Episode 182: Remote Workers Moving Out of State, School-Related Leaves a Top Concern for Employers Calling the CalChamber Labor Law Helpline

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline manager and Employment Law Council with the California Chamber of Commerce. Hello everybody. Again. Here at the Cal Chamber, we are uniquely positioned to feel the pulse of hot issues with California employers. Throughout all of our member interactions that we have lately, we have seen a lot of inquiries about workforce issues such as returning remote staff to the workplace, termination and layoffs, and how to handle the return to school for our employees with children. To address these topics, we welcome back Ellen Savage, one of Cal Chamber's excellent employment law experts on the Cal Chamber Labor Law Helpline. Thanks for joining me today, Ellen.

Always happy to be here with you, Matt.

I'm always happy to have you on. So, you know, we continue to get fun calls on the helpline and the call goes something like this. I just learned that an employee that used to report to one of our work sites and then went remote, you know, probably during the pandemic, has now moved out of the area, sometimes completely out of the state of California. Was the employee obligated to tell us about that move? And now that we've discovered that the move has happened, is there anything we need to be concerned about about where the employee is working now?

Oh boy, is there. So more and more we are getting this question. Employees who are moving out of California to other states, often without the employer even knowing. I got a call recently where one of our members just discovered their employee had moved to Vietnam several months ago and had been working there remotely all that time. Kind of suddenly made sense why the guy was always emailing them at three in the morning. So now we're looking at not only multi state labor law issues, Matt, but we're talking about multinational issues. So the first big question we always talk about is when the employee ups and moves and works remotely from wherever else it might be, which labor laws apply. And the answer in almost every case is it's going to be the laws in the jurisdiction where the work is being performed. And everyone says, wait, what? But our company is in California, I'm in California, and I have to tell people, it doesn't matter where you are, it matters where they are. I usually put it really bluntly, where is the employee's bottom? Sitting in a chair. And if this weren't the rule, then here's what would happen, Matt. Every employer would set up in the most employer friendly jurisdiction. Like they'd move to Arkansas, where there's no such thing as meal and rest breaks or anything like that. And then they'd send their employees to work in Calif. And they would just go, ha, ha, California. We don't have to follow your laws, which you and I, of course, know California would never buy. So it's really important that we have good remote work policies and written telecommuting agreements. Like, did we tell our employee they could only work in California or only from their current home were we specific about having to report plans for moving out of the area? And a lot of these employers we're talking to just kind of played loosey goosey and didn't really think about that. So if we've got our employee and they're still, let's say here in California, let's imagine they're not in Vietnam. But what if they're working in a city or a county with local ordinances? We got to look at those ordinances. A lot of them have higher wages. A whole bunch of them have more sick leave. Don't even get me started on San Francisco, where we have paid parental leave and all kinds of things. And then if they're out of state, a new predictive scheduling ordinance just popped up outside of Chicago. That's a lot to keep track of. One of the big things I'm seeing right now is family leave. The employee's home is not their workplace. So if we talk about the FMLA and the good old rule of 50 or more employees within a 75 mile of the workplace, the employee's home isn't the workplace. We have to look to what location they're attached to, and that can create some complications.

Yeah, it really does change a lot of the dynamic in the employment relationship once they either leave the state or even just stay in the state, as you said, move into a local ordinance jurisdiction. We just talked about several that just popped up this year on a webinar this morning, and the question's always arising. So if we've got an employee who's hybrid even and works sometimes in the work site and sometimes at home, we have to worry about where they're working, working at home. If they enter into a local ordinance jurisdiction, and the answer is yes. So you've given employers, Ellen, a lot of reason to not allow this arrangement. You know, they don't want emails at 3 in the morning from Vietnam. They don't want to deal with multinational employment law. We know I don't. So instead, can the employer just say, you know what? This remote work arrangement is not as permanent as we once thought it was going to be. We're bringing people back to the work site. Can we order that employee back to the work site?

