complete copy of the new guidelines and a schedule of the rulemaking proceedings can viewed at the OLSE's website (www.sfgov.org/olse).

A recent California Court of Appeal case out of the Fourth District provides a glimpse of retaliation cases to come, where the focus is less on some sort of "final employment action" - such as a termination or demotion - and more on the big picture effect of allegedly adverse treatment by an employer.  In Jones v. The Lodge at Torrey Pines Partnership, the Court of Appeal embraced the post-Yanowitz "totality-of-the-circumstances approach" in determining whether the plaintiff, Jones, suffered adverse treatment sufficient to support a claim of retaliation.  Jones' claim was premised on his employer's response to his speaking out against his supervisor and coworker for derogatory and demeaning conduct towards him on the basis of his sexual orientation.

After Jones complained to the Lodge's director of Human Resources regarding his supervisor, Weiss, and coworker, Steen, and detailed their constant stream of derogatory references to his sexuality, Weiss issued the first of what became a series of employee warning notices to Jones on trumped-up policy offenses.  Weiss also stopped speaking to Jones and excluded him from meetings, and further presented him with an extensive, if baseless, memorandum charging him with deficient work performance.  For his part, the HR director pressured Jones into accepting a demotion and, following a meeting with the Department of Fair Employment and Housing, accused Jones of "blackmailing" the Lodge.

The court, in reviewing the mistreatment of Jones by Weiss and others at the Lodge, emphasized that, with respect to retaliations claims, it is inappropriate to analyze each instance of retaliatory treatment in isolation and that courts should look to the sum total of conduct in question to determine whether the plaintiff suffered actionable retaliation.  As for Jones, the court held that the "totality" of his suffering amounted to retaliation and rejected the Lodge's claim that no reasonable juror could return a verdict in his favor.

Beginning next week, every employee in San Francisco will begin accruing paid sick leave under an ordinance that was approved by voters last November.  The Ordinance will take effect despite a significant number of ambiguities in the new law.  In two separate public hearings held in January, members of the Office of Labor Standards Enforcement (OLSE), the agency responsible for enforcing the ordinance, met with business owners to discuss the uncertainties.  At the second hearing, participants were allowed to submit comments and questions to the OLSE.  This past Monday, the agency published on its website a copy of a Frequently Asked Questions information sheet designed to answer the questions raised by San Francisco employers.

In total, the FAQ attempts to provide answers for over forty specific questions regarding the Ordinance.  The following are some of the highlights from the information sheet:

• If an employer is based outside San Francisco but has employees who perform work in the city, the employees accrue paid sick leave for those hours worked in the city but not for hours worked outside the city.
• For purposes of determining employer size, all persons performing work for the employer during a given week, including those who do not work in San Francisco,  are counted.
• If a business contracts with a temporary staffing agency to have the agency provide temporary employees to the business, both the emplyer and the temporary staffing agency may have an obligation to provide sick leave, but they may agree between themselves who will monitor compliance with the Ordinance.
• For employees who are exempt from the overtime provisions of the federal Fair Labor Standards Act and California law, the OLSE will calculate paid sick leave based upon a 40-hour work week absent evidence that the exempt employee's regular work week is less than 40 hours.  For employees who are not exempt from the overtime laws, paid sick leave accrues on all hours worked, including overtime hours. 
• Paid sick leave only accrues in hour-unit increments, not in fractions of an hour, and an employer can require its employees to use paid sick leave in one hour increments.

Despite the OLSE's efforts, a number of questions about the Ordinance still remain, and new issues and concerns will undoubtedly arise once the law goes into effect.  Until regulations interpreting the ordinance are enacted, the OLSE suggests contacting the Mayor's Office of Economic and Workforce Development for guidance.

Last month, the California Department of Labor Standards Enforcement (DLSE) issued proposed regulations regarding employers' obligations to reimburse employees for travel expenses under Labor Code Section 2802.

