Question: What are my obligations as an employer under Title I of the Americans with Disabilities Act and where can I get technical assistance?
Employers with 15 or more employees are prohibited under the Americans with Disabilities Act (ADA) from discriminating against qualified applicants or employees with disabilities. Information about employer obligations under the ADA can be obtained from the U.S. Equal Employment Opportunity Commission 800-669-4000 (voice), or 800-669-6820 (TTY). Information can also be obtained from the federally sponsored Disability and Business Technical Assistance Centers (DBTACs) in your area at 800-949-4232.
Employers should also determine obligations they may have under state law. (Source: www.dol.gov)
Question: Who is entitled to benefits under COBRA?
There are three elements to qualifying for COBRA benefits. COBRA establishes specific criteria for plans, qualified beneficiaries, and qualifying events:
Group health plans for employers with 20 or more employees on more than 50 percent of its typical business days in the previous calendar year are subject to COBRA. Both full and part-time employees are counted to determine whether a plan is subject to COBRA. Each part-time employee counts as a fraction of an employee, with the fraction equal to the number of hours that the part-time employee worked divided by the hours an employee must work to be considered full-time.
A qualified beneficiary generally is an individual covered by a group health plan on the day before a qualifying event who is either an employee, the employee's spouse, or an employee's dependent child. In certain cases, a retired employee, the retired employee's spouse, and the retired employee's dependent children may be qualified beneficiaries. In addition, any child born to or placed for adoption with a covered employee during the period of COBRA coverage is considered a qualified beneficiary. Agents, independent contractors, and directors who participate in the group health plan may also be qualified beneficiaries.
"Qualifying events" are certain events that would cause an individual to lose health coverage. The type of qualifying event will determine who the qualified beneficiaries are and the amount of time that a plan must offer the health coverage to them under COBRA. A plan, at its discretion, may provide longer periods of continuation coverage.
Qualifying Events for Employees
Question: Who pays for COBRA coverage?
Beneficiaries may be required to pay for COBRA coverage. The premium cannot exceed 102 percent of the cost to the plan for similarly situated individuals who have not incurred a qualifying event, including both the portion paid by employees and any portion paid by the employer before the qualifying event, plus 2 percent for administrative costs.
For qualified beneficiaries receiving the 11 month disability extension of coverage, the premium for those additional months may be increased to 150 percent of the plan's total cost of coverage.
COBRA premiums may be increased if the costs to the plan increase but generally must be fixed in advance of each 12-month premium cycle. The plan must allow qualified beneficiaries to pay premiums on a monthly basis if they ask to do so, and the plan may allow them to make payments at other intervals (weekly or quarterly).
The initial premium payment must be made within 45 days after the date of the COBRA election by the qualified beneficiary. Payment generally must cover the period of coverage from the date of COBRA election retroactive to the date of the loss of coverage due to the qualifying event. Premiums for successive periods of coverage are due on the date stated in the plan with a minimum 30-day grace period for payments. Payment is considered to be made on the date it is sent to the plan.
If premiums are not paid by the first day of the period of coverage, the plan has the option to cancel coverage until payment is received and then reinstate coverage retroactively to the beginning of the period of coverage.
If the amount of the payment made to the plan is made in error but is not significantly less than the amount due, the plan is required to notify the qualified beneficiary of the deficiency and grant a reasonable period (for this purpose, 30 days is considered reasonable) to pay the difference. The plan is not obligated to send monthly premium notices.
COBRA beneficiaries remain subject to the rules of the plan and therefore must satisfy all costs related to co-payments and deductibles, and are subject to catastrophic and other benefit limits. (Source: www.dol.gov).
Question: How many people with disabilities are working?
The statistics vary depending on the source data and the definition of disability. The Census 2000, Census 2000 Summary File #3, and other Census 2000 reports are frequently referenced sources for disability statistics. For example, a publication from the U.S. Census Bureau,Disability Status 2000: Census 2000 Brief (March 2003) (C2KBR-17), along with Census 2000 Summary File #3 (March 2003) report the following statistics about the employment of people with disabilities:
The total number of people with disabilities aged 16-64 is 33,153,211.
Of those, the total number employed is 18,525,862.
The percent of people with disabilities aged 16-64 employed is 55.8%.
