fun faqs
No it's not just you, employment laws are incredibly confusing! New laws are constantly being enacted and fought over and then re-interpreted by court case decisions. Consequently, the risk of litigation against employers is increasing more each year. Here are a few real-life examples of common questions our clients have asked.
Q & A
"My employee said she's having trouble getting to work on time due to some sort of chronic pain and would like us give her a more flexible start time. As the Receptionist, we need her to be here on time to open the office and answer the phones. Can I tell her no?"
Whenever an employee mentions a disability, it's important to assess the situation carefully before making a decision. Generally the EEOC does not require you to accommodate a disability if it's unreasonable or causes a hardship. However, this can be difficult to prove. Is there anyone else who can cover the desk in the morning? Would having someone else cover the desk cause the company to lose money or productivity? Depending on her role and business needs, you may have a case to say no. However, you'll first need to go throught the ADA Interactive Process. You should be doing this anytime an employee's disability becomes known to you or another member of management. This can include physical (i.e. chronic pain, migraines), mental (i.e. anxiety, bi-polar) or learning (i.e. dyslexia) disabilities, and the employee does not have to refer to it as a "disability." The interactive process includes documenting your inquiry into the employee's needs and your attempt to provide reasonable accommodations. The employee will be required to provide a doctor's certification to validate the need for the accommodations and the doctor's recommendations based on the employee's job duties. This is why job descriptions are so important. But the most crucial take-away from this, is that you should document the entire process to prove that you're being fair and reasonable to the employee.
"Is there a rule where we can require employees to speak only English at all times in the workplace?"
"Can we get specific about at what time the 10 minute breaks could happen, should people wish to take them? That would help in our workday planning."
Yes, you can schedule when they can take their rest breaks, as long as it's uninterrupted/duty-free and you relinquish any control over how employees spend their break time. The break should be scheduled somewhere in the middle of each 4 hour period.
"Just want to clarify California labor law with regards to when overtime kicks in. If an employee worked 40 hours during during the week, and then did 8 hours on Saturday, are all 8 hours calculated as overtime? What happens if they work on Sunday too?"
Overtime is anything over 40 hours in a week or 8 hours in a day. So if they work a regular 40 hours during the week and then work any time over that, it would all be overtime. And if someone works 9 hours on a day, then that 1 hour is paid as overtime, and anything over 12 hours is double time. There is also the 7th day rule, which says that if they work 7 days straight, anything on the 7th day is considered overtime. Additionally, the 7th day should always be voluntary to allow a day-of-rest.
"What if an employee has a prescription for marijuana? Is it protected under ADA?"
California's Proposition 64 specifically allows employers to prohibit marijuana use while on the job, and allows you to discipline, terminate or deny employment to someone who tests positive for marijuana. Like alcohol or many prescription pain pills, marijuana is not considered safe for the workplace, and it is not considered a reasonable accommodation under ADA. Unfortunately, marijuana drug testing has not been fine-tuned enough to determine how long ago the substance was used, and it's hard to say whether the employee was actually "under the infulence" at work. However, the law still allows for a zero tolerance policy, and this is stated clearly in the employee handbook.
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