Month: August 2015

The Going and Coming Rule: What Constitutes Work Hours

Going and Coming Rule

Questions about whether an employee can be considered on the job while enroute to it or from it often is an issue in law when there is possible liability for an accident. For example, a worker who gets in a car accident on the way home from work may claim the employer should be responsible for the medical costs and property damages.

Employers usually use the “Going and Coming Rule,” which generally declares employers free from liability by holding that an employee is “not acting within the scope of employment” when going to or coming from the workplace.

However, there are some specific exceptions to this rule. Courts have found employers liable where they:
• Get some benefit from the trip – such as new clients or business contacts,
• Pay the employee for the travel time and travel expenses, such as gasoline and tolls, and
• Request that the employee run a special errand while traveling to or from work—such as picking up supplies or dropping off a bank deposit

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

Travel Time: What Constitutes Work Hours

travel time

The time you spend commuting between your home and the place you normally work is not considered to be on-the-job time for which you must be paid. But it may be payable time if the commute is actually part of the job.

If, for an example, you are a trucker, and you have to check in at your employer’s office, pick up the truck, and then drive ten miles to reach the starting point for the particular job, your workday legally begins when you check in at the office.

Even if the commute is not part of your job, circumstances may allow you to collect for the odd trip back and forth. You can claim that you should be paid for your time in commuting only when you are required to go to and from your normal worksite at odd hours in emergency situations.

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

Hours Violations: What Employers & Employees Should Know

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It’s a wage violation to fail to pay for every hour worked. Employers violate this rule by not counting certain time as work, including:
• Time employees have to work “off the clock,” before clocking in or after clocking our for the day
• Meal or rest breaks that employees have to work through
• Required training programs and classes
• Travel time, and
• Waiting time the employee must spend on the employer’s premises.

Work time for which you must be paid includes all the time you must be on duty or at the workplace. However, courts have ruled that on-the-job time does not include the time employees spend washing themselves or changing clothes before or after work, unless a workplace requires specialized protective gear or other attire that is impractical to take off the premises. It also does not include time spent in a regular commute to the workplace.

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

How Employers Should Deal with Transgender Employees

How Employers Should Deal with Transgender Employees

Failing to properly deal with issues of gender identity and gender expression may lead to costly employee claims.

Below are tips and suggested best practices for employers to ensure a workplace free from discrimination and harassment for all employees:

Establish Standards for All
Implement reasonable workplace appearance and dress standards that allow employees to appear or dress consistently with their gender identity and gender expression.

Establish Procedures
Implement procedures for gender transitions that clearly delineate responsibilities and expectations of transitioning employees, their supervisors, and other staff.

Maintain Privacy
Ensure the privacy of gender-transitioning employees.

Establish Policies
Make tolerance part of the workplace culture by having strong anti-discrimination provisions in personnel policies.

Ensure employees know harassment and discrimination based on sex, gender, sexual orientation and gender identity will not be tolerated.

Implement Changes
Address Employees by their preferred name and/or preferred title and pronoun by all persons in the workplace.

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

Employment Protection for Transgender Employees

Employment Protection for Transgender Employees

Protection for transgender employees have expanded in recent years. Increased awareness and proper training can significantly reduce the risk of violations while improving the conditions for transgender employees.

California’s employment discrimination protections are found primarily in the Fair Employment and Housing Act (FEHA). FEHA prohibits harassment and discrimination in employment based on sex, gender, gender identity, gender expression, sexual orientation and perceived sexual orientation. It also prohibits retaliation for protesting illegal discrimination related to one of these categories.

Furthermore, FEHA makes it illegal for an employer to refuse to hire or employ a person; to discharge someone from employment; or to discriminate in compensation, in terms, conditions, or privileges of employment, because of the person’s gender identity.

California employers need to remain cognizant of the ever-expanding gender-identity protections that safeguard employees’ rights.

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

Reasonable Accommodations for Obese Employees

Reasonable Accommodations for Obese Employees

The Centers for Disease Control says that today over one-third (35.7%) of Americans are obese.

Under the ADA, employers are required to provide reasonable accommodations for obese employees. This can come in many forms:

• A special chair that can hold an individual weighing up to 600 pounds
• Sturdier toilets in company restrooms
• Moving cubicle walls to provide additional workspace
• Allowing employees to sit on high stools rather than stand all day to serve customers
• Positioning employees on the ground floor to avoid excess climbing of stairs
• Providing alternatives to company uniforms that will accommodate employees’ weight

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

Best Practices for Employers to Deal with Possible Weight Discrimination

Best Practices for Employers to Deal with Possible Weight Discrimination

Here are some practical tips for employers to consider to prevent weight discrimination:
• Review existing procedures and policies on disability, discrimination, and complaint protocol;
• Change/revise procedures as necessary to reflect recent changes to the law;
• Review job descriptions to make sure that any weight requirements are reasonably related to the essential requirements of the job;
• Treat requests for accommodation from overweight individuals with sensitivity, keeping in mind that the individual might well be entitled to ADA protection;
• Develop internal policies that mandate the courteous treatment of all employees, regardless of personal appearance;
• Educate all employees—especially managers—on what is inappropriate, unprofessional, or illegal conduct toward overweight employees;

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

Is Obesity a Disability that Requires Protection from Employers?

Is Obesity a Disability that Requires Protection from Employers

Weight discrimination (sometimes referred to as size discrimination) occurs when someone is treated differently because of his or her weight.

The ADA protects employees and applicants with disabilities from discrimination, and requires employers to make reasonable accommodations for employees with disabilities.

The ADA states that height and weight, within normal parameters, are not disabilities. However, some courts and the Equal Employment Opportunity Commission (EEOC) have found that obesity might qualify as a disability, at least in some circumstances:

• If an employee or applicant has an underlying physiological impairment that has resulted in obesity (such as diabetes), the employee may be protected. The employee would have to prove that he or she had a disability as defined by the ADA.

• The EEOC has said that “severe” obesity, defined as a weight that more than twice the norm, is itself an impairment that could be a disability. Again, the employee would have to show that it substantially limited a major life activity or major bodily function.

• If an employer incorrectly perceives an employee as having a disability based on the employee’s obesity, that employee would be protected by the ADA. In other words, even if the employee’s condition didn’t substantially limit a major life activity or prevent the employee from doing the job, the employee is protected from discrimination by an employer who makes these incorrect assumptions based on the employee’s obesity.

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting

What to Do If Your Employer Is Breaking the Law?

What to Do If Your Employer Is Breaking the Law

If you believe your employer is violating state or federal wage laws, your first step is to raise the issue internally.

You should inform the Human Resources department or payroll department of your company of the problem, following your company’s procedures for bringing concerns to the attention of management.

If your complaints don’t get anywhere, you should consider consulting with a competent employment lawyer.

Employees have the option of pursuing unpaid compensation by either filing a wage claim with a state agency or by filing a lawsuit in court. An employment lawyer can tell you whether either of these strategies makes sense, based on the facts of your situation. An employment lawyer will also tell you whether it makes financial sense to have legal representation or whether you should try to bring your claims on your own.

However, keep in mind that most employment cases work on contingency basis so that legal bills do not compound the stress resulting from your problem. This means that you don’t pay have to pay until a judgement is decided in your favor.

David Payab, Esq. from The Law Offices of Payab & Associates can be reached @ (800) 401-4466 or by visiting