Last week, my colleagues Jeffrey Horton Thomas, Steven Gallagher and I presented a webinar entitled “Employer Update: Practical Advice from Employment Litigators in the Trenches”. In this second episode of our summer webinar series, we provided practical guidance for business owners and Human Resources professionals regarding situations that can be difficult to manage as they relate to their workforce. Our guidance focused on issues related to employee discipline and termination, rolling out arbitration agreements, managing leave requests and return-to-work strategies in the current pandemic environment.
During are webinar, we highlighted a few “Fox Finds”, which are meant to provide a nugget of practical advice that relate to each topic addressed during our webinar. Below, you’ll find the “Fox Finds” we thought were most practicable for you to use in your day-to-day business operations.
Employee Discipline and Termination
Fox Find #1: When an instance of employee misconduct or policy violation comes to your attention – even low-level violations – pause and consider fully whether the situation calls for discipline, whether to better protect the employer or help correct the employee’s behavior going forward.
Fox Find #2: Consider creating a resource or protocol for your organization to maintain information on discipline taken under your basic personnel policies. This can be done by creating a spreadsheet, or an electronic platform of some type. Grant access to those in Human Resources who have input into disciplinary decisions and maintain it as secure and confidential. This spreadsheet or electronic platform may be discoverable, unless you involve counsel so you may want to consult counsel concerning its creation.
Fox Find #3: Write disciplinary action memorandums, etc., with third parties in mind. For example, draft these memorandums keeping in mind third-parties such as human resources and management coming after you, a jury or an arbitrator. Make the memorandums clear and understandable standing alone without your explanation.
Rolling out Arbitration Agreements
Fox Find #1: Following the Supreme Court’s recent holding in Viking River Cruises, Inc. v. Moriana, revise your arbitration agreement to include a waiver of individual Private Attorneys’ General Act (“PAGA”) claims. Also, include a severability provision in the event that future legislation prohibits such waivers.
Fox Find #2: Roll out new or revised arbitration agreements along with other personnel documents or updated policies.
Managing Employee Leave Requests:
Fox Find #1: If an employee fails to return to work after exhausting their FMLA or CFRA leave, the failure to return does not give the employer free reign to terminate the employee. The employer maintains an affirmative duty to engage in a good faith interactive process to determine if additional leave is a reasonable accommodation.
Fox Find #2: It is important for the employer to accurately track the usage of FMLA and/or CFRA leave, especially in combination with other types of leave. When an employee is taking leave to care for members of the family that are covered by CFRA, but not FMLA, it is important to track the use of that leave separately. Any miscalculations in the use of leave could lead to potential litigation down the line. Be mindful and precise in designating the leave as FMLA. CFRA, or both.
Return to Work in the Current Pandemic Environment
Fox Find #1: COVID-19 rules are regularly changing at a rapid pace. Continue reviewing county and locality websites for rules that may be more restrictive that state mandates.
Fox Find #2: Visit COVID-19 Emergency Temporary Standards Frequently Asked Questions (ca.gov) and review the updated FAQs for the revised Emergency Temporary Standards (“ETS”).
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