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

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.

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

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:

• An independent contractor’s occupation is distinctly different from the product of the hiring company (e.g., a manufacturing company hires an outside lawyer to write represent the business in court);
• An independent contractor’s work is not part of the regular business of the hiring entity (an auto dealer retains a marketing consultant to analyze purchasing trends);
• An independent contractor commonly provides his or her own tools and workspace and covers his/her overhead expenses;
• An independent contractor usually provides a specialized service or skill (e.g,., a professional accountant delivering financial services under his/her distinct license);
• An independent contractor’s work is usually unsupervised and the hiring company lacks the right to control (i.e., micro-manage or supervise) the course of that contractor’s labors;
• The length of time for an independent contractor’s services are classically short-term, project by project; and
• The method of payment for an independent contractor’s services is usually by the job, not by the hour or other period of time.

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.

Law Offices of Timothy Bowles

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:

• Bringing risqué joke gifts;
• Wearing suggestive “party” attire;
• Complimenting a co-worker’s body after one too many drinks;
• Frat house antics, e.g., “competition” for predatory sexual liaisons; or
• Dancing romantically or suggestively with a subordinate or co-worker.

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:

• Re-publish, re-distribute the company’s sexual harassment policy before event takes place;
• Remind employees in advance that while holiday festivities are to be enjoyed, they do not offer an excuse for violating policy;
• Issue a business attire or other appropriate “dress code” in advance;
• Limit the availability of free alcoholic drinks and take other measures suggested in our “Office Holiday Survival Guide I, A Risky Cocktail: Alcohol and an Employee Party;”
• Hold the party during the day, with work to continue afterwards;
• Reduce the opportunities for unwelcome situations by avoiding inappropriately suggestive music or party games like “Twister” or “Truth or Dare” (strip poker is also out); and
• Avoid decorating with mistletoe.

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.

Law Offices of Timothy Bowles

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:

• 56.5 cents per mile for business miles driven
• 24 cents per mile driven for medical or moving purposes
• 14 cents per mile driven in service of charitable organization

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.

Law Offices of Timothy Bowles

All employers with 100 or more employees must profile the gender, race and job category of their workers by September 30^th 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.

Law Offices of Timothy Bowles

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.

Law Offices of Timothy Bowles

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.

Law Offices of Timothy Bowles