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Four Important Questions Answered By Four Expert Attorneys

Attorneys who do employment defense work get a lot of interesting questions, particularly about alternate workweeks and flexible work schedules. The San Diego Business Journal posed four key questions to four of San Diego’s employment defense attorneys. Here are some nuggets of advice:

THE ISSUE: Alternate workweeks and flexible work schedules

Finding a workweek that satisfies both employer and employee can be difficult, particularly in California where wage and hour laws have significant restrictions. But many employees love them.

“Wage and hour laws, workers’ compensation issues, and family and medical leave requirements can all get in the way of the ‘workplace without walls,’” said Suzanne K. Roten, an employment attorney for the Brown Law Group. “These alternative work arrangements can benefit both the employer and the employee — but both must understand and abide by the employment laws … .”

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“Alternative workweeks allow both employers and employees to enjoy some flexibility in work schedules,” said English Bryant, senior counsel, Tyson & Mendes LLP. “Employers with these schedules may save money on overtime costs. Employees can reduce their commuting time and expenses or enjoy longer weekends. Importantly, though, an alternative work schedule cannot be implemented unilaterally overnight. The implementation process requires several steps to safeguard the employees’ rights, including a vote by affected employees. On the other hand, an employer can unilaterally repeal an alternative work schedule for business reasons, as long as notice is provided to the affected employees.”

THE ISSUE: Employer’s liability for telecommuters

If an employee works from home, does an employer have any liability for his or her accidents or overtime?

Yes, to both, unfortunately. “… under California law, an employee who is not exempt from California state overtime requirements must be paid time and a half for all hours worked over eight in one day or 40 in a week, and double time for hours worked over 12 in one day,” said Roten of the Brown Law Group. “These laws are not suspended just because an employee is working remotely from home. This means that an employee who decides to log extra hours working at home one week in order to be able to work less the next may qualify for significant amounts of overtime pay.”

And an employee injured while working from home prompts a lawyer’s favorite answer: “It depends — an argument could be made that it is,” Roten said. “Who is responsible if the employee is injured as a result of a faulty staircase or a slippery swimming pool deck while the employee is working from home? These situations highlight the need to set up guidelines for employees working at home — such as where work is to be performed and what constitutes the ‘office’ at home — and to put these guidelines in a written document.”

THE ISSUE: Impact of the WARN Act on potential defense layoffs

How will the WARN Act impact defense contractors and subcontractors if the federal government falls off the Fiscal Cliff?

Defense contractors and subcontractors might immediately lose work if Congress cannot produce a budget by Jan. 1. And it is uncertain whether those employers will have to pay those employees the 60-day Worker Adjustment and Retraining Act (WARN) notice payment. This could result in millions of dollars worth of payments and attorney fees from the San Diego defense community.

“These cuts are likely to impact a good number of federal contractors,” said Dave Carothers, partner at Carothers, DiSante & Freudenberger LLP. “In order to comply with the WARN Act, federal contractors with 100 or more employees, whose budgets are in jeopardy because of sequestration, are required to issue notices to their workforce by the first part of November. … The Obama Administration issued a memorandum to federal contractors urging them to not warn of layoffs despite looming sequestration cuts. But the risk for employers is that employees may bring individual or class action lawsuits in U.S. District Court to enforce WARN Act requirements should sequestration occur. And successful employees may also be awarded reasonable attorney’s fees, in addition to any award of compensation.”

The WARN Act Guide for Employers, according to Carothers, provides only three exceptions for employers to not follow the act’s notice requirements: 1) A faltering company that is actively seeking capital or business and believes notification would prevent it from obtaining such capital, 2) a natural disaster, and 3) unforeseen business circumstances defined as “a business circumstance that is caused by some sudden, dramatic, and unexpected action or conditions outside the employer’s control, like the unexpected cancellation of a major order.

“Obviously there is a real argument these three exceptions apply to the current situation,” Carothers said. 

The Issue: Employees on Leave

Can you terminate an employee on leave?

“An employer must show that its action was taken for a legitimate nondiscriminatory reason in order to fire an employee on leave,” said Madeline Cahill-Boley, a partner at Sullivan Hill Lewin Rez & Engel LLP. “If the employer shows such nondiscriminatory reason, then the burden shifts to the employee to show substantial evidence that the justification provided by the employer is a pretext for discrimination or some other evidence of a discriminatory motive.”

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