An employer’s response to employee complaints can either help keep an employer out of a lawsuit or potentially cause one.  SEAC has brought together two experts in workplace investigations to provide tips for conducting effective workplace investigations for the next breakfast meeting.

This presentation will provide an overview of how to conduct a prompt, thorough and objective investigation in the workplace.  Eve Fichtner and Alexander Sperry of Van Dermyden Maddux Law Corporation will provide invaluable tips, tools and techniques so you can confidently move towards resolution of workplace complaints.

Date:  Wednesday, September 10, 2014

Time:  8:00 a.m. – 10:00 a.m.

Location:  Weintraub Tobin, 400 Capitol Mall, 11th Floor, Sacramento, CA 95814

For more information and details of this seminar, please click here.

Summary of Program

Unfortunately, both single-plaintiff and class-action wage and hour lawsuits continue to plague California employers. Often employers are sued because of technical violations that occur simply because the employer is unaware of its legal obligations. Come join the Labor and Employment Group at Weintraub Tobin as they discuss the “Ins and Outs” of wage and hour compliance for “non-exempt” employees – there’s more to it than merely paying overtime and providing meal periods.

Program Highlights

  • “Actual hours worked” and problems with “off the clock” work.
  • Is your overtime rate correct?
  • Are you “providing” a meal period to your employees?
  • “Flex-time,” “make-up time,” and “alternative work” schedules.
  • What are the courts saying – highlights of recent decisions regarding non-exempt wage and hour issues in California.

Date:    September 18,  2014

Time:  9:30 a.m. – 11:30 a.m.

For additional information and details of this seminar, please click here.  To register for this seminar, please email Ramona Carrillo at rcarrillo@weintraub.com.

On August 12, 2014, the California Court of Appeal issued a short, but interesting decision that may trigger a new wave of class action lawsuits against California employers. In Cochran v. Schwan’s Home Service, Inc. (opinion found here), the Court ruled that employers must reimburse employees for the reasonable cost of using their personal cell phones for business purposes, regardless of whether the employees have plans with unlimited or limited minutes. The Court found that the amount owed is a “reasonable percentage” of the employee’s cell phone bill, although though no guidance was provided as to how to determine what “reasonable percentage” means.

Background: The plaintiff in Cochran filed a putative class action on behalf of 1,500 customer service managers alleging a violation of Labor Code section 2802 because the managers had not been reimbursed expenses related to their personal cell phones. Under section 2802, employers must indemnify employees for all necessary expenditures incurred by employees in the performance of their duties. The trial court denied class certification based on a lack of commonality – each class member would have to be asked who paid the phone bill and whether he or she purchased a different plan because of their work cell phone usage, and, therefore, incurred an “extra expense” as a result of their job duties.

Court of Appeal’s Decision: The Court reversed the denial of class certification and disagreed with the assumptions made by the trial court; namely, that: (1) employees are not entitled to reimbursement if a third person pays the bill; (2) employees are not entitled to reimbursement if they did not purchase a different plan because of their need to use their personal phone for work purposes; and (3) liability for failure to reimburse cannot be determined without an inquiry into each employee’s cell phone plan. The Court held that Labor Code section 2802 always requires reimbursement for the reasonable expense of a personal cell phone for work purposes. As the basis for this decision, the Court noted that the purpose of section 2802 is “to prevent employers from passing their operating expenses on to their employees” and, if reimbursement was not always required, employers would receive a windfall. Further, the Court stated, “to show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed. Damages, of course, raise issues that are more complicated.”

The implications of the Court’s rationale may be far reaching. Not only does this decision make it easier for a class to be certified under section 2802 claims, but this same rationale could be applied beyond personal cell phones. For example, the same arguments could be applied to personal internet plans or other personal electronics if the employee is required to access the internet from home or use any other personal electronics for work purposes.

Employer Takeaway: Employers should evaluate their reimbursement policies to determine if they need to be updated. If reimbursement policies do not yet exist, implementing a policy should be considered. If reimbursement policies need to be modified, employers will have to consider whether they should be modified retroactively or only on a going-forward basis. Ultimately, if employees are required to use personal cell phones for work purposes, employers should consider providing their employees with a cell phone plan. As the Court did not provide any guidance as to what a “reasonable percentage” means, an employer can get into muddy waters trying to determine what portion of an employee’s cell plan to cover.

Following the Yellow Brick Road of Employee Leave Rights and Accommodations.  SEAC invites you to spend the morning with attorneys and leave and accommodation experts Lizbeth (“Beth”) West and Charles (“Chuck”) Post from Weintraub Tobin as they discuss the ins and outs of this difficult area of employment law.

Date:         Wednesday, August 20, 2014

Time:         7:30 a.m. -12:30 p.m.

Location:       Sacramento State Alumni Center, 6000 J Street, Sacramento, CA

For information and details of this workshop, please click here.

In Lupyan v. Corinthian Colleges, Inc., a FMLA interference lawsuit, the Third Circuit Court of Appeals reversed a summary judgment in favor of the employer when the employee claimed she never received an FMLA designation letter that her employer claims it mailed to her. The Court essentially held that if an employer wishes to prevail on summary judgment, it will need to send the FMLA designation letter via a method that establishes receipt by the employee.