Section 2802 provides that employers must "indemnify" their employees for all expenditures necessarily incurred in the discharge of the employees' duties for the employer.  As noted in the DLSE's Initial Statement of Reasons for issuing the proposed regulations, there is a "dearth of case law regarding how employers must comply with this statute, what must be reimbursed to employees by employers, at what rate employees must have their travel and mileage expenses reimbursed, and whether additional compensation will satisfy the reimbursement requirements of Section 2802." 

According to the DLSE, one of the reasons for the proposed regulations is to explain the requirements and specify the methods by which employers may reimburse employees for travel expenses incurred in connection with the use of personal vehicles for work and overnight travel for work.  To that end, the regulations presume that the IRS' mileage rate allowance is reasonable and that, absent proof by the employer that the rate should be less than the IRS allowance, the employer must reimburse the employee at that rate.  The regulations would also require that employers keep track of the employee's mileage, but do provide that "an employer may require employees to record and submit the necessary mileage information." 

The regulations spell out three methods by which an employer can properly reimburse its employees for the costs they incur for business travel, including expenses such as meals and lodging.  First, the employer can pay the actual costs employees incur for travel.  Second, the employer can use the IRS' standard meal and incidental expense allowance method.   Third, an employer may elect to pay a lump sum per diem rate set by the IRS for the location to which the employee must travel in lieu of reimbursing the actual cost of meals, lodging and incidental expenses.  Under the proposed regulations, regardless of which method the employer chooses, it must notify each employee who is required to travel overnight for work of any employer policies regarding reimbursement for per diem expense in advance of any such travel.   Should the employer fail to provide advance notice of its policies, the employer is obligated to reimburse the actual expenses incurred. 

The regulations, if adopted, would also impose on employers a significant record-keeping burden.  With respect to mileage reimbursement, the proposed regulations require that employers provide employees a pay stub that has an (i) itemized statement in writing, (ii) explaining the computation of the mileage reimbursement, (iii) including the beginning and end of the time period for which the mileage reimbursement check is being issued, (iv) the rate of reimbursement used, and (v) the number of miles being reimbursed.  The proposed regulations would further require that employers keep and maintain, for at least three years, all of the records in connection with each request for per diem reimbursement and each request for employer provided vehicle costs reimbursement, and a record showing each item of each such request for reimbursement paid by the employer. 

One of the most noteworthy aspects of the regulations concerns whether, under Section 2802, employers can reimburse travel expenses through additional compensation to the employee.  This issue is currently pending before the California Supreme Court in Gattuso v. Harte-Hanks Shoppers, Inc..  Apparently, the DLSE is not willing to wait for the Supreme Court's decision in Gattuso, and is instead taking the position in these regulations that Section 2802 prohibits an employer from substituting increased pay for reimbursement of travel expenses.

The proposed regulations also confirm what has generally been accepted by most employment law practitioners—that employees who bring a claim for expense reimbursement to the Labor Commissioner will be entitled to recover their attorneys' fees. 

There are a number of additional new responsibilities that employers will assume if these regulations are adopted.  The full text of the proposed regulations can be viewed here.

The DLSE is holding a public hearing on the proposed regulations in San Francisco on February 7, 2007.  Interested parties can submit comments in advance of the hearing through the DLSE's website.

In a decision issued yesterday, Nancy Walsh v. Nevada Department of Human Resources and State of Nevada, No. 04-1744, the Ninth Circuit Court of Appeals affirmed what most employers had already assumed to be true, namely that individual supervisors cannot be held personally liable for alleged violations of the Americans with Disabilities Act.

The plaintiff in Walsh was diagnosed with obsessive-compulsive disorder and an anxiety disorder. She began working for the Nevada Department of Human Resources in 2001.  For two years, she had no special accommodations and received favorable reviews.  When she began working under a different supervisor, her symptoms worsened.  She claimed she was denied accommodations for her disability, harassed and refused meetings to discuss her disability.  Walsh's physician ordered her to quit her job in 2004. 

