Hiring a teen under age 18 involves some essentials:

1. Familiarity with Applicable Laws: Review federal and state laws on teen employment — especially the rules on what types of jobs teens are not allowed to perform. Many small businesses, and especially those just starting out, aren’t sure what’s required of them, or where to look for help. The information available through the U.S. Department of Labor and an on-line search for “__________ child labor laws” should be helpful.

2. California’s On-Line Information Resources: The California Department of Labor Standards enforcement has a special website devoted to this state’s rules on minors and employment. The site’s summary is particularly helpful: http://www.dir.ca.gov/dlse/MinorsSummaryCharts.pdf.

3. More Stringent State Laws Apply: The federal Fair Labor Standards Act (FLSA) sets minimum wage, overtime pay, recordkeeping, and child labor rules affecting full- and part-time workers in most of the private sector nationwide. An employer must also comply with any more stringent state laws that apply. For example, while federal child labor rules do not require work permits, many states do require them, including California. Also, the rules will vary depending on the age of the minor worker and his or her duties.

4. Hours and Age Restrictions: For minors (under 18) employed in non-agricultural jobs, federal restrictions include:

– Minimum age is 14.

– Youth 16 or 17 may perform any non-hazardous job for unlimited hours when school is not in session and outside school hours when in session.

– Unless it’s the family farm, youth 14 and 15 years old may only work in non-manufacturing, non-mining, non-hazardous jobs. They cannot work more than three hours a day on school days; or more than 40 hours per week when school is not in session.

– During the school year, 14- and 15-year-olds may not work before 7:00 a.m. or after 7:00 p.m. The cut-off time is extended to 9:00 p.m. when school is not in session (summer).

5. Safety Regulations: Whether or not minors are on the workforce, an employer must ensure its working environment complies with applicable safety regulations. A small business’s best starting point is probably the federal Occupational Safety and Health Administration’s (OSHA’s) website: www.osha.gov/smallbusiness. Check out the “Compliance Assistance Quick” Start section which helps new small businesses understand the rules and find the right resources. Dozens of private suppliers also sell OSHA compliance materials. Also review the applicable sections for the California OSHA (“Cal OSHA”) site.

6. Resources for Workplace Safety of Minors: “Young Workers” is a helpful government site with information on summer job safety for specific sectors, including construction, landscaping, parks and recreation, lifeguarding and restaurants. Under landscaping, for example, you’ll find tips on preventing injury from pesticides, electrical hazards, noise and many others. (www.osha.gov/SLTC/teenworkers)

7. Resources for Restaurant Safety of Minor Employees: Restaurants rank especially high among industries at risk for teen worker injuries. OSHA has a website devoted to such restaurant safety, covering serving, drive-thru, cooking, delivery and others aspects of the business. (www.osha.gov/SLTC/youth/restaurant/)

Labor law regulations vary depending the industry and type of job a minor is hired to perform. Before you assign a job to a minor, contact an experienced California employment law attorney to ensure you do so lawfully.

While a manager’s “gut instinct” might work when choosing which candidate to hire, it might not. Employing an individual who makes a seemingly great first impression in an interview but who turns out to be a dud or hell-on-wheels once in the stress of the working environment can be a very expensive mistake.

Pre-employment testing on job-related qualifications and capacities, conducted within the limits of the various disability discrimination laws, California’s privacy protections, and other applicable requirements can help employers better understand and predict the physical abilities, mental acuity, temperament and communication skills of their job candidates.

The applicable law includes:

(1) The federal Americans with Disabilities Act (ADA) and its California counterpart, the Fair Employment and Housing Act (FEHA), prohibiting discrimination against those with physical or mental disablities;

(2) California’s strong constitutional and other legal protections against private business’s intrusion into personal privacy;

(3) California’s prohibition against political “coercion” in the workplace;

(4) California’s prohibition on the use of lie detectors “and similar tests or examinations”; and

(5) The federal and state laws prohibiting discrimination in employment on the basis of “protected classifications,” including gender/sex, race, color, national origin, religion, age (40 or more years old), and several others.

In essence, a hiring company must ensure its pre-employment testing regimen limits inquiry to a candidate’s abilities and traits directly related to the job and working environment at issue. Employers cannot ask irrelevant and improper questions about an applicant’s personal life or his or her otherwise unknown membership in a protected classification, including, for example, race, national origin, sexual preference, religion, or mental or physical disability.

Of course, clear-cut application forms and policies on employment screening, hiring, training and a regular review of any testing line-up with the help of an experienced labor and employment attorney are common sense.