Lisa Lupyan was hired as an instructor at Corinthian Colleges Inc. (“CCI”) in 2004. In December 2007, Lupyan’s supervisor, James Thomas, noticed that she seemed depressed and suggested she take a personal leave of absence. On her Request for Leave Form, Lupyan specified that she was taking “personal leave” from December 4, 2007 through December 31, 2007. However, Thomas suggested that she apply for short-term disability coverage instead.  Accordingly, Lupyan scheduled an appointment with her doctor and received a DOL “Certification of Health Provider.” Based on the Certification, CCI’s human resources department determined that Lupyan was eligible for leave under the FMLA, rather than personal leave so on December 19th, CCI’s Supervisor of Administration, Hixson, met with Lupyan and instructed her to initial the box marked “Family Medical Leave” on her Request for Leave Form. Hixson also changed Lupyan’s projected date of return to April 1, 2008, based upon the Certification.

Later in the afternoon of December 19th, CCI allegedly mailed Lupyan a letter advising her that her leave was designated as FMLA leave and explaining her rights under the FMLA (the “Letter”). Lupyan denies ever having received the Letter, and denies having any knowledge that she was on FMLA leave until she attempted to return to work. When Lupyan did not return to work after the exhaustion of her FMLA leave, her employment was terminated.  CCI explained that due to low student enrollment and her failure to timely return from FMLA leave, there was no position available to her. Lupyan claims that the first time she had any knowledge that she was on FMLA leave was at the time of her termination.

Lupyan sued CCI alleging that it interfered with her rights under the FMLA by failing to give notice that her leave fell under that Act, and that she was fired in retaliation for taking FMLA leave. The District Court granted CCI’s initial motion for summary judgment as to both claims. Thereafter, the District Court sua sponte reversed its ruling on Lupyan’s FMLA interference claim. The court recognized that summary judgment was not appropriate because there was a factual dispute regarding whether CCI had informed Lupyan of her FMLA rights. CCI responded with an amended summary judgment motion which included affidavits from CCI employees who testified that the Letter was properly mailed to Lupyan. Based on the affidavits, the District Court relied on the evidentiary presumption that arises under the “mailbox rule” and found that Lupyan had received the Letter. The Court entered summary judgment in favor of CCI, and Lupyan appealed.

The Court of Appeal explained that the FMLA requires employers to provide employees with both general and individual notice about the FMLA. To meet the general notice requirements, an employer must post a notice of FMLA rights on its premises. (29 CFR § 2619(a)). Because employers have some discretion in the way FMLA policies are implemented, employers must also include information regarding the employer’s FMLA policies in a handbook or similar publication. (29 CFR § 825.300).  Lupyan claimed that CCI interfered with her FMLA rights by not informing her that her leave was under the FMLA. According to her, she therefore was unaware of the requirement that she had to return to work within twelve weeks or be subject to termination.*  Given Lupyan’s claim that she did not receive the Letter that CCI claims was properly mailed to her, the Court had to decide whether the District Court properly afforded CCI the benefit of the presumption of receipt of properly mailed letters that arises under the “mailbox rule.”

Under the “mailbox rule,” if a letter “properly directed is proved to have been either put into the post-office or delivered to the postman, it is presumed . . . that it reached its destination at the regular time, and was received by the person to whom it was addressed.”  However, the presumption is a rebuttable presumption that can be rebutted by opposing evidence that the letter was never received.  The Court explained that in the absence of actual proof of delivery, receipt can be proven circumstantially by introducing evidence of business practices or office customs pertaining to mail. This evidence may be in the form of a sworn statement.  In this case, CCI submitted the affidavits of its Mailroom Supervisor and its HR Coordinator, both of whom had personal knowledge of CCI’s customary mailing practices when the Letter was allegedly mailed to Lupyan.  Moreover, the HR Coordinator swore that she personally prepared the Letter and placed it in the outgoing mail bin.

However, CCI provided no corroborating evidence that Lupyan received the Letter. The Letter was not sent by registered or certified mail, nor did CCI request a return receipt or use any of the now common ways of assigning a tracking number to the Letter. Therefore, the Court held that there is no direct evidence of either receipt or non-receipt.  Consequently, for purposes of a summary judgment motion, Lupyan’s contention that she had no notice that her leave was subject to the limitations of the FMLA because she never received CCI’s Letter, sufficiently burst the mailbox rule’s presumption, and requires that a jury determine the credibility of her testimony, as well as that of CCI’s witnesses.

Takeaway for Employers:

Employers should send all FMLA notices to employees via a method that tracks delivery and receipt by the employee (e.g. Federal Express or other overnight mail, certified mail/return receipt requested, or hand-delivery with a signed acknowledgment of receipt).  Be careful of sending the notices via email as, similar to this case, the employee could claim that he/she did not receive the email and the burden is on the employer to prove the employee did in fact open and read his or her email.

*Caveat:  Employers should never automatically terminate employees who do not return from FMLA (or CFRA) leave at the expiration of the 12 week period.  Instead they should engage in the interactive process to determine if the employee is eligible for a reasonable accommodation (including possibly more leave) under the ADA and FEHA.