Do Employers Have to Accommodate Employees Who Object to Serving Gay Customers Based on Religious Beliefs?

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Are Christian Religious Beliefs and Practices Dead At Employment?

So I have a heavy topic for you today: Do employers have to accommodate employees who object to serving gay customers based on religious beliefs?

Pretend that you own a bakery. You have an employee who sincerely objects against gay marriage for religious reasons. Your employee refuses to bake a cake for a wedding that will be for a gay couple. Can you fire that employee for refusing to bake the cake? Or must you force the employee to bake the cake? Or must you allow the employee to abstain from baking the cake?

As a practical matter, I think the answer to this question depends in no small part on where you live. A jury in California may think about this in a remarkably different way than a jury in Kentucky.

What is a “reasonable accommodation” for a religious belief is context (and probably culturally) dependent. The recent Abercrombie & Fitch and Hobby Lobby decisions by the U.S. Supreme Court underscore how politically driven religious discrimination decisions can be.

Here’s the law. According to the Equal Employment Opportunity Commission (EEOC), “The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. This means an employer may be required to make reasonable adjustments to the work environment that will allow an employee to practice his or her religion.”

Protected religious beliefs are not just for people who are part of a recognized, organized religion. Discrimination protection and accommodations also apply to anyone who has “sincerely held religious, ethical or moral beliefs.”

The anti-discrimination laws are meant to broadly protect people who have sincere religious beliefs and practices without requiring them to prove that they belong to a mainstream church.

Religious discrimination claims typically focus on an employer’s requirement to accommodate days or times for worship and modes of dress. For example, employers are more or less required to allow time off for religious holidays, barring extraordinary hardship.

Employees also cannot be forced to participate in employer-sanctioned religious ceremonies. So you can have a Christmas party, but you cannot force employees to celebrate Christmas at the party, for one common example.

Dress codes must accommodate religious dress, prohibitions and hairstyles. For example, Rastafarians must be permitted to keep their dreadlocks. And you cannot prohibit a Jew from wearing a yarmulke.

This is where Abercrombie & Fitch got into trouble recently. They were sued for not allowing female employees to wear head scarfs as that violated their dress policy. In its defense, Abercrombie & Fitch claimed that the head scarf was not stylish and did not compliment their wares, which they had their employees dress in to display. But this is not a good enough reason to prevent an employee from observing a sincere religious belief.

Title VII (and state laws that follow suit) also prevent employers from forcing employees to act in ways that are against their sincere religious, ethical or moral beliefs. So, for example, if it is against a restaurant server’s religion to dance, an employer cannot make her dance as part of her serving duties — even if it is just for a quick Happy Birthday song.

Employers do not have to accommodate religious practices when it causes “undue hardship,” however. The EEOC explains, “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

So this is where context, culture and a jury would come in. Most accommodations decrease workplace efficiency, so what is reasonable and what is undue hardship?

Let’s returning to our reluctant cake baker. Would it be a hardship for the employer to have a different, non-objecting employee bake the cake? Perhaps it depends on staffing and who is available. Perhaps this employee is the only employee capable of making fondant. Or perhaps there are ten other bakers who could easily do it.

If it is possible for the employer to not require the employee to do something against their sincerely held moral beliefs, it may be better to put a different worker on the task.

If the employer cannot, he may be justified in forcing the employee to comply, on pain of termination.

I am certain that a typical California jury would be unsympathetic to the employee in this situation — although I can conceive of a jury make up in some places in California where this would not be certain. I would also be less certain in Missouri, where feelings about gay marriage are more varied. So this is why I would say that the answer of what is reasonable and required, versus what is “undue hardship” somewhat depends on where you are at in the country.

An even trickier question is whether accommodating the employee’s beliefs results in an actionable discrimination against the customer, creating liability for the employer. If the employee forces the business to get sued for discrimination by a customer, that is surely an undue hardship.

For example, what happens if the objecting baker tells the customer that they refuse to bake the cake? Or worse, what if the employee begins proselytizing to the customer in a way that becomes offensive (or even considered “hate speech”)? Will the customer sue the bakery for the employee’s behavior?

