A company’s required uniforms for its workforce can provide a more professional image and an espirit de corps and comradery among employees. While the federal law permits employers to require workers to finance their own mandatory uniforms under certain circumstances, California requires businesses to foot the bill.

The U.S. Fair Labor Standards Act allows employers to make wage deductions for mandatory uniforms as long as those deductions don’t reduce employees’ regular pay below the federal minimum wage of $7.25 per hour.

On the other hand, the California Labor Code section 2802 specifies that if an employer requires that an employee wear a uniform, the employer must pay the cost of that uniform.

An experienced employment law attorney can help guide business owners and human resources managers through further fine points on this issue.

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In February, 2013, the California Supreme Court decided that even where illegal discrimination (e.g., racial, gender, age, religion) was one of a number of motivating factors in terminating a worker, the employer will not be liable for damages if it can show the business would have fired that person in any event for non-discriminatory reasons.

Wynona Harris v. City of Santa Monica was the Supreme Court’s long-anticipated decision in a “mixed motive” case, where a defendant employer is found to have terminated someone for improper, discriminatory reasons as well as legitimate business purposes.

Ms. Harris was a newly hired bus driver for the city. She had a rocky start, including two accidents and two unexcused latenesses or no-shows. Under the city’s point system, termination was warranted.

While her supervisors were deciding whether to fire Ms. Harris over these offenses, she announced she was pregnant, a circumstance protected against discrimination by California’s Fair Employment and Housing Act (FEHA). See, e.g., Bowles Law Office blogs “Pregnancy Disability Leave, California Employers’ Obligations” and “Expanded Pregnancy Health Benefits Law for Most California Employees.” The city nevertheless terminated Ms. Harris a few days later, citing the above performance problems. She sued Santa Monica for pregnancy and sex discrimination under FEHA.

At trial, the judge directed the jury that the city was liable for discrimination if the employee-plaintiff was able to prove that her pregnancy was a “motivating factor/reason for the discharge.” The jury then found that Harris’s pregnancy had in part motivated the city to terminate her, awarding her $177,905 in damages and $401,187 in attorneys’ fees.

However, the Supreme Court found the trial judge’s jury instruction had been mistaken. The court resolved that if the city can prove it would have terminated Ms. Harris even if she had not been pregnant at the time, then she will not be able to collect damages nor be reinstated. While this poses a significant new barrier for plaintiffs to receive compensation for emotional distress or lost wages resulting from a “partly discriminatory” termination, the decision still permits injunctions and attorney fee awards against employers in such a “mixed motive” case. Obviously, no employer is immune from complying fully with prohibitions against unlawful discrimination.

For help on how this decision might impact your business, please contact our firm’s attorneys Tim Bowles or Cindy Bamforth.

(Photo by Paul Sakuma, Associated Press)

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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.

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In the never-ending quest to promote worker morale on the job, employers are offering an expanding range of clearly creative outlets and opportunities to escape workplace stresses. A search around the web will reveal, for example:

• Inter-office Chess Competition: this U.K. insurance company holds seasonal team battles with more ground rules than soccer’s English Premier League;

• Office Ping Pong; an Australian software enterprise now dedicates a blog to its in-house table tennis competitions. The company’s new office now features “touch screen TV that shows the office rankings, custom bat holders and special grooves to house 20 balls so you’re never short.” Become a ping-pong ninja!;

• Taco Tuesday: employees of a California real estate firm unwind in their parking lot, complete with “gourmet food” coach of choice;

• Office Olympics: for flat fees, another Australian-based company will organize or provide do-it-yourself instructions for a workplace Olympiad, with sessions between 15 minutes and two hours.

• National Junk Food Day Cupcake Social: this past July, an on-line apparel business held its second annual “Cupcake Social” at a local bistro in honor of National Junkfood Day. As they explain: “We really weren’t kidding when we said we love our junk food around here!”

• Laughter Yoga: the same apparel company had previously hosted a “laughter yoga” class. The firm writes: “ For those of you who aren’t familiar with it, laughter yoga is meant to release ‘feel-good’ hormones called endorphins, which in turn boost positive state of mind, optimism and helps strengthen the immune system. With all those awesome benefits, laughter yoga is definitely nothing to laugh at!”

