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On April 10, 2018, California’s Department of Fair Employment and Housing (DFEH)Task Force on the Prevention of Sexual Harassment in the Workplace(The Task Force)announcedthat it will telephonically interview randomly-selected California employers on their anti-harassment policies including employer-sponsored training and other anti-harassment complaint procedures.
On April 10, 2018, California’s Department of Fair Employment and Housing (DFEH) Task Force on the Prevention of Sexual Harassment in the Workplace (The Task Force) announced that it will telephonically interview randomly-selected California employers on their anti-harassment policies including employer-sponsored training and other anti-harassment complaint procedures.
Formed in May 2016 to study the problem and prevention of workplace sexual harassment, The Task Force hopes to better understand how employers manage the issues. DFEH Director Kevin Kish expects “the results of the survey to provide important insights for policy makers and the public alike.”
The Task Force has issued a workplace harassment guide on how to develop effective anti-harassment workplace practices.
California law requires all employers with one or more employees to take “all reasonable steps necessary to prevent discrimination and harassment from occurring,” which can include:
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
May 3, 2018
California lawrequires most non-exempt employees to receive overtime pay for time worked beyond forty hours in any oneworkweekor after eight hours in oneworkday.
California law requires most non-exempt employees to receive overtime pay for time worked beyond forty hours in any one workweek or after eight hours in one workday.
A workweek is any seven consecutive days, starting with the same calendar day each week beginning at any hour, so long as the cycle is a fixed and regularly recurring period of 168 hours. For example, the workweek that begins on Monday at midnight ends on Sunday at 11:59 p.m.
A workday is a consecutive 24-hour period that begins at the same time every day as the workweek beginning time.
The basic five California overtime rules are:
Employers must also pay the employee whichever total overtime hours are greater — weekly or daily. Do not pyramid (double-count) the overtime hours but do compare daily versus weekly at the end of the workweek to make the correct calculations. No matter what, pay double-time whenever it occurs.
For example:
22 hours at 1.5x and 3 hours at 2.0x = 25 total overtime hours.
Overtime pay must be based on the employee’s “regular rate of pay” which is not always the hourly rate. Employers must factor in not just the straight hourly rate, but also certain non-discretionary bonuses, commissions, value of meals and lodging, and cash payments in lieu of medical benefits.
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
See also:
Cindy Bamforth
April 27, 2018
No-one likes lawyers … until you need one. Experienced and knowledgeable business managers are usually capable of handling basic employment issues. Yet, laws governing the workplace tend to change frequently and companies can face formal complaints, liabilities and large attorney bills if significant employee disputes or decisions are not resolved early. Employers grappling with more complex or high stakes circumstances should contactan experienced employment attorney.
No-one likes lawyers … until you need one. Experienced and knowledgeable business managers are usually capable of handling basic employment issues. Yet, laws governing the workplace tend to change frequently and companies can face formal complaints, liabilities and large attorney bills if significant employee disputes or decisions are not resolved early. Employers grappling with more complex or high stakes circumstances should contact an experienced employment attorney.
The trick is recognizing a potentially volatile situation before it blows up. These include:
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, just as it can for mistakenly concluding without an adequate inquiry that an innocent worker is guilty of such actions. Equipped with the relevant information, an employment law attorney can help strike the proper balance and reach a just and reasonable 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 is certainly time to contact an employment attorney immediately. Charges of discrimination, harassment or wage and hour violations should be taken very seriously. Mishandling any such worker allegations 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. Policies, distributed and read by employees, can be 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. An employment attorney can draft or review these policies and ensure they are current with applicable state and federal laws and regulations.
For more information, please contact one of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.
Tim Bowles
April 27, 2018
Mary manages a customer service department in a large company. Other employees and customers have complained about Brad, one of the employees Mary supervises. Most of Brad’s co-workers handle calls without requiring assistance. Yet, for a few months now, as many as 20% of Brad’s calls have had to escalate to supervisor level for resolution. When Mary has raised the issue, Brad has been rude, brushing off responsibility. While getting ready to terminate him, she also overheard Brad boasting abo
Mary manages a customer service department in a large company. Other employees and customers have complained about Brad, one of the employees Mary supervises. Most of Brad’s co-workers handle calls without requiring assistance. Yet, for a few months now, as many as 20% of Brad’s calls have had to escalate to supervisor level for resolution. When Mary has raised the issue, Brad has been rude, brushing off responsibility. While getting ready to terminate him, she also overheard Brad boasting about receiving a large payout from suing another employer. Mary is now concerned that Brad will file a lawsuit no matter how justified the company might be in letting him go. What can this employer do to reduce the likelihood of post-employment litigation?
