Sagheb Law https://www.ssslams.com/ Employment Law & Mediation Services Fri, 30 Dec 2016 00:57:29 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.3 THE CALIFORNIA SUPREME COURT’S HOLIDAY GIFT TO EMPLOYEES https://www.ssslams.com/california-supreme-courts-holiday-gift-employees/ https://www.ssslams.com/california-supreme-courts-holiday-gift-employees/#respond Fri, 30 Dec 2016 00:57:29 +0000 http://www.ssslams.com/?p=130 California employers have long had the right, under certain narrowly limited circumstances, to require employees to take “on-duty” meal breaks.  On December 22, 2016, the California Supreme Court in Augustus v. ABM Security Services, Inc. (No. S224853), held that such right does not extend to rest breaks.  The majority held further that employers may not […]

The post THE CALIFORNIA SUPREME COURT’S HOLIDAY GIFT TO EMPLOYEES appeared first on Sagheb Law.

]]>
California employers have long had the right, under certain narrowly limited circumstances, to require employees to take “on-duty” meal breaks.  On December 22, 2016, the California Supreme Court in Augustus v. ABM Security Services, Inc. (No. S224853), held that such right does not extend to rest breaks.  The majority held further that employers may not require employees to remain on-call during their rest breaks.

Jennifer Augustus initiated her action against ABM Security Services, Inc., on behalf of herself and a class of similarly situated security guards.  They sought relief for ABM’s alleged violation of California’s rest break requirements.  The company required its security guards to keep their pagers and radio phones on during rest breaks so that they would remain vigilant and responsive to calls, including calls regarding emergencies.  Plaintiffs alleged that as a consequence of this requirement, ABM failed to provide them with rest breaks that were uninterrupted by work.  The trial court granted the Plaintiffs’ motion for summary judgment and awarded approximately $90,000,000 in statutory damages, interest and penalties.  The Court of Appeal reversed.  The California Supreme Court reversed the Court of Appeal’s decision.

In its opinion, the Supreme Court relied on the established principle that “[d]uring required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.”  Slip op. at 1.  Employees remain subject to the employer’s control if they are required to remain on duty during their rest breaks.  As to the applicable wage order’s (Wage Order 4) requirement that “[a]uthorized rest period time shall be counted, as hours worked for which there shall be no deduction from wages,” the Court concluded that “[t]his sentence makes sense only if employees are relieved of duties during rest periods.”  Id. at 9.  In addition, the Court distinguished Wage Order 4’s text regarding meal breaks and rest breaks, noting that the wage order expressly authorizes on-duty meal breaks under limited circumstances, without similarly allowing on-duty rest breaks (language allowing on-duty rest periods likewise is absent in other wage orders, except for Wage Order 5 pertaining to certain employees who care for children).  Id. at 11-12.  Thus, the Court concluded that on-duty rest breaks are not authorized by Wage Order 4.

The majority also concluded that employers may not require employees to remain on-call during their rest breaks.  The on-call requirement is “irreconcilable with employees’ retention of freedom to use rest periods for their own purposes.”  Id. at 16.  The majority recognized, though, that “[n]othing in our holding circumscribes an employer’s ability to reasonably reschedule a rest period when the need arises.”  Id. at 18.

Accordingly, employers may not require their employees to remain on-duty or on-call during their rest breaks.  An employer may interrupt an employee’s rest break without penalty when the need arises, however, so long as it provides a reasonable substitute rest break during that workday.  If it fails to do so, the employer must pay the additional hour of pay required by California Labor Code Section 226.7(c).  As the $90,000,000 judgment against ABM implies, such payments can be very costly.

Wishing you all the best for the new year,

Shane Sagheb

The post THE CALIFORNIA SUPREME COURT’S HOLIDAY GIFT TO EMPLOYEES appeared first on Sagheb Law.

]]>
https://www.ssslams.com/california-supreme-courts-holiday-gift-employees/feed/ 0
A Brief Note To Congress https://www.ssslams.com/brief-note-congress/ https://www.ssslams.com/brief-note-congress/#respond Fri, 11 Nov 2016 08:00:13 +0000 http://www.ssslams.com/?p=127 Congratulations!  You retained Republican majorities in the House and the Senate, and you will soon be able to work with a Republican (sort of) President.  You will be able to do whatever you want.  I have just one request – please take good care of our country and of our planet.  That means: Take care […]

The post A Brief Note To Congress appeared first on Sagheb Law.