Employment sex or gender discrimination arises from treating male and female employees with comparable skills and in comparable jobs differently. Personnel decisions must be made on the basis of skills and other job-related qualifications. Unless a person’s sex is a job requirement (e.g., locker room attendants in a sports club), choosing to hire, discipline, fire, train, promote or make any other major employment decision based on an individual’s gender is unlawful. Thus, for example:

• Hiring/Firing/Promotions: With the exception of obvious examples such as locker room attendants or medical assistants, an employer should take care to avoid decisions to hire, fire or promote founded on a consideration that the company’s long-time clients might be more comfortable dealing with men or with women. Hair stylists or flight attendants are good illustrations. In such an instance, laying off an employee not of the supposedly preferred gender, but with a good track record and more seniority over co-workers of the other sex, could lead to trouble.

• Pay: A company must pay female employees the same as their male counterparts working in similar positions with comparable work experience. Thus, paying a newly-hired male employee more than a female employee who has worked longer at the same or similar position could also create a discrimination claim. See also, The Equal Pay Act.

• Benefits: Employers must provide comparable health insurance benefits to all employees regardless of gender. Of course, if available, pregnancy coverage only applies to females. However, if a business provides any sort of paid benefit to female workers to help cover newborn childcare, the company should also provide such benefits to male workers similarly caring for his child.

While the term “sexual harassment” is not found the text of “Title VII” (the nickname for United States Civil Rights Act of 1964), the federal (and state) courts have consistently held for decades that unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature are potentially forms of unlawful gender discrimination. Annoying sexually based conduct generally becomes unlawful sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual’s employment or is so intimidating, hostile or offensive that it unreasonably interferes with an individual’s work performance.

If management receives an employee complaint of sex/gender discrimination or observes an actual or possible gender-based discrimination or harassment situation, consultation with an attorney who specializes in employer representation is a good idea.

A company catering to English-speaking clientele may implement appropriate English-only rules and language fluency requirements in the name of customer service. However, such employers must ensure that such policies are fairly and only applied for business-based reasons. For example, declining to hire an individual who speaks English proficiently with an unfamiliar accent might well open the company to employment discrimination claims and liability.

Federal and state laws prohibit discrimination based on national origin, including a person’s ancestry, birthplace, culture, or surname associated with a particular ethnicity. As an employee’s accent is generally associated with national origin, turning down an employment application (or terminating a person’s job) on that basis alone could be unlawful.

Any workplace linguistic requirements must be truly necessary for employer’s conduct of business. The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces the U.S. laws prohibiting discrimination, considers language proficiency requirements legal if such fluency is actually required to effectively perform a particular job position or skill. Blanket fluency requirements that do not distinguish the higher proficiency skills that might apply to some jobs, for example customer service representatives, and the lower skills expected of other positions, e.g., warehouse workers or other manual laborers, would likely be subject to challenge.

These standards of course apply for fluency requirements in other languages. A business with a predominant number of Spanish-only speaking customers can require employees who interact with such public to speak fluent Spanish. If such employees are also expected to communicate effectively and efficiently with managers and executives who only speak English, the company could legitimately require those employees to be bilingual.

Some instances that may not be clear cut. A manager may judge an employee’s accent to be so thick and unintelligible that it in effect amounts to an inability to speak the English customers are accustomed to speaking. Yet, if asked, many customers might disagree, claiming they can understand and converse with that worker perfectly well. Thus, that manager’s judgment would be to some degree subjective and thus subject to discrimination charges.

For assistance in steering clear of language-based national origin discrimination at your business, contact a seasoned employment law lawyer.

California businesses with 50 or more employees must comply with the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). For eligible employees, both acts are essentially “you will have your job waiting for you” laws. Neither FMLA nor CFRA provides for paid leave. However there are some circumstances where an employer may require a worker exercising such leave rights to expend available paid vacation benefits during his or her absence.

Each of these leave laws requires such employers to provide an eligible worker with a maximum of 12 weeks unpaid leave in a 12 month period. (FMLA also directs a covered employer to provide an eligible employee with up to 26 weeks of unpaid leave to care for certain relatives injured or ill in the course of military service.)

An employee is “eligible” for a FMLA or CFRA leave if: 1) he or she works at a site with 50 or more employees within a 75-mile radius; and 2) he or she has worked for that employer for 12 months or more (need not be consecutive) and at least 1,250 within the past year. While the rules can be involved, an eligible employee may take a FMLA or CFRA leave for his or her own “serious medical condition” (as defined by law), for the care of a family member or domestic partner so afflicted, for pregnancy-related disability (FMLA only), or for bonding with a newborn or adopted child.