Walsh sued the state and the department in federal district court in Nevada, alleging violations of Title I of the ADA.  She subsequently sought to add two supervisors as individual defendants.  The district court entered judgment against her.  It held that both the state and the individual employees were immune from ADA suits.  On appeal, the Ninth Circuit affirmed the district court's dismissal.

With respect to the state's immunity from liability under the ADA, the court found that, while Title I of the ADA enables individuals who have suffered employment discrimination because of their disabilities to sue employers for damages and injunctive relief, state governments can invoke the Eleventh Amendment's guarantee of sovereign immunity against Title I suits seeking money damages.  Sovereign immunity, however, does not bar Title I suits against state officials for prospective injunctive and declaratory relief.  Walsh therefore could pursue her Title I ADA claim to the extent she could state a viable claim for injunctive relief.  The court, however, determined that Walsh lacked standing to sue for injunctive relief.  Because Walsh was no longer an employee and had not expressed any interest in returning to work for the department, she could not seek injunctive relief from which she would not likely benefit.  Because Walsh lacked standing to pursue injunctive relief against the state and because the state was immune from any claim for monetary damages, dismissal of the entire ADA claim against the state was proper.

As far as the individual supervisors were concerned, the Ninth Circuit found that individual employees may not be personally liable for violations of the ADA.  The ADA is identical in many respects to Title VII of the Civil Rights Act of 1964.  Title VII limits liability to employers with 15 or more employees.  Using Title VII as guidance, the Court found that its bar on suits against individual defendants also applies to actions brought under Title I of the ADA.

The Ninth Circuit's decision in Walsh represents a straight-forward, sensible reading of the ADA and prior case law.  It further underscores the intent of Congress in limiting liability under the ADA to employers with 15 or more employees, namely that Congress "did not want to burden small entities with the costs associated with litigating discrimination claims."

A case handed down by the California Court of Appeal today answers the question of whether an employer can be liable for threatening emails sent by an employee to third parties from the company's computer system.  In Delfino v. Agilent Technologies, Inc. (Sixth District, No. H028993), Agilent's employee, Moore, made use of the company's provision of internet service to its employees to access personal email, as well as a Yahoo! message board, and send anonymous messages to the plaintiffs threatening life and limb. 

The FBI ultimately unmasked Moore as the author of the violent messages and Agilent's computer system as their point of origin.  Although Agilent's cooperation with the FBI was instrumental in putting a halt to Moore's "cyberstalking" of the plaintiffs, they sued Agilent alleging, among other things, violation of the federal Communications Decency Act (CDA).  One objective of the CDA is to encourage service providers to self-regulate the dissemination of offensive materials over their services.  On the other hand, a so-called interactive computer service provider is immunized from liability if it makes a good faith effort to restrict access to objectionable material. 

A key issue in the case was whether a corporate employer, such as Agilent, fits the "interactive computer service provider" label.  In prior cases, players such as eBAy, Amazon.com, Craigslist, and the City of Livermore's public library had been deemed "interactive computer service providers" for purposes of the CDA.  The Court of Appeal found Agilent to similarly qualify in that it provides multiple users (i.e., its employees) access to a computer server. 

Because Agilent's role in the threats was limited to providing, unwittingly, the means as opposed to the content, the court held that Agilent was immunized from liability under the CDA.  Moreover, the court rejected the plaintiffs' claim that Agilent ratified Moore's conduct given that Agilent was unaware of the Moore's use of its computer system to harass the plaintiffs, let alone the content of his messages, until his arrest was imminent and he confessed to the details.  Agilent thereafter placed Moore on administrative leave and terminated his employment eight days later.  The court therefore held that there was no evidence that Agilent, after the fact, treated Moore's malicious conduct as its own.

On November 14, 2006, the California Fair Employment and Housing Commission held its fifth—and final—public meeting regarding the regulations concerning California's law mandating sexual harassment prevention training for supervisors of employers with 50 or more employees.  

The FEHC will now send the final regulations to the Office of Administrative Law, which is responsible for reviewing the regulations to ensure that they bear a logical relationship to the statute and that the Commission appropriately considered public comments.  The OAL has 30 days to complete its review.

