Factory Closings Leaving Workers Unemployed

factory closingsFactory closings or mass layoffs? Are you a factory worker who showed up to work one day only to be pink slipped on the spot because the factory shut down? Be advised that there are both state and federal protections for workers just like you. A local employment attorney can help you to understand your rights and ensure that you receive the protections to which you are entitled. When those protections are denied, you may find recourse in the courts.

Factory Closings and The Federal Worker Adjustment and Retraining Notification (WARN) Act

The federal WARN Act has been around since 1989, and requires employers to give workers a minimum of 60 days written notice prior to a covered plant closing or major layoff. Notice must be given directly to impacted workers or to their union representatives.

Factory Closings and What Constitutes a Covered Plant?

WARN regulations apply to businesses that employ 100 employees or more, not including those who work less than 20 hours per week or temporary employees who have worked less then half of the previous year.  These expectations apply to public and private employers, as well as non-profits and quasi-public employers. Exemptions are allowed when temporary plants are closed, or when workers were hired with the understanding that the job was temporary and factory closings are due to a specific project being completed. Also excepted are local, state, and federal entities that provide public services. When layoffs, relocation of more than 100 miles, or a plant closing affects one-third of the workforce and that number includes 50 or more workers, notice must be provided.

Three other exceptions exist:

  • Faltering Company: When a company is seeking capital or new business to stay open, and notice would eliminate or drastically limit opportunities;
  • Unforeseen Circumstances: When circumstances surrounding the business have changed dramatically and were not reasonably foreseeable;
  • Natural Disaster: When a natural disaster such as an earthquake leads to the closing or layoff.

California’s WARN Act is Even More Strict

For California workers, state regulations are even tighter. Companies with at least 75 employees, either part- or full-time, are included as covered employers. When a business closes or significantly reduces operations in such a way that 50 or more workers are impacted over a 30-day window, employees must be notified.

Penalties for Non-compliance

Employers who fail to comply with WARN Act regulations face several penalties:

  • Civil fines of up to $500 per day for federal violations;
  • Civil fines of up to $500 per day for state violations;
  • Back pay for each day of WARN violations;
  • Attorney’s fees.

[Read more…]

Apprenticeship Plans

ApprenticeshipLet’s say you are involved in one of the many apprenticeship programs in one of the trade industries so prominent in California, but you are uneasy with the administration of the finances related to your retirement plan. Or perhaps you are new to the administration team in charge of an apprenticeship program, and are unsure of your responsibilities. What are your options? Only a good labor attorney familiar with your circumstances can tell you for sure, but you should know that the federal government does have oversight of apprenticeship programs and policies.

Fitzgerald Act Guidelines

The US Department of Labor has a guardianship role for apprentices. The Fitzgerald Act was established to ensure equity when it comes to access to apprenticeship programs, as well as to provide information relating to integrated employment and training.

Some of these programs involve private sector workers who are financed through trust funds. Through the power of the Employee Retirement Income Security Act of 1974 (ERISA), the Employee Benefits Security Administration helps to oversee them, as well. Because labor/management apprenticeship committee expenses must come out of money in a separate fund according to the Labor-Management Relations Act, ERISA regulations cover collectively bargained apprenticeship programs, as well.

What is Legally Required of a Retirement Savings Plan Associated with an Apprenticeship Program?

The law provides specific expectations related these plans:

  • There must be a written plan proving for a minimum of one official authorized to administer the plan;
  • There must be a trust established to hold any assets associated with the plan;
  • Documentation must be shared with employee participants, as well as with the government.

ERISA Standards

What does ERISA do? It determines standards of conduct for managers involved in benefit plans and assets, including several specific functions:

  • Fiduciary responsibilities;
  • Reporting to the government;
  • Sharing information with workers who participate in those plans;
  • Travel and credit card reimbursement for managers;
  • Bonding to protect against fraudulent acts.

Apprenticeship Programs – What is Expected of a Fiduciary?

