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Employment policy doesn't have to be written but you will never hear this firm saying that. Particularly in litigation happy California, clearly stating personnel expectations and boundaries in a regularly updated manual or other compilation is not just good sense, it can amount to business suicide prevention.
Employment policy doesn't have to be written but you will never hear this firm saying that. Particularly in litigation happy California, clearly stating personnel expectations and boundaries in a regularly updated manual or other compilation is not just good sense, it can amount to business suicide prevention.
Written workplace policy and protocols should include but not be limited to:
Businesses may also need to follow particular industry personnel rules that should be in writing, e.g., the current COVID prevention standards for health care practices and the affirmative action protocols for certain federal/state contractors.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Tim Bowles
April 22, 2022
On February 10, 2022, California Department of Fair Employment and Housing (DFEH)announceda suit againstTesla, Inc.alleging racial discrimination against Black employees, including segregation to the lowest levels of the workforce.
On February 10, 2022, California Department of Fair Employment and Housing (DFEH) announced a suit against Tesla, Inc. alleging racial discrimination against Black employees, including segregation to the lowest levels of the workforce.
The DFEH contends Tesla turned a blind eye to extensive Black worker complaints of near-constant racist language and graffiti, including swastikas and other hate symbols.
The suit seeks monetary and punitive damages as well as injunctive relief to prevent future violations.
DFEH district director Kevin Kish commented, "After receiving hundreds of complaints from workers and a nearly three-year investigation, DFEH found evidence that Tesla operates a racially segregated workplace where Black workers are subjected to racial slurs and discriminated against in job assignments, discipline, pay and promotion."
The company denies the allegations: "Tesla strongly opposes all forms of discrimination and harassment and has a dedicated Employee Relations team that responds to and investigates all complaints. We also have a Diversity, Equity, and Inclusion team whose work is shown in this public report. Tesla has always disciplined and terminated employees who engage in misconduct .... Above all, Tesla continues to seek to provide a workplace that is safe, respectful, fair, and inclusive - all of which are vital to achieving our mission."
Take-aways:
The suit illustrates why employers should correctly train management and workers to prevent, detect and document resolution of all forms of unlawful or inappropriate harassment, discrimination and retaliation.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy BamforthApril 15, 2022
By June 30, 2021, California employers with more than 50 on payroll were required to ● offer employees a retirement savings plan such as a 401(k); or ● to facilitate employee access toCalSavers, a state-run savings program for automatic payroll deductions deposited into aRoth IRA. SeeMandatory Options for Retirement Funding: Mid-Size Employers Must Register for CalSavers by June 30, 2021(June 4, 2021).
By June 30, 2021, California employers with more than 50 on payroll were required to ● offer employees a retirement savings plan such as a 401(k); or ● to facilitate employee access to CalSavers, a state-run savings program for automatic payroll deductions deposited into a Roth IRA. See Mandatory Options for Retirement Funding: Mid-Size Employers Must Register for CalSavers by June 30, 2021 (June 4, 2021).
Affected smaller employers - those with a minimum of five on payroll which do not have existing retirement plans - must register with the program by June 30, 2022 and comply with the required administrative duties (see Employer FAQs ).
While registration is free, employers who fail to register within 90 days of service of a noncompliance notice will be charged a $250 penalty for each eligible employee, increasing to $750 per employee after 180 days.
Employers must only offer CalSavers participation. They may not advise employees on investments or savings, promote or discourage CalSavers participation, or make/match contributions.
Upon an employer's registration, CalSavers will contact each employee directly. Employees may opt out within 30 days of receiving the initial paperwork (see Employee Program Details) and are otherwise automatically enrolled. Participants will accrue five percent interest on their set-asides. Employers must show these retirement deductions on the worker's itemized wage statement (see California Labor Code section 226(a)(4)).
Take-Away: Companies employing five or more and that do not already offer employee retirement accounts must register with CalSavers by June 30, 2022.