Of course, management must balance all this potential morale-building with steps to minimize the chances of the fun leaving the rails. For instance, business should have written procedures and rules for:

♦ Prevention of sexual and other harassment. See, for example, “Office Holiday Survival Guide III: Harassment Hotbed”;

♦ Prevention of accidents and injuries;

♦ Proper definitions for work and off-work hours. Workplace “play time” may be actually be compensable work time if participation is expected or even required and if the purpose is primarily work-related.

When in doubt, let an experienced labor and employment legal firm assist you with the needed policies.

Law Offices of Timothy Bowles

As an employer, you might assume the company is immune from any wrongful termination claim if an employee quits on his or her own accord. However, a worker may still prove a business is responsible for wrongful “constructive discharge” even when he or she has deliberately resigned the employment.

Wrongful constructive discharge occurs when an employee is “forced“ to quit because the employer has unlawfully made working conditions unbearable. For example, an employee may complain about a possibly unsafe or improper working condition. The employee might even be mistaken about the issue, based on faulty information. If, as a result of the complaint, that worker experienced management’s continued harassment, discrimination or other unfair treatment to the degree that a reasonable person in that worker’s position would have found no alternative but to quit, the company may be liable.

A business is also prohibited from constructively discharging a worker due to that employee’s race, national origin, gender or any other classification protected from discrimination by federal and/or state law. A worker constructively discharged for such reasons has the right to claim and collect damages under workplace anti-discrimination laws, including the federal Civil Rights Act of 1964 (also known as “Title VII”) and/or the California Fair Employment and Housing Act (FEHA).

While an employee who resigns is usually not qualified to receive unemployment benefits, a worker who can show he or she was constructively discharged is an exception.

However, the applicable laws do not grant a blank check to every worker who has quit because he or she considers the employer was harsh or unfair. First, the harshness or unfairness has to stem from the worker’s exercise of protected rights or from his or her membership in a classification protected by law (race, disability, sexual preference, religion, etc.). Second, the employee has a corresponding duty to seek all reasonable resolution of such perceived harassment or discrimination that is internally available in the company. Wrongful constructive discharge occurs only where there is no reasonable alternative to solve the retaliation except to resign. This of course makes clearly written complaint policies and a personnel department skilled in handling such complaints essential.

There is a great deal more to the subject. See, for instance, our article, “Forced to Quit? A California Employment Lawyer’s Perspective on Constructive Discharge.” For help on handling or responding to specific potential or actual wrongful constructive discharge claims, contact an attorney who specializes in employer defense.

Law Offices of Timothy Bowles

The California Supreme Court has ruled that the state’s overtime requirements apply to work performed in California by non-residents. In Sullivan v. Oracle Corp., three non-resident Oracle employees worked in California as instructors and trained Oracle’s customers in the use of the company’s products. They sued the California-based company for underpayment of compensation under this state’s overtime rules (employers must pay premium rates after more than eight hours of work in a day or 40 hours in a week). Oracle asserted California’s laws did not apply as these employees worked primarily in their home states (Colorado and Arizona), traveling to California only on occasion.

The California Supreme Court sided with the plaintiff-workers. Due to California’s strong policy on protecting employee compensation, this state’s overtime rules apply to anyone performing substantial work within the state, regardless of his or her state of residency. (In this case, the employees performed labor in California for days or weeks at a time. The court noted it was not addressing the situation where an out-of-state employee, say from Las Vegas, enters and leaves California as part of a single workday.)

The court’s decision is also limited to overtime laws and does not address whether employers must also take care to ensure they comply with California’s other labor laws for non-resident employees, including time card or pay stub requirements and many others.

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Whether an employee’s visible tattoo or body piercing stems from a claimed sense of aesthetics, rebellion or “it seemed like a good idea at the time,” business has discretion to regulate appearance and thus may usually decline to hire, fail to promote or terminate that person on that basis alone.

