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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 withan employment and labor lawyeris 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
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
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
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:
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.
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.
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:
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:
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.
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 res
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.
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.
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:
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.
Lawyers are in sales, they are not in management. They don’t sell widgets to consumers of course. Rather, competing attorneys each “sell” his/her client’s construction of events and actions to juries and judges, with the most plausible version of such occurrences the winner.
Lawyers are in sales, they are not in management. They don’t sell widgets to consumers of course. Rather, competing attorneys each “sell” his/her client’s construction of events and actions to juries and judges, with the most plausible version of such occurrences the winner.
This firm defends employers daily on lawsuits for, you name it, (alleged) discrimination, (purported) retaliation, (supposed) harassment, (asserted) unpaid wages or overtime, and just about every other workplace accusation imaginable. More common than not, management’s inappropriate or illegal behavior is not the source of such court battles. Rather, suits often generate and grow from company failures: i) to have and follow simple, written policy; and ii) to promptly and fairly document workplace misconduct and its resolution.
Pile on the clichés and maxims if you wish. “An ounce of prevention is worth a pound of cure” isn’t bad. “If it isn’t written, it isn’t true” is better.
An employer which does not structure workplace production, organization and procedure around sound, sensible, easy-to-understand written policies is prone to finding itself sooner or later in the midst of an expensive court controversy. If written policy does not exist or if it is not followed, if disruptive incidents and the fair addressing of them are not documented promptly and consistently, then that disgruntled, and perhaps disreputable, employee and his/her lawyer can easily invent practices and versions of events to fit their sales pitch.
Very few jurors are employers. Almost all of them have been former employees at one time or another. At the end of a trial over alleged employee mistreatment, it will be these sworn-to-be-neutral citizens who will gauge whether employer or worker is telling the more credible story. For a business, no written policy and no documentation in these circumstances are a recipe for very expensive disaster.
For the actions employers can take to avoid this nightmare scenario, including access to our workplace forms and model personnel handbooks, please visit us at our website.
A California worker recently asked how his employer should pay him for job-related travel time expended before and then after a full eight hours of labor at a remote location. He wrote: “If I drove 5-1/2 hours, then worked 8, then drove 5 more hours, wouldn’t my time and a half start on my 8thhour and then double time after my 12th hour? They can’t just pay me double time on my travel pay rate of 8.00 dollars an hour can they?”
A California worker recently asked how his employer should pay him for job-related travel time expended before and then after a full eight hours of labor at a remote location. He wrote: “If I drove 5-1/2 hours, then worked 8, then drove 5 more hours, wouldn’t my time and a half start on my 8th hour and then double time after my 12th hour? They can’t just pay me double time on my travel pay rate of 8.00 dollars an hour can they?”
The answers, both favoring the worker in this instance, are “yes, daily overtime starts in California after the first eight compensable hours, including travel time” and “no, the employer cannot just calculate overtime from the lower travel-time rate of pay.”
Calculating Overtime When Work-Related Travel Paid at a Lower Rate: Our blog article “Travel Pay in California” observes: “Hourly employees must be paid for all ‘hours worked.’ Depending on the circumstances, an employee can be considered experiencing a ‘working hour’ even when in deep unconsciousness or obnoxious intoxication in seat 36C, Flight 363 Los Angeles to New York. Where an employee is required to travel for work, near or far, the employer must compensate the worker for that time. Exceptions are normal commute time or road trip downtime, e.g., meals or entertainment. Thus, an hourly worker who boards that New York flight for business is earning pay for his or her hours on the plane except the time spent taking a meal.”
That article also points out that businesses can establish a lower hourly rate of pay for unproductive but compensable travel time. Thus, the hourly worker’s employer on the above New York flight could pay him/her minimum wage (currently $8.00/hour in California) for the transit time and that worker’s higher, normal rate (say, $20.00/hour) for time spent working at the destination that day. If that worker flew for five hours ($8.00/hour x 5 hours = $40.00) and then attended a conference for another three ($20.00/hr x 3 hours = $60.00), his total pay that day would be $100.00.
