• Q&A About Sick Leave Policies

    LD presented the following scenario:

    My husband works the following:

    Monday 8hrs, Tues 10 hrs, Wed. 10hrs, Thurs 9 hrs.

    Friday he has surgery and puts 8 hrs of sick leave on his time sheet.

    In his mind he would be getting 5 hours of overtime. His employer pays him the over time but changes his time sheet to read 5 hrs of overtime and 3o hours of regular pay and 3 hours of sick leave. saying he cannot use the sick leave to make up the 40 hours. Does this make sense? Is this legal? So basically he gets the overtime but gets shorted 5 hours.

    Your husband worked 32 regular hours and 5 hours of overtime (2 hours of overtime on Tuesday and Wednesday each and 1 hour of overtime on Thursday). This is a total of 37 hours. California law requires the employer to pay your husband 32 hours at the regular rate of pay and 5 hours at time and one-half (this assumes, of course, that your husband is not exempt from the overtime laws).

    Your husband also chose to use sick leave for the missing day/time (Friday). There are very few laws that apply to sick leave. Some cities, like San Francisco, have enacted mandatory sick leave requirements, but most employers are free to adopt whatever sick leave policies they choose to adopt. There are no laws prohibiting an employer from adopting a rule that prohibits employees from using sick leave to increase the total hours to more than 40 hours worked in a given week.

    Sick leave is different than vacation pay. Vacation pay is considered “wages.” Labor Code Section 227.3 specifically states that vested vacation time must be paid out as wages upon termination. An employee earns vacation pay as the employee works. Sick leave, on the other hand, is not considered wages. The main reason is that the employee is not entitled to sick leave unless and until the employee is sick.

    It is possible that a court or the Labor Commission could conclude that an employee with accrued sick leave who wants to use that sick leave for its intended purpose is entitled to receive the full sick leave requested. However, I am not aware of any court decisions or Labor Commissioner opinions requiring such a result.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Customers Can Sue For Sexual Harassment: The Story of Mark & Susan

    A new case (Hughs v. Pair, 07 CDOS 10973, 9/10/07) helps define the parameters of a little known section of the Unruh Civil Rights Act (Civil Code Section 51.9) that makes business, service or professional providers liable in damages if they sexually harass their clients or customers. It also extends potential liability to administrators, executors or trustees of estates.

    Susan and Mark were married and had a son, Alex. The marriage ended in a contentious divorce. Mark died leaving his minor son, Alex, the only beneficiary of Mark’s $400 million estate. Susan had a contentious relationship with Pair, one of three trustees, having sued the estate seven times in four years.

    Susan requested reimbursement from the trust for a two-month rental of a Malibu beach home for Alex, age 14, (yeah, right) at the cost of $80,000 a month. The trustees approved only one month expressing the opinion, among others, that the rental was for Susan’s, not Alex’s, benefit.

    After three years of not speaking to her, Pair called Susan to invite her and her son to a King Tut exhibit. During that conversation he remarked how much he loved Alex and “you in a special way,” and that he could be persuaded to give her more time “if you would be nice to me.” When Susan responded that this was crazy talk, Pair said, “how crazy do you want to get?” Susan did not accept Pair’s invitation.

    Susan and Alex ran into Pair and his son at the exhibit. Within earshot of both boys Pair said, “I’m going to get you on your knees and [expletive deleted] you one way or another.” Susan testified at her deposition that Pair’s statements caused her to suffer from discomfort, worry, anxiety, upset stomach, concern, and agitation in the form of her heart racing. But she also suffered these symptoms to a lesser degree because of the other litigation involving the trust.

    Pair filed motion for summary judgment to dismiss the case on several grounds, the first one being of interest here: i.e., that since Susan was not a beneficiary of the trust there was no relationship between her and Pair that would bring section 51.9 into play. What does 51.9 cover? Let’s see.

    First, there must be a business, service or professional relationship between the plaintiff and the defendant. Second, the defendant makes sexual advances, solicitations, sexual requests, or demands for sexual compliance to the plaintiff or the defendant engaged in verbal, visual, or physical conduct of a sexual nature or a hostile nature based on gender. Third, the conduct of the defendant was unwelcome and pervasive or severe. Fourth, the plaintiff was unable to easily end the relationship with the defendant. Fifth, the plaintiff suffered or will suffer economic loss or disadvantage or personal injury or the violation of of a statutory or constitutional right as a result of the defendant’s conduct.