According to the Commission's Executive and Legal Affairs Secretary, assuming the OAL gives its stamp of approval, the regulations will likely take effect in February 2007.  The final version of the regulations can be viewed at the FEHC's website (www.fehc.ca.gov).

A recent California Court of Appeal decision highlights the tension between employer and employee responsibility for accidents that have some relation to the employment relationship--however tangential.  In Baptist v. Robinson (143 Cal. App. 4th 151), Baptist sustained serious injuries on Highway 85 when his motorcycle collided with a wine grape fermenting bin that had tumbled out of the back of Robinson's pickup truck. 

Robinson, an assistant winemaker and cellar master at a local winery, had purchased Syrah grapes from another vineyard to make wine for his friends and family.  Unbeknownst to his employer, he borrowed the winery's bin to pick up the grapes and was on his way to collect them when the bin fell out of his truck.  Under these circumstances, the court rejected Baptist's argument that Robinson's employer was vicariously liable for his injuries. 

In reaching this conclusion, the court focused on the fact that Robinson had borrowed the bin without authorization, that his use of the bin for this purpose was unprecedented at the winery, and that he purchased the grapes for his private use and was collecting them on his personal time when the bin fell out.  Although he had permission from his immediate supervisor to make wine at the winery for his personal use, Robinson took the bin without his employer's knowledge, let alone authorization.  In fact, not long before the accident, Robinson's employer had rescinded the privilege to make wine at the winery for his private use, but his immediate supervisor had neglected to inform Robinson of this small detail. 

The key point to take away from the case is that employers may be liable for wrongs committed by employees while acting in the scope of their employment.  According to the court, Robinson's conduct was neither foreseeable to the winery nor related to his work there; as such, the winery was off the hook for Baptist's injuries.  Had Robinson been authorized by the winery to use the bin, however, or had he transported the bin using the winery's truck during his shift—the case may have turned out differently given the tighter nexus between the accident and his work in these scenarios.  Employers should review any arrangements with employees, informal or otherwise, for the private use of company equipment with the risk of vicarious liability in mind.
© Photographer: Stephen Snyder | Agency: Dreamstime.com

On the heels of becoming the first city in the nation to implement a city-wide program that requires employers to contribute to universal health care, this past Tuesday, San Francisco voters approved a ballot measure that creates a new city ordinance—the first of its kind in the country—that mandates paid sick leave for all employees.

Proposition F, which passed with 61 percent of the vote, establishes minimum requirements for employers—both public and private—to provide paid sick leave to their employees.  This includes full-time, part-time and temporary employees working in San Francisco.

Under the new law, employees earn paid sick leave at the rate of 1 hour for every 30 hours worked.  Beginning February 6, 2007, employees currently working for an employer will start accruing paid sick leave.  For employees hired after February 6, 2007, paid sick leave begins to accrue 90 days after the commencement of their employment.  Employees who work in businesses with fewer than 10 employees could accumulate up to 40 hours of paid sick leave.  All other employees could accumulate up to 72 hours of paid sick leave.  Accrued paid sick leave for employees carries over from year to year, but cannot exceed the maximum caps.  Employers are not required to pay out accrued but unused paid sick leave upon termination of employment. 

If an employer already has a paid sick leave policy that makes available to employees an amount of paid leave that meets the requirements on the new law, the employer is not required to provide additional paid sick leave.

Paid sick leave can be used to cover physical or mental illness, injury, medical condition, medical diagnosis or treatment.  Paid sick leave can be used for the employee or to allow the employee to care for the employee's child, parent, legal guardian or ward, sibling, grandparent, grandchild and spouse or registered domestic partner.  If the employee has no spouse or registered domestic partner, the employee may designate another person.  An employer may only take reasonable measures to verify or document that an employee is using paid sick leave for a legitimate reason.

