Respecting Privacy While Obtaining Necessary Info

Hiring outside vendors to conduct pre-employment background checks into any criminal record, bad credit history and/or other matters is a common tool for an employer’s informed hiring decisions.

Federal and California laws cover the procedures for such checks, designed to balance a company’s right to research and obtain relevant information about job applicants and applicants’ rights of privacy on information unrelated to a hiring decision. By applying for work, a person in effect consents to some degree of scrutiny. The required forms and written notices are to make sure the process is fair. Among key points:

1. Conduct background checks even-handedly – While it is usually not sensible to have to run checks on every single applicant off the street, an employer should establish a definite point in the process at which any and all applicants would be checked. It is up to the employer to set that point and to make it known, perhaps checking on those in the final group of candidates or only on the person tentatively chosen for the job. Arbitrarily deciding who should be checked and when unnecessarily exposes the company to possible discrimination allegations;
2. Notify candidates of background checks in advance – Under the federal and California laws, an employer must let a candidate know ahead of time if the company is going to conduct a check. An employer must also provide the candidate a written summary of the applicable procedures, including the prospect’s right to see the resulting report and to challenge any aspect of the report he/she contends are inaccurate. The California law requires an employer to supply a candidate a form with “yes” and “no” boxes on whether that prospect chooses to obtain a copy of the report; and
3. Understand the limitations of background checks – It is important to be able identify personal information not considered relevant to the hiring process and thus protected from disclosure. (For a related topic, see “Pre-Employment Testing: Inquiries are Limited to Job-Related Skills and Qualities”)

The legally required procedures, notifications and forms only apply when a company utilizes an outside vendor in the business of conducting such checks. Most reputable vendors are able to supply the necessary forms and notifications although it is the employer’s ultimate responsibility to ensure compliance.

Thus, an employer’s direct check of a candidate’s references is not covered by these laws. However, it is a good idea to include on a company’s standard job application a statement that the applicant should expect the employer to contact references to obtain job-related information.

For more extensive discussion, see Pre-Employment Background Checks, Bowles Law Report, Vol. 9, Issue 3

For a business to determine or confirm whether its particular use of pre-employment background checks and other hiring practices are in compliance, management should utilize an experienced labor law attorney for the applicable state jurisdiction.

Applies to Companies with 100 or More Employees

All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30^th on the EEO-1 Report, addressed to the U.S. Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP). The requirement stems from the EEOC’s authority to enforce the workplace anti-discrimination provisions of the federal Civil Rights Act of 1964, commonly referred to as “Title VII.”

The EEOC’s website specifies the employers affected:

“All private employers who are:

1. Subject to Title VII … with 100 or more employees EXCLUDING State and local governments, primary and secondary school systems, institutions of higher education, Indian tribes and tax-exempt private membership clubs other than labor organizations;

OR

2. Subject to Title VII who have fewer than 100 employees if the company is owned or affiliated with another company, or there is centralized ownership, control or management (such as central control of personnel policies and labor relations) so that the group legally constitutes a single enterprise, and the entire enterprise employs a total of 100 or more employees.”

The EEOC site explains the report’s purpose:

“Using EEO-1 data, EEOC documents the scope and intensity of discrimination and urges employers to take stronger action to overcome the historical exclusion of minorities and women in particular industries and jobs. Technical assistance is provided to employers.”

Covered employers may file the required form on-line.

For questions on this and other employment-related government deadlines or how to administer or enforce workplace anti-discrimination policies, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Halloween looms. An office party for the occasion may be a great way to boost employee morale. However, as with holiday parties, a killer get-together can have frightening results if not planned properly.

Here are some guidelines to ensure your Halloween party doesn’t come back to haunt you:

• Suggest “work-appropriate” costumes: Surely more than a few sexual harassment lawsuits have hinged on inappropriate costumes for an office Halloween party. Be sure to remind employees that fun and invitations for disaster are two different things. Specify what management considers inappropriate attire, including costumes that show a lot of skin, those carrying sexual innuendo, costumes glorifying alcohol usage, those with an overt religious or political message, or costumes paired with realistic weapons. Enforce these rules at the party, even if it means sending someone home.
• Distribute a notice to employee covering acceptable behavior: A day or two before the festivities send out an email and/or other notice reminding employees that while the party is a social occasion, it is among co-workers. Employees will be expected to act professionally and appropriately.
• Ban or keep alcohol consumption under control: Your business can be held liable for physical injuries caused or sexual harassment committed by a person served alcohol at a company-sponsored party. For more ideas on how to avoid any horror stories, see “A Risky Cocktail: Alcohol and an Employee Party.”

For assistance in understanding and enforcing the boundaries to avoid a Halloween party nightmare, contact an experienced employment law attorney.

California Employers Must Pay Wages and Mileage for “Off-Hours” Work-Related Tasks

In response to our article “Travel Pay in California,” a California employer has asked how he should pay his employees for time spent and for their personal vehicle mileage incurred while shopping for company supplies.