Of the 18.6 million people with disabilities employed aged 16-64, 60.1% of men with disabilities are employed, and 51.4% of women with disabilities are employed.
The Office of Disability Employment Policy (ODEP) is working with the Bureau of Labor Statistics (BLS) at the Department of Labor to develop tools for collecting current and more detailed employment data about people with disabilities using the Current Population Survey. More information on this initiative is available on ODEP's Web site.
Additional statistical information about persons with disabilities can be obtained from the U.S. Census Bureau Web site, or by phone at 301-457-3242. And more sources of disability statistics can be found online at Disability.gov.
Question: What is disability discrimination?
Unfavorable treatment/adverse employment action due to employee's disability such as:
Question: What is the FEHA?
The Fair Employment and Housing Act (FEHA) is the California law which prohibits disability discrimination/harassment in the workplace. It is enforced by the California Department of Fair Employment and Housing (DFEH). The Equal Employment Opportunity Commission (EEOC), is the federal equivalent.
Question: What is the Health Insurance Portability and Accountability Act of 1996 (HIPAA)?
HIPAA amended the Employee Retirement Income Security Act (ERISA), to provide new rights and protections for participants and beneficiaries in group health plans. Understanding this amendment is important to your decisions about future health coverage. HIPAA contains protections both for health coverage offered in connection with employment ("group health plans") and for individual insurance policies sold by insurance companies ("individual policies").
If you find a new job that offers health coverage, or if you are eligible for coverage under a family member's employment-based plan, HIPAA includes protections for coverage under group health plans that:
Question: What is the Interactive Process?
Under both the FEHA and ADA, employers have a duty to engage in the interactive process when a disabled employee has job restrictions that may require a reasonable accommodation. Therefore, employers should ensure that the interactive process is an integral part of their return-to-work programs. California Government Code section 12940(n) provides that an employer must "engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodation, if any, in response to a request for reasonable accommodation."
Further, according to the FEHA, the interactive process should be a problem solving approach in which an employer and employee meet face to face to discuss the precise nature of the disabled employee's job limitations in performing the essential functions of his or her job, and to identify and implement (if feasible) the appropriate accommodation that will enable the disabled employee to perform his or her job. The FEHA and Equal Employment Opportunity Commission (EEOC) are aggressively pursuing disability discrimination claims, repeatedly emphasizing that discrimination against disabled employees will not be tolerated. Thus, it is essential that employers fully understand their obligations to disabled employees.
Question: What is a reasonable accommodation?
Any appropriate measure that allows the disabled employee to perform the essential functions of the job. The determination of whether an employee can do the job (that is perform the essential functions) with a reasonable accommodation must be made on a case-by-case basis; an employer cannot decide that every employee with a certain disability is unable to perform a specific job. An essential part of the interactive process is identifying a reasonable accommodation.
Question: Where can an employer get information about making workplace accommodations?
The Job Accommodation Network (JAN), sponsored by the Office of Disability Employment Policy (ODEP), provides employers, employees and others information about appropriate accommodations for specific individuals and jobs. JAN also provides information on the employment provisions of the Americans with Disabilities Act and on resources for technical assistance, funding, education, training and services related to the employment of people with disabilities. JAN recently established theSearchable Online Accommodation Resource (SOAR), a web-based database of accommodation information based on the more than 250,000 cases to which it has responded. JAN can also be reached at 800-526-7234 (voice and TTY).
Question: What are the basic requirements for a meal period under California law?
Under California law (IWC Orders and Labor Code Section 512), employees must be provided with no less than a thirty-minute meal period when the work period is more than five hours (more than six hours for employees in the motion picture industry covered by IWC Order 12-2001).Unless the employee is relieved of all duty during the entire thirty-minute meal period and is free to leave the employer's premises, the meal period shall be considered "on duty," counted as hours worked, and paid for at the employee's regular rate of pay. An "on duty" meal period will be permitted only when the nature of the work prevents the employee from being relieved of all duty and when by written agreement between the employer and employee an on-the-job meal period is agreed to. The test of whether the nature of the work prevents an employee from being relieved of all duty is an objective one. An employer and employee may not agree to an on-duty meal period unless, based on objective criteria, any employee would be prevented from being relieved of all duty based on the necessary job duties. Some examples of jobs that fit this category are a sole worker in a coffee kiosk, a sole worker in an all-night convenience store, and a security guard stationed alone at a remote site.