One means of prevention is for the business to consider offering some amount of severance pay above all earned wages and accrued vacation pay, in exchange for Brad’s signed release and waiver of all claims, real or imagined, known or unknown. Thus, for additional money beyond his final, earned compensation, Brad would agree in writing never to file or pursue a claim against the company for wrongful termination, discrimination, harassment, retaliation, breach of contract, and disputed wage payments.
However, there are requirements the company must fulfill in order to ensure the applicable state and federal courts and agencies (such as the California Department of Fair Employment and Housing or the federal Equal Employment Opportunity Commission) will fully honor such a waiver. For example, if this company has 20 or more employees and Brad was 40 or over, employer must give him (1) up to 21 days to consider and sign the waiver, and if desired, to have it reviewed by an attorney; and (2) even after accepting, another seven days to change his mind and rescind the agreement.
When companies handle such severance offers correctly, the great majority of departing workers will agree to the package. Although an employer must wait the 21 days to withdraw the offer, the worker agreeable to the terms can sign the agreement on the spot or at any time before the three weeks is up.
Employers treat the seven-day rescission rule differently. Some pay the severance amount immediately on the employee’s signing the agreement. Others wait that seven days before payment.
For businesses with less than 20 on payroll and/or when the departing worker is under age 40, the waiting and rescission periods are not required. However, best practice would likely be to permit some review period, perhaps a few business days, to allow the employee to consider the terms, with or without legal counsel.
Our employment forms package includes an overview memo on administering a severance offer, a sample severance agreement, a checklist for the departing employee to initial and sign, and a sample termination letter. We also provide assistance with forms for specific terminations when requested. Ensuring proper written workplace policies, procedures and template forms are implemented can go a long way to preventing dubious suits from former employees intent on retribution. See, If It Isn’t Written, Workplace Policy is Anyone’s Guess (March, 2018)
For more information, please contact one of our attorneys, Tim Bowles, Cindy Bamforth, or Helena Kobrin.
Helena Kobrin
April 20, 2018
California lawprohibits discrimination against employees for their membership in any protected class. This includesgender identity, defined as “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.”
California law prohibits discrimination against employees for their membership in any protected class. This includes gender identity, defined as “each person’s internal understanding of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.”
In October, 2017, Governor Jerry Brown enacted the “Gender Recognitions Act” (the Act) which affirms a “non-binary category” as a third gender. California is one of the first jurisdictions in the country to enact this recognition, alongside Oregon and Washington, D.C.
The Act includes these definitions of intersex, nonbinary and transgender individuals:
Starting September 1, 2018, the Act will provide a separate court procedure for minors to petition for change of gender to female, male or nonbinary and will also simplify the existing legal procedure to recognize a change of gender for any person who has undergone gender-related treatments. Instead of requiring a court judgment, the Act will simply allow the individual to supply a sworn affidavit or declaration to a judge affirming that a request to change gender does not have any fraudulent purpose.
On January 1, 2019 the Act will allow an applicant for a driver’s license or renewal to choose among female, male, or nonbinary gender categories.
In light of this changing landscape, California employers should consider these as best practices:
See also:
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 19, 2018
According to a nationwideCareerBuilder Surveyreleased February 22, 2018, “around half of employers (49 percent) know within the first five minutes of an interview if a candidate is a good or bad fit for a position, and only 8 percent make up their mind [after] a half hour or longer.”
According to a nationwide CareerBuilder Survey released February 22, 2018, “around half of employers (49 percent) know within the first five minutes of an interview if a candidate is a good or bad fit for a position, and only 8 percent make up their mind [after] a half hour or longer.”