An employer may not require, as a condition of an employee's taking paid sick leave, that the employee search for or find a replacement worker to cover the hours during which the employee is on paid sick leave.  An employer may, however, require employees to give reasonable notification of an absence from work for which paid sick leave is or will be used.  The ordinance also prohibits an employer from retaliating against any person for exercising his or her rights under the new law.

As with the city's universal health care plan, the new paid sick leave ordinance will likely face legal challenges by local business organizations and associations.  Until the law is overturned, however, companies—both large and small—that have employees in San Francisco must be certain that their policies and practices comply with the new requirements. 
© Photographer: Michael Rhea | Agency: Dreamstime.com

Governor Schwarzenegger had until September 30th either to veto or to sign bills that had been approved by the state legislature.  A few weeks ago, I discussed a number of the employment-related bills that the Governor signed or rejected.  See my September 15 post titled "Keeping the Governor Busy."  In addition to the bills discussed there, the following bills were also signed by the Governor.

• AB 1368 (Karnette) Existing worker's compensation laws specifies that when a doctor examines an employee for a work-related injury and prepares a report addressing the issue of permanent disability due to a claimed injury, the doctor is required to determine what approximate percentage of the medical condition is a result of the work-related injury and what approximate percentage is a result of other factors.  AB 1368 excludes from this requirement any state and local public safety members who suffer from hernia, heart trouble or pneumonia as a result of that employee's service.  The law was designed to protect the rights of law enforcement officials (particularly after 9/11) to receive worker's comp benefits without having to apportion causation for their disabilities.
• AB 1553 (Evans) provides for tolling of the time period for a party to demand or commence arbitration of a controversy pursuant to an arbitration agreement when the party commences a civil action in court based on that controversy.
• AB 2068 (Nava) extends for another two years the right of workers who are enrolled in employer-provided group health plans to "predesignate" their treating physicians for work-related injuries, a right that otherwise would expire on April 1, 2007.  The new law also deletes the 7% statewide cap on who can pre-designate and clarifies that medical groups and corporations are considered "physicians" for purposes of pre-designation.
• AB 2087 (Benoit) requires the Administrative Director of the Division of Workers' Compensation (AD) to compile a list of all self-insured employers' liability and make that information publicly available on the Department of Industrial Relations' (DIR) Internet Website.
• AB 2095 (Niello) limits the provisions of recent legislation requiring sexual harassment training for supervisory employees to apply the training requirement to only those supervisory employees within California.  AB 2095 also provides that an employer is deemed to be in compliance of existing law requiring hours worked to appear on itemized wage statements if the hours worked in excess of the normal work period are itemized on the statement accompanying the pay for those hours.
• AB 2125 (Vargas), yet another worker's comp-related bill, makes numerous technical and non-controversial changes to the Insurance Code designed to improve the Department of Insurance's (DOI) administration and assist its ability to oversee the insurance industry.
• AB 2292 (Montanez) prohibits the Department of Industrial Relations (DIR) from taking action to collect a deceased employee's accrued and unpaid compensation, if a dependent, personal representative, heir, or other person entitled to the deceased employee's accrued and unpaid compensation is determined to exist.
• AB 3051 (Koretz) provides an exemption for employees in the motion picture and broadcasting industry to the Labor Code's requirements regarding ""termination pay."  The bill would permit employers in the motion picture and broadcasting industry to pay their employees their final pay by the next regular pay period (as opposed to immediately upon discharge).
• SB 293 (Ducheny) restructures the state’s administration of the federal Workforce Investment Act of 1998 (which offers a comprehensive range of workforce development activities through statewide and local organizations) to streamline the workforce investment board process and duties at both the state and local levels.  SB 293 would also authorize local workforce investment boards to submit unified local job training plans.
• SB 1428 (Scott) clarifies that a statutory payroll company (SPC) is the employer of record of workers in the motion picture industry for tax reporting and benefit purposes.
• SB 1690 (Romero) authorizes the Employment Training Panel, on a limited basis, to fund the training of workers in seasonal industries.  This bill also amends the Unemployment Insurance Code to authorize the Employment Development Department to round up the State Disability Insurance weekly benefit amount to the nearest dollar when the round up exceeds the weekly maximum benefit.
• SB 1719 (Cedillo) allows unionized employees in the live theatrical and concert industries who are dispatched from hiring halls to negotiate alternative systems for final payment of wages.