In most situations where an employee creates a liability for the employer, you can expect the employee to get fired legally. For instance, here’s a true story: a big retailer was told by a customer that she did not want a black delivery driver to deliver her purchase. The manager acquiesced and went to send a white delivery driver. But unfortunately, he told both the white and black drivers why he made the change. Both employees refused to go along and complained to HR about the manager’s decision. The manager was fired and the customer’s order cancelled. Because that manager’s decision put the company at risk for a lawsuit by two employees, the firing was justified.

When it comes to what is required to accommodate religious employees, there is no concrete answer for employers. And with the Supreme Court’s decision in Obergefell, there will be a rise in “conscientious objectors” within the wedding industry.

My advice to employers is to try and accommodate your religious employees as much as possible, without putting your business at risk by inviting suits from customers or making it impossible to operate.

Do employers have to ensure that their employees take meal and rest breaks?

employee in suit taking breakMany employers in California know that certain employees are entitled to meal and rest breaks. But several years ago, there were multiple large class actions on the question of whether employers must “ensure” or merely “provide” breaks.

In practice, what this question means is that sometimes employees choose to not take their breaks, for whatever reason. Sometimes employees prefer to stay at their desks for lunch, for example. Or they find break time boring and would rather keep working.

In those scenarios, the employees are allowed to take breaks but are choosing not to.  In other words, the employers provide them but are not ensuring that they occur.

Is this a violation of California law? Are employer required to pay penalties when their employees do not take breaks? Are employers required to discipline or fire employees who fail to take breaks? Would an employee file a claim with the California Division Of Labor Standards Enforcement (DSLE)?

Unfortunately, the answer is not entirely clear. It is certain that employers must provide breaks. They must not prevent employees from taking breaks either expressly or with work policies that discourage breaks in a practical sense. Employers who do not have a compliant break policy in their handbooks may violate this law, simply by failing to have a policy.

The California Supreme Court has stated that employers are not required to “ensure” breaks. Employers are not required to police employees.

But here’s the rub: the argument is going to come in when employees say that work culture or work loads prevent them from taking breaks. So while employers are not required to police employees, they really should to some degree.

The best way to do this is by establishing a timekeeping system that is manageable, easy and efficient, so it becomes a force of habit and not a chore for your managers and employees. You should also train staff on appropriate break policies and encourage them to take breaks, ensuring that policies in your employee handbook, if you have one, are followed. Supervisors should be trained to encourage staff to take breaks.

These habits will keep your company from getting sued and will make lawsuits defensible if they come. Not only that, but breaks are genuinely good for your workforce’s productivity. You may find that encouraging your staff to get up from their desks to walk around, get water, stretch and socialize actually increases their alertness and camaraderie.

If you need guidance about an employment issue, please contact the employment law attorneys of Bellatrix PC at (800) 449-8992 for a consultation.

At-Will Employment

AT-WILL EMPLOYMENT

While every state in the U.S. recognizes at-will employment, the rules and requirements for employers are not uniform from one jurisdiction to the next.  Therefore, California employers must familiarize themselves with employees’ protected legal rights under at-will employment laws specific to California.  Failure to carefully comply with these laws can lead to months or years of costly litigation at the expense of the employer when an employee alleges wrongful termination.

Employee Termination and At-Will Employment

Workplace Discrimination and At-Will Employment

At-will employment seems like a simple concept, but looks can be deceiving.  This area of employment law is rife with misconceptions and misunderstandings, which, needless to say, can be financially harmful to the employer.  In order to minimize your risk of inviting a wrongful termination lawsuit, it is critical to understand the basic mechanics of at-will employment in California.