]]>
Congratulations!  You retained Republican majorities in the House and the Senate, and you will soon be able to work with a Republican (sort of) President.  You will be able to do whatever you want.  I have just one request – please take good care of our country and of our planet.  That means:

  1. Take care of our people. Far too many Americans have been left behind in our so-called economic recovery.  Far too many have had their civil rights infringed.  Far too many are unable to receive the health care that they need.  Our veterans return home after serving in hostile environments, and far too many are ignored.  Hopefully, you can rid yourselves of the dysfunction that has plagued you for too many years and will provide these people with the assistance they desperately need.
  2. Protect our liberties. These form the foundation upon which our country is based.  If, for example, our freedom of expression or our freedom to practice any religion is restricted, we as a nation lose our distinct identity.  Fundamentally, this cannot be allowed to happen.  (And please don’t inject your own religious beliefs into governance.  We have a wonderfully diverse population, and no one should be subjected to any law that is based on a legislator’s personal religious belief);
  3. Confirm the nominations of only those prospective Supreme Court justices who will abide by the Constitution and the rule of law, and reject those whose application of these principles has been dubious or extreme; and
  4. Protect the environment. This does not require elaboration, but nevertheless, I feel compelled to remind some of you that global warming is real — so is science.

That’s it.  Short and sweet.

Ignore this request at your peril.  Remember, many of you are up for re-election soon, and campaigning will begin again before you know it.  Those of you who are Republicans cannot find solace in the fact that Secretary Clinton won a majority of the popular vote.  The Democrats among you are going to have to find a way to work with the new administration or face the perception that you are attempting to perpetuate our government’s paralysis.  Please work together for the collective good.

Good luck!  Most importantly, remember that the futures of our nation and of our children and grand-children are at stake.  No pressure.

The post A Brief Note To Congress appeared first on Sagheb Law.

]]>
https://www.ssslams.com/brief-note-congress/feed/ 0
EEOC v. Abercrombie & Fitch Stores, Inc. — Clarity or Confusion from the Supreme Court? https://www.ssslams.com/eeoc-v-abercrombie-fitch-stores-inc-clarity-or-confusion-from-the-supreme-court/ https://www.ssslams.com/eeoc-v-abercrombie-fitch-stores-inc-clarity-or-confusion-from-the-supreme-court/#respond Thu, 04 Jun 2015 22:33:58 +0000 http://www.ssslams.com/?p=123 Can an employee or applicant suffer disparate treatment religious discrimination without the employer knowing or at least suspecting that the individual needs a religious accommodation?  Justice Scalia does not want to tell us – at least not yet. The United States Supreme Court issued its decision in E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (no. […]

The post EEOC v. Abercrombie & Fitch Stores, Inc. — Clarity or Confusion from the Supreme Court? appeared first on Sagheb Law.

]]>
Can an employee or applicant suffer disparate treatment religious discrimination without the employer knowing or at least suspecting that the individual needs a religious accommodation?  Justice Scalia does not want to tell us – at least not yet.

The United States Supreme Court issued its decision in E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (no. 14-86) on June 1, 2015.  The EEOC sued on behalf of a job applicant who had been denied employment because she wore a headscarf to her interview.  The employer believed that she wore the headscarf for religious reasons and declined to hire her because wearing the headscarf would have violated the company’s “Look Policy” that prohibited wearing “caps.”  The EEOC prevailed at trial, but the 10th Circuit Court of Appeals reversed, holding that the employer did not violate Title VII because the applicant had not informed the employer of a need for an accommodation.  The United States Supreme Court concluded that the Court of Appeals erred, and it reversed and remanded the case for further consideration.

Justice Scalia wrote the opinion for the majority.  He focused on the express language of Title VII and, in particular, on the absence of any statutory language requiring an employer to have knowledge of a need for an accommodation.  Consistent with the language of the statute, he concluded that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”  Slip op. at 3 (footnote omitted).

What’s the difference between knowledge and motivation?  Doesn’t the employer require some level of knowledge to be motivated to discriminate?  This is where things got a bit tricky.  The majority concluded that actual knowledge was not required because mere unsubstantiated suspicion could lead the employer to deny employment using religion as a factor.  Justice Scalia acknowledged that some level of knowledge or at least suspicion may be necessary to establish motive.  He wrote, “While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice – i.e., that he cannot discriminate ‘because of’ a ‘religious practice’ unless he knows or suspects it to be a religious practice.”  Slip op. at 6, n.3.  The majority declined to resolve the issue of whether knowledge or suspicion is necessary to establish motivation, however, concluding that this issue was not before the Court, as there was no dispute that Abercrombie at least suspected that the applicant wore the headscarf for religious reasons.  Id.