The National Labor Relations Board issued on September 29, 2006, a long awaited decision clarifying the definition of "supervisor" under section 2(11) of the National Labor Relations Act. Oakwood Healthcare, Inc., 348 NLRB No. 37 (Sept. 29, 2006).

The decision is a response by the NLRB to a US Supreme Court decision, NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001). In Kentucky River, the Court criticized the NLRB's prior definition of "supervisor" under the Act, noting the Board's test for determining supervisory status is inconsistent with the Act. The Act deems employees to be "supervisors" if they (1) exercise 1 of 12 listed supervisory functions, including "responsibly direct[ing]" other employees, (2) use "independent judgment" in exercising their authority, and (3) hold their authority in the employer's interest. The Board in Kentucky River rejected the employer's proof of supervisory status on the ground that employees do not use "independent judgment" when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." Among other things, the Court criticized this interpretation because it distinguished different kinds of judgment, thus introducing an additional category for excluding employees from supervisory ranks that is not suggested or warranted by the language of the Act. The Court noted that the Act permits questions regarding the degree of discretion an employee exercises, but the Board's interpretation made factors determinative of supervisory status that had nothing to do with degree: even a significant judgment only loosely constrained by the employer would not be independent if it was "professional or technical."

In response, in Oakwood Healthcare, the Board defined "assign" as the act of "designating an employee to a place (such as a location, department, or wing), appointing an individual to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee." Further, to "assign" for purposes of the Act, "refers to the...designation of significant overall duties to an employee, not to the...ad hoc instruction that the employee perform a discrete task." The Board defined "responsibly direct" as follows: "If a person on the shop floor has men under him, and if that person decides what job shall be undertaken next or who shall do it, that person is a supervisor, provided that the direction is both 'responsible'...and carried out with independent judgment." the Board said "responsible" direction involved a finding of accountability, so that it must be shown that the "employer delegated to the putative supervisor the authority to direct the work and the authority to take corrective action, if necessary" and that "there is a prospect of adverse consequences for the putative supervisor" arising from his/her direction of other employees. The burden of proof for all this, by the way, is on the employer.

After setting forth this standard, the Board found that Oakwood Healthcare's charge nurses, as a regular part of their duties, assigned nursing personnel to the specific patients for whom they would care during their shift. The Board found that such assignments, which consisted of giving "significant overall duties" to an employee, met the statutory definition of "assign" under the Act. The Board further found that Oakwood met its burden to show that its charge nurses exercised independent judgment in making such assignments. Finally, the Board found that Oakwood failed to establish that rotating charge nurses exercised supervisory authority for a "substantial" part of their work time. As a result, the Board found that only the permanent charge nurses were supervisors, rather than employees, under the Act.

In two companion cases handed down together with Oakwood Healthcare, the Board, applying the new standard, found that charge nurses at Golden Crest nursing home and lead persons at Croft Metals manufacturing facility were not supervisors. Golden Crest Healthcare Center, 348 NLRB No. 39 (Sept. 29, 2006) and Croft Metals, Inc., 348 NLRB No. 38 (Sept. 29, 2006).

So what does this mean for employers? The decision provides a level of clarity to the definition of "supervisor" that did not exist before. Employers now have much-needed guidance in determining which individuals are supervisors under the Act. Employers that do not have a unionized workforce should review duties and responsibilities of its supervisors to ensure that they are delegated authority to perform supervisory duties and are held responsible for the performance of those duties. Employers whose workforces are unionized may want to consider filing unit clarification petitions with the Board to have current members of the bargaining unit declared supervisors and, thereby, excluded from the bargaining unit. Contributors: Mike Caples and Mark Delgado
© Photographer: Serban Enache | Agency: Dreamstime.com

On October 2, 2006, the California DFEH released a fourth version of the modified proposed regulations governing harassment prevention training.  This time around, the only substantive modification to the proposed regulations concerns how employers track supervisor training.  The regulations, as modified, allow an employer to designate a "training year" in which it trains some or all of its supervisory employees and thereafter must again retrain these supervisors by the end of the next "training year."

