Small Businesses Risk $100 Per Day Obamacare Fine

CautionEven though many of us do not quite understand the rules of Obamacare, or what we will be offering our employees, it is no excuse according to the Department of Labor.  Small business owners who were led to believe that they could “ease” into the Obamacare transition in 2015,  and perhaps thought they had time to absorb the rules and guidelines, may be in for an expensive wake-up call next month.

$100 Per Day Obamacare Fine

Beginning Oct. 1, all businesses with at least one employee and $500,000 in annual revenue must notify all employees by letter about the Affordable Care Act’s health-care exchanges, or face up to a $100-per-day fine. The requirement applies to any business regulated under the Fair Labor Standards Act, which is mostly all businesses, regardless of size.

 In addition whenever you hire a new employee, you have 14 days in which to give them all the most current information regarding their healthcare options under the Affordable Care Act’s market exchanges, according to the Department of Labor, or penalties and fines will accrue.  In order to get the model notice that must be sent to all employees, visit the Department of Labor website and download the pdf.

Workplace Harassment or Just Playful Conversation?

Workplace Harassment

Q: I’m an employer of a local business, and recently there’s been a problem between several employees. One of the employees claims the others are sexually harassing her. I’m not sure the conduct qualifies as harassment, and it seems like just playful conversation. What should I do?

A: A claim of harassment by an employee should be taken very seriously by the employer, as harassment of any type, sexual, discriminatory or otherwise, continues to be a common problem in the workplace in California. The California Code of Regulations is helpful in identifying several different layers of sexual harassment, but these principles may also be applied to other types of harassment as well:

  1. Where submission to harassment is a condition of employment;
  2. Where the choice to submit or not affects employment decisions;
  3. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance;
  4. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance; or
  5. When the conduct alleged to be harassment creates an intimidating, hostile or offensive work environment.

Fair Employment and Housing Act

2 Cal Code Regs §§7287.6(b), 7291.1(f)(1). These categories set the prohibitions on the variety of conduct by employers and co-employees. Under the Fair Employment and Housing Act (FEHA), California law defines two types of methods to prove sexual harassment in the workplace: conduct which establishes a quid pro quo, and conduct creating a hostile work environment. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 42 Cal.Rptr.3d 2, 11.

Sexual Favoritism

Does your employee contend that the harassment is a result of some quid pro quo arrangement with another employee or manager? The California Supreme Court defined such quid pro quo harassment as conduct that leads to “sexual favoritism”, including the award of job benefits or bonuses if the employee submits to sexual advances. Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461-462. However, this also incorporates the converse, such as a manager threatening to demote or take punitive action against an employee should they not submit to sexual advances or conduct requested, expressly or impliedly.

Your employee may also be referencing a claim of a hostile work environment. The California Supreme Court has also set forth the standards in Lyle in relation to what constitutes a hostile work environment sufficient to create harassment:

Under Title VII, a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p. 68, 106 S.Ct. 2399); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (Oncale)); and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment (id. at p. 81, 118 S.Ct. 998; Meritor, supra, 477 U.S. at p. 67, 106 S.Ct. 2399). In addition, she must establish the offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at pp. 69-73, 106 S.Ct. 2399.)

Lyle, 42 Cal.Rptr.3d at 12. Whenever an employee performs any type of investigation prompted by a claim of harassment, these three elements are necessary and essential questions to ask and conclusions to determine before taking any action. It may very well be that such “harassment” is in fact nothing more than workplace conversation which the employee has taken out of context, for the mere discussion of sex or vulgar, sexual language is generally insufficient to show the harassment was “because of sex”; the conduct must involve some treatment to the employee on the basis of sex itself.

In either sense, every employer should take a claim of harassment seriously. [Read more...]

Employer Retaliation

Employer RetaliationQ: I have a question about employer retaliation. I’ve worked at the same company for years.  Recently there was a problem on a job site where safety precautions weren’t implemented correctly by management, and someone was hurt.  I made my supervisor aware of the problem, but he said if I want to keep my job, I should simply let management worry about those problems, and go about my day.  What should I do?  Can my employer really get rid of me for telling them about that?

California Employer Retaliation Protections

A: California law is designed to protect employees from employer retaliation for raising issues which either violate legal statutes, rules, or other improprieties at the workplace.  For example, the California Occupational Safety and Health Act (OSHA, California Labor Code §§6300-6718) provides for protections to employees who make complaints or notifications regarding the safety conditions of the workplace or job site.  Such employees who make complaints, regardless of whether written or oral, to the employer or to a government agency, cannot be subject to discharge, reprimand, or adverse action by the employer because of those complaints.  Taylor v Lockheed Martin Corp (2000) 78 Cal.App.4th 472, 485.