In theory, employers may terminate at-will employees for any reason.  In practice, as noted by the Governor’s Office of Business and Economic Development, “There are exceptions to the at-will rule created by statute, the courts or public policy.”  For example, an employer’s rights under at-will employment do not supersede Title VII of the Civil Rights Act of 1964, which famously protects against workplace discrimination – including wrongful termination or demotion – on the basis of sex, race, color, national origin, or religion.  Other examples of protected employee classes include:

  • Employees with disabilities, under the Americans with Disabilities Act (ADA).
  • Employees aged 40 or older, under the Age Discrimination in Employment Act (ADEA).
  • Employees who are pregnant, under the Pregnancy Discrimination Act (PDA).

However, it isn’t just the class to which an employee belongs that matters.  Employers can also find themselves targeted by wrongful termination lawsuits for taking retaliatory actions (such as termination, demotion, sexual harassment, or verbal harassment) against an employee who:

  • “Refus[es] to carry out an activity that violates the law.”
  • “Participat[es] in union activity.”
  • Becomes a whistleblower or reports a safety violation to OSHA (Occupational Safety and Health Administration).

California Employment Law and Labor Code Violations

In addition to federal acts like the ADA, PDA, and ADEA, California employees are further protected by state laws.  For example, FEHA (the Fair Employment and Housing Act) bolsters Title VII of the Civil Rights Act by providing protection against discrimination, harassment, and retaliation (such as termination) based on “race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, mental and physical disability, medical condition, age, pregnancy, denial of medical and family care leave, or pregnancy disability leave.”  To provide another example, the CFRA (California Family Rights Act), which applies to companies with 50 employees or more, protects employees from being terminated for taking leave to attend to an illness or care for a child or family member.

In addition to refraining from workplace discrimination or the other violations described above, employers must also take care to appropriately compensate at-will employees upon termination.  In accordance with Cal. Lab. Code § 2922, “An employment, having no specified term, may be terminated at the will of either party on notice to the other.”  This is important in the context of Cal. Lab. Code § 2926, which provides that “an employee who is not employed for a specified term [i.e. an at-will employee] and who is dismissed by his employer is entitled to compensation for services rendered up to the time of such dismissal.”  Cal. Lab. Code § 2927 further extends this right to compensation to employees who quit.

The employment attorneys of Bellatrix PC are well-versed in the nuances of California’s labor laws and are prepared to represent limited liability companies, partnerships, and corporations.  Our knowledgeable legal team brings years of experience to every matter we handle, no matter how minor or complex.  We focus our practice on balancing aggressive client advocacy with strict legal compliance so that you can feel confident your financial interests are protected at every stage of the mediation, arbitration, or litigation process.  We have represented employers and business owners in numerous cases involving at-will employment disputes, and have a track record of obtaining favorable outcomes for our clients.

If you’re worried about your company’s current employment policies, we can perform a Business Risk Review to strengthen vulnerable areas in your contracts.  If an employee has already threatened you with a lawsuit, the time to seek legal representation is now.  To set up a confidential case evaluation, call the experienced employment law attorneys of Bellatrix PC right away at (800) 889-8376.

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Termination Lawyers

TERMINATING EMPLOYEES

California’s Labor Code recognizes at-will employment, or employment which may be terminated by employee or employer at any time for any reason.  Of course, this broad definition of at-will employment is subject to numerous exceptions and restrictions stemming from both state and federal laws – noncompliance with which can lead to a wrongful termination lawsuit.  Contrary to what common myths about at-will employment might lead you to believe, there are right (and wrong) ways to fire employees, with which California employers and business owners must familiarize themselves.

Work Ethics carved with woodForms and Documents for Terminating Employees in California

As an employer in California, you are not permitted to spontaneously terminate one of your employees.  On the contrary, state and federal laws both require you to provide the employee with various notices and documents in advance, as described below.

Under California law, you must provide the following (where applicable):

  • A 27-page brochure titled “For Your Benefit: California’s Programs for the Unemployed” (DE 2320).  This brochure is produced by the Employment Development Department (EDD).  The brochure must be supplied on or prior to the date of termination.
  • A short form titled “Notice to Employee as to Change in Relationship.”  This is required by EDD.  This form simply notes the date of the termination/layoff.
  • If you have 20 employees or more, you must provide all (eligible) employees to be terminated with a single-sheet form titled “Notice to Terminating Employees: Health Insurance Premium Payment (HIPP) Program” (DHCS 9061). This form is supplied by the Department of Health Care Services (DHCS).