Paid vacation time to employees is not a requirement in California. However, the practice is common as it usually promotes worker morale and productivity. Once a business provides such a benefit, it is subject to certain rules. See, Vacation Pay in California, No Picnic for Employers Who Don’t Know the Rules. With clearly stated written policy, a company may also require employees to use such vacation benefit during an otherwise unpaid FMLA or CFRA leave, but only in certain situations.

Federal law establishes the general rule. An employer “may require the employee to substitute accrued paid leave for unpaid FMLA leave…. [as] determined by the terms and conditions of the employer’s normal leave policy.” See, 29 Code of Federal Regulations (CFR) section 825.207(a), Substitution of Paid Leave.

However, if the subject employee taking such a leave qualifies to receive disability benefits (for example, if he or she is eligible to receive paid California’s State Disability Insurance [SDI] for a serious health condition), then “neither the employee nor the employer may require the substitution of paid leave.” 29 CFR section 825.207(d).

On the other hand, employer and employee may agree to use such accrued vacation benefits to supplement amounts received under state disability. For example, state-insured and provided disability pay might only replace up to two-thirds of an employee’s salary. In that case, that worker and his or her employer can agree to apply accrued vacation benefits to make up the difference.

As situations and circumstances can be varied and complex, seeking the assistance of qualified legal counsel to assist on creation and application of appropriate FMLA/CFRA leave policies is of course a good idea. It is also good practice for employers to review the workplace policy manual regularly to confirm compliance with applicable federal and state regulations.

California’s workplace overtime rules do not apply to those workers who qualify for exemption under one or more categories, including:

Executive Exemption: Executive employees are exempt from overtime if paid on a salary (current minimum is $640 per week; $2,773.33 monthly) and if primarily (over 50%) engaged office or non-manual management of at least two personnel below them in the chain of command and with authority to exercise discretion and independent judgment on the post. “Management” means having and exercising the authority for full responsibility over the planning, recruiting, work priorities and allocation, coordination, documentation (e.g., statistics, evaluations of personnel performance) and production results of a company or a distinct area of a company. See also, “The California Executive Exemption”;

Administrative Exemption: Administrators are exempt if paid on salary as above for executives and if primarily (over 50%) engaged office or non-manual work on planning, organizing, or enabling production concerning, for example, creation or execution of the management policies or general business operations of his/her employer or his/her employer’s customers. An exempt administrator must regularly and customarily exercise independent judgment and discretion in his/her position. See also, “Administrators and Overtime Pay in California”; “The California Administrative Exemption”;

Professional Exemption: An individual is an exempt professional if paid on salary as above and primarily (over 50%) engaged in one of several specified licensed occupations (including law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting) or in an “occupation commonly recognized as a learned or artistic profession.” As above, an exempt professional must regularly and customarily exercise independent judgment and discretion in his/her position.

A worker is exempt from California’s overtime rules if he meets the detailed duties and compensation requirements for an inside salesperson; an outside salespersons; or an computer employees. There are a host of other avocations (for example, interstate truck drivers) that may be exempt from California overtime rules because of the preemption of federal or other laws.

Classification of a worker as exempt from overtime is a detailed, sometimes complex process, best accomplished with the aid of a skilled employment law attorney.

Commissions payable to former employees present a special set of issues for California business. The importance of actions to prevent disputes increases over 2012 as the state will require all employee commission agreements to be in writing by December 31. See, “Employee Commissions”

California requires that all earned compensation must be paid at least twice per month. An employer also must usually pay a worker all earned compensation immediately upon termination or be subject to penalty for each day of delay up to a 30 day maximum. However, an employee may not have earned a sales commission at termination if, for instance, the company requires the customer’s actual payment of funds before commission on those funds is owing. The employer must pay such a commission earned after termination immediately upon the receipt of the funds.

Determination of just when a commission is “earned” can become quite contentious at or following termination unless there is a clear written guideline. What of the commission for a particular account a salesperson was instrumental in securing but which did not actually close until shortly after that employee has departed the company? Is a commission earned when the customer agrees to do business, makes an order, pays for an order, or receives and is satisfied with the order?