How serious does your complaint need to be?  Generally, the complaint to the employer or to the administrative body need only be reasonable.  In other words, even if an employee makes a complaint about safety code violations, but the employer’s conduct otherwise complied with the relevant rules, they are still protected from any adverse action as long as the employee held a reasonable belief of the violation.

What does an employee do if an employer does take such adverse action against them for making those complaints?  An employee may file an administrative complaint with the California Department of Industrial Relations, Office of the Labor Commissioner.  California Labor Code §98.7.  The complaint must cite the issues raised by the employee, the adverse action taken by the employer in retaliation, and must generally be filed within six (6) months of the action by the employer in question.  If the Labor Commissioner should find a violation of any law, rule or regulation, the Commissioner will order the appropriate remedies for the employee, including “rehiring or reinstatement, reimbursement of lost wages and interest thereon, payment of reasonable attorney’s fees associated with any hearing held by the Labor Commissioner in investigating the complaint, and the posting of notices to employees.”  Section 98.7(b).  It is possible the employee may not be required to exhaust this administrative remedy before proceeding to file a civil lawsuit against the employer should they choose to do so.  Daly v Exxon Corporation (1997) 55 Cal.App.4th 39, 46.  Even so, filing an administrative complaint with the Labor Commissioner is generally less costly than a civil lawsuit, and the employee might consider that remedy first, in order to see if the administrative body can resolve the problem.

Your complaints about workplace hazards and safety, however, are not the only category of complaints protected under California law.  Employers may not retaliate against employees for refusing to perform any acts which the employee reasonably believes would result in a violation of the rules of law.  Section 2856; Tameny v Atlantic Richfield Co. (1980) 27 Cal.3d 167, 174 fn8.  While this would encompass safety violations, the provision is also broad enough to encompass administrative violations, crimes, or other conduct which would otherwise violate the rules of any state or local law.  In fact, Section 98.6 provides that employers may not take any retaliation against employees for exercising their rights under the Labor Code, and that doing so may entitle the employee various remedies such as reinstatement, reimbursement for back wages, and possible criminal penalties.

[Read more...]

California Labor and Employment Law Update – Human Trafficking

California State FlagAs taxpayers around the country scramble to meet the April 15th tax deadline, a California labor and employment law deadline has already come and gone.

Governor Brown back in September of 2012 signed into law SB 1193 which adds section 52.6 to the Civil Code relating to human trafficking. SB 1193 requires specified businesses to post an 8.5″ x 11″ notice, on or before April 1, 2013, that contains information about organizations that provide services to eliminate slavery and human trafficking. The Department of Justice will develop a model notice that complies with the requirements of SB 1193 and make the model notice available. This notice will also be made available on HRCalifornia after the Department of Justice has created it.

Here is a summary of the Public Notice Requirements

The following is a summary of the requirements set forth by Senate Bill 1193. This summary is not a regulation as defined by the California Administrative Procedure Act (Gov. Code § 11340.5) and does not constitute an agency interpretation of Civil Code § 52.6.

1. Who Must Post a Public Notice

Civil Code § 52.6 mandates that the following businesses post the notice:

  1. On-sale general public premises licensees under the Alcoholic Beverage Control Act (Division 9 (commencing with Section 23000) of the Business and Professions Code).
  2. Adult or sexually oriented businesses, as defined in subdivision (a) of Section 318.5 of the Penal Code.
  3. Primary airports, as defined in Section 47102(16) of Title 49 of the United States Code.
  4. Intercity passenger rail or light rail stations.
  5. Bus stations.
  6. Truck stops. For purposes of this section, “truck stop” means a privately owned and operated facility that provides food, fuel, shower or other sanitary facilities, and lawful overnight truck parking.
  7. Emergency rooms within general acute care hospitals.
  8. Urgent care centers.
  9. Farm labor contractors, as defined in subdivision (b) of Section 1682 of the Labor Code.
  10. Privately operated job recruitment centers.
  11. Roadside rest areas.
  12. Businesses or establishments that offer massage or bodywork services for compensation and are not described in paragraph (1) of subdivision (b) of Section 4612 of the Business and Professions Code.