Under federal law, you must also provide the following (where applicable):

  • A Certificate of Group Health Plan Coverage, if the employee was covered by a group plan at the time of his or her termination.  This is a requirement of the Health Insurance Portability and Accountability Act (HIPPA).
  • If you have 20 or more employees, you must provide a Consolidated Omnibus Budget Reconciliation Act form (COBRA notice and election form) to (1) any employees covered by a group plan, and (2) the dependents of employees who are covered by a group plan.  This form must be provided no later than the day before termination.

Please note that the requirements described above are not exhaustive and do not account for all  documentation and notification requirements.  Our employment lawyers will sit down with you to review your records and determine precisely which standards you need to follow to mitigate your risk of exposure to fines and litigation.

How to Avoid a Wrongful Termination Lawsuit

Providing mandatory forms and notices is an important part of the termination process.  However, proper documentation isn’t the only factor which employers must bear in mind.  In order to avoid a workplace discrimination lawsuit, employers must also consider the circumstances of the termination itself.

The freedoms normally afforded by the at-will employment system are heavily restricted by various laws establishing protected classes of employees.  Some key pieces of federal and California legislation establishing protected classes include:

Collectively, these acts prohibit discrimination against the following classes of employees (provided other necessary criteria are in place, such as meeting a minimum number of employees):

  • Employees belonging to minority groups
  • Employees from foreign countries
  • Employees over age 40
  • Employees who practice a religion
  • Employees who identify as gay, lesbian, or bisexual
  • Employees who are pregnant, nursing, or have related medical needs

Of course, this does not mean that employers can never terminate the aforementioned employees – simply that employers who do plan to terminate members of protected classes must be extremely careful.  The workplace discrimination lawyers of Bellatrix PC defend businesses facing lawsuits related to sex discrimination, race discrimination, and more.

Even in cases where an employee does not belong to a protected class, wrongful termination lawsuits can still arise for other violations, such as terminating an employee:

  • Because he or she reported illegal activity or a safety violation to a regulatory agency like OSHA or the DLSE.  This can lead to a whistleblower lawsuit.
  • In retaliation for alleging sexual harassment, wage law violations, or other misconduct by the company, coworkers, or upper management.
  • Based on the results of a drug test which was not authorized by law.
  • In a way that violates privacy.
  • In a way that constitutes libel, slander, or defamation.

Regardless of the circumstances at hand, or the class an employee may or may not belong to, all employers should:

  • Keep detailed and accurate records of policy violations, disciplinary actions, employee misconduct, etc.
  • Prepare clear, unambiguous employee handbooks and employment contracts whose terms are enforceable and which follow all state and federal laws.
  • Subject all employees to consistent, uniform standards.

At Bellatrix PC, our employment law attorneys bring years of experience and practical knowledge to each and every termination matter we handle on behalf of employers.  Whether you need to revise your company’s standing termination policies, wish to make legal preparations in anticipation of a future termination, or have questions about handling large-scale layoffs and reductions in force (RIFs), we are prepared to counsel you with regard to your rights, responsibilities, and legal recourse.  We work with corporations, partnerships, and limited liability companies across a broad spectrum of industries.

If you have any questions or concerns about how to terminate an employee in California, the knowledgeable employment attorneys of Bellatrix PC can help.  To set up a private consultation, call us today at (800) 449-8992.