The answer can legitimately be any of these, depending on the scope of the salesperson’s responsibilities to ensure completion of the transaction. However, that proper “earning point” could be anyone’s guess if there is no written standard. It also could be a litigation nightmare if a salesperson leaves employment before the employer considers one or more commissions have been earned and the stakes are high enough.

Actions that can reduce the potential for such post-termination disputes include:

• Unambiguous contract terms with each salesperson establishing the worker’s responsibilities for a successful complete transaction and a corresponding point in that transaction when the commission is earned and payable; and
• Where possible, forthright and constructive communication between management and the salesperson at termination to confirm or reach specific written resolution on the latter’s rights to commissions on pending transactions.

Skilled legal counsel can almost certainly help anticipate and deal with the grey areas on commission rules before any problems actually arise.

For more information, see the DLSE’s FAQ on Paydays, Pay Periods and the Final Wages.

As “at-will” status permits either the employer or the employee to freely end the relationship even with no advance notice and for no reason at all, obviously a business can legitimately terminate an “at-will” worker for not showing up or for being late. However, there are some practical considerations.

Normally, management should not be moved to make such a significant move on a single instance or a few isolated occurrences. Termination is rarely the first solution since a company has usually gone through some expense and time to train an individual worker. The majority of absent or tardy employees are willing and able to improve their reliability by a discussion alone.

It also matters why the worker has been absent or late. If the employer is aware the employee was injured on the job but must fill the person’s position to maintain operations, that company should take care to document the business necessity of having to lay off that injured worker. An individual may have a discrimination claim if he can show that management terminated him or her because he/she has filed or who intends to file for workers’ compensation insurance recovery.

Similarly, certain workers unable to work due to any illness, injury or temporary disability may be entitled to unpaid leave and reinstatement to their old or a comparable position. Such rights depend on the size of the company among other factors. For instance, in California, any business with five or more persons on its payroll must provide up to four months unpaid leave for an employee unable to work due to medical complications of pregnancy, childbirth or newborn care.

While an employee exercising a right to any such unpaid leave is entitled to have his or her former job back or a comparable position as long as he/she returns to work within the legally specified time limit, such worker is entitled to no greater protection against a business-related termination than if he or she was not out on a leave. For example, if a company must for business reasons lay off a significant number of workers, those out on leave are entitled to no greater protection than if they were still working at the time.

Thus, again, management must take particular care when laying off a worker currently out on a protected leave. This is a situation where a company should almost certainly seek the guidance of skilled legal counsel. Among the many precautions, an employer should document the business reasons for the decision to the greatest extent reasonably possible. Even then, management should communicate forthrightly with the person on leave and seriously consider offering that worker severance pay in exchange for a signed release document.

See also, “Written Employee Attendance Policy,” “Pregnancy Disability Leave, Employers’ Obligations,’ “Disability and Leave of Absence Policies, Keeping Up with Changing Employment Laws,” and “Termination Of Employees, How To Fire A Troublesome Worker Without Getting Burned.’

The best handling for workplace theft is to prevent it in the first place. Suspected or alleged employee thievery – and an employer’s twin obligations to protect the group against an actual thief and to protect the accused from false charges — is a delicate challenge. A company’s much more straightforward task is to implement policies and security measures designed to deter the criminally tempted.

Yet, stealing can occur regardless. A clearly written and regularly updated employee handbook should thus include standards and rules for conduct, reporting, investigation, fair hearing and discipline that discourage as well as address such alleged bad behavior. Company executives as well as policy must promote the purpose of reporting and investigation: to maintain a safe, just and trusting work environment. It is leadership’s responsibility to ensure that staff are not altogether intimidated out of raising a theft or other crime problem to management. Leadership must also assure that employees are not reduced to apathy from unfair procedures that prevent the full airing of accusations and discourage justice.

California and many other states maintain “employment-at-will” as the presumed working relationship between employer and workers. “At will” means that either side may end the relationship at any time, with or without advance notice and with or without any reason for the termination.

However, “at will” employment is not any manager’s or worker’s license to treat fellow employees harshly or unfairly. While an employer may fire someone for no reason, that company may not terminate for an unlawful reason. Thus, if management lets someone go for an unsubstantiated accusation of theft, the incident could lead to an action for defamation by the accused against the company as well as the individual accuser. If management summarily fires an employee for having mistakenly reported an innocent co-worker’s embezzlement, that now-former employee might well have a claim for unlawful retaliation over the incident.

In the face of alleged workplace theft, it is thus a good idea for management to consult with a skilled employment lawyer for guidance on the conduct of an impartial investigation and on any ensuing steps for discipline or termination.