help lin hot-
The Employers Group Helpline receives thousands of calls each month. Here are some recent hot issues:
Question: I work for a wine bottling company. One of my employees is frequently 10-15 minutes late to work every morning (our office starting time is 8:00 a.m.) Since he is exempt, he claims that as long as he gets his work done, I can’t bother him about his tardiness. Is that true?
Answer: No, exempt employees may be disciplined for
tardiness.The federal Salary Basis regulation, 29 CFR §541.602 does not prohibit exempt employee discipline for tardiness. Exempt employees may be required to arrive at work on time, and leave on time. They may also be required to keep track of their working time.
Question: I work for a hotel near San Francisco International. One of my employees, Marcus, has worked for us for 3 years as an airport shuttle driver. He recently came to work smelling of marijuana, with bloodshot eyes, and seemed to be slower than normal to respond to questions asked of him. His direct supervisor was concerned that Marcus was in violation of the company’s policy against being at work under the influence of drugs or alcohol, and didn’t want him to drive a shuttle.
We asked Marcus to submit to a drug/alcohol test at the company’s clinic to determine if he was at work while under the influence. Marcus informed his supervisor that he probably wouldn’t pass the test, and presented a valid medical marijuana card permitted by the California’ Compassionate Use Act of 1996.
My company has always had a zero tolerance policy when it comes to being at work under the influence of drugs or alcohol, but with the Medical Marijuana card, I’m not sure what I should do. Can I terminate him?
Answer: Yes. Your company may terminate Marcus if, in this case, he tests positive for the use of marijuana. In, Gary Ross v. Ragingwire Telecommunications, Inc. (2008) the California Supreme Court held that it is not a violation of California law for an employer to terminate an employee who tests positive for marijuana, even though the employee was prescribed the marijuana for medical purposes under the California Compassionate Use Act of 1996. According to the Court: “The Compassionate Use Act (Health & Saf. Code, § 11362.5), as we have explained, simply does not speak to employment law. Nothing in the act’s text or history indicates the voters intended to articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate marijuana use by employees.”
Question: What should I know about employees wanting to celebrate one’s religious holidays or requesting time off for religious obligations? Am I allowed to ask for “proof of religion”?
Answer: Yes, you may ask for verification on your employees stated beliefs, only if you have a reasonable basis for seeking this information. You cannot, however, demand a specific type of proof. The employee could provide, for example, written materials, their own first-hand explanation, information from a church member, a church official, or others who are aware of their beliefs. If the employer, reasonably expects that the proof presented is false, then the employee may be asked for some additional proof, the form of which is determined by the employee.
26 CA Employer March 2011
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