In our expanding world of regulation and – right or wrong – of widening political correctness, interviewing job applicants can be a precarious adventure.

The federal Title VII of the Civil Rights Act of 1964 prohibits discriminatory hiring on the basis of race, color, religion, sex/gender and national origin. Other federal and state laws bar employment discrimination the basis of physical or mental disability, age (usually 40 years-of-age or over), sexual orientation, marital status, pregnancy, medical condition, veteran status and other criteria.

Questions deemed directed at discovering an applicant’s membership in any such “protected category” can later become possible evidence of an employer’s discriminatory intentions. Thus, while any of these “getting to know you” queries may seem perfectly innocent, each of them is a potential problem in the event of a later government investigation or lawsuit:

• Are you married? Divorced? Single? Engaged?
• Do you have children?
• Do you plan to start a family?
• Do you own a home? Rent?
• Are you a citizen?
• What country do you come from?
• What is your maiden name?
• When did you graduate from high school?
• Been sick lately?
• Get that scar in the military?
• What are you doing over Christmas?

Questions to prospects that are clearly aimed at determining actual qualifications for the position applied for are usually within the rules.

Ensuring you have job application forms that fall on the right side of the law is, of course, important. We offer such forms as well as customized guidance on employment screening, hiring, training, terminations and other related issues.

Whether you’re starting a business or it’s been some years since you reviewed and updated your company’s employment forms and policies, contact us to see how we can help.

Law Offices of Timothy Bowles

The National Labor Relations Board has stepped in to defend a worker terminated over disparaging remarks she posted on Facebook about her supervisor.

The NLRB asserts that employer American Medical Response’s firing decision — as well as its policies prohibiting employees from writing about the company on social media sites — violate worker free speech rights, including freedoms to publicly discuss workplace conditions.

The Connecticut company has defended its actions: “The employee was fired because of multiple, serious complaints about her behavior. The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.”

The NLRB’s complaint is scheduled to be heard by an administrative law judge in January, 2011.

For more, see Company Accused of Firing Over Facebook Post [NY Times]

Law Offices of Timothy Bowles

Terminating an employee is never high on a manager’s fun list. No doubt, it can be a delicate task. Firing an employee the wrong way can lead to a nightmare of expensive accusation and counter-accusation, destroying workplace production and executive morale.

Prevention is key. Two recent articles cover the topic nicely:

Top 10 Employee Firing Mistakes (AllBusiness.com)

Not Legally Required, But Legally Recommended (California Employer Daily)

Have questions or observations about employee termination? Submit a comment and we’ll get back to you.

Law Offices of Timothy Bowles

Christians and Jews hold far from a “monopoly” on December as a major holiday month. Here is your end-of-the-year interfaith and cultural diversity line-up for 2010 (to the degree we could determine with a few Google searches):

Dec 1: Suijin-Matsuri – Shinto

Dec 2-9: Hanukkah – Jewish

Dec 7: Al-Hijra (New Year) – Islam

Dec 8: Bodhi Day – Buddhism

Dec 8: Immaculate Conception of Mary – Catholic Christian

Dec 12: Feast day – Our Lady of Guadalupe – Catholic Christian

Dec 12: Advent Fast Begins – Orthodox Christian

Dec 16: Ashura – Islam

Dec 16-25: Posadas Navidenas – Hispanic Christian

Dec 21: Solstice (Yule) – Wicca/Pagan

Dec 25: Christmas – Christian

Dec 26: Death of Prophet Zarathushtra – Zoroastrian

Dec 26-Jan 1: Kwanza – African cultural celebration

Dec 31: Oharai – Shinto

Dec 31-Jan 4: Maidyarem Gahambar – Zoroastrian

We suppose the “rap” on California is that a large enough office is likely to employ not only members of every group named above, but multiplicity of adherents to other spiritual groups and their equivalents, falling just short of the Church of Monday Night Football. In this state as in all others, employers must be particularly keen in December to the proper fielding of religiously based requests for time away from the office.

