With the prevalence of workplace email and texting, businesses should consider publishing sound written policies on expected etiquette and on management’s ability to access and monitor such electronic communications. For lack of such guidelines and rules, employees should not be left with the impression that their privacy rights extend to the content of emails or texts utilizing company equipment.

Key elements of such policy include:

• Employee Privacy – There is no reasonable expectation of privacy for the information stored on computers or other devices owned by the company. Further, management should have the right to review any such information at any time;
• Ownership of Information – Any information stored or transmitted a computer, mobile device, etc. owned by the company is property of the company; and
• Acceptable Usage: Employees may only use e-mail or texting on company devices for company business. Communications should be professional and respectful and not degrading, insulting or bullying.

Of course, it is a good idea to require each worker to sign an acknowledgment that he or she has received such written policy and understands his/her obligations to read, duplicate and comply with it.

While California businesses are not legally required to provide paid vacation days to their employees, there are important rules when this benefit is offered. In this state, there is no “use it or lose it.” The fancy first year law school term means that paid vacation is an “accrued benefit.”

Thus, a written policy simply providing a full time worker “one week paid vacation” each calendar year will mean that the employee who doesn’t bother taking that time off for, say, ten years is going to have ten weeks of pay coming to him or her.

As vacation benefit “accrues” throughout an annual cycle, a worker who ends employment in the middle of that year will have earned his or her proportionate share of the full annual benefit. An employer who neglects to pay that proportionate amount on the employee’s departure will be subject to a penalty of as much as one month’s wages.

The solution is a written paid vacation policy that specifies a maximum amount a worker can accrue (for example, 18 months of benefits). Such a policy will direct the worker to utilize paid vacation, after which the benefit can begin accruing again up to the specified limit.

Among other things, a decent written vacation policy should also specify the advance time required for a worker to request and coordinate his or her time away.

California law treats sick pay benefits differently. That’s the subject of a future article. Please contact us to answer the more detailed questions.

A recent trend in on-line job ads has caught the attention of the federal Equal Employment Opportunity Commission (EEOC). That agency is holding hearings at their Washington D.C. headquarters today on why some businesses are choosing to exclude the unemployed from consideration for job openings.

Lines like “must be currently employed” or “no unemployed candidates will be considered” have been appearing on on-line job listings and websites, enough to warrant the EEOC’s attention. Apparently, the businesses running such ads would contend they are justified on the presumption that individual joblessness stems largely from performance problems rather than the slumped economy. While this is not overtly aimed at any particular sector of the unemployed (e.g., racial minorities, women, the disabled), the inquiry will focus on whether this practice has the effect of such unlawful discrimination on the basis of race, color, national origin and the like.

While the unemployed are not a class protected against discrimination per se, there is not necessarily a correlation between being out of a job and the ability to perform one. As such, it is probably best to steer clear of such language when seeking out a new hire.

We are lawyers, not magicians. Yet, we have received perhaps more than our share of requests to turn back time. If only that employer client could have it all back, to start out the right way on workplace timekeeping and compensation practices.

While we cannot put the proverbial toothpaste back in the tube, we can offer some tips on avoiding future wage-and-hour litigation disasters stemming from accusations that a company required or allowed employees to work off-the-clock without paying them.

1. Understand the difference between “exempt from overtime” and “non-exempt” and ensure your human resources department is properly classifying employees. A disproportionate number of salaried, supposedly “exempt” workers means there are probably errors in need of attention;

2. You MUST pay non-exempt employees for ALL hours worked, even if management did not ask for the time to be spent or even if the work was against management’s directions. The solution is appropriate discipline for violating applicable schedule and timekeeping rules, not to withhold pay;

3. So that employees are on clear notice of those rules, ensure your handbook includes written policies that establish:

– Workers are to keep standard work schedules and not to start early or stay over without management’s written authorization;

– Off-the-clock work is not permitted;

– Employees must log their working hours accurately;

– Employees who violate hours and timekeeping policies will be disciplined;

– Likewise, managers who authorize such violations, including off-the-clock work, will be disciplined; and

– Employees need not fear retaliation for reporting any such violations;

4. Maintain written timekeeping records – either hard copy and/or computerized – that require non-exempt employees to legibly and honestly document their own daily start, meal break, and departure times and, for each pay period, to verify in writing the accuracy of their report; and

5. Ensure management is uniformly enforcing these policies and practices.

In its article “New Year, New HR Ideas,” California Employer Daily recently passed on three key actions employers should consider at the beginning of the year, courtesy of James J. McDonald, Jr., managing partner of the Irvine office of Fisher & Phillips, LLP. We thought these were pretty spot-on ideas worth sharing:

“1. Get Your Handbook Ready – If you don’t have an employee handbook, have one prepared and ready to distribute at the beginning of the new year. A good employee handbook makes clear what is expected of employees. It reduces the likelihood of inconsistent application of policies that can lead to discrimination claims, and it ensures that every employee has been informed of important policies, such as the policy against harassment, employment at will and arbitration of disputes.

“2. Review Your Overtime Classifications – If the overtime exempt status of some employees seems questionable, the new year is a good time to reclassify them as non-exempt. Pay particular attention to office employees who perform mostly routine work, “leads” in manufacturing or service jobs, and retail managers who spend most of their time serving customers. Job descriptions for employees switched to non-exempt status should be revised to more accurately reflect their job duties.

“3. Consider Pay-for-Performance- Instead of granting automatic pay raises at the first of the year or on an employee’s anniversary date, consider implementing a pay-for-performance plan that ties employee compensation to job performance and/or the overall performance of the company.