Justice Alito had no reservation about addressing the issue.  In his concurring opinion, he wrote, “I would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason.”  Concurring op. at 2-3.  Although Justice Alito used the term “knows” in this sentence, it appears that he intended to include suspicion – he writes further that it would be strange to find a violation of Title VII if “nothing else about [the applicant] made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason.”  Id. at 3.

Justices Scalia and Alito thus appear really to be on the same page.  Both appear to conclude that Title VII is violated if the applicant’s or employee’s religion is a motivating factor in an adverse employment decision, and “motivating factor” requires some level of knowledge or at least suspicion regarding the individual’s religion.  Justice Alito would make this rule official, but Justice Scalia and the majority will keep us guessing a bit longer.  My guess is that it will not take long for this rule to become official.

The post EEOC v. Abercrombie & Fitch Stores, Inc. — Clarity or Confusion from the Supreme Court? appeared first on Sagheb Law.

]]>
https://www.ssslams.com/eeoc-v-abercrombie-fitch-stores-inc-clarity-or-confusion-from-the-supreme-court/feed/ 0
CALIFORNIA PAID SICK LEAVE https://www.ssslams.com/california-paid-sick-leave/ https://www.ssslams.com/california-paid-sick-leave/#respond Wed, 25 Feb 2015 22:34:32 +0000 http://www.ssslams.com/?p=121 On July 1, 2015, California’s Healthy Workplaces, Healthy Families Act goes into effect.  Here are the top 10 requirements that employers should know: Employees who work in the State of California 30 or more days within a year from the commencement of their employment will be entitled to three days of paid sick leave per […]

The post CALIFORNIA PAID SICK LEAVE appeared first on Sagheb Law.

]]>
On July 1, 2015, California’s Healthy Workplaces, Healthy Families Act goes into effect.  Here are the top 10 requirements that employers should know:

  1. Employees who work in the State of California 30 or more days within a year from the commencement of their employment will be entitled to three days of paid sick leave per year.
  2. Employees covered by certain collective bargaining agreements are excluded, as are flight crews and employees who provide in-home support services.
  3. The law does not exclude companies that have just one or two employees. Thus, all companies with California employees appear to be covered, regardless of the number of persons employed.
  4. Employees are entitled to paid sick leave not only for their own illnesses, but also to care for a child (including a biological, adopted, or foster child, or a stepchild), regardless of the age or dependency status of the child; a biological, adoptive, or foster parent, stepparent or legal guardian of either the employee or the employee’s spouse or registered domestic partner; a spouse or registered domestic partner; a grandparent; a grandchild; or a sibling.
  5. Starting July 1, 2015, employees will accrue paid sick days at the rate of not less than one hour per every 30 hours of work. Exempt employees are deemed to work 40 hours per week unless their normal workweek is different.
  6. Employees may use their accrued sick time starting on the 90th day of employment, although the employer may advance paid sick days for use by the employee before accrual. Such advances must be documented.
  7. Employers may set a reasonable minimum increment, not to exceed two hours, for the use of paid sick leave.
  8. Unused accrued paid sick days shall carry over to the following year, although (a) the employer may cap the employee’s use of paid sick days to 24 hours or three days in each year of employment; and (b) unlike vacation pay, unused accrued paid sick days are not wages due to the employee upon the separation of employment (except that if the employee is rehired within one year of separation, the previously accrued and unused paid sick days must be reinstated and available for use upon rehire).
  9. The amount paid to the employee is based on the employee’s hourly wage, but if the employee had different hourly rates in the previous 90 days of employment, was paid by commission or piece rate, or was a nonexempt salaried employee, then the rate of pay is calculated by dividing the employees’ total wages, excluding overtime, by the employee’s total hours worked in the full pay periods during the prior 90 days of employment.
  10. Notices and Recordkeeping:  Employers must provide employees with written notice of the amount of available paid sick leave on the employees’ itemized wage statements or provide a separate writing provided with the employees’ paychecks.  In addition, employers must include in their written notices provided to new employees at the time of hire a statement that the employee may accrue and use sick leave, has a right to request and use accrued paid sick leave, may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave, and has the right to file a complaint against an employer who retaliates. Employers also must post information regarding the employees’ entitlement to paid sick leave and must retain records regarding paid sick days for at least three years.

The post CALIFORNIA PAID SICK LEAVE appeared first on Sagheb Law.