If an employer fails to provide the required meal period, the employee is to be paid one hour of pay at the employee's regular rate of compensation for each workday that the meal period is not provided.
Question: Are "on-duty" meal periods allowed?
In order for an "on duty" meal period to be permitted under the Industrial Welfare Commission Wage Orders, the nature of the work must actually prevent the employee from being relieved of all duty, and there must be a written agreement that an on-the-job paid meal period is agreed to. Additionally, the written agreement must also state that the employee may, in writing, revoke the agreement at any time.
Question: May an employer require that an employee remain on its premises during a meal period?
An employer can require that an employee remain on its premises during his or her meal period, even if the employee is relieved of all work duties. However if that occurs, since the employee is being denied his or her time for his or her own purposes and in effect remains under the employer's control and thus, the meal period must be paid. Minor exceptions to this general rule exist under IWC Order 5-2001 regarding healthcare workers. Pursuant to the Industrial Welfare Commission Wage Orders, if an employee is required to eat on the premises, a suitable place for that purpose must be designated. "Suitable" means a sheltered place with facilities available for securing hot food and drink or for heating food or drink, and for consuming such food and drink.
Although there are some exceptions, almost all employees in California must be paid the minimum wage as required by state law. Effective January 1, 2008, the minimum wage in California is $8.00 per hour. There are some employees who are exempt from the minimum wage law, such as outside salespersons, individuals who are the parent, spouse, or child of the employer, and apprentices regularly indentured under the State Division of Apprenticeship Standards. Minimum Wage Order (MW-2007)
There is an exception for learners, regardless of age, who may be paid not less than 85% of the minimum wage rounded to the nearest nickel during their first 160 hours of employment in occupations in which they have no previous similar or related experience.
There are also exceptions for employees who are mentally or physically disabled, or both, and for nonprofit organizations such as sheltered workshops or rehabilitation facilities that employ disabled workers. Such individuals and organizations may be issued a special license by the Division of Labor Standards Enforcement authorizing employment at a wage less than the legal minimum wage. Labor Code Sections 1191 and 1191.5
Question: What is the difference between California's minimum wage and the federal minimum wage?
Most employers in California are subject to both the federal and state minimum wage laws. The effect of this dual coverage is that when there are conflicting requirements in the laws, the employer must follow the stricter standard; that is, the one that is the most beneficial to the employee. Thus, since California's current law requires a higher minimum wage rate than does the federal law, all employers in California who are subject to both laws must pay the state minimum wage rate unless their employees are exempt under California law. (Source: www.dlse.ca.gov).
Question: May an employee agree to work for less than the minimum wage?
Answer: No. The minimum wage is an obligation of the employer and cannot be waived by any agreement, including collective bargaining agreements. Any remedial legislation written for the protection of employees may not be violated by agreement between the employer and employee. Civil Code Sections 1668 and 3513.
Question: Is the minimum wage the same for both adult employees and minor employees?
Yes. There is no distinction made between adults and minors when it comes to payment of the minimum wage.
Question: May an employer use an employee's tips as a credit toward its obligation to pay the employee the minimum wage?
No. An employer may not use an employee's tips as a credit toward its obligation to pay the minimum wage.
Question: What is the statute of limitations for filing a wage and hour claim?
In the case of Murphy v. Cole, the California Supreme Court held that the remedy for meal and rest period violations of "one additional hour of pay" under Labor Code section 226.7 is a wage subject to a three-year statute of limitations. Accordingly, in general, a claim must be filed within three (3) years of the alleged meal period violation.
In California, the general overtime provisions are that a nonexempt employee 18 years of age or older, or any minor employee 16 or 17 years of age who is not required by law to attend school and is not otherwise prohibited by law from engaging in the subject work, shall not be employed more than eight hours in any workday or more than 40 hours in any workweek unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over eight hours in any workday and over 40 hours in the workweek. Eight hours of labor constitutes a day's work, and employment beyond eight hours in any workday or more than six days in any workweek is permissible provided the employee is compensated for the overtime at not less than: