Refusing Employee’s Attempt to Rescind Resignation Was Not Actionable

In what appears to be an issue previously undecided under the California Fair Employment and Housing Act (“FEHA”), the Second District Court of Appeals in California held that an employer’s refusal to allow an at-will employee to rescind her resignation is not a proper basis for a disability discrimination lawsuit. The employee alleged that when she resigned, she was suffering from an altered mental state due to a side effect of a medication she was taking.  The employee sued for disability discrimination when she was not permitted to rescind her resignation.  See, Ruth Featherstone v. Southern California Permanente Medical Group, decided April 19, 2017.

The employee took approved medical leave to have surgery for a chronic sinus condition. After recovering from surgery, the employee’s doctor released her to work without restrictions. Seven days after returning to work, the employee called her supervisor to resign effective immediately.  The supervisor did not consider the employee’s behavior (talking quickly and stating that “God had told [her] to do something else”) during that call as odd or inconsistent with the employee’s character.  After the conversation, the supervisor emailed the employee to confirm her resignation in writing and, at the instruction of human resources, immediately processed the termination paperwork so that the employee could receive her final paycheck.

The day after she resigned, the employee was hospitalized because of uncharacteristic behavioral changes. A coworker found out about the employee’s hospitalization and reported it to HR who properly declined to discuss the situation since the coworker was not a family member.  Three days later, the same day that the employee was released from the hospital, the employee confirmed her resignation in writing.

Five days after confirming her resignation in writing, the employee told HR that at the time of her resignation she was suffering from an adverse drug reaction and wanted to rescind her resignation. The employer allowed the employee to provide any documents she wanted to be considered in connection with her request to rescind her resignation.   After considering the submitted documents and consulting legal counsel, HR determined that nothing improper had occurred in accepting the resignation and that no facts required the employer to allow the employee to rescind her resignation.

The appellate court upheld the trial court’s order granting summary judgment for the employer because: (1) when the employee resigned, the employer did not know she was suffering from an altered mental state; (2) the employee’s resignation was voluntary because the employer did not coerce or pressure her to resign; and (3) the employee was at-will, so there was no employment contract that required the employer to let her rescind her resignation.

This decision should be welcome news to employers when faced with inconsistent employment status communications from employees. Please feel to contact Sander van der Heide ( or Cary Palmer (, or the Jackson Lewis attorney with whom you regularly work, if you have any questions about this decision.

Both the City of San Diego and the State of California “Clarify” Their Sick Leave FAQs

Both the City of San Diego and the California Department of Labor Standards Enforcement have updated their “Frequently Asked Questions” related to the respective local and state sick leave requirements. Click here to read the full article about these specific changes at our Disability, Leave & Health Management blog.

Is Your Piece Rate Plan Up To Date?

A piece rate exists where an employee is paid a fixed amount for each unit produced or action performed. Industries that commonly use piece rates include agriculture, automobile repair, trucking, manufacturing, and call centers.

A new law went into effect this year requiring employers to provide additional pay for rest periods and recovery periods to employees who are compensated on a piece rate basis, even if the employees also are paid minimum wage.   A recovery period is a cool-down period provided to an employee to avoid heat illness.

Employees who are not paid a minimum wage in addition to the piece rate, also must be paid separately for “nonproductive time.” Nonproductive time is time under the employer’s control, excluding rest and recovery periods, that is not directly related to the activity being compensated on a piece rate basis.

The rate of pay for rest and recovery periods generally is determined by taking the employee’s total compensation received per workweek (excluding any minimum wage paid for rest/recovery periods and excluding overtime pay), and dividing it by the total hours worked during the workweek. Examples of how to calculate pay for rest and recovery periods are listed on the California Division of Labor Standards website here.

Piece rates are not commissions. Commissions involve sales work and typically are earned as a percentage of the sales price or percentage of a profit made from a sale.  Commissions involve earnings in proportion to the amount of the sale, while piece rates, if related to sales, involve a fixed amount no matter how large or small the sale.

If you would like to discuss how your piece rate plan is affected by the new requirements, please contact your Jackson Lewis attorney.

New Regulations Further Limit Use of Criminal History for Employment Decisions

Effective July 1, 2017, new regulations will further limit employers’ ability to consider criminal history when making employment decisions.

On March 27, 2017, the Office of Administrative Law approved the Fair Employment Housing Counsel’s new regulations clarifying existing limitations on criminal background checks and, in large part, conforming to the Equal Employment Commission’s position that criminal background checks on applicants may have an adverse impact on protected classes.

Potential Disparate Impact

The new regulations, which largely track the Equal Employment Opportunity Commission’s (“EEOC”) April 2012 Enforcement Guidance, require employers to demonstrate that any criminal history information sought is job-related and consistent with a business necessity. An applicant or employee challenging an employer’s criminal background check has the initial burden to show the employer’s policy or practice of considering criminal history has a disparate impact upon a protected class (e.g., race, national origin, and so on).

If the applicant or employee demonstrates a disparate impact, the burden shifts to the employer to establish that the policy nonetheless is justifiable because it is job-related and consistent with business necessity. The employer also must demonstrate that the policy or practice is tailored to the specific circumstances, taking into account: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; and (3) the nature of the job held or sought.

Where an employer adopts a bright-line policy or practice automatically disqualifying all applicants with certain types of past convictions, the new regulations impose a rebuttable presumption that the policy or practice is not sufficiently tailored to the specific circumstances of the job.

The new regulations recognize that certain jobs, like those that have particular licensing requirements, and certain employers, by state or federal law, are prohibited from employing people with certain criminal records. Compliance with state or federal criminal history screening requirements is a viable defense for employers.


Employers using criminal background checks should review carefully their policies and practices to ensure they are in compliance with these new regulations as well as applicable local ordinances (such as Ban the Box ordinances enacted in Los Angeles and San Francisco).

Please contact a Jackson Lewis attorney for assistance with this and other workplace laws.

Court May Make Reasonable Inferences about Employee’s Exempt, Non-Exempt Activities

A trier of fact can make reasonable inferences about employees’ duties to determine status for overtime pay under California labor law, the California Court of Appeal has ruled, affirming the trial court’s holding. Batze v. Safeway, Inc.,  No. B258732 (Cal. Ct. App. Apr. 4, 2017).

A group of assistant store managers claimed they should have been classified as non-exempt managers entitled to overtime pay. The assistant managers testified that they were required to engage in non-exempt duties such as stocking shelves and building product displays. At trial, the court found that because more than 50 percent of the assistant managers’ time was spent performing managerial tasks, they were exempt from overtime pay.

The assistant managers appealed the ruling, contending gaps in the evidence should have precluded the trial court from finding exempt status. They argued that they did different jobs at different times and there were differences at stores affecting the time spent on various job duties. They also argued that the trial court must determine exempt status on a workweek-by-workweek basis, without drawing inferences from the employees’ activities during other workweeks to fill in those gaps.

The Court of Appeal affirmed the trial court’s ruling. It acknowledged that the relevant period for determining employees’ exempt status was indeed the workweek, but this does not mean the trier of fact cannot make reasonable inferences from the employees’ activities in earlier and later periods, as the trial court did in this case, especially when there is no evidence to suggest the employees’ duties varied significantly between store to store or week to week.

Please contact a Jackson Lewis attorney with any questions about this decision and other workplace developments.

The City of Los Angeles Quietly Updates Its Rules and FAQs Regarding the Minimum Wage and Paid Sick Leave Ordinance

The sick leave landscape is constantly evolving, and the City of Angeles is no exception to that rule. This past month the City of Los Angeles Office of Wage Standards  revised its rules and regulations as well the FAQs regarding its Minimum Wage and Paid Sick Leave Ordinance.

Learn what that means for employers here at our Disability, Leave, & Health Management Blog.