]]>
https://www.ssslams.com/california-paid-sick-leave/feed/ 0
How Free Is Free Speech? https://www.ssslams.com/free-free-speech/ https://www.ssslams.com/free-free-speech/#respond Tue, 20 Jan 2015 20:24:15 +0000 http://www.ssslams.com/?p=113 January 20, 2015 By S. Shane Sagheb The recent tragedy in Paris and its aftershocks have prompted much in the way of action and commentary.  The initial reaction of most Americans and Europeans to the terror attacks was appropriate condemnation of the violence.  A march in Paris followed in support of those who had fallen […]

The post How Free Is Free Speech? appeared first on Sagheb Law.

]]>
January 20, 2015

By S. Shane Sagheb

The recent tragedy in Paris and its aftershocks have prompted much in the way of action and commentary.  The initial reaction of most Americans and Europeans to the terror attacks was appropriate condemnation of the violence.  A march in Paris followed in support of those who had fallen and ostensibly also in support of free speech in general.   The latter begs the question, “What are the appropriate bounds of ‘free speech’ in the 21st century?”

Free speech is not now, nor has it ever been, absolute.  There are certain prohibitions and/or consequences associated with certain speech, even in Western societies.  You cannot, without consequences, yell “fire” in a crowded theater, joke about having a bomb when in an airport security line, or defame another.  “Free” speech has an element of responsibility associated with it – if you are not responsible in your exercise of free speech, you may be held responsible for the consequences.

This element of responsibility seems to have eluded the discussion regarding the Paris tragedy, until recently.  It was reported last week that Henri Roussel, the co-founder of Charlie Hebdo, criticized slain editor Stephane Charbonnier for “overdoing it,” referring to the publication’s cartoons depicting Mohammed.

Did Charlie Hebdo overdo it?  It’s an issue that should not be ignored.  I’m not suggesting that the violent attacks in any way could be justified.  These were acts of barbarism that had no sound basis in reason.  But was that consequence reasonably foreseeable?  If so, was it responsible to have published the cartoon?  Mr. Roussel may have a point.

It is widely known that many Muslims find offensive any depiction of their prophet Mohammad.  Charlie Hebdo has not claimed lack of such knowledge.  Instead, the new editor of the publication, Gerard Biard, recently defended his publication’s cartoons depicting Mohammed as a defense not only of freedom of speech, but also of freedom of religion.  I doubt that Muslims see it that way.

Understandably, non-Muslims and those of us who live in “free” societies do not agree that the depiction of Mohammed is blasphemous.  We do not understand why some Muslims are offended by these depictions.  That lack of understanding, however, should not mean that we may feel free to ignore or mock the religious views of Muslims.  This simply is disrespectful.

Some people can retain a sense of humor in the face of disrespect.  Don Rickles made a career disrespecting others, and in light of the longevity of his career, his audiences have enjoyed the act.  However, there does not seem to be any room for humor in at least some areas of the Muslim world when it comes to visual depictions of their prophet.  In the view of these Muslims, most of whom do not promote or condone terrorism, such depictions are slaps in their faces.

Is disrespectful speech an exercise of free speech in Western societies?  Of course.  But should we promote the exercise of such disrespectful speech when we know that it is hurtful?  This is where responsibility enters the discussion.

Perhaps to inject responsibility into the equation, the French government has prohibited “hate” speech.  Unfortunately, enforcement of these laws causes more problems than it solves.  An allegedly anti-Semitic Muslim comedian was recently arrested in France for having posted the following comment on Facebook after the Paris attack:  “Tonight, as far as I’m concerned, I feel like Charlie Coulibaly,” referencing both the Charlie Hebdo publication and the name of one of the attackers.  Anti-Semitism is abhorrent, and if there is humor in this post, I don’t see it.  That’s not the point, though.  The point is that the arrest of the comedian for this post, which on its face is non-threatening, constitutes censorship and thus is the exact opposite of free speech.  As David Carr wrote in the January 14, 2015 edition of the New York Times, “His arrest highlights the fact that one man’s free expression is another man’s hate speech or sedition.”

Putting the shoe on the other foot, one may argue that the Charlie Hebdo cartoons depicting Mohammed constitute “hate” speech directed at Muslims.  Yet, no arrests have been made of any of the publication’s personnel.  (Of course, they have paid a far more tragic price for their speech.)