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Source: California Employer Daily

Must an employer pay a worker for the latter’s training hours? Like most areas of employment law, the answer is: “It depends.” The basic question is whether an employee is pursuing that training a) to become more knowledgeable and skilled at his/her current position (in which case, the employer must pay for those hours); or b) to become knowledgeable or skilled at another, advanced position, either at the company or elsewhere (in which case, it is possible employer may not have to pay for those hours). A safe rule-of-thumb is that a business will almost certainly be required to compensate an employee for hours spent training unless such training meets all of these criteria:

• The activity occurs outside of regular working hours;
• The employee knows and acknowledges attendance is voluntary;
• The training is conducted through a separate vendor and preferably outside the employer’s premises;
• The seminar, course or meeting is not directly related to the employee’s current job; and
• The employee does not perform any labor that directly benefits the employer during such an activity, i.e., the work done during training is for practice and not to produce or to support the production of the employer’s goods or services.

The absence of any one of these factors could require employee compensation. For example, even if the employee is not required to attend the training, the company will have to compensate that worker if that training is offered during that employee’s normal working hours.

The full rules can be complicated. The review of an experienced employment attorney a good idea when structuring employee training programs.

Properly conducted employee performance evaluations can be an excellent tool for enhancing management – workforce communications. Such assessments provide administrators the opportunity to communicate their views to a worker on that person’s performance before a bad habit becomes a destructive disruption. Employees may use the process for communicating satisfaction or dissatisfaction with working conditions. Tips include:

– Fair, Consistent Process: The evaluation process should be as uniform and objective as possible, with a standard set of questions and judging criteria. Assessments that vary in thoroughness or subject matter from employee to employee or those that stray into subjective territories (e.g., someone’s taste in ties) may generate discrimination claims if person perceives unequal treatment on the basis of national origin, gender, age, religion or any of the other classifications protected by law.

– Criticism Should be Constructive: While management should not shy away from dealing with negative job performance in an evaluation, it should couple criticism with suggestions for improvement.

– Documentation: All evaluations should be in writing. Procedures and forms should provide the subject employee open opportunity to offer in writing his/her self-evaluation and as well as comment on the performance evaluations from others. Forms should include an ending section for the worker to sign as acknowledgment he/she has received the evaluation and has had the opportunity to comment, respond, etc.

– Trained Evaluators: Employers should make sure evaluators are well trained on the duties and skills of each worker’s position and to evaluate objectively the job performance of employees, avoiding extraneous questions or statements that could be construed as discriminatory.

– Appeals: Written evaluation policy and procedure should include the employee’s opportunity to appeal to senior management if that employee finds an evaluation unfair or incomplete.

An experienced employment attorney can often help management sort out the details of such policies and procedures or their application.

A worker intoxicated or under the influence of drugs on the job can not only be detrimental to productivity, but extremely dangerous to safety of the employee and those around him or her. Maintaining a comprehensive written drug and alcohol policy – covering testing, prevention, and the handling of suspected drug- or alcohol-abuse on the job – is of course very important.

Key elements include:

• Drug Testing – California employees have constitutional rights to privacy. There are detailed court decisions defining the line between an employer’s rights to test for drugs and alcohol and the workers’ rights to be left alone. A workplace policy must accurately reflect that balance. For example, only in very tightly defined circumstances are “random” drug tests ever permitted;
• Legal vs. Illegal Drugs – Written policies should include specific definitions that describe what drugs the company considers to be illegal versus legal. Also, while a business cannot discipline an employee for use of doctor-prescribed medications (including, in California, “medical marijuana”), the policy can and should also specify an employee’s duty to inform management of such drugs if their effects pose a significant safety risk in the workplace;
• Company Culture – Some businesses periodically hold employee functions where alcohol is served. If so, the policy should establish guidelines that address such alcohol use. See also, our blog Office Holiday Survival Guide, A Risky Cocktail: Alcohol and an Employee Party. A company can and should also supply a policy with other “Company Culture” guidelines, including rules and boundaries on entertaining clients; and
• Disciplinary Action – The drug and alcohol policy also should include the standards for disciplinary actions taken should an employee be found in violation. Employers should be aware of potential issues for employees who may have rights under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act , including individuals undergoing treatment for chemical dependency.

We have helped a wide range of businesses to create and update such drug and alcohol policies or to deal with suspected or confirmed substance abuse situations. We are a phone call or email away.

Resources

Institute for a Drug-Free Workplace

United States Department of Labor

Many states recognize a business’s ability to negotiate and enter contracts restricting a departing employee from taking a job with a competitor – or opening a competing business – within reasonable geographic limits and for a limited, reasonable time following the termination date. However, with very limited exceptions, such restraining agreements have been unlawful and unenforceable in California since 1872. This rule is found currently under the Business and Professions Code section 16600, which the California Supreme Court found to be “unambiguous” on this point in Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937.

On the other hand, California does recognize the right of businesses to protect their private information – including confidential customer and client listings — from public disclosure and unauthorized, competing uses. See, for example, California Civil Code sections 3426 – 3426.11. Employers can and should confirm such rights through written “non-disclosure agreements” (NDAs) with their employees.

Thus, while a company does not have the ability to limit a departing worker from immediately going to work for a competitor next door or down the street, that company can effectively limit that former employee’s ability, by court action as needed, to solicit the company’s customers for a switch to his/her new employer, as long as the business has properly protected and maintained its client list as confidential.

With the help of a qualified labor and employment attorney, a well-drafted NDA in California should strike that balance between a worker’s rights to seek new employment of his/her choosing and the company’s rights to protect its private business information from misappropriation.