Episode 136: Questions From the Labor Law Helpline

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Employment Law Council and Labor Law Helpline Manager with the California Chamber of Commerce. We have a special podcast today as Joining me as a guest on the podcast is one of my esteemed colleagues on the Labor Law helpline, Ellen Savage. Ellen is a longtime Cal Chamber Helpline advisor who has provided countless guidance to our members. Welcome to the show, Ellen.

Thank you very much. Thanks for having me.

Oh, it's really our pleasure. So something we like to do on the podcast is periodically bring our helpline advisors on to talk about what they have been hearing from our callers and our members. And for those who are not familiar, you know, Cal Chamber provides unlimited access to our Labor Law helpline for those members with at least a preferred membership or greater. This allows our members to call and ask questions and get information about all things employment laws from our amazing Helpline Advisor team that includes Ellen and myself. And when I say all things employment law, I really mean it. We get everything from the run of the mill wage and hour topics to the most outrageous calls and experiences that anyone has really ever seen in our careers. And you know, this really gives us a unique opportunity here on the podcast to bring a taste of the real world issues that are commonly impacting our members. All right, Ellen, one last thing before we get started. Although we will be discussing and answering some common and not so common questions we've gotten on the helpline lately, I do think we need to remind the listeners is that the answers that we're going to provide today are for informational purposes only and they do not constitute legal advice. As we always let our members know if they need specific legal advice on an issue such as, you know, whether to terminate an employee or not, we strongly recommend that they consult with legal counsel. So Ellen, with that, how about we tell us. How about we tell our members here about some of the questions that you receive on our helpline?

Well, Matt, as you mentioned, we regularly answer all kinds of questions about wage and hour issues, discrimin, harassment, those kinds of things. And maybe a question or two recently about the COVID pandemic. Just a couple, just a few. But to get the ball rolling here today, let me tell you about a really unusual leave of absence question I got just the other day. One of our members called and apparently her employee had requested a three month personal leave of absence. So she wanted to know whether she had legally to grant this leave of absence. Now sometimes a request for a quote, personal leave is really a request for a medical Leave, an employee might not know to ask for family leave or a disability accommodation. So of course we talked about that. And as it turned out, this personal leave of absence came down to this. The employee had taken another job and just in case the new job didn't work out, he wanted to make sure he could be guaranteed to come back to his old job. So that was his personal leave of absence request.

Let's just say fortunately, so far under California law, that is not yet required.

Yeah, you know, Ellen, we have all these job protected leaves that we do frequently talk about here, but career enhancement not a qualifying reason for any protected leave out there, is that right, Ellen?

That's correct. So far. Let's keep fingers crossed that it stays that way. There is no, what would we call it.

California career enhancement, leave of absence. Not yet. This is California. You never know.

You really never know. And you know, staying on this topic of, you know, the great resignation and other kinds of employment issues that have really popped up because of the pandemic or as you know, a result of the pandemic is a lot of issues that are related to remote work. And something that employees had really been taking advantage of because of all the remote work is that they were moving, they were temporarily moving or they were just permanently relocating because.

They can get a cheaper cost of living somewhere and do the same job for the same salary and benefits that they were getting as if they were here in California. But I think there's an issue or a question that comes up often, which is how do we apply employment laws to those employees that are out of state? What have you been hearing about that, Ellen?

So a lot of people call and say, well, since our company is located here in California, don't we just follow California law? The answer to that, unfortunately is, or maybe fortunately, depending on how you look at it, is no. If you employ someone out of the state or maybe even out of the country, you are now a multi state or multi international employer. You've got to follow the laws of the state or the country where that work is being performed. You're going to have to have someone who becomes familiar with the labor laws in that location, workers, comp laws, safety laws, posters, taxes, you name it.

You are employer in that location. And you've got to make sure you've got the manpower, the bandwidth to have someone to track all that and understand all of that before you pull the trigger on having people work outside of California. And sometimes you don't even know. We do get calls from employers who say, hey, I just Found out my employees from working from Canada for the last eight months. Surprise. What do I do?