So, generally, we have the right to require employees to return to the work site. But I would advise employers first to look to the remote work agreement that the employer and the employee hopefully signed. Did you include any wording about your right to recall the employee? 100% back to the office. And, you know, in reality, a lot of these folks last year told their employer, all right, I'm going to make the move. I'm going to go to Kansas City and buy my dream house there. Are you sure I can keep working remotely? And the employer said, absolutely. This Covid thing's never going to end. Go ahead. Now they want you to come back. As a practical matter, really, with the tight labor market, you also have to think about the fact that is this employee going to just quit rather than move back? You know, there's a lot of folks we really can't afford to lose right now. And if they quit, are they going to get unemployment insurance? Because their quit is with good cause. Although, now that I think about it, maybe that's going to depend on whether they're still considered a California employee for UI purposes. So, as you can see, it can get really complicated. The last thing I think, really, is whether there's a disability accommodation relation to this remote work. In other words, is the employee working from home because they have a disability? And so far, Matt, maybe you know of one, but I don't know of any case that has decided whether an employer has to accommodate a disabled employee who wants to move out of the country maybe, and work remotely. In other words, you know, is the employee moving to Mexico because they like the lovely beaches, or maybe that's where there are experimental medical treatment's available? I don't think there's any cases out there yet, but I think the employer could probably argue that that's an undue hardship to suddenly have to comply with international labor laws, international tax laws, all of that, just for one person. What do you think?

Yeah, I think that's a novel argument, Ellen, and definitely one that you would flush out with legal counsel, of course. But you always operate from this idea that, you know, undue hardship is always something that requires extraordinary cost or really changes the way that we do business. And I think that's the second part that we latch onto with what you're talking about, which is the that we're complying with other laws that we ordinarily weren't going to comply with may actually be a fundamental way that changes our business. So I think It's a novel argument. I think it's one that you can explore, but as you said, certainly not one that we have a whole lot of guidance around. So, you know, tread carefully as always. Now, how about just terminating the employee? The employer says, okay, well, now this sounds too difficult to bring them back from Vietnam or from Washington or from even just Southern California. If we're in Northern California, we just want to terminate the employee. Because we don't, it leaves a bad taste in our mouth that they just didn't notify us of the move. It seems kind of sneaky, and we just want to wash our hands of the whole situation. What do you think about that, Ellen?

So, honestly, I would talk to legal counsel before doing that whole wash our hands route without really thinking it through. I think it would be smarter to at least try to work with the employee to find a way to get them to return. But honestly, if they absolutely refuse, I'm not leaving Kansas City, I'm not leaving Vietnam. And you say return to office date is September 1st. You can probably terminate or maybe even consider it a job abandonment if they don't come back. But again, I'd check in with counsel about it.

Yeah. And really, that last question kind of teases us into the second segment here, which is that we're hearing a lot more questions on the helpline and from our members that termination issues are arising in the workplace. More terminations are happening, and we've seen a lot of questions related to that on the rise here on the helpline. So what are some common questions that employers should really ask themselves when evaluating a termination decision if they're looking to go that route with an employee?

Well, I mean, there shouldn't be any hard questions because California is an at will state, so terminations shouldn't ever be a problem. Right? I mean.

Oh, you would think so. What's amazing is we're about to dive into this discussion, Ellen, with the idea that at will employment is still.

Legal here in California. But as you're about to go into, it doesn't just mean do whatever you want, whenever you want.

Oh, no, it does not. You know, at will literally means that if I wake up this morning and I think to myself, you know, it would be super fun to fire someone today. I could literally go into the office, draw names out of a hat, and if it happens to be you, Matt, that I pull out of that hat, perfectly legal. But no one actually does that. What at will really means that employers should keep in mind is that I can terminate you for Any reason or honestly no reason at all. But here's the kicker that keeps we employment law experts in business. And that is we can't terminate you for an illegal reason. Okay. Any reason. No reason at all. Just not an illegal reason. So when we're going to be making these termination decisions, we're always going to be looking for the legitimate, non discriminatory reason for our decision. Which brings me to the top three rules for every HR person to keep in mind. Rule number one, document everything. Rule number two, Matt. Document everything.