For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
April 15, 2022
Each California employer is required to give employeesat least one day off during the company's defined seven-day workweek(e.g., Monday to Sunday; Sunday to Saturday). There are three main exceptions:
Each California employer is required to give employees at least one day off during the company's defined seven-day workweek (e.g., Monday to Sunday; Sunday to Saturday). There are three main exceptions:
● the company may request an employee to work on the seventh day of a workweek if this is reasonably necessary, for example an unforeseen shortage of adequate workers due to illness or other factors. The employee shall be entitled to receive applicable overtime for that day as well as equivalent rest days during the same calendar month;
● the employee, fully informed of his/her entitlement to the rest day, voluntarily chooses not to take that day in any seven-day workweek, in which case he/she must receive advance scheduling and overtime approval from his/her supervisor. Such employees will receive applicable overtime pay but they will not be entitled to receive equivalent rest days during the same calendar month; and
● the employee works a seven-day workweek of no more than 30 hours and never more than six hours on any day of that workweek. Such employees will receive applicable overtime pay but they will not be entitled to receive equivalent rest days during the same calendar month.
This one-in-seven rule only applies to a business's particular seven-day workweek and not on a "rolling" seven-day sequence. Mendoza v. Nordstrom, Inc., 2 California Reports (Cal.) 5th 1074 (2017).
For example, with a company that defines the workweek as Monday through the following Sunday, it is possible for the employer to provide Monday off on a given week one and Sunday off on the following week, with 12 straight days of labor in-between.
A violation of the rules is a misdemeanor and subjects the employer to civil penalties.
Take-Aways: Management must operate under policy and practice consistent with these rules. Correct and thorough documentation, including the employee's written acknowledgment, is vital for the worker opting for working on the seventh day.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin
See also:
Tim Bowles
April 7, 2022
As larger employers have been discovering lately,arbitration agreementscan be more of a curse than a blessing.
As larger employers have been discovering lately, arbitration agreements can be more of a curse than a blessing.
In Abernathy v. Doordash, Inc., over 6,000 delivery drivers (couriers) - who had previously agreed to arbitrate any disputes - filed individual arbitration demands with the American Arbitration Association (AAA) alleging they had each been improperly classified as independent contractors rather than employees.
When Doordash received a $12 million invoice for AAA's filing fees, it sought to pump the brakes on the proceedings. In granting the couriers' motion to compel the arbitrations, the court scathingly concluded: "The employer here, DoorDash, faced with having to actually honor its side of the bargain, now blanches at the cost of the filing fees it agreed to pay in the arbitration clause. No doubt, DoorDash never expected that so many would actually seek arbitration. Instead, in irony upon irony, DoorDash now wishes to resort to a class-wide lawsuit, the very device it denied to the workers, to avoid its duty to arbitrate. This hypocrisy will not be blessed, at least by this order."
Arbitration has many business-related advantages, including a more efficient, time-saving process that does not involve a potentially more subjective jury process. Arbitration agreements can also include a class action "waiver" that would require the worker to resolve his or her specific employment complaint in an individualized arbitration proceeding.
In California, employers must pay for the lion's share of the costs of arbitration upon receipt of the arbitration provider's invoice. As the Abernathy ruling illustrates, arbitration can add up to even millions of dollars in up-front arbitration filing costs, thereby forcing the employer to settle regardless of the merits of the claims.
To make matters worse, an employer's failure to pay these arbitration fees: ● gives each employee the options of proceeding in court or proceeding with the arbitration, with the employer to cover the employee's attorney's fees and costs caused by its non-payment; and ● in extreme cases gives the court the power to strip the employer of defending itself.
Take-Aways:
For larger employers, arbitration agreements removing an employee's ability to bring or take part in a class action might not be the best choice for the huge fees they may generate. It's best to consult with an employment attorney before abandoning or modifying workplace arbitration agreements to minimize the likelihood of - or costly effects of - a mass arbitration strategy as above.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
April 6, 2022
Employers must maintain accurate records of all time worked by hourly employees.Labor Code 1174(d). Management may not prohibit employees from keeping a personal record of such work time.
Employers must maintain accurate records of all time worked by hourly employees. Labor Code 1174(d). Management may not prohibit employees from keeping a personal record of such work time.
Accordingly, time records - whether manual or electronic - should include an hourly worker's daily shift start and end times and the beginning and end times for any meal period.
Other best practices:
Employers may also implement policy to calculate work time by rounding to the nearest tenth or one-quarter of an hour as long as the employee is paid for all hours worked over a period of time. See, See's Candy v. Superior Court, 210 Cal.App.4th 889 (2012).
However, such rounding practices cannot apply to the 30-minute meal break. See, Kennedy Donohue v. AMN Services, Inc., 11Cal. 5th 58 (2021).