This selective enforcement of “hate” speech laws results in nothing short of hypocrisy.  More than a million people marched in Paris in support of free speech.  Speech is not free, however, when individuals of a certain religion or belief system are arrested for expressing words deemed unacceptable by others.  Such arrests are the antithesis of free speech.  For speech to be truly free, the expression of views cannot be suppressed simply because there is disagreement.  The right to express disagreement is the very embodiment of free speech.  Yes, we must remain committed to that ideal.  At the same time, however, we should be mindful of the personal responsibility that comes with this freedom.

The post How Free Is Free Speech? appeared first on Sagheb Law.

]]>
https://www.ssslams.com/free-free-speech/feed/ 0
TRAINING FOR MANAGERS AND SUPERVISORS https://www.ssslams.com/training-managers-supervisors/ https://www.ssslams.com/training-managers-supervisors/#respond Tue, 02 Dec 2014 20:22:59 +0000 http://www.ssslams.com/?p=105 In a recent episode of HBO’s “The Newsroom,” Rebecca Halliday (lawyer) vented to Will McAvoy (news anchor and also a lawyer) that her client, the television news agency, did not provide adequate training to Neel Sampat (news staffer), who was about to be accused of conspiring to commit espionage.  Her suggestion that employers train employees […]

The post TRAINING FOR MANAGERS AND SUPERVISORS appeared first on Sagheb Law.

]]>
In a recent episode of HBO’s “The Newsroom,” Rebecca Halliday (lawyer) vented to Will McAvoy (news anchor and also a lawyer) that her client, the television news agency, did not provide adequate training to Neel Sampat (news staffer), who was about to be accused of conspiring to commit espionage.  Her suggestion that employers train employees regarding nuances of certain legal requirements is not farfetched.  For example, California law requires employers to provide anti-harassment training to employees, which training aids employers in preventing harassment and, accordingly, avoiding liability for harassment.

Comprehensive training, particularly management training, in fact has broad practical applications that go far beyond protection against civil or criminal liability.  By definition, managers and supervisors manage and supervise other personnel.  Typically, they are skilled at managing the production of work.  Often, however, they are unskilled at managing matters that are not related to production, such as enforcing personnel policies.  Training of managers and supervisors regarding the appropriate interpretation and enforcement of the company’s personnel policies goes a long way to avoid not only potential legal exposure, but also to promote consistent application of those policies.

Many employers go to great lengths to prepare a detailed employee handbook that explains their policies, procedures and expectations.  Companies often seek guidance from attorneys regarding the content of such policies, at significant expense.  Employers distribute their handbooks to employees and ask those employees to acknowledge that they will abide by the policies.  All too often, however, everyone, except perhaps HR, then forgets about the handbook.  Employees, including managers and supervisors, frequently do not even read the handbook.  Those same managers and supervisors have daily direct communication with the workers for whom they are responsible and thus are at the front line of personnel-related issues.  If the supervisor is unfamiliar with the company’s policies, he or she is ill equipped to manage in a manner that is consistent with those policies.

“Isn’t that what HR is for?” some may ask.  Managers and supervisors, like the workers they supervise, often avoid HR.  Managers may do so because of a perception that HR will interfere with their department’s morale or its ability to achieve goals.  Managers and supervisors should be made to understand that HR is their partner, not their adversary.  This partnership can be established in training.  To ensure that the employment policies in which they have invested are appropriately interpreted and enforced, employers should likewise invest in adequate training of managers and supervisors so that those who are in the best position to enforce those policies actually do so.  This investment no doubt will pay long term dividends, even when the issue does not involve a possible conspiracy to commit espionage.

The post TRAINING FOR MANAGERS AND SUPERVISORS appeared first on Sagheb Law.

]]>
https://www.ssslams.com/training-managers-supervisors/feed/ 0
Welcome to SSSLAMS.com https://www.ssslams.com/lorem-post/ https://www.ssslams.com/lorem-post/#respond Thu, 09 Oct 2014 06:17:45 +0000 http://sssagheb.wpengine.com//?p=73 The thoughts posted on this page will be dedicated to knowledge, open-mindedness, and tolerance, as well as less lofty ideals such as enjoyment. Nothing posted on this page or website constitutes or is intended to constitute legal advice. Respectful commentary, including disagreement, is strongly encouraged.

The post Welcome to SSSLAMS.com appeared first on Sagheb Law.

]]>
The thoughts posted on this page will be dedicated to knowledge, open-mindedness, and tolerance, as well as less lofty ideals such as enjoyment. Nothing posted on this page or website constitutes or is intended to constitute legal advice. Respectful commentary, including disagreement, is strongly encouraged.

The post Welcome to SSSLAMS.com appeared first on Sagheb Law.

]]>
https://www.ssslams.com/lorem-post/feed/ 0