    Was there a “”business, service or professional relationship ” between Susan and Pair within the meaning of the Act? The Act itself contains a list that is expressly made non-exclusive. In other words, the list is for the purpose of illustration only and there could be other relationships not listed that are governed by the Act. The express list includes:

    Physicians, psychotherapist, dentist, attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, accountant, banker, trust officer, financial planner, loan officer, collection service, building contractor, escrow loan officer, executor, trustee or administrator, landlord or property manager, teacher or any relationship that is substantially similar any of the above.

    Was Susan’s relationship with Pair substantially similar to any of the above relationships? She was not beneficiary of the trust and by its terms could never expect any financial gain from the trust. However, the court held that her relationship with Pair fell within the intended reach of section 51.9.

    “Susan is Alex’s mother and guardian, and in those capacities, she must deal with the trust on Alex’s behalf, even if she is not a beneficiary. The language of section 51.9 does not limit its scope to a relationship between a trustee and beneficiary. Instead, the statute is more expansive, applying to a relationship between ‘a plaintiff and a person including . . . a trustee.’ (section 51.9, subd. (a)(1)(C).) The law also applies to any relationship that is ‘substantially similar to those listed above.’ (section 51.9, subd. (a)(1)(F).) Susan, acting on Alex’s behalf, does not have the ability to ‘easily terminate the relationship’ with Pair as trustee. (citations omitted.) Susan has a sufficient ‘business, service or professional relationship’ with Pair as a trustee to qualify her for protection from sexual harassment under section 51.9.”

    The case was ultimately dismissed on other grounds.

    The court held that Section 51.9 sexual harassment will be analyzed the same way courts analyze sexual harassment in the employment context under the California Fair Employment and Housing Act and Title VII of the Civil Rights Acts. The court then found that the isolated incidents described by Susan, while course and vulgar, were not sufficiently pervasive or sever to cause Susan to suffer economic loss or personal injury within the meaning of those laws. Since the relationship did not change and had always been contentious, Susan failed to establish that she had been the victim of quid pro quo sexual harassment (where some benefit is conditioned upon the granting of sexual favors.)

    Had the case gone forward Pair would have faced the possibility of a judgment for actual damages including emotional distress, punitive damages an attorneys fees.

    We are all familiar with the laws prohibiting sexual harassment in the work place. Hughs confirms that those laws are operative in the business relationships not involving employment. Take heed, be prepared, be informed.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Phillip J. Griego of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Time for Your Sexual Harassment Prevention Training

    Employers with 50 or more employees are required to provide two hours of sexual harassment prevention training every two years. Most employers completed their training at the end of 2005. Those same employer are now looking to conduct the training again.

    Some employers have decided to conduct the training in-house, or through Internet or computer-based training. Before you spend time or money on training that does not meet the minimum standards required by the newly enacted regulations, ensure the training is up to par.

    The training must be conducted by:

    1. An attorney admitted for 2 or more years to the bard of any state and whose practice includes employment law; or
    2. A human resources professional or “harassment prevention consultant” with 2 or more years practical experience in providing sexual harassment training, responding to sexual harassment complaints, conducting investigation of sexual harassment complaints, or advising employers or employees regarding sexual harassment prevention; or
    3. A law school, college or university professor with 2 years experience teaching about employment law.

    The training itself must last a minimum of 2 hours, although the hours can be broken up over multiple days. The training must include;

    1. A definition of unlawful sexual harassment;
    2. The statutory provisions and case law principles concerning the prevention of sexual harassment, discrimination and retaliation;
    3. Types of conduct that constitutes sexual harassment;
    4. Remedies available for sexual harassment;
    5. Strategies to prevent sexual harassment;
    6. “Practical examples” (i.e., case law, news and media accounts, hypotheticals) illustrating sexual harassment, discrimination and retaliation using training modalities such as role plays, case studies, and group discussions.
    7. The limited confidentiality of the complaint process;
    8. Resources for victims of unlawful harassment;
    9. The employer’s obligation to conduct an effective workplace investigation;
    10. Training on what to do if the supervisor is personally accused of harassment;
    11. The essential elements of an anti-harassment policy and how to utilize the policy (employees must sign and receive copies of the employer’s anti-harassment policy)

    Many web-based or computer-based training programs do not meet these requirements. Additionally, if the trainer does not meet the minimum specifications, the training will not suffice. Employers that fail to provide the requisite training can be ordered to do so. You can guarantee that if you are ever involved in a sexual harassment lawsuit, your supervisors and HR employees will be questioned regarding the sexual harassment prevention training.

    Our office is happy to review your training program or provide the required training. Our sexual harassment prevention training is tailored to your company. We can also “team teach” the training with individuals from your office who may not meet the training qualifications due to insufficient years of experience so that you can that the employee can conduct the training in the future.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.