Presumably (and depending on the job applied for!), it would be easy to make a snap decision about an applicant who wears a Darth Vader outfit to the interview, offers the interviewer pumpkins for good energy, asks to taste the interviewer’s coffee, requests a cocktail in the interview, or breaks out in song mid-sentence.
However, properly interviewing job candidates has become increasingly difficult due to California’s regular extensions of privacy and anti-discrimination protections.
Employers must not directly or indirectly inquire about an applicant’s “protected class,” meaning a characteristic protected from federal and state employment discrimination laws including but not limited to race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Under such limitations, The California Department of Fair Employment and Housing (DFEH) provides a user-friendly Fact Sheet to assist managers in employment interviews.
Examples of topics the interviewer must avoid include:
In California particularly, it is also vital for employers to know what interviewers can and cannot ask concerning salary history information or criminal history.
See also:
For more information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 13, 2018
California employers must provide every not-exempt-from-overtime employee unpaid meal and paid rest breaks based on the number of hours that employee works in a given day. However, the rules vary for such workers as specified in the 17Industrial Welfare Commission (IWC) Wage Orderscovering in different industries and occupations.
California employers must provide every not-exempt-from-overtime employee unpaid meal and paid rest breaks based on the number of hours that employee works in a given day. However, the rules vary for such workers as specified in the 17 Industrial Welfare Commission (IWC) Wage Orders covering in different industries and occupations.
Unpaid Meal Periods
First Meal Period: Employers may not employ a non-exempt worker for a work period of more than five (5) hours a day without providing the person an off-duty meal period of not less than 30 minutes commencing before the end of the fifth hour. However, if the employee works no more than six (6) hours in a day, the employee may by written statement waive that meal period with employer consent. See, IWC Wage Orders and Labor Code Section 512.
For example, if an employee begins work at 9:00 a.m. and works an eight-hour day, the employee must start a single meal break before 2:00 p.m. when the fifth hour of work ends.
Second Meal Period: Employers also may not employ workers for more than ten (10) hours in a particular day without providing a second off-duty meal period of not less than 30 minutes. However, if the total hours worked do not exceed 12, employer and employee may waive this second meal by written mutual consent as long as the first meal period in that day was not waived.
For example, if an employee begins a 12-hour work day at 9:00 a.m. and takes a first 30 minute off-duty meal period between 1:30 p.m. and 2:00 p.m., then the employee must start a second 30 minute meal break before 7:30 p.m., the close of the tenth hour of work. Or the employee could waive that second meal break.
Employees must be relieved of all duty, must relinquish control of all work activities, must be given the reasonable opportunity to be uninterrupted during any such provided 30-minute meal period and must not be impeded or discouraged from taking that period. Otherwise, that meal period shall be considered “on duty” and counted as time worked. An “on duty” meal period shall be permitted only where the nature of the work prevents an employee from being relieved of all duty and the parties agree in writing to an on-the-job paid meal period.
The California Division of Labor Standards Enforcement (DLSE) recognizes that some circumstances may require that workers stay on premises for their meals. However, the DLSE holds that in this instance, with minor exceptions for such things as child care, foster care and residential health care workers under IWC Wage Order 5, an employer must pay such workers for their required on-premises meal periods as above. Under IWC Wage Order 15, personal attendants who care for people in their homes and perform only certain kinds of duties are not entitled to specific meal breaks.
Paid Rest Breaks
California employers must also provide (“authorize and permit”) all non-exempt employees paid rest breaks. The amount of rest time shall be based on the total hours worked daily at the rate of ten (10) minutes “net rest time” per four (4) hours or major fraction thereof (i.e., more than two hours). However, an employer need not provide any such paid rest time for an employee whose total daily work time is less than 3.5 hours. See, IWC Wage Orders.
Thus:
The DLSE has interpreted “ten minutes net rest time” as a consecutive ten minutes that begins once a worker has arrived at his/her appropriate rest area away from the workstation, e.g., a break room or perhaps an outside smoking area. In 2016, the California Supreme Court held that employers may not require employees to remain on-call during rest breaks, and must relinquish all control over them. Augustus, et al. v. ABM Security Services, Inc.; see Workers Don’t Lose the Snooze (June, 2017).