As long as the policy is based on reasonable grounds of acceptable appearance for the particular industry or business involved, an employer may impose different standards for men and women. For instance, a professional law or accounting office would likely be able to prohibit earrings for men when permitted such jewelry for women.

However, companies must take care to seek reasonable accommodation of visible tattoos (“body art”) or piercings arising from religious belief and practice. Employers must also apply such policies consistently to prevent other possible claims of unlawful discrimination. For example, a company prohibiting visible tattoos on just lighter skinned employees is probably setting itself up for a racial or national origin discrimination suit.

Contact a labor and employment attorney for assistance creating a “uniform” appearance policy (pun intended) and for applying that policy where an employee has raised a religious or other seemingly legitimate objection.

Law Offices of Timothy Bowles

Hiring outside vendors to conduct pre-employment background checks into any criminal record, bad credit history and/or other matters is a common tool for an employer’s informed hiring decisions.

Federal and California laws cover the procedures for such checks, designed to balance a company’s right to research and obtain relevant information about job applicants and applicants’ rights of privacy on information unrelated to a hiring decision. By applying for work, a person in effect consents to some degree of scrutiny. The required forms and written notices are to make sure the process is fair. Among key points:

1. Conduct background checks even-handedly – While it is usually not sensible to have to run checks on every single applicant off the street, an employer should establish a definite point in the process at which any and all applicants would be checked. It is up to the employer to set that point and to make it known, perhaps checking on those in the final group of candidates or only on the person tentatively chosen for the job. Arbitrarily deciding who should be checked and when unnecessarily exposes the company to possible discrimination allegations;
2. Notify candidates of background checks in advance – Under the federal and California laws, an employer must let a candidate know ahead of time if the company is going to conduct a check. An employer must also provide the candidate a written summary of the applicable procedures, including the prospect’s right to see the resulting report and to challenge any aspect of the report he/she contends are inaccurate. The California law requires an employer to supply a candidate a form with “yes” and “no” boxes on whether that prospect chooses to obtain a copy of the report; and
3. Understand the limitations of background checks – It is important to be able identify personal information not considered relevant to the hiring process and thus protected from disclosure. (For a related topic, see “Pre-Employment Testing: Inquiries are Limited to Job-Related Skills and Qualities”)

The legally required procedures, notifications and forms only apply when a company utilizes an outside vendor in the business of conducting such checks. Most reputable vendors are able to supply the necessary forms and notifications although it is the employer’s ultimate responsibility to ensure compliance.

Thus, an employer’s direct check of a candidate’s references is not covered by these laws. However, it is a good idea to include on a company’s standard job application a statement that the applicant should expect the employer to contact references to obtain job-related information.

For more extensive discussion, see Pre-Employment Background Checks, Bowles Law Report, Vol. 9, Issue 3

For a business to determine or confirm whether its particular use of pre-employment background checks and other hiring practices are in compliance, management should utilize an experienced labor law attorney for the applicable state jurisdiction.

Law Offices of Timothy Bowles

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:

• Suggest “work-appropriate” costumes: Surely more than a few sexual harassment lawsuits have hinged on inappropriate costumes for an office Halloween party. Be sure to remind employees that fun and invitations for disaster are two different things. Specify what management considers inappropriate attire, including costumes that show a lot of skin, those carrying sexual innuendo, costumes glorifying alcohol usage, those with an overt religious or political message, or costumes paired with realistic weapons. Enforce these rules at the party, even if it means sending someone home.
• Distribute a notice to employee covering acceptable behavior: A day or two before the festivities send out an email and/or other notice reminding employees that while the party is a social occasion, it is among co-workers. Employees will be expected to act professionally and appropriately.
• Ban or keep alcohol consumption under control: Your business can be held liable for physical injuries caused or sexual harassment committed by a person served alcohol at a company-sponsored party. For more ideas on how to avoid any horror stories, see “A Risky Cocktail: Alcohol and an Employee Party.”

For assistance in understanding and enforcing the boundaries to avoid a Halloween party nightmare, contact an experienced employment law attorney.

Law Offices of Timothy Bowles