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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
Federal law requires every employer hiring any individual in the United States to verify the prospect’s identity and employment authorization through completion ofForm I-9, Employment Eligibility Verification.
Federal law requires every employer hiring any individual in the United States to verify the prospect’s identity and employment authorization through completion of Form I-9, Employment Eligibility Verification.
An employer must complete an I-9 form for every person hired, even if there’s just one employee in the business. It is improper for a company to only require forms for those whose ethnicity management might assume indicates a higher possibility of unauthorized status. An employer also cannot base a hiring decision (or any employment decision) on a person’s ethnicity. See, “National Origin Discrimination.”
I-9 forms can be obtained from the US Citizenship and Immigration Services website. Employers can also use the website’s free e-verify system.
A company need not complete an I-9 form for an independent contractor. However, managers must take care not to mislabel or mistake a true employee as an independent.
Complaints about employing illegal workers may prompt an investigation from the U.S. Department of Labor or U.S. Immigration and Customs Enforcement (ICE). An employer can be fined and otherwise sanctioned for: i) knowingly hiring an undocumented worker; or ii) unknowingly hiring an undocumented worker if a reasonable person would believe the employee was illegally employed.
Thus, if an applicant provides information and documents which, on their face, appear valid and consistent, an employer has no obligation to investigate further. On the other hand, an employer must probe further if the documentation or other information supplied appears suspect, for example, obvious forgery or contradictory statements from the prospect.
For assistance complying with U.S. immigration laws for your business, contact an attorney experienced in immigration and employment.
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.
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:
For assistance in understanding and enforcing the boundaries to avoid a Halloween party nightmare, contact an experienced employment law attorney.
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.
California Employers Must Pay Wages and Mileage for “Off-Hours” Work-Related Tasks
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:
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.
All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30thon theEEO-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 federalCivil Rights Act of 1964, commonly referred to as “Title VII.”
All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30th 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.
A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck. He wrote: “I’m no longer working for [the employer] and I thought I was going to get my paid time off with my last check such as … sick time and vacation time. What happened?”
A worker recently asked whether his now-former employer should have included sick time and vacation time in his final paycheck. He wrote: “I’m no longer working for [the employer] and I thought I was going to get my paid time off with my last check such as … sick time and vacation time. What happened?”
A qualified employment lawyer would have to look over that employer’s specific policies and have more information on the circumstances to provide a more complete answer for this particular incident. However, California’s laws on the general rules for the final paycheck are the starting point.
When an employer terminates a worker without advance notice, all wages and earned but unused paid vacation are due and payable immediately.
Earned Vacation Pay Must be Included in Final Check: California does not require an employer to provide paid vacation to any of its workers. However, when a business does offer this benefit, an important rule applies. Our article “California Vacation Pay” observes: “Under California law, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of the employee’s earned and accrued vacation hours, the employer must pay the employee these hours.”
Sick Pay May Not Have to be Included, Depending on the Specific Company Policy: California also does not require an employer to provide paid sick time to any of its workers. However, when a business does offer this benefit, another rule generally applies. Our introduction article, “California Sick Leave and Sick Pay”, states: “If such an employer does provide paid sick time, a worker has the right to take it as long he or she complies with company rules on the subject. Unlike vacation pay benefits which accrue and are payable on termination if not previously used, business can specify a “use it or lose it” policy on paid sick time, e.g., any portion of entitled sick pay an employee does not utilize in a set period (usually a calendar year) lapses and is no longer available. Typically workplace policies specify new amounts of available paid sick time for each successive annual or other period. It is up to the California employer to decide how much benefit to offer each year or other period.”
The situation may not be so clean-cut. Some workplace policies combine paid vacation days, personal days and sick days into a single “paid time off” policy. In this instance, all such days are an accruing benefit and the employer must pay the amount equal to the earned but unused days at termination. Again, it requires full review of an employer’s exact policies to give a fuller answer in specific circumstances.
For help to employers on how to structure and administer paid vacation, sick and personal day’s policies, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.
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.