Workplace Accident

WORKPLACE ACCIDENTS

Employers have a duty of care toward their employees, and must take all reasonable measures to foster a safe and sanitary workplace environment free of hazards to human health.  Unfortunately, even the most cautious and safety-conscious of employers can find themselves faced with a legal crisis after a workplace accident occurs.  Accidents and injuries in the workplace can lead to protracted OSHA investigations, substantial civil penalties, personal injury lawsuits, increased insurance premiums, potential liability to customers, and finally, lowered workforce morale and reduced productivity.Construction workers on site

 

Worker’s Compensation Laws for Employers in California

State law requires all California employers with at least one employees to carry worker’s compensation insurance.  Unless you are a sole proprietorship with no employees other than yourself, worker’s comp coverage is mandatory.  There is also a special exception for roofers, who must be insured even if they have no employees.  Even out-of-state employers may be required to carry worker’s compensation coverage if one or more employees:

  • “Is regularly employed in California.”
  • Signs an employment contract in California.

Typically speaking, worker’s compensation covers all employees of a given company, including upper-level management such as company directors and corporate officers.

Worker’s compensation coverage is not regulated by the state of California, which means you will have to shop around for the insurer which best fits your company’s coverage needs.  The California Department of Industrial Relations (DIR) recommends referring to the Worker’s Compensation Insurance Rating Bureau to compare rates for different carriers.  Ultimately, the final cost of your premiums will depend on factors like your company’s industry, your company’s safety record, and your employees’ pay.

What Happens if an Employee is Injured on the Job?

If an employee is injured while performing his or her work duties, as an employer you are required to take the following five steps:

  • You must provide the employee with a worker’s comp claim form within one day of the accident (or date the accident is reported).
  • You must return a copy of the completed form back to the employee within one day of receipt.
  • Within one day of receipt, you must also send the claim to the appropriate claims administrator.
  • You must approve up to $10,000 of treatment (as appropriate) within one day of the claim’s receipt.
  • Depending on the employee’s capabilities, you must provide lighter (transitional) work while the employee recovers.

Additionally, if the injury specifically resulted from an assault or any other type of crime, you must inform the employee that he or she is entitled to worker’s compensation within one business day of the crime’s commission.

The Division of Occupational Safety and Health (DOSH), commonly referred to as Cal/OSHA (Occupational Safety and Health Administration), is responsible for enforcing workplace safety compliance in the state of California.  Depending on the severity of the employee’s injury, Cal/OSHA may initiate an investigation.

If Cal/OSHA uncovers a failure to comply with safety regulations, your company can potentially be penalized with a fine.  To quote OSHA directly, “The maximum penalty OSHA can assess, regardless of the circumstances, is $7,000 for each serious violation and $70,000 for a repeated or willful violation.”

Tips to Prevent Workplace Accidents

Severe workplace injuries can occur in any setting, even a quiet office building.  However, employees in certain industries and occupations are at an increased risk for sustaining severe or fatal injuries on the job.   According to a 2013 Bureau of Labor Statistics (BLS) report on fatal occupational injuries in California, there were 396 total fatal injuries in 2013, or about one each day, broken down by cause as follows:

  • Transportation Incidents – 138 deaths
  • Assaults and Animal Attacks – 80 deaths
  • Contact with Equipment and Objects – 65 deaths
  • Slip and Fall Accidents – 64 deaths
  • Exposure to Substances or Environments – 39 deaths
  • Fires and Explosions – 9 deaths

Industries and occupations with high fatal accident rates included:

  • Administrative and Waste Services
  • Agriculture
  • Construction
  • Installation, Maintenance, and Repairs
  • Manufacturing
  • Transportation and Warehousing

All employers – particularly those whose employees work in high-risk occupations – must be vigilant in order to minimize the chance of a serious or deadly accident taking place.  You can help reduce the risk of workplace injuries by taking the following steps:

  • Establish clear safety policies in your employee handbooks.
  • Make sure safety posters are prominently displayed in the workplace.
  • Avoid taking shortcuts in the interest of saving money.  Always follow safety procedures to the letter.
  • Make sure employees are attended by supervisors as necessary, and are wearing appropriate safety gear for the task at hand.
  • Be clear about safety risks, required skill sets, and other expectations when describing the position on job listings.
  • Watch closely for employees who seem sick, fatigued, or impaired.  Send employees home if they could spread illness or otherwise endanger the safety of others.

