What is the FSLA?

The Fair Labor Standards Act (FLSA), which affect many private and public companies; including those in California, prescribes standards for the basic minimum wage and overtime pay. The FSLA is administered by the Employment Standards Administration’s Wage and Hour Division within the U.S. Department of Labor.

The basic requirements of the FSLA include:

  • Payment of the minimum wage
  • Overtime pay for time worked over 40 hours in one workweek
  • Restrictions on the employment of children
  • Recordkeeping

GINA and Employee Medical Testing

In many cases, a potential employee’s family history is a great indicator of predispositions to certain hereditary diseases and illnesses. In a perfect world, this information could assist employers in making hiring, firing, and demoting decisions, potentially affecting a business’s bottom line for the better. However, the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.

“Genetic information,” as defined by GINA, includes:

Marijuana and the California Workplace

Can employees in California smoke marijuana at their place of work? Or test positive for drug tests? While at least some states (including California) are allowing the use of medicinal marijuana and two more (Colorado and Washington) are allowing recreational marijuana use, federal law does not necessarily agree with its legality. In fact, courts consistently find that employers may terminate employees who test positive for marijuana, regardless of whether such employees are using marijuana to treat a disability; whether they were not under the influence on company time; or whether they used or possessed marijuana on company premises.

Recently, a California court confirmed that employers have the option of continuing zero-tolerance approaches to drugs, marijuana included. Specifically, employees may be disciplined or terminated for marijuana use (despite state statutes prohibiting discipline for engaging in lawful activity outside of work) and employers need not accommodate medical marijuana use as a disability-related condition.

Not All Employee Speech on Social Media is Protected

As many Orange County business owners should be aware, the National Labor Relations Board continues to focus on the issue of social media in the workplace. While the NLRB routinely gives employees some leeway for what some might consider “unprofessional” social networking etiquette, a recent pro-employer decision indicates that there is in fact a line in the workplace that employees can cross. This means, that as a California employee, you may be limited in what you can say online.

The recent case involved two employees that had a profanity-laced conversation via Facebook about their employer. After receiving a screenshot of this conversation, the employer, a non-profit organization based in California, made the decision to terminate the two employees, citing concerns based on their Facebook conversation.

How Should An Employer Respond to An Employee’s Request for Disability Accommodation

How is an Orange County employer supposed to respond to an employee’s disclosure of a disability? Under the Americans With Disabilities Act (“ADA”), your employer has a duty to make a reasonable adjustment for the employee’s disability – an adjustment or modification that allows the employee to do the job.  For purposes of the ADA, a disability is a physical or mental impairment that substantially limits a major life activity, which can include basic tasks (walking, reading, bending, and communicating) and major bodily functions (functions of the immune system, digestion, bladder, brain, respiratory, endocrine, and reproductive systems, to name a few). Almost 20% of the workforce includes employees with disabilities.

While under the ADA, an employer does not have to provide a reasonable accommodation for the employee if doing so would create an undue hardship, it is best to discuss your situation with an experienced Orange County employer lawyer if your request for an accommodation has been denied by your employer.

What Constitutes A Failure to Accommodate Under ADA?

A law professor who was suspended for allegedly engaging in an angry verbal exchange with a fellow school employee has filed suit against the law school, claiming that the school violated the Americans With Disabilities Act of 1990 (ADA) when they declined to accommodate him for his apparent depression and Asperger’s syndrome. Under the ADA, an employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an “undue hardship” on the operation of the employer’s business.

The professor, employee of the John Marshall School of Law in Chicago since the mid-1980s, filed an ADA lawsuit in federal court seeking a removal of his suspension, lost wages, and emotional distress damages. Cornwell also filed a breach of contract claim unrelated to his ADA claim.

What Issues Can An Employer Require An Employee to Arbitrate?

Many Orange County business owners require that employees sign arbitration agreements at the outset of their employment. These agreements state that in the case an employment claim arises, the employer and employee agree to avoid court and head to arbitration to resolve the issue. While certain kinds of claims (such as workers’ compensation claims) must be excluded from agreements that require arbitration, as an arbitration agreement will not be enforced in California if it is both “procedurally unconscionable” and “substantively unconscionable”, both federal and California public policy favor arbitration as a form of alternative dispute resolution.

Arbitration is generally supposed to be faster, cheaper, and more predictable than litigation. Benefits many Orange County business owners appreciate. However, in a recent case involving homebuilder D.R. Horton, none of these expectations came true. In its arbitration agreement, D.R. Horton prevented employees from suing in court and from bringing class-action claims in arbitration. A disgruntled employee took issue to this, bringing his fight to the National Labor Relations Board. Along with a class of similarly-situated employees, he sought alleged unpaid overtime wages.