Clear rules guide fiduciary behaviors:

  • Each action must be made exclusively in the best interests of employee participants and their beneficiaries.
  • Every duty must be performed with prudence.
  • All reasonable plan expenses must be paid and plans followed according to law.
  • Third-party service providers should be monitored and reviewed regularly, which changes considered when necessary.

What Actions are Prohibited?

Certain transactions are not allowed, including:

  • Sales, exchanges, or leases between the party in interest and the plan;
  • Extending credit or loans from the plan to a party in interest;
  • Providing facilities, goods, or services from the plan to a party interest.

[Read more…]

Standing up to Racial Discrimination

discriminationWhen a black, female Chipotle employee confronted her manager about being assigned night shifts with fellow black employees, while Latino workers were given more preferable day shifts, her manager had a troubling comeback. “Black girls always have an attitude.” The worker then complained to a district manager, who brushed her aside. According to records, the employee was then fired without being given any explanation. She did not take it sitting down. Instead, she marched into court and filed a lawsuit alleging racial discrimination, wrongful termination, failure to prevent harassment, and retaliation. If you are facing racial discrimination in the workplace, you may wish to consult an attorney and take legal action, as well.

Racial Discrimination is Real

Although some may try to deny it, statistics indicate that racial discrimination is alive and well in this country. Wage gaps are one of the clearest markers of this:

  • Median hourly earnings for men of color lag behind those of white men by six to seven dollars;
  • The wage gap separating black and Hispanic men and white men has not narrowed since 1980;
  • Black men earn 73% of what white men earn;
  • Hispanic men earn 71% of what white men earn;
  • Even with a bachelor’s degree, men of color earn 80% of what white men earn.

It is no wonder that just over 20% of black adults and just under 20% of Hispanics report that they have experienced unfair or discriminatory actions in hiring, promotion or pay in the past year.  Meanwhile, while 5% of white adults say their race makes success difficult, that number is 40% for blacks and 20% of Hispanics.

What Does Racial Discrimination Look Like?

Racial discrimination can rear its ugly head in a number of ways. Some examples you may encounter include:

  • You are not hired because a company’s clients would not be working with someone of your race, or you are kept in the background so customers will not be exposed to someone of your race;
  • You are laid off, while white employees with similar skills and less seniority are kept on;
  • White employees with similar positions and experience are paid more than you;
  • Whites are assigned preferential shifts or territories while you are given unfavorable ones;
  • Colleagues tell racially offensive jokes, use racial slurs casually, or in other ways create a hostile work environment and management does not deal with the situation.

Remedies for Racial Discrimination

If you experience race discrimination at work, you should know that Title VII of the Civil Rights act of 1964 protects people from such workplace violations. At Beck Law P.C., we do not tolerate excuses. We seek justice for those treated unfairly. That may include:

  • Back pay and/or reinstatement following a lay-off or firing;
  • Hiring when you were denied such due to race;
  • Promotions you did not get due to race;
  • Compensatory damages for pain and suffering;
  • Punitive damages
  • Attorney’s fees
  • Court costs

[Read more…]

Disabled Employees Rights

Disabled EmployeesDisabled employees facing discrimination. If you or a loved one has experienced workplace discrimination due to a disability, it is indefensible. When one employee with emphysema, asthma, and chronic obstructive pulmonary disease (COPD) requested accommodations in order to complete necessary tasks on the job, the company responded by discharging that employee. That act of dismissal has resulted in a lawsuit against that San Francisco company, InsideUp. If you have experienced workplace discrimination due to a disability, a local employment attorney may be able to help.

Disabled Employees and Federal ADA Regulations

The Americans with Disabilities Act (ADA) protects the civil rights of people with disabilities.  The law addresses all aspects of public life, ranging from school and employment to transportation and dining out. Essentially, the law ensures that people with disabilities have the same opportunities and rights as people without disabilities. Title I of the ADA deals specifically with employment.

Employment Opportunities

This piece of the ADA calls for employers to provide opportunities and benefits to people with disabilities that are equivalent to the opportunities and benefits of their non-disabled counterparts. Additionally, reasonable accommodations and/or modifications must be provided to employees when essential to help the employee perform necessary functions of the job.