Yeah, and that's a similar experience that I've been seeing as well on the helpline, which is we didn't know until they updated their contact information with us to tell us where to send something. Right. You know, a new benefits thing or if they needed something mailed to them. It wasn't until months later that they updated their address that we figured it out. And then all of a sudden the human resources professional calls me and just says, we have an employee in Oregon. Now what do we do? And it's exactly what you said is if we're going to continue to employ that person, we've got to become multi state multinational experts on employment law or at least figure out where we can get those resources from. Staying in the remote era here, especially as we've been in the pandemic, employers have had the need to employees go. And usually when we've let employees go pre pandemic and everyone's working in the workplace, we call them into the office and say, you know, I'm sorry, it's not working out. Here's your final check. Here are your termination documents. Good luck in the future. How different is it for our members when they're trying to terminate a remote employee, especially with getting them that final paycheck?

You know, that is a real challenge. And there's never really been a good answer here. This has certainly been exacerbated by Covid. But this question has existed long before because California law legally requires that if you're the employer doing the terminating, you have to give that employee their final paycheck at the time and the place of termination. You know, I like to remind people these laws were written a long time ago when your employer basically paid you your final wages from a sack of gold coins in his pocket. Not truly, but you know, that's the concept. There was no remote work. No one thought about telework or Covid. So really there's some options. One, you can mail or courier a check to the employee along with a letter letting them know they're terminated. That satisfies that time and place requirement. But a lot of employers aren't really comfortable. They want to talk to the employee. And I totally get that. You can speak to the employee and then courier them a check to arrive around the same time. One of the things a lot of employers end up doing is speaking to the employee over the phone and then mailing a check. But of course, that mailed Check is going to take a couple of days to get there. So what some employers will choose to do is pay the waiting time penalty, which is one full day's wages for each day that they estimate that it will take for that check to get there. Maybe they're going to two day FedEx it. So they're going to include two extra days of wages. That creates sort of a disincentive for the employee to file a claim with the Labor Commissioner because the penalty they would get would be those two days of late wages. I have to remind people that's not technically legally the answer. There's no code that says if you do that, no one can file a claim against you. But it seems to be a pretty common way to do it. The other thing I like to remind people is don't call the employee to tell them they're terminated and tell them to come in and pick up the check. Because under the law, the employee who's being terminated does not have any obligation to show back up to get the check. And it's going to end up costing you a lot more in those waiting time penalties while that check sitting on your desk.

Yeah, and I think it's always important to remind the the listeners that wage and hour laws, they're just simply technical. You either comply with them or you don't. You got the final check on the correct day or you didn't. And if you didn't, you're going to owe those waiting time penalties. And so like you say, it's really going to be incumbent on the employer to make sure that either they meet the timeliness of it or they think about including those waiting time penalties to disincentivize the employee or former employee from bringing the claim. Now, something else that pops up for me pretty often, I wonder to hear your thoughts on this is what about direct deposit? What if the employee we're terminating has direct deposit? Do we think that we can use that for their final wages?

So while the labor code specifically does allow direct deposit of final wages, as long as you meet those timing deadlines, it's not necessarily a great idea. And I'll tell you why. If I schedule a direct deposit, because I know I'm going to terminate you tomorrow, sometimes the bank will accidentally direct deposit it today and you're going to wonder why. You just got a big fat direct deposit and that's going to tip you off that you're about to be terminated. Or the bank is supposed to direct deposit it today, but it doesn't actually go in until tomorrow or the next day because of some technical glitch and now you've got a delay. So really a paper check, probably the best call, but legally, technically it's permitted.

Excellent. All right, let's transition to something that I think we've gotten just a couple calls on, as you alluded to, and that's vaccines. Right. Ellen, have we been hearing some stuff from members on vaccines?

It's been a hot topic, that's for sure.