The fact that this is the only major change from the previous draft suggests that the DFEH may actually have final regulations in place by the December 31, 2006 deadline. Should employers wish to comment on the modified regulations, they have until October 20, 2006, to do so. The Commission will re-convene on November 14, 2006 and will either approve the regulations as modified or issue yet another draft. A complete copy of the modified proposed regulations can be viewed at the FEHC's website (www.fehc.ca.gov).
© Photographer: Sascha Dunkhorst | Agency: Dreamstime.com

UPDATE 10/3/06:  AB 2095 has been "chaptered" by the Secretary of State--meaning that it's been approved by the Governor and will be the law of the land.  You can see the bill in its final form here.

UPDATE 8/23/06:  As of yesterday, the bill has passed through both houses of the Legislature and is on its way "to enrollment"--i.e., the ball is in the Governor's court now.  Given that the bill was authored by a Republican assemblyman, and that it received virtually no opposition in either house (once it dropped the 50 or more employees in California limitation), it is unlikely that this bill won't become law.

INITIAL POST 7/15/06:  Speaking of harassment prevention training, there is a bill working its way through the legislative process in California that goes the other direction on a particular point raised in the proposed regulations Mark wrote about below.  AB 2095, by Assemblyman Roger Niello, if passed, would limit mandatory harassment prevention training only to those supervisors located in California.

Existing law is vague on this point, and, as mentioned below, proposed regulations would work to require anti-harassment training of supervisors anywhere in the world so long as they supervised employees in California.  AB 2095 actually started out on its journey through the legislative process limiting the training not only to supervisors located in state, but also to those employers with 50 or more employees in California. 
© Photographer: Mark Rasmussen | Agency: Dreamstime.com

Governor Schwarzenegger has been rather busy the past several days addressing some of the employment-related bills that survived this year's legislative session.  So far, there have not been any surprises.

On September 7th, he vetoed four bills, which he termed "Job-Killing Legislation": 

• AB 675 (Klehs) would have required companies with assets of more than $10 million to file additional tax and accounting information with the state Franchise Tax Board.  Supporters of the bill claimed that it would have increased corporate accountability.  The Governor in his veto message claimed it would have done nothing more than impose "additional bureaucracy and unnecessary costs on top of many significant legal and oversight protections put in place after the Enron scandal."
• AB 1884 (Chu) would have allowed locked-out workers to collect unemployment benefits.  The Governor claimed it would encourage strikes.
• AB 2209 (Pavley) would have barred employer-employee agreements that prohibit workers from collecting unemployment and would have required employers that engaged in fraud or other misconduct during a lockout to repay employees for lost benefits.  While the Governor considered the bill "well-intentioned," he refused to sign it because the bill failed to adequately define "fraud" and "misconduct" and therefore could be abused.
• AB 2555 (Oropeza) would have boosted penalties for violating gender-equity wage requirements.  The Governor vetoed this bill for the third time, noting that existing "law already provide[s] criminal and civil penalties for an employer that pays discriminatory wage rates to employees on account of gender."

This past Wednesday, Governor Schwarzenegger also vetoed SB 1414 (Midgen), which would have required large employers to spend a specified percentage of their total wages on employee health insurance costs.  The Governor called the bill "arbitrary" and not sufficiently "comprehensive" to deal with the state's health insurance crisis.

The only employment-related bill that the Governor has signed in the past two weeks is, not surprisingly, the minimum wage bill.  AB 1835 (Lieber) calls for an increase in the minimum wage to $7.50 in 2007 and $8.00 in 2008.

All in all, the Governor seems to be doing a pretty good job of keeping both employers and workers happy.  It is an election year, after all...
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