Yeah, document everything.

Rule three, document everything. Performance issues going on, document them. I talk to people all the time who say, this person's had performance issues for years. And I say, okay, tell me about their write ups, tell me about their performance reviews. We don't have any. That's going to be a tough one to defend. What about policy violations? Again, if those are going on, document them. One of the issues that's really sticky is attendance issues. It's really critical if an employee is having attendance problems to look at protected versus unprotected absences and make sure that if, if we're making a termination decision based on attendance, we're only counting the unprotected absences in our decision. We're not counting protected sick leave, family leave, pregnancy leave, jury duty leave, all the leaves that you know are protected. Here in California, our termination decisions being supported by our personnel management systems, are we doing regular performance reviews and really tracking that performance?

One of the things we really have to do is we have to be super cautious. Use kid gloves. If we're terminating employees who've recently engaged in certain types of protected activities, like harassment complaints, or maybe they've recently taken a protected family leave. Just this morning, actually, I talked to someone who was worried about firing someone who had very clearly violated the company's code of conduct. I won't go into it in mixed company, but it was very clear. But she was worried because this guy was using intermittent family leave. And so what we talked about was, let's make sure that this termination is clearly not related to the protected leave, the family leave, and that we clearly document the code of conduct violation. One of the things she was concerned about was, okay, I have other people that I haven't terminated in the past who have violated code of conduct rules. And I always tell people, okay, look, don't just look to the people that you have terminated, but let's look at the people that you haven't. Are the rules they violated the same. Be prepared to show why there were differences in the consequences, every labor law seminar that our members have ever been to tell them, treat everyone the same. But you and I know, Matt, that's not actually the rule. The rule is treat similarly situated employees similarly. So, for example, you're not going to fire your chief financial officer that's worked for you for 20 years, who comes in late sometimes, but maybe you're going to fire the new receptionist for it because the phones aren't getting answered for the first hour of the day. And those two employees are clearly not similarly situated.

I think that's fantastic because exactly that situation we talk about in seminars. And I tell the members, of course, be consistent in the application of your policies and your discipline. But if you're not going to be, just be ready to answer why? And I think you just answered why, Ellen. The CFO doesn't have this obligation to be there on the.at 8:30 every morning if they're getting their job done. But as you said, the receptionist is different in that it is necessary for her to be there at her desk at 8:30 to make sure that the funds are getting answered. So I think that really was a great highlight. And the importance of regular documentation of both the policy violations and the performance issues. As a former plaintiff's attorney representing employees and suing employers for this very reason, this illegal termination that we're talking about here, if you don't have the documentation, it's like a gold mine for any plaintiff's attorney because you don't get to tell the story about why you terminated somebody. There's no documentation documentation about it. Memories fade. I'm taking your deposition three, four years after you decided to fire them and no one remembers anything. So I now, as the plaintiff's attorney, get to make up this wonderful story about why you fired my client for all these nefarious reasons related to their sex and their religion and these three protected activities that they engaged in that you didn't like. And you become instead of an employer who conscientiously thought about why you were terminating this person, you now look like a terrible employer who just wants to get at their employees all because you were missing this documentation. So it's really important. That's why. Those are the three rules. Ellen. I think that was fantastic. And keep that in mind as you're evaluating these ideas about reducing your workforce, because we need to kind of move on from some of these employees who aren't quite meeting the standards that we have for them now. Ellen, what about layoffs? Some employers this year and next year may be looking at their budgets and decide, you know what, we need to cut some of our workforce just to keep a healthy balance sheet. We what should employers ask themselves then before going into layoffs?