Absolutely. And really the hottest topic about that, I think has been mandatory vaccine programs. And you know, as we like to remind our members, we've heard President Biden say we're going to have a federal vaccine mandate. It's been seven, eight weeks now since he's made the announcement. There is still no rule published by osha. There is still no federal vaccine mandate at this point in time. However, employers are authorized, at least in accordance with EEOC guidance and DFEH guidance to have a mandatory vaccination program. So Alan, what are some questions you're hearing from our members that are real commonplace about mandatory vaccination programs?

Well, I think the first one is a can we have a mandatory vaccination program? And as you said, the answer to that is yes, it appears that those are fine to do. Employers need to be sure that they are making sure to accommodate for sincerely held religious beliefs as well as for disability related reasons. One of the big questions we ask is or get asked is, okay, so if an employee just refuses to get vaccinated, not for one of those two reasons, but just they don't want to, can we terminate them or do we have to put them on unpaid leave? I think a lot of employers have been reading about some of the airlines that are saying if you don't get vaccinated by a certain date, we're not going to terminate you, we're going to put you on unpaid leave. So do we have to do that or can we terminate? And we seem, it seems that according to the EEOC dfeh, all the guidance that we've seen, seen some of the court cases that have come down so far, it seems likely that termination is absolutely an option. Again, not if it's a religious reason, not if it's a disability related reason, then we need to talk about reasonable accommodation. I ask employers, what would you do if you owned a restaurant and you required your employees to follow safety rules like wearing non slip shoes and an employee just refused to wear non slip shoes? You probably wouldn't put them on unpaid leave. You'd say if you don't follow my safety rules, you get terminated. Again, we're going to always suggest talking to legal counsel because a lot of this is still undefined, a bit gray, but if it's simply the employee's choice for political reasons, social reasons, whatever it might be, you can still enforce your mandatory vaccination program.

Yeah. And going into the religious belief, can an employer question an employee's religious belief if that's their justification for not getting vaccinated? For example, can I require a note from their pastor or other types of proof of their sincerely held religious beliefs?

You know, that is a question. We are getting an awfully lot right now. Employers are saying, look, this guy, as far as I know, is not religious. Why is he suddenly refusing to get a vaccine based on religious beliefs? And in general, you as an employer generally have to accept an employee's simple statement that they cannot get vaccinated due to their sincere religious belief unless you have what's called an objective basis for questioning it. We often get asked about inconsistencies. We've got employees who've gotten flu shots every year in the past, and suddenly they're saying for religious reasons they can't get the COVID shot. But the EEOC's newest guidance, I think it was just published this week, it's pretty clear that an individual is not always consistent in their religious beliefs. Maybe people's beliefs change over time. Maybe you've had an employee who's never gone to church in their life, and suddenly they become more devout and they ask for every Sunday morning off to go to church.

It's important to remember, though, that, you know, objections based on other things like personal preference, you can certainly question those. But religious belief, unless we have objective evidence that the employee is really not telling you the truth, we pretty much have to accept it at face value.

Yeah, and that's something I like to remind employers of, is that that's just one step of the whole process. The second step of the process is is there a reasonable accommodation for this particular employee where we do have to accommodate their inability to get the vaccine? All the EEOC guidance, the DFEH guidance says is you may have to do that. And as we know, and as is commonly expressed, is that all reasonable accommodation questions really are case by case basis, like what is it that the person does? What do your operations look like? What's the health and safety concern? And there's a lot that goes into whether or not we can or cannot provide a reasonable accommodation. And that's really where the employers should probably focus a lot of their efforts on is making sure that there is a reasonable accommodation and then providing that, if necessary, and really engaging with legal counsel in terms of helping them navigate through those waters, because those are very difficult waters usually to navigate. But, you know, Alan, I think this gave our listeners quite a bit to chew on on the hot topics and the things that have really been top of mind for a lot of our members, and especially in the news for our members there on the helpline. And so it was an absolute pleasure, really, to have you and your expertise on this podcast. So thank you for joining us today.

Absolutely. As always, it's a pleasure to work with you, Matthew.

Well, thank you all. And thank you, listeners, for joining us on the Workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.

SAM.