Compensation for All Hours Worked: Of course, an employer must compensate an employee for time worked, even hours after that worker has clocked out for the day. For instance, an employee who stops off on the way home to shop for and buy office items for the employer performing compensable work during that time. However, as commuting time is not compensable, only the time required to stop, shop and get back on the road for home would count as time worked. See also, our article “Travel Pay Revisited.”

Calculating Mileage for a Work-Related Task: California employers must also reimburse workers for mileage incurred in personal vehicles on employment-related tasks. A company should issue and supply appropriate forms or logs to enable such payments. The IRS’s published mileage rates for 2013 are:

• 56.5 cents per mile for business miles driven
• 24 cents per mile driven for medical or moving purposes
• 14 cents per mile driven in service of charitable organization

Employers should issue and maintain clear and consistent written policies on such matters. See “Promoting Workplace Productivity with a Sound Policy Handbook and Forms.”

For workplace policy matters, including employee manuals and forms, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Knowing When to Call for Reinforcements

There’s a saying that no-one likes lawyers … until you need one. While experienced and knowledgeable managers are usually capable of handling basic employment issues, there are pitfalls in the more complex or high stakes situations for which consultation with an employment and labor lawyer is probably a good move. The laws governing the workplace tend to change frequently. Companies can face formal complaints, liabilities and large attorney bills if potentially significant employee disputes or decisions are not recognized and resolved early. For instance:

Disciplinary Investigations and Decisions: Employers must act fairly and effectively in response to an accusation of wrongdoing. A company can face liability for failing to deal with a dishonest or destructive employee as it can for mistakenly concluding without an adequate inquiry that an innocent worker is guilty of such actions. An employment law attorney can help strike the proper balance and reach a fair decision, while management continues to maintain workplace productivity.

Threatened or Actual Court or Administrative Proceedings: If a current or former employee files or threatens to file any sort of lawsuit or complaint with a government agency, such as the U.S. Equal Employment Opportunity Commission (EEOC) or the California’s Department of Labor Standards Enforcement (DLSE), it’s almost certainly time to contact an labor and employment attorney immediately. Charges of discrimination, harassment or wage and hour violations should be taken very seriously. Mishanding any such allegations from an employee could create a further assertion of workplace retaliation.

Employee Contracts, Including Severance Agreements: An experienced lawyer can create or review and strengthen employment-related agreements, including contracts at hiring or severance releases offered at termination. Poorly worded documents can create difficult and expensive disputes over interpretation later.

Workplace Policies and Handbooks: Comprehensive and up-to-date written employee policies, commonly maintained in a manual or handbook, are the foundation for legally-sound business and frequently a critical “ounce of prevention” against claims over compensation, paid vacation and other benefits, workplace safety, acceptable employee conduct, the company’s ability to investigate into potentially private subject matters, and many other issues

Avoiding Misclassification of Hired Workers in California

For possible cost savings and ease in administration, businesses are sometimes tempted to classify people working regularly as “independent contractors” instead of “employee.” In California, as in other states, independent contractors are usually not entitled to most of the benefits that employer must provide employees, including minimum wage, overtime pay, workers’ compensation coverage, social security credits, and unemployment insurance.However, whether inadvertent or otherwise, a company’s misclassification of one or more hired persons as independent contractors instead of employees can become a very expensive error. The California Employment Development Department (EDD), Franchise Tax Board (FTB), Division of Labor Standards Enforcement (DLSE), and Department of Industrial Relations (DIR), as well as the federal Internal Revenue Service are all agencies with the power to investigate, audit and impose expensive penalties on businesses for incorrect employee or independent contractor designations.Such errors also can also create liabilities for back wages, overtime compensation, and payments to the government for retroactive unemployment, workers’ compensation and social security coverage.Analysis must always be on a case-by-case basis. Agencies commonly judge classification decisions on the greater weight of factors favoring employment or independent contractor status. For example, the DLSE publishes a list of pertinent qualities for validly classified independent contractors:

• An independent contractor’s occupation is distinctly different from the product of the hiring company (e.g., a manufacturing company hires an outside lawyer to write represent the business in court);
• An independent contractor’s work is not part of the regular business of the hiring entity (an auto dealer retains a marketing consultant to analyze purchasing trends);
• An independent contractor commonly provides his or her own tools and workspace and covers his/her overhead expenses;
• An independent contractor usually provides a specialized service or skill (e.g,., a professional accountant delivering financial services under his/her distinct license);
• An independent contractor’s work is usually unsupervised and the hiring company lacks the right to control (i.e., micro-manage or supervise) the course of that contractor’s labors;
• The length of time for an independent contractor’s services are classically short-term, project by project; and
• The method of payment for an independent contractor’s services is usually by the job, not by the hour or other period of time.

There are always exceptions to these factors. Lawyers commonly charge by the hour. A business might provide the contractor a workspace on company’s premises to carry out the project. Again, proper classification depends on a thorough and accurate assessment of all independent vs. employment factors. An experienced labor lawyer can be a significant help in the process, including the appropriate contract documentation.

Attempted Hook-Ups Can Lead to Litigation Shake-Downs

Our 2010 blog “Office Holiday Survival Guide” provides a roadmap for handling alcohol at holiday office parties. By its off-the-clock and put-work-aside nature, the annual company-wide gathering may also be a prime setting for unwelcome sexual advances by employees, worse yet by managers. Such harassment is not an experience anyone would want to go through. It can also lead to serious legal liability no business wants to experience.