Well, I think the most important thing to start with is that a layoff is in fact a termination. Maybe it's not for cause the employee didn't do anything wrong, but it's still a termination. And just calling it a layoff isn't going to save you from a wrongful termination lawsuit. So if we're looking at a layoff of a group of people, the first thing we're always going to do is decide, does this layoff meet the legal standards? To have to think about the federal and state Warrant act. And that's of course going to have a 60 day notice requirement and some other things that have to happen depending on the size of the layoff. And, you know, if it feels like maybe it's going to meet those Warrant act requirements, that's one of those talk to your legal counsel issues because it really can get very complicated. And there are some exceptions to the notice requirements that can be really helpful to employers. Even if it doesn't trigger those warm requirements, though, employers still have to go through some of the same questions that we just talked about, like what's the legitimate reason that we selected this particular group of employees for the layoff versus some other employees we want to stop and think, is there some greater impact, for example, on one protected class? There is a classic employment law case where there was some internal email that said we're quote, getting rid of the dead wood. Now. Is that code for age discrimination? I don't know, Matt, but like you said, as a creative plaintiff's attorney at one time, you would have had a lot of fun with that internal memo. One of the things I like to recommend when people call and you know, they're kind of trying to decide who to lay off and what questions are important. We have a really good termination decision checklist on our HR California website. I always tell people it's the questions that after you're getting sued, you wish you had asked yourself before you made the termination decision. So that's a helpful resource.

Absolutely. And it's always surprising to members when we talk with them about that, that the layoffs still go through the same kind of scrutiny you just went through with firing someone for a policy or performance issue. In that it is a termination. Either way, it doesn't feel the same, but in a legal effect, it absolutely is. So another question we commonly get then Is how do we handle those situations where someone senses a termination is coming and goes on that disability leave, stress leave that we hear about all the time or all of a sudden a harassment complaint pops into the inbox for our HR personnel. What do we do with that situation when we are already making movement towards firing this employee?

So, you know, I tell people it's a little bit like a chess match. You have to think through your defensive moves. When employees dec decide to play that game, they get called in, quote, for a meeting, and suddenly, an hour earlier than the meeting time, you get a note from their doctor that they're on 12 weeks of family leave. Right. So does the employee requesting leave or like you said, filing a harassment complaint or any other protected activity, does that save the employee's job? And the answer is no, it doesn't. As long as, and here's the key that you can show the decision to terminate was made prior to the employee telling you they need the leave or prior to telling you about the harassment. So we're back to, not surprisingly, that document everything rule. What I'm looking for, if I'm defending you, is do we have some notes from the meeting where we decided to terminate the employee? Do we have emails back and forth between the manager and HR or maybe HR to pay payroll saying, please cut a final check for Susie, we're going to terminate her tomorrow. That kind of thing can really save you as long as all of it happened prior to the request or the claim of harassment or whatever. Because we could not have fired someone for an illegal reason if we didn't know about the reason at the time the decision was made.

And that's the same with the layoffs.

Right?

Ellen, for example, if an employee is already out on a CFRA leave and we were planning to lay them off even if they were not on the leave, can we still choose to let them go even though they're on this protected leave of absence?

Absolutely. So if we're going to do our layoffs in some objective way by seniority or some like, quantifiable performance data, we're going to lay off our lowest performing salespeople, that's going to be much easier to defend because that's objective criteria clearly not related to the leave of absence.

So let's say we're going to do a layoff in our widget making department. And right before the layoffs are announced, boom. Our employee goes out on yet another pregnancy disability leave. While she's gone, we announce the layoffs, we're going to lay off the 10 least senior widget makers. And this employee out on pregnancy leave is our third lease senior. So we can absolutely show she would have been laid off anyway. Honestly though, Matt, most of the calls that I get are not that clear cut. Maybe the manager threw this employee into the layoff group because honestly, it's been a hassle accommodating her pregnancy disability stuff during a difficult pregnancy. And you know, now that that employee is having her, I don't know, eighth or ninth kid, well, we know she's going to need time off for sick leave and school and daycare issues. So let's just throw her in the layoff group. That's gonna cause some problems.