For all of these reasons, it is critical that employers are legally prepared for workplace accidents before they occur.  If you’re concerned about your company’s compliance with state or federal workplace safety laws, or if you are already facing litigation related to an employee injury, the experienced employment law lawyers of Bellatrix PC can assist.  We will advise you with regard to your rights and responsibilities as an employer or business owner while pursuing effective and efficient legal solutions to all of your regulatory concerns.

If you’re worried about your company’s safety policies, OSHA compliance, or a workplace accident lawsuit, call the employment law attorneys of Bellatrix PC at (800) 889-8376 to arrange for a private legal consultation.

Disgruntled Workforce Means Problems

If you have a morale problem with your workforce, you better do something about it… fast.

When you have a disgruntled worker, it always leads to problems.

As a business owner, here are the problems I see when a person turns bad apple:

  • They “poison the well” and create negativity amongst your other staff
  • People lose their drive and initiative, so work quality suffers
  • People start scrutinizing the employer or developing “grievances”
  • The bad person (or several) have to be replaced, costing money

In addition to the practical aspect of having to spend more money replacing employees (not a small consideration in itself), leaving employees always carry risk. People tend to treat a break in an employment relationship with the same emotions as leaving a personal relationship.matches burning

In other words, unhappy ex-employees sue. Even when you are squeaky clean, unhappy ex-employees will threaten it.

Sometimes they will sue frivolously, and you end up with a problem, regardless. There will always be a percentage of litigious ex-employees, which means that if more employees are leaving, then there will be a proportionate increase in the number of lawsuits.

Here’s another legal issue: demoralized employees take more stress-related medical leaves. This actually happens a lot and is the leading cause for medical leaves. It’s really easy to violate the leave and disability laws (thus inviting lawsuits). It’s also disruptive to your workforce. And an unhappy, stressed employee doesn’t always recover and return to employment smoothly.

Finally, whenever employees leave, employers must immediately pay all earned compensation (including vacation pay, non-discretionary bonuses and earned commissions). If you do not have a bunch of cash on hand to deal with terminating and replacing employees, you may find yourself in the middle of a wage and labor crisis.

What can an employer do to avoid employee morale problems bankrupting them?  Here are four strategies that could save you thousands of dollars.

  1. Focus on improving employee morale and retaining skilled workers. Take some time to improve relationships with those employees and foster loyalty and contentedness. This is not just a hippie-dippy people idea. Research shows that people work based on “purpose” (which includes a strong sense of community, being valued, loyalty and other social factors), not based on money. Yes, people need money. But an employer who fosters the right social conditions can get away with lower pay or other hardships without loss of morale. And definitely get rid of the bad apples because their drama is unfair to the rest of your team.
  2. Clean up your HR act by reviewing employees. Employees actually want to be reviewed if they care about their jobs (see point above regarding purpose). You can use reviews to praise (important) and address frustrations and failures that cause low morale. You should also use this as an opportunity to document issues with problem employees so that you can defend yourself later.
  3. Audit your wage and pay practices with the help of your employment lawyer.  Wage and pay class actions are the most common type of class action litigation filed in California, constituting roughly two-thirds of all new class actions being filed and hundreds of new cases each year.  You are vulnerable to these types of lawsuits if your pay practices aren’t pretty close to perfect (and there are many laws out there that are traps for the unwary employer, so do not trust an HR service or a do-it-yourself). Not only do audits give you an opportunity to find and fix liabilities before they become lawsuits, but you can use it as an opportunity to show your workforce positive change and encourage their loyalty.
  4. Encourage — or even require — your employees to take their accumulated vacation during slow times.  This is a good way to get vacation time off the books of an employee who has thousands of dollars worth stocked up, which will have to be paid in total at the time of quitting. Plus, employees who take regular vacations are less stressed and happier.

If you have any business or workforce concerns, spend 30 minutes with us on a free Business and Employment Planning Session or schedule a consultation with one of our business law attorneys or our real estate attorneys at (800) 449-8992.