Examples of inappropriate, unwelcome party behavior are:

• Bringing risqué joke gifts;
• Wearing suggestive “party” attire;
• Complimenting a co-worker’s body after one too many drinks;
• Frat house antics, e.g., “competition” for predatory sexual liaisons; or
• Dancing romantically or suggestively with a subordinate or co-worker.

The employer must be proactive to prevent and, where it occurs, to deal fairly and effectively with incidents of unwelcome advances at the holiday retailer party. For example:

• Re-publish, re-distribute the company’s sexual harassment policy before event takes place;
• Remind employees in advance that while holiday festivities are to be enjoyed, they do not offer an excuse for violating policy;
• Issue a business attire or other appropriate “dress code” in advance;
• Limit the availability of free alcoholic drinks and take other measures suggested in our “Office Holiday Survival Guide I, A Risky Cocktail: Alcohol and an Employee Party;”
• Hold the party during the day, with work to continue afterwards;
• Reduce the opportunities for unwelcome situations by avoiding inappropriately suggestive music or party games like “Twister” or “Truth or Dare” (strip poker is also out); and
• Avoid decorating with mistletoe.

It goes without saying – but we will say it anyway – that if your business does not have a written sexual harassment policy, the time to establish one is yesterday, if not sooner. Please let us know if we can advise you on such matters.

When California Employers Must Pay for Worker Time Waiting for the Call

A California worker recently asked us through the blog site whether his employer should pay for his “stand-by” or “on-call” time. He wrote, in part: “On some days, we are expected to be on-call for certain shifts … The sign posted at the store informs us that failure to show up as requested will result in negative consequences … However, [while] we are not on paid stand-by, the belief is that we must be within the area and must answer our phones if called. Can I be punished for failing to respond?”

We covered the issue of “on-call” time in “On-Call Employees in California”. Whether an employer must pay a worker for that time depends on the degree the company requires that worker to restrict his/her personal activities in order to respond to the call. Factors include:

• any company-imposed geographic restrictions on the employee’s location;

• required response time to a call;

• the nature of the employment relationship and industry practice; and

• any other limitation on the employee’s ability to use the time for personal benefit.

A policy that provides employees an option of responding to a call probably does not require the company to pay the employees for choosing to be available. For example, a business that puts out the word of a hot prospect to several salespeople, with the referral going to the first employee to call-in is likely an unpaid standby situation.

On the other hand, a policy that requires a designated worker to stay within specific geographic limits, to maintain open telephone or text message contact during specific hours and to arrive at the worksite (or otherwise begin working) within a limited amount of time after receiving employer’s request is almost certainly a paid on-call arrangement.

The above worker asked whether his employer must pay when it was his “belief” that he had to be within a certain area and had to answer his phone if called.

From the employee’s perspective, he should promptly and responsibly request written clarification of the company’s policy, thus either confirming or dispelling his impression that he is subject to mandatory response.

Similarly, from the employer’s perspective, it is important to have clear written policy, one way or the other. An employer who doesn’t pay for stand-by but, as in the above worker’s case, vaguely announces “negative consequences” for failing to respond to a call, risks a later government or court finding that it has failed to pay for required stand-by time.

The above worker also asked if he could be “punished” for failing to respond. As he describes an unpaid on-call arrangement, then in theory the company could not – and should not – reprimand or otherwise discipline an employee who does not answer a call to come to work.

On the other hand, a business with a clear paid, mandatory on-call policy can legitimately take adverse action against the individual who fails to comply. Certainly, the policy should spell out the range of consequences possible. On the degree of discipline a company should exercise in the case of a violation, the answer ultimately lies in the experience and (hopefully good) judgment of management.

For help to employers on how to structure, administer or enforce an on-call policy, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

Harassment in the Workplace is Illegal Prevention is The Only Viable Solution

Current regulations tighten trainer qualifications and impose heightened interactivity requirements, including questions that assess learning, skill-building activities and numerous hypothetical scenarios about harassment with follow-up discussion questions.

We are offering an updated in-house, two-plus hour seminar, at your location, that will fulfill these legal requirements. With your supervisors better trained on harassment basics, this session will help you safeguard your company against lawsuits while assisting you to create better employee relations.

Conducted by one of our experienced attorneys, our seminar includes a live lecture, printed materials, PowerPoint presentation, video scenarios, quizzes and a new session-ending investigatory scenario in which all participants can apply and demonstrate their knowledge of the fundamentals in this critical field. We will also provide certificates of attendance as documentation for your records.

The seminar topics include:

• Types of harassment and what makes supervisors personally liable
• Steps owners and supervisors should take to prevent company liability
• What constitutes harassment under current state and federal laws
• Policies employers can impose to limit employee relationships
• Printed materials, a lecture and audio-visual presentation
• Role playing scenarios to demonstrate skills and knowledge

By scheduled appointment, we can provide the required interactive seminar at your place of business.

Or if you have just a few employees who need this training, our Public Seminar is also available.