New California Healthcare Workplace Safety Prevention Regulation Effective April 1, 2017

Healthcare employers in California must comply with a host of new workplace safety requirements, effective April 1, 2017, on preventing workplace violence. The new requirements include written workplace violence prevention plans, additional recordkeeping, and preventive training, among other things.

Click here for the full list of requirements and contact your Jackson Lewis attorney is you have any questions.

New Healthcare Workplace Safety Prevention Laws Take Effect April 1, 2017, in California

Healthcare employers in California should prepare for a host of new workplace safety requirements, starting this weekend. California’s new healthcare workplace safety prevention law takes effect April 1, 2017.

To learn more about the scope and affects of the regulation, see the full article at our OSHA blog here.

10 Strategies for Limiting FMLA/CFRA Abuse

The federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) provides for overlapping, as well as separate leaves of absences. The administration of these leaves can be confusing and time-consuming.  Employees are becoming more sophisticated in abusing the system and many companies feel it is a problem they are helpless to stop.

To minimize disruption in the workplace, employers must be proactive in preventing abuse. Don’t be afraid to hold employees accountable for their actions.  FMLA/CFRA rules and regulations provide employers with guidelines to help prevent abuse.  These tactics will help in avoiding employee abuse:

  1. Review your FMLA/CFRA policies and procedures to ensure they are up to date. Auditing your policies to ensure they are up to date ensures consistency and prevents errors on your end.
  2. Use written leave request forms. Even if an employee gives you verbal notice, you can ask that they submit their leave request in writing. When employees realize there is a paper trail, they are less likely to request leave they do not need.
  3. Request the medical certifications be returned within 15 days. A medical certification form is your primary tool against abuse, so require employees certify their absence and seek re-certification when circumstances change. Employers who do this in writing, explaining the penalties for not doing so, may take action, including delaying the leave, toward employees who fail to follow the rules. If the certification is incomplete or insufficient, request clarification. [1]
  4. Calculate leave on a “rolling” 12 month period. This avoids the potential abuse of employees doubling their leave if leave is measured on a “calendar year” basis. [2]
  5. Require employees use their paid leave prior to taking unpaid FMLA/CFRA leave. Generally, FMLA/CFRA leave is unpaid. Employees are less likely to abuse FMLA/CFRA leave if they have to first use their vacation to do so.[3]
  6. Establish and enforce call-in procedures for all leaves. Employers can deny FMLA/CFRA leave if employees fail to follow company call-in policy. The key to avoiding abuse is consistent enforcement of leave policies designed to prevent it.
  7. Require employees provide 30 days notice for foreseeable FMLA leave. Requiring advance notice allows the employer to plan for the absence, which increases productivity and reduces abuse. [4]
  8. Request employees schedule medical treatments around business hours. The regulations allow employers to ask employees to make reasonable efforts to schedule their medical treatment either before work or in the late afternoon to minimize disruption to the employer’s operations.[5]
  9. Require employees to submit a re-certification every 30 days.[6] In some instances, an employer can require re-certification more frequently than every 30 days. [7] For instance, if the employee requests an extension; if circumstances change; or if an employer receives information that casts doubt on the employee’s stated reason for the absence.
  10. Check in periodically. Keep open the lines of communication. Checking in with the employee periodically to see how they are doing is legal – just don’t ask them to do any work while they are on leave.

[1] 29 CFR §825.305(b).

[2] 29 CFR §825.200

[3] 29 CFR §825.207(b)

[4] 29 CFR 825.302(a).

[5] 29 CFR 825.302(e).

[6] 29 CFR 825.308(a).

[7] 29 CFR 825.308(c)(1), (2), and (3).

California’s Free Mining & Tunneling Training Schedule

California enforces its own mining and tunneling regulations through Cal/OSHA’s Mining and Tunneling Unit.  The main function of this specialized unit is to investigate complaints and accidents in mines and tunnels and to issue citations to employers that violate regulations.

Click here for the full article and the training schedule from our MSHA Law Advisor Blog.