Yeah, that's where the issues kind of pop up. Absolutely. And that's where we kind of want to make sure we evaluate that list of layoff candidates and make sure that there is that legitimate business reason for it and there's not even just partial motivation by pregnancy status, leave of absence, whatever. That's actually a great segue talking about kids. And she's gonna be absent all the time. Because our last segment today is about school issues. For those of us with school, we are in the thick of it or about to be in the thick of back to school. This is always a good time, I think, Alan, to refresh employers on their obligations around what employers need to do with employees who have school aged children, starting with leaves of absence that employers may have to provide relating to school issues. So Ellen, take it away on that issue.

Well, there's two main kinds of school related leaves. The first one is called school appearance leave. And that's if you've got to take time off to appear at your kid's school in connection with a support suspension. Sometimes you have to show up for a suspension meeting or sit in class with your kid after they're allowed back in school. The one we hear more about though is school activities leave. And that applies to employers of 25 or more. And it allows employees up to 40 hours off a year. Generally though no more than eight in any month. And this is time for like school field trips or chaperoning, you know, whatever's going on with the school, the school play, to enroll a kid in school or enroll them in licensed child care. It's also available without that eight hour a month limit for school or licensed child care emergencies. This is when your kid bites another kid and the daycare calls and you got to go pick them up or there's a flood and the school unexpectedly closes for the rest of the Week, stuff like that.

Neither of those school leaves are paid time paid by the employer, but employees can choose to use available paid leave for them. And yes, you can require a note from the teacher.

The only other thing really that would apply to kids going back to school is, you know, when junior gets Covid or the flu or whatever nasty bugs going around through the school system. And really, despite all the crazy extra sick leave we've had over the last couple of years, at this point, it's really just plain old what I call vanilla sick leave that's going to cover this time off. Maybe in an extreme case, family leave. If we're talking, you know, child who's hospitalized or really has a need for ongoing care, like with long Covid.

Okay, but what about childcare, Ellen? This became such a crucial issue over the past few years as many childcare facilities have closed. Workers childcare facilities just fled the industry, making it harder to get children into a care center that gets impacted really quickly. All this designed around allowing the parent to work, of course, so they have somebody to watch their child. Does an employer have an obligation to employees to provide time off solely because the parent doesn't have childcare for their child?

So absent those school emergency situations that we just talked about, child care issues really aren't something an employer has to accommodate.

However, stay tuned. This is California, and a family caregiver accommodation law may just be coming down the pike under some bills that are working their way through the California legislature. So stay tuned.

Yeah, bills we've talked about throughout the course of the year on this show for sure. All right, Ellen, let's conclude today with the students themselves as employees. So we know hiring minors is a hotter topic during the summer, but. But many minors like to keep their summer jobs into the school year or find new ones. I know I actually got my first job not in the summer, but during the school year. How does the start of school change the rules around child labor laws here in California?

Well, the first and most important thing is that every kid who is still required to attend school has to have a work permit. And what employers often don't catch is that those work permits expire five days after the end of each school year. So you may need to re up the work permit. The expiration date is right at the top of the existing work permit. So that's pretty easy to just double check if you have any minors working for you. Also, during the school year, the hours of work that are allowed typically are reduced, both the total number of hours each day as well as the spread of hours. In other words, how early in the morning and how late at night a minor is allowed to work. And your work permit that you have on FIO will specify what hours the minor is allowed to work. And Matt, this really doesn't have anything to do necessarily with the start of a school year, but people are always surprised to learn that even though they have a valid driver's license, minors cannot drive for you as part of their employment. So don't hire someone who is a minor as a delivery driver or even send them to the post office or to pick up donuts for the company meeting. They can't drive on public roads for work.

Awesome. Ellen. Your knowledge and experience with these issues is always a welcome conversation here on the podcast. So thank you again for joining me today.

Had a great time.

Matt thanks and thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers Podcast by visiting cal cham dot com.