2. Where Must the Public Notice Be Posted

Civil Code § 52.6 requires that a specified business or other establishment must post the notice in a conspicuous place near the public entrance of the establishment or in another conspicuous location in clear view of the public and employees where similar notices are customarily posted.

3. What the Public Notice Must Say

Civil Code § 52.6 requires that the public notice to be posted must be at least 8.5 inches by 11 inches and written in size 16 font. Additionally, the public notice must state:

“If you or someone you know is being forced to engage in any activity and cannot leave — whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity — call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373 to access help and services. Victims of slavery and human trafficking are protected under United States and California law.

The hotlines are:

  • Available 24 hours a day, 7 days a week.
  • Toll-free.
  • Operated by nonprofit, nongovernmental organizations.
  • Anonymous and confidential.
  • Accessible in more than 160 languages.
  • Able to provide help, referral to services, training, and general information.”

4. What Languages the Public Notices Must Contain

The specified businesses and other establishments must post the notice in English, Spanish, and in one other language that is the most widely spoken language in the business or establishment’s location (and for which translation is mandated by the Voting Rights Act, 42 U.S.C. § 1973, et seq.). For those counties where a language other than English or Spanish is the most widely spoken language, Civil Code § 52.6 does not require the public notice to be printed in the non-English and non-Spanish language.

5. The Attorney General’s Model Public Notice

The Attorney General of California has developed a “model notice” available for download on the California Department of Justice’s Internet website as of March 27, 2013. The model notice is available in English and Spanish. The Attorney General has also provided a list of counties in which a third language other than English and Spanish is the most widely spoken language.

6. Liability and Penalty for Failing to Post the Public Notice

Civil Code § 52.6(e) creates civil liability for a business or establishment that fails to comply with the posting requirement. The penalty for violating this law is $500 for a first offense and $1,000 for each subsequent offense.

If you have any questions on the Human Trafficking posting, please contact the California Attorney General’s Office, Victims’ Services Unit.

My Facebook is my Personal Life and no Business of my Employer

facebook iconCalifornia Assembly Bill AB 1844 (Employer Use of Social Media) prohibits employers from requesting employees or job applicants to provide user names or passwords for personal social media accounts, such as Facebook. California law limits exceptions, including an exception relating to employer investigations.

Employer Use of Social Media

California’s AB 1844 does not allow employers to require an applicant or employee to provide logon information to access their social media websites in the employer’s presence.  However, in addition, it may be a future requirement that employers may not be able to request that they be a “friend” to an employee or potential applicant, thereby giving the employer no access to information that is otherwise available through the interview process.

The current law does not prohibit employers from researching the background of potential applicants; however, should employers look into the history of an applicant, under no circumstances should that information be a deciding factor in not hiring an applicant, and online information cannot be used as a reason to not hire a potential employee.

Employer Should Be Cautious

What this means is:  employers should be cautious in conducting online searches of employees and potential applicants because such searches often uncover information that employers cannot lawfully use to make hiring decisions.  Employers still have the right to hire who they choose, but the decision making process  must be thoughtful and based upon the employee’s or applicant’s job experience, talent, attitude, willingness to do the job, etc., and not based upon information from Facebook such as:  beer pong pictures, fraternity comments, family dynamics, religious beliefs, etc.

Suggested at this point would be to conduct multiple interviews and thoroughly question applicants regarding their job experience and willingness to be a team member to your business.  Also recommended is calling all references and using intuition as a source of guidance.  Further recommended is having several key management persons take notes while conducting multiple interviews, providing insight that is cumulative to the decision making process.

Further, after the decision to hire a new applicant has been made, it’s suggested that letters be sent to all interviewees explaining why they were not chosen for the job:  for example:  the applicant did not meet the skill set that was required;  or, the applicant did not meet the current needs for the position at hand. [Read more...]

Why Does My Small Business Need an Employee Handbook?

Employee Handbook for a small businessToo small for an employee handbook?

One of the first questions we ask a new small business owner client is: Do you have an employee handbook?  More often than not, they say “NO” and on the rare occasion that they do have one, it was written years ago, has never been updated and sits in some storage room nearly forgotten.

It’s remarkable the number of small businesses that have no handbook at all!  There are many good reasons to create an employee handbook, and in fact, small businesses can do themselves great financial harm without one.