Disabled Employees and Reasonable Accommodations

Specific accommodations should be designed around individual circumstances in the workplace.  Examples of sensible accommodations include:

  • Adapting facilities to make them accessible for all employees;
  • Restructuring job requirements so as to provide opportunities for employees who might otherwise be limited by a disability;
  • Procuring specialized equipment or modifying existing equipment as needed;
  • Adapting tests, policies, or materials used in training employees;
  • Providing part-time positions or modified work-schedules when possible;
  • Reassigning employees to vacant positions when qualified.
  • Providing interpreters, readers, or similar assistance.

When and How to Request Accommodations for Disabled Employees

If you require workplace accommodations due to a medical disability, you simply need ask your employer. The request does not have to be in writing, although having documentation of your request can not hurt. It is not necessary to disclose your disability and ask for modifications during the hiring process. You may make your request at any time.

Documentation of Your Disability

Employers do have the right to request documentation for a disability that is not obvious. Be advised, however, that your employer is not entitled to your entire set of medical records. Just the documentation necessary to establish the need for reasonable accommodations must be provided.  Employers should be specific in their requests for information related to functional limitations and the types of accommodations that may be necessary. Employers may sometimes ask an employee with disabilities to provide a limited release of their medical information. Appropriate professionals who might provide information may include doctors and nurses, mental health professionals, occupational therapists, and other authorities on your medical condition. [Read more…]

Can My Facebook Page Impact My Employment?

FacebookYou have a Facebook account; practically everyone does. Can it be a problem for you when it comes to seeking a job? The short answer is yes.

Employers Take a Peek

The fact of the matter is, 60% of 5,000 surveyed employers confess to using sites on social media to find out about potential employees. That number has increased by 500% in the past 10 years. Here is something worth noting: Nearly half of those employers report finding something on a social media site that made them hesitant to hire a job candidate. Do we have your attention yet?

Dangerous Facebook Posts

What kinds of Facebook or online posts could be detrimental to your employment opportunities? We recommend avoiding certain posts, such as:

  • Sexually provocative photos, videos, or stories;
  • Pictures, video, and comments related to drinking and/or drug use;
  • Posts displaying discriminatory attitudes;
  • Profanity;
  • Gun references;
  • Inflammatory comments about previous employers/coworkers;
  • Communication skills that indicate poor grammar, spelling, etc.

Turning Facebook Lemons into Lemonade

We know there is a good chance that your potential employer is going to look at your Facebook, LinkedIn, Twitter, or other social media page. In fact, 41% of employers report that they may not even interview candidates if they can not find information about them on Facebook or elsewhere online. What now? Seize the opportunity! This is your chance to make a great impression! Instead of causing your potential employer to scratch his or her head in wonder while viewing your online presence, let him or her see all the ways you stand head and shoulders above the crowd. What might your posts include?

  • Pictures showing you engaged in volunteer work;
  • Posts revealing your positive outlook and professional stature;
  • Engagement in hobbies that stretch your skills and determination;
  • Information displaying your travel and global interests;
  • Posts showing smooth, clean communication skills;
  • Comments from others indicating what a stand-up character you are.

Remember, employers are looking for someone who is not only qualified for the job; they also want someone who is a good cultural fit. Additionally, many employers are looking for creative, engaging people for their companies.

When it Becomes a Legal Issue

All of this is completely legal, although some potential employers may cross a line that could leave them vulnerable to legal action. You may have legitimate concerns if you are asked to share your password, or if you get the impression that you have been singled out when it comes to the viewing of social media.  

Think Before You Post on Facebook

In this day and age, every single thing you post on social media is fair game. So, think. Be smart about it. If you have concerns about your employment in Sonoma County, Mendocino County or Lake County California being impacted by social media and would like our legal team to take a look at your situation, contact us at Beck Law P.C., in Santa Rosa.

Wells Fargo Ethical Issues Lead to Class Action Suit

Wells Fargo5,300 Wells Fargo employees were forced to resign or were fired amid a huge scandal involving hundreds of thousands of customers and millions of dollars. Meanwhile, a handful of employees filed a class action suit on behalf of thousands of employees against Wells Fargo because they had been demoted or even fired for refusing to participate in the bank’s deceptive practices.

The Wells Fargo Scandal and its Impact on Employees

Wells Fargo had a brilliant but highly illegal scheme to bolster its stock price. They used customers’ personal information gleaned from legitimate accounts to create false ones, unbeknownst to the customers. Suddenly Wells Fargo customers who had signed up for savings accounts found themselves paying fees for checking accounts they had never requested or authorized.  Wells Fargo customers were not the only victims here.

When employees refused to participate in the plot, or when they phoned into the ethics hotline to report the fraudulent actions, they claim they lost their jobs as a result.

Wells Fargo, on the other hand, asserts that no one was fired unless they were not meeting clear company goals. The bank claims to endeavor to create a culture of serving customers with stellar ethics and integrity.

Irrespective of Wells Fargo’s assertions, the class action suit alleges a number of legal violations, including Dodd-Frank and whistleblower protections afforded through Sarbanes-Oxley. Beyond the problems related to the fraud, the suit claims overtime intrusions in violation of the Fair Labor Standards Act.

Real People at Wells Fargo Who Were Hurt

Bill Bado is just one of the many employees whose career was destroyed by the fraudulent plan.  Bill refused to create phony pin numbers, fake accounts, and sham email accounts. He took matters a few steps further and called the ethics hotline. Then Bill emailed human resources to report the illegal and unethical practices going on all around him and that he was being ordered to carry out, as well. A short eight days later, Wells Fargo to respond with his untimely termination.  The reason given for the firing was tardiness.

Testimony before a Congressional committee suggests that Wells Fargo had methods to systematically get rid of whistleblowers and avoid accusations of retaliation. One such strategy involved the simple, yet effective practice of closely monitoring employees who had reported problems in the sales department. After looking closely enough, employees would inevitably be spotted with a fireable flaw, such as tardiness.

Heather Brock, a senior banker with Wells Fargo, experienced bullying, defamation of character, and false accusations before being fired from her post. Her belief is that the termination was a result of her complaints to the ethics line about illegal practices. [Read more…]

Unsafe Work Environment and California Law

unsafe work environmentUnsafe work environment and employer responsibility.Everyone deserves a safe working environment, but what if your employer fails to implement common sense procedures, training, and equipment in order to keep workers safe and productive? If you are injured due to employer negligence, you may be entitled to more than just workers’ compensation. Your employer may be on the hook for compensatory and even punitive damages. An experienced employment law attorney can help.

Facts About an Unsafe Work Environment and Workplace Injuries

The truth is, workplace injuries are an epidemic, with nearly 4 ½ million occurring in this country every year, not counting the fatal injuries. These unsafe work environment accidents cost billions annually in medical and insurance costs, not to mention lost wages, interruptions in production, and other costs.

Unsafe Work Environment and Employer Responsibilities

Workplace safety is no minor responsibility. The Occupational Safety and Health Administration (OSHA) details specific practices and procedures that employers must follow. Among the requirements are:

  • Provide a hazard-free workplace that is in compliance with OSHA standards;
  • Regularly conduct inspections to determine workplace complies with OSHA safety standards;
  • Ensure that employees use properly maintained equipment and tools;
  • Warn of potential hazards with posters, labels and/or color coding, and make sure employees are aware of health/safety rules;
  • Regularly update and communicate operating procedures related to safety issues;
  • Provide safety training in a language understood by employees;
  • Implement a written program to communicate information relating to hazardous chemicals and train employees in intervention methods;
  • Post employee safety rights and responsibilities;
  • Maintain accurate illness and injury reports;

Employee Rights When There is an Unsafe Work Environment

When an employee believes that the working environment is dangerous, the National Labor Relations Board (NRLB) protects that employee’s right to refuse to work. This applies to all workers, whether or not they are union members.

