Governor Signs Two Employment Related Bills

As the Governor is preparing to make his exist, he has signed into law a couple of bills that employers need to be aware of:

The first provides exemptions from state meal period requirements for certain types of employees, thus allowing employers to avoid one of the more common wage and hour pitfalls. The jobs covered are construction workers, commercial drivers, security officers, gas and electrical corporation employees, and public utility employees. The exemption applies only if the given employees are covered by a collective bargaining agreement that otherwise provides for meal periods and provides for binding arbitration of disputes concerning the application of meal periods.  The rationale behind this is that certain jobs require constant working, or make it impractical to regularly schedule meal periods in compliance with California law.

Another law recently passed provides for mandatory paid time off for employees donating an organ or bone marrow.  This law only applies to employers with 15 or more employees.  Employees are entitled to up to 30 days paid time off per year for donating an organ, and up to 5 days paid time off per year for donating bone marrow.  The employer can require the use of up to two weeks of accrued sick or vacation leave for organ donation, or up to 5 days for bone marrow donation, before providing the paid time off.  However, the periods of paid time off do not run concurrently with FMLA or CFRA, and the employee can still apply for those leaves.

One final update on the Brinker case. This is the case, now pending before the California Supreme Court, which addresses whether under California law an employer has the duty to ensure that employees take their meal and rest breaks, or alternatively to only provide the employees with the opportunity to take their meal and rest breaks. It looks like the Supreme Court is going to wait until after the election and the seating of a new Chief Justice before scheduling oral arguments.  At this time we do not expect a ruling before the end of the first quarter of 2011. Plaintiff’s attorneys all believe that the Court will go with the “ensure” standard; defense attorneys all think the Court will go with the “provide” standard.  We will keep you posted.

JAllan

Are Volunteers “Employees” Under FEHA?

In a just released decision denying in part the defendant’s motion to dismiss, a Federal District Court Judge for the Eastern District of California applied elements of California workers’ compensation law to find that a volunteer intern in a program run by the Nevada County Sheriff’s Department is an employee, and can pursue a lawsuit under Fair Employment and Housing Act (FEHA) for alleged sexual harassment.  In  the ruling released on October 21^st in Neronde v. Nevada County (2:10-cv-0776-JFM), the judge agreed that normally volunteers are not considered employees, noting that “compensation of some sort is indispensable to an employment relationship under the FEHA and that persons who receive no direct or indirect financial benefit for their services are not ‘employees’ for FEHA purposes.”  For workers’ compensation purposes, this is codified in California Labor Code Sec. 3352, which excludes volunteers and others who do not receive payment for their work from workers’ compensation.  Despite this code section, in Barragan v. Workers' Compensation Appeals Bd., 195 Cal. App. 3d 637 (Cal. Ct. App. 1987), the court found that a student volunteer intern at a hospital was an employee for the purposes of workers’ compensation, because in return for his time and labor, the student received valuable training, as well as course credit.

In denying the defendant’s motion for dismissal the judge agreed with the plaintiff’s argument that “FEHA intends to protect a broad class of individuals under its sexual harassment laws. In line with this intent for greater inclusion, the court holds that the definitions of ‘employee’ and ‘volunteer’ under California's workers' compensation laws should be construed with the purpose of the FEHA. In doing so, the court finds that plaintiff received credits toward graduation and community college and she learned invaluable skills in exchange for her services. Pursuant toBarragan, the court finds that plaintiff was an employee at the time of the alleged incident.”

It is unknown at this time whether the defendant will appeal the denial of the motion to dismiss.  This ruling does not mean that the defendant violated FEHA, only that the case may proceed to trial on the merits.  In Neronde the plaintiff claimed numerous causes of action including sexual harassment.  However, the court dismissed her other claims with prejudice because she failed to timely file her complaint.  The FEHA claim survived, however, as it has a longer statute of limitations. 

What this means for employers, besides the general proposition that employers cannot tolerate sexual harassment against anyone in the workplace, including volunteers, is that they may be subject to liability under the FEHA for volunteers even though they are not “employees.” The question is, do employers have to offer volunteers other protections afforded by FEHA, such as a reasonable accommodation to a volunteer suffering from a disability, or face potential under FEHA?  It seems to me, based on this decision, that the world of potential employees may have been significantly expanded.

 JAllan