In contrast to the federal standard that allows employers to avoid paying wages for a worker's few seconds or minutes of labor after clocking out (the "de minimis" rule), California requires companies to pay employees for every moment of work, e.g., exiting a store and locking up after setting an alarm or walking co-workers to their cars. See, Troester v. Starbuck's, 5 Cal.5th 829 (2018).
Rejecting the argument that tracking what might be trivial amounts of "after clock" work time was unreasonably difficult, the California Supreme Court in Troester observed that technological advances - e.g., smartphone apps - enable and require employers to be proactive in measuring and paying for such extra labor regularly performed.
Take-Away: California employers can face expensive legal challenges and significant liability for failure to operate from clearly stated, compliant timekeeping practices and for neglecting to regularly confirm all hourly workers are following suit. See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Timothy Bowles
April 1, 2022
Federal law requires employers to obtain from every new worker a completedForm I-9and satisfactory supporting documents fromLists A, B and/or Cas a condition of hiring. The documents on List B establish identity only, such as driver's licenses, voter registration cards, or military IDs.
Federal law requires employers to obtain from every new worker a completed Form I-9 and satisfactory supporting documents from Lists A, B and/or C as a condition of hiring. The documents on List B establish identity only, such as driver's licenses, voter registration cards, or military IDs.
To accommodate pandemic disruptions, U.S. Citizenship & Immigration Services (USCIS) issued rules effective May 1, 2020 that permitted employers to temporarily accept expired List B identity documents when renewal was impossible due to closed motor vehicle or other government offices.
With most such offices now reopened and new alternative renewal methods in place, USCIS is canceling this relaxed requirement. Starting May 1, 2022, employers must only accept unexpired List B documents.
For persons they still employ, companies that accepted expired documents under the temporary rule must obtain either a renewed or different unexpired List B document by July 31, 2022. Management must also document compliance in the "Additional Information" field on each affected employee's I-9 form. No such action is required for persons no longer employed.
Take-Away: As of May 1, 2022, all employers must stop accepting expired List B documents. They also must replace expired documents previously accepted by July 31, 2022.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Helena Kobrin
March 31, 2022
A troublingMarch 15, 2022 reportshows California's largest employers have yet to ensure adequate equal employment opportunities in their hiring and pay practices.
A troubling March 15, 2022 report shows California's largest employers have yet to ensure adequate equal employment opportunities in their hiring and pay practices.
Responsible for enforcing this state's equal pay laws, the Department of Fair Employment & Housing (DFEH), on survey of businesses together employing some 6.3 million workers, has found:
DFEH Director Kevin Kish stated, "Today's report reinforces the need for employers to review their compensation and other employment practices to correct pay disparities and ensure equal opportunity in their workplaces. DFEH will continue to vigorously enforce California's equal pay and antidiscrimination laws."
As a reminder, covered employers (100+ on payroll) must submit 2021 pay data reports by April 1, 2022.
Take-Aways:
All California employers should consider conducting internal wage and hour audits of their job advertising, interviewing, pay scales and other hiring and retention practices with the assistance of an experienced employment law attorney.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
March 25, 2022
In the absence of a writing or factors showing otherwise, California and most other states presume employment relationships are "at-will." The at-will employee or employer may terminate the relationship at any time, with or without advance notice, and for any lawful reason or no reason.
In the absence of a writing or factors showing otherwise, California and most other states presume employment relationships are "at-will." The at-will employee or employer may terminate the relationship at any time, with or without advance notice, and for any lawful reason or no reason.
The opposite - and common for high-compensation executives - is a "term" employment agreement for a definite time period on which the parties can only terminate early for a "good" or "just" cause.
Either way, best practice is to have the arrangement in writing, leaving no room for disputes over what one side might have "promised" or implied in a verbal, unwritten relationship.
Whether at-will or not, a written employment contract can and should make clear vital points including compensation, use and return of company property, confidentiality/nondisclosure obligations, and employer ownership of employee-generated material created in the course of employment.
Best practices also include upfront invention assignment agreements for employees involved in creating or updating unique technology. Such agreements should clearly distinguish between employer- and employee-owned inventions, along with other pertinent information.
California requires written, signed commission agreements between an employer and salesperson.
Employer-employee arbitration agreements should also be in writing, with the terms carefully stated to comply with current - and fluctuating - state and federal law.
TAKE-AWAY: Written workplace agreements are the best policy, with qualified employment attorneys enlisted to create and regularly update their contents.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
March 25, 2022