The Wage Orders (paragraph no. 5) generally direct that employers are required to provide suitable resting facilities for employees during working hours in an area separate from the toilet rooms. See DLSE Article Rest Periods/Lactation Accommodation.
IWC Wage Order 5 permits a limited exception to the “fully off-duty” requirement for rest breaks. An employee responsible for child care, foster care and residential health care may take his or her rest period while retaining general supervision of the applicable resident(s) if that employee is in sole charge of that person or those persons. However, an employer in these contexts must also authorize and permit another full ten-minute rest period for such a worker who had to interrupt a break to respond to the needs of residents. Wage Order 5, section 12(C). Similar to the above meal period rule, under IWC Wage Order 15, personal attendants are not entitled to specific rest breaks.
Rest breaks are to be available in the middle of each four-hour work period insofar as practicable. Rest periods should not be combined with meal periods or other rest periods. Employees should not use rest breaks to start work ten minutes late or to end work ten minutes early.
If an employer fails to provide an employee a required meal period or rest break, that employer must pay that worker one additional hour of pay for each day the worker misses a meal period and one hour for each day the worker misses one or more rest breaks. The employer must include this additional pay in that employee’s next paycheck. See IWC Orders and Labor Code Section 226.7(c).
The Supreme Court of California’s 2012 decision in Brinker Restaurant Corp. v. Superior Court clarified the meaning of “employer provided” meal periods and rest breaks. In essence, employers are not responsible for policing workplaces to make sure employees take their meals and rest breaks. Rather, employers are responsible for clear policies setting out the above standards and for consistently encouraging and supporting employee prerogatives to take their entitled times away from their labors during the workday. See also, Brinker Case Settles for $56 Million (August, 2014).
A recent court decision confirmed that Brinker also applies to agency-supplied workers. In Serrano v. Aerotek, Inc., the Court of Appeal held that a staffing agency that supplied hundreds of employees to a company and the company itself were only required to make off-duty meal periods available and were not required to police whether the workers took those meal periods. In fact, they were not even required to investigate if they knew of missed meal periods, so long as they made those off-duty meal breaks available and did not interfere with employees taking them.
For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
Updated, April 12, 2018
Last week’s blog,Safe Harbor or Shipwreck?, detailed the U.S. Department of Labor’s (DOL) imminent PAID program (Payroll Audit Independent Determination). The program permits employers to audit their own records for wage compliance violations and to correct those violations in cooperation with the DOL, without incurring penalties.
Last week’s blog, Safe Harbor or Shipwreck?, detailed the U.S. Department of Labor’s (DOL) imminent PAID program (Payroll Audit Independent Determination). The program permits employers to audit their own records for wage compliance violations and to correct those violations in cooperation with the DOL, without incurring penalties.
On April 3, 2018, DOL announced it was officially launching PAID as of that date. It also provided a link to a website with information on what to do in order to participate.
If the program sounds interesting to you, please read our last blog for discussion on the benefits and pitfalls. You also can register for a DOL webinar to be held Tuesday, April 10, 2018, 1:00 – 2:00 p.m. EDT for further explanation of the program.
Before deciding to pursue PAID, employers should consult with a qualified employment attorney.
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Helena Kobrin
April 6, 2018
Employers can easily overlook the importance of job descriptions, starting as part of the hiring process. No law requires them and no explicit guidelines or instructions exist for writing them. However, properly written and updated job descriptions can be an important tool to help management and employees fully understand the nature of each company position and how each ties in with the company’s organizational structure.
Employers can easily overlook the importance of job descriptions, starting as part of the hiring process. No law requires them and no explicit guidelines or instructions exist for writing them. However, properly written and updated job descriptions can be an important tool to help management and employees fully understand the nature of each company position and how each ties in with the company’s organizational structure.
Employers should consider using job descriptions at several points throughout the employment relationship, such as during the interview process, when conducting performance evaluations or disciplining for poor job performance, and when considering reasonable accommodations to perform a job’s essential functions.
Job descriptions usually include:
Employers should also regularly update all job descriptions to eliminate outdated or irrelevant information.
See also:
For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.
Cindy Bamforth
April 4, 2018