California is one of the few states that require premium pay for either weekly (“time-and-a-half” after 40 in a week) or daily overtime hours (“time-and-a-half” after eight hours in a day and “double time” after 12 daily hours).
As the above writer pointed out, the plot thickens considerably when a California worker works either daily or weekly overtime while earning separate hourly rates during a pay period. It is not true that the employer need only pay 1.5x or 2x of a $8.00/hour travel rate for overtime hours ($12.00/hr and $16.00/hr, respectively) just because those were “extra” or “in addition” to the productive working hours that day.
Instead, California employers must calculate those 1.5x and 2x premium rates from the so-called “regular rate of pay.” “Regular [hourly] rate” is reached by adding up all compensation for a week and dividing it by the total number of hours worked.
Thus, if the above worker flying to New York also returned to California that same week, working a total of 50 hours, with ten of those hours at the $8.00/hour travel rate ($8.00/hr x 10 hrs. = $80.00) and the other 40 hours at the $20.00 rate ($20.00/hour x 40 hrs. = $800), his total earned compensation would of course be $880.00 for those 50 hours. Thus, the regular rate would be $17.60/hr ($880.00 ÷ 50 hrs = $17.60), making the 1.5x rate for each of the ten overtime hours $26.40.
The matter can be further complicated if, say, the worker had two very long work days that week, each exceeding 12 hours. As above, the employee would earn 1.5x the regular rate for the each of the 9th – 12th hours worked each day and then 2x the regular rate for each daily hour worked over 12.
For help to employers on how to structure, administer or enforce a travel policy, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth:
We are extremely pleased to announce that Helena Kobrin is now “of counsel” to our firm. Helena was admitted to The Florida Bar in 1978, first specializing in transactional and commercial matters, as well as governmental regulation and real estate and probate work.
We are extremely pleased to announce that Helena Kobrin is now “of counsel” to our firm. Helena was admitted to The Florida Bar in 1978, first specializing in transactional and commercial matters, as well as governmental regulation and real estate and probate work.
Helena was then in-house attorney for several years for a large non-profit organization in Florida. Moving to the Los Angeles area, joining the State Bar of California in 1991, and as partner in the Bowles & Moxon and then Moxon & Kobrin firms, Helena has since worked extensively on copyright, trademark and trade secret issues, contract review and drafting, bankruptcy, litigation, dispute resolutions, and much more.
Starting in the 1990s, Helena was instrumental in establishing protections for copyrights and trademarks from Internet abuse. This included representation of plaintiffs in the first-ever copyright infringement suit over unauthorized online postings. That case led to the passage of federal law that requires service providers to help copyright owners remove infringements from websites . The law in turn protects service providers proactive in removing such unauthorized uses of copyrighted material online.
Helena’s 35 years of experience is now available to assist us and our clients in all of her various areas of practice. We are of course very happy with this significant expansion of services now available to our clients.
The IRS issues annually its optional standard mileage reimbursement rates for an employee’s business use of his or her vehicle. The IRS has decreased the rate from 56.5 in 2013 to 56 cents per mile in 2014.
The IRS issues annually its optional standard mileage reimbursement rates for an employee’s business use of his or her vehicle. The IRS has decreased the rate from 56.5 in 2013 to 56 cents per mile in 2014.
The government calculates the mileage rate by an annual study of the fixed and variable costs of operating an automobile.
Under California Labor Code Section 2802, employers must fully reimburse employees for all work-related expenses actually and necessarily incurred. Many employers choose to use the IRS mileage reimbursement rate to satisfy their reimbursement obligation.
However, if the employee can show the IRS reimbursement rate does not cover all of his/her actual and reasonable business-related vehicle expenses, the employer must pay the difference.
For more details on required reimbursements to employees for business purposes, visit www.IRS.gov.