Under the federal Civil Rights Act, the California Fair Employment and Housing Act, and the equivalent laws of other states, businesses must seek to “reasonably accommodate” an employee’s religious observances (including, by-the-way, the sincere parallel observances of atheists and agnostics) unless any feasible approval of the request for time off results in “undue economic hardship” for the company’s operations.

The law states that such “undue hardship” need only be more than “minimal” (Latin: de minimus). However, there is also the practical aspect. Denying a request, no matter how extensive the disruption to the employer, could lead to a discrimination claim if not handled properly.

Moral, just in time for the holidays: When an employer is in doubt on whether to grant a religiously based request to be exempted from any workplace activity, it’s time to consult with a labor law attorney.

Law Offices of Timothy Bowles

Most employment agreements typically contain an arbitration clause. This requires that any employment-related dispute that cannot be resolved by direct communication or other informal means is to be arbitrated instead of going to court. Arbitration is a form of private dispute resolution that takes the place of a lawsuit and court trial.

Arbitration has many business-related advantages, including a process much more efficient than the often-prolonged procedures of the courts. Thus, employers naturally favor this alternative. The key is ensuring the terms of the arbitration are enforceable.

Many employers make the mistake of providing an “arbitration clause” in employment applications or contracts without attention to the very specific requirements of California and/or other applicable law. If a court finds that the arbitration agreement is so one-sided in favor of the employer as to be “unconscionable” (i.e., there is no equal bargaining power, no meaningful choice and the terms are grossly unfair to the employee), the court can refuse to enforce the arbitration clause.

Moreover, the applicable California law on unconscionable arbitration agreements continues to change, with major Supreme Court decisions on the subject over the last several years.

Law Offices of Timothy Bowles

Families can sometimes have some very expensive misconceptions about California’s rules for hiring a private, live-in caregiver. For starters, it is never a good idea to have verbal “handshake” agreement to compensate through a combination of money, housing and/or meals. Common mistakes include:

• Presuming the caregiver fits the California definition of “personal attendant” when not all elements are stated in writing or are not actually met in practice (www.dir.ca.gov/iwc/WageOrders2006/iwcarticle15.html at “Definitions,” section 2(J));
• Paying a caregiver less than minimum wage (currently $8.00/hour in California), even if he or she “agrees” to a lower rate of compensation (no such agreement is enforceable);
• Subtracting the “market value” of housing and/or meals when calculating the caregiver’s compensation. California Wage Order 15, section 10 defines the value of housing and meals below market value for live-in caregivers (www.dir.ca.gov/iwc/WageOrders2006/iwcarticle15.html);
• Failing to keep accurate records of hours worked and time off. Should a caregiver file a wage claim (including any possible overtime pay), written time records could be crucial;
• Assigning a caregiver as an “independent contractor” to avoid the minimum wage (or any overtime) obligations. It is unlikely that a full time caregiver could be classified as an independent contractor, even if there is a written agreement in place. This is because the hiring family member will almost certainly want to retain control over how the caregiver accomplishes his or her work. That right to control and direct will likely classify the caregiver as an employee no matter how the parties seek to label the relationship.

Thus, pertinent words to the wise include:

• Define in a written agreement the terms of the caregiver’s employment, including duties and compensation. That agreement should specify the relationship is “at will,” meaning the caregiver can resign or be released from employment at any time, with or without cause or advance notice. It is also a good idea to specify that a live-in caregiver will vacate the premises promptly when employment ends;
• Pay the caregiver at least minimum wage for all “hours worked,” defined by law as any time an employee is “suffered or permitted to work.” In other words, all time the caregiver is on duty; and
• Have the caregiver maintain a written log of all hours worked with the caregiver confirming in writing its accuracy each day.

Law Offices of Timothy Bowles

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.

Law Offices of Timothy Bowles

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.

Law Offices of Timothy Bowles

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.

Law Offices of Timothy Bowles