Unsafe Work Environment and Employer Penalties

State and federal governments intently regulate safety practices, and violations can result in serious and expensive consequences:

  • When a GM plant in New York experienced multiple violations, including blocked exit routes, improper protective equipment, and inadequate guards around moving machinery parts, they were fined $160,000;
  • A Weyerhauser plant in West Virginia under reported injuries and illnesses, they were fined $77,000 and audited for 9 months;
  • Fru-Con Construction Corp failed to properly secure a launching truss, they were fined $280,000.
When Can You Sue for a Workplace Injury?

If your employer knowingly facilitated a hazardous workplace, you may be able to seek damages through the courts. Because you have legitimate expectation to a safe working environment, egregious or intentional conduct that leads to injury may be compensable. Additionally, if your injury was the result of defective equipment or other products, the manufacturer may be liable for damages. [Read more…]

Can Polygraph Testing Impact Employment?

PolygraphCan my employer require me to take a Polygraph? Employers are more concerned than ever these days about both workplace culture and security. Pre- and post-employment testing of all kinds may greet employees in the workplace. This could include physical tests to measure stamina for certain positions, personality tests to give the employer a sense of one’s compatibility within the company, and drug tests to ensure a drug-free workplace. Regulations surrounding these tests are fairly limited.

What about lie detector tests? Here, the Employee Polygraph Protection Act (EPPA) is much more restrictive. When employers violate the EPPA, legal action may be necessary.

What Constitutes a Lie Detector Test?

Any device used to provide a diagnostic opinion regarding honesty is considered a lie detector.  This includes several devices:

  • Polygraphs;
  • Voice stress analyzers;
  • Deceptographs;
  • Psychological stress Evaluators.

When is Such Testing Allowed?

Although the EPPA prohibits most industries in the private sector from requiring employees and potential employees to take polygraph tests (or even asking about previous tests taken), some employers are exempt from the law:

  • Governmental organizations, including fire and police agencies;
  • School districts and private schools;
  • Correctional facilities.

In limited instances, employers are allowed to require polygraph tests within certain parameters.  Those businesses include:

  • Companies involved in various security services, such as armored car services, home or business alarm companies, and guards or other security personnel working for the state;
  • Companies involved in any aspect of the manufacture, distribution or dispensing of controlled substances.

Finally, some employers may require a polygraph test of particular employees  when they have a reasonable suspicion of embezzlement or other crimes that led to the employer’s economic injury.

What can I Expect if Asked to Take a Polygraph?

If an employer requires you to take a lie-detector test, the law requires that the tester be bonded and licensed. You should be told the specific reasons for requiring the test, and be given the opportunity to obtain legal counsel prior to testing if desired. In the best of circumstances, you will be provided with a written explanation of their rights and the types of questions that are not allowed. You should expect questions on a variety of topics such as your:

  • Driving record;
  • Insurance history;
  • Past and current drug and alcohol use;
  • Past and present criminal activities;
  • Credit history;
  • Information you provided in your application;
  • Employment history.

Topics that are off limits include your:

  • Religious affiliations or views;
  • Sexual orientation;
  • Political views and memberships;
  • Racial or cultural background.

[Read more…]

Transgender Discrimination: A Case Study in California

Transgender DiscriminationImmediately after pronouncing herself a transgender woman, 53-year-old Meghan Frederick experienced transgender discrimination via a lack of respect, isolation, and outright harassment. As a correctional officer in a maximum-security prison, she discovered that colleagues as well as supervisors were more likely to react to her with rejection than acceptance. Ultimately, she felt she had no choice but to file a discrimination lawsuit. If you can relate to this case, you may wish to contact an experienced employment attorney, as well.

Meghan’s Transgender Discrimination Story

A career in finance segued into a position in the California Department of Corrections and Rehabilitation for Meghan. There, colleagues welcomed an athletic man. But some years later Frederick began to transition, and after five years announced that she wished to be identified as a woman.

Since then, sergeants, lieutenants, and captains have all misidentified her gender. She filed internal complaints against them, but nothing changed. Her vehicle has been vandalized multiple times since her announcement, as well, signaling the loathing fellow employers feel toward her.  She has spent years walking into rooms in the workplace, only to be ignored or stared at wordlessly. Meghan has been insulted over the intercom and has repeatedly had to correct peers who refer to her as “sir.” The least desirable assignments were given to Frederick, and her movements were frequently restricted for unusual periods of time. More significantly, Frederick claims her life was put in danger.

When inmates witnessed colleagues undermine her and openly disrespect her, it made her a target. In fact, inmates made death threats against her more than once – threats that her superiors failed to inform her about in a timely manner. Typical protocol requires that correctional officers be separated from inmates who have stated they wish to harm them personally. In Frederick’s case, she was not informed of the threats until weeks after they occurred, and she was required to work with the menacing inmates despite the accentuated risks associated with such threats.

Options When Transgender Discrimination / Discrimination is Pervasive in the Workplace

Why not find another job, some might wonder. Frederick says she will not be bullied. She is proud of herself and her work, and refuses to back down to transgender discrimination and retaliation. Frederick believes that fighting back through the courts will improve life for her, but the impact of the transgender discrimination suit may have much larger implications. Transgender men and women throughout the country experience workplace discrimination every day. This lawsuit shines a light on the types of behaviors condemned by state law. In California, the California Fair Employment and Housing Act (FEHA) specifically prohibits discrimination based on gender identity. Additional protections are in place related to housing, education, workplace dress codes, bathroom use, and hate crimes.

Aggressive Legal Help for Transgender Discrimination

If you have experienced discrimination in the work place, the law is on your side. At Beck Law, our aggressive employment team will go to the mat for our clients in Sonoma County, Mendocino County, and Lake County California discrimination cases. Contact us in Santa Rosa today for a confidential consultation.

Termination Considerations for At-Will Employment

terminationEmployee termination without cause. Can California workers be terminated without cause? California is an at-will state, meaning that either the employer or the employee may terminate the relationship at any time. Even so, California courts look at a number of factors when employees claim that a wrongful termination has occurred. If you find yourself without a job and believe the termination was unlawful, a local employment attorney can help.

Implied-in-Fact Contracts

Sometimes employers and employees have unspoken agreements that take precedence over an employer’s ability to fire at will. California courts do consider whether or not there is an implied contract. These determinations rest on the totality of several factors, including the employee’s length of employment with the company, employment practices within the industry, company policies, and employer actions that would give an employee a reasonable expectation of continued employment. One such case involved Wayne Pugh vs. Sees Candies. When Pugh was fired from his Palo Alto job without explanation, the courts found that, absent a written contract, the implied contract between employee and employer negated any right to fire without cause.

Express Contracts

When an employee’s contract expressly states that termination may only occur with cause, employers must have legitimate reasons documented for a termination. Often these contractual obligations are through a labor union, although oral agreements may be just as valid.

Statutory Protections from Termination

Despite being able to fire at-will employees without cause, employees cannot be terminated for a number of protected reasons.

  • Federal law calls out several protections, including race, gender, age, religion, and disability. California law piggybacks federal statutes, and adds additional protections for sexual orientation.
  • Public sector workers generally have termination policies and civil service laws that protect them from random terminations;
  • Union activity is also protected, so employees may join a union and exercise any collective bargaining rights without threat of termination.
  • Employees are also entitled to certain types of leave without fear of termination. Employees may miss work to vote in a state election, may take leave under the Family Medical Leave Act to care for sick family members, and may miss work to serve as a juror. Maternity leave is also protected for women. These are common reasons for which employees are entitled to take leave without fear of termination.
  • Federal whistleblower protections exist for individuals who report safety violations, discrimination, or other violations of either state or federal law.
  • Employees cannot be fired for their behavior or activities that occur outside of work. If the behavior is legal, employers cannot consider it in a termination.

[Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.