Courts, the Department of Labor, and the EEOC will automatically assume, if you have no employee handbook, that you have not informed your employees of the up to date information that you are legally bound to tell employees in writing, such as their right to vote, their earnings breakdown, their right to pregnancy leave and so forth. The list of what businesses must legally tell employees grows longer every year.  Not having an employee handbook may lead these agencies to dig more deeply into your business practices to determine your compliance with wall postings, payroll accounts and such, which could then lead to severe penalties if you are not in compliance and up to date.

Having an employee handbook, and updating it annually, can protect an employer from liability if an employee decides to sue.  The employee handbook is a document where important policies and procedures are outlined in detail and explained to the workforce.

Here are some guidelines as to what must be included in the company employee handbook:

  • Workplace rules (e.g., work schedules, length of breaks, days off, etc.).
  • Strong language that supports an “off clock” break policy and enforcement of such;
  • Description of the culture of your organization;
  • Employment at Will language written appropriately with the inclusion that the business owner has the only right to choose an employment agreement;
  • Anti-discrimination policies;
  • Sexual harassment policies;
  • Leave policies;
  • Open door policies;
  • Anti-retaliation policies;
  • Termination procedures;
  • Insurance and COBRA information;
  • Pregnancy and Postpartum policies;
  • Exempt vs. Non-Exempt language;
  • Clocking in to work policies;
  • No working off clock policy;
  • Overtime policies;
  • FTO/Vacation policies;
  • Right to Vote policy;
  • Non-discriminatory dress code policies;
  • Non-discriminatory smoking policies;
  • Disclaimer regarding technology ownership;
  • Technology Use policies;
  • Employee Fiduciary Duty to Employer language;
  • Employee Duty of Loyalty to Employer language.

All employees should be given time to review the employee manual and then be required to sign and date a letter of agreement or acknowledgement page that clearly states they’ve read the handbook and understand its contents.

Employee handbooks should be updated annually. The new employee handbook should then be , re-distributed and A new letter of agreement or acknowledgement page should be signed by all employees and saved in each employee’s file. [Read more...]

Current California Lunch Break and Rest Period Employee Labor Laws

The Santa Rosa Labor Law Attorneys at Beck Law P.C. work with both employees and employers in regard to all areas governing compliance with California Labor / Wage and Hour Laws.  So as not to violate current California lunch break and rest period employee labor laws, as of April 12, 2012 it is a California requirement that all non-exempt employees get uninterrupted meal breaks and rest periods according to a decision by the Supreme Court (Brinker vs. Superior Court) See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  The Petaluma Employment Law Lawyers at Beck Law P.C. suggest to employers that all Employee Handbooks and Policies are updated by an experienced labor attorney to ensure compliance with these new laws so that overtime violations will be avoided.  In turn, we encourage employees to contact an experienced labor and employment lawyer, such as Beck Law P.C., if they feel their legal rights are being violated.

GENERAL GUIDELINES FOR EMPLOYERS AND EMPLOYEES

The employer must relieve the employee of all duty:  The Wage and Hour Labor Law Attorneys Beck Law P.C. interpret this to mean that literally ALL NON-EXEMPT EMPLOYEE DUTY must be relieved. We encourage employers to have built in contingencies to their policies to ensure that non-exempt employees do not eat at their desks or take any phone calls or instructions while they are “clocked out”.

The employer must relinquish control over all activities of the employee:  The Ukiah Labor Attorneys at Beck Law P.C. suggest all of our business clients provide a break area for employees and to encourage non-exempt employees to take a full break as well as leave the premises whenever necessary.

The employer must permit an uninterrupted 30-minute break:  The Lake County Labor and Employment Lawyers at Beck Law P.C. suggest our business clients provide a break schedule and appoint an Office Supervisor that monitors all non-exempt employees to make sure breaks are taken in a timely manner.  All non-exempt employees must “clock in” and “clock out” and are never permitted to work at home or “off clock.”

The employer must not impede or discourage the employee from taking their 30-minute meal break:  In order to demonstrate compliance with this law as well as avoid meal period violations, the attorneys at Beck Law P.C. suggests employers hire experienced employment law attorneys to prepare the appropriate legal language to be included in all Employer Handbooks and Policies that clearly outlines the break schedule stating that employees have a responsibility to take their breaks in a timely manner.  Additionally, we encourage fellow employees to never discuss work related matters with a non-exempt employee while they are taking a break.

All Non-Exempt Employee Lunch Breaks and Rest Periods Must be Provided and Taken in a Timely MannerCurrent California labor laws for rest breaks and meal periods require that the employer provide non-exempt employees with a 30 minute uninterrupted meal break after 5 hours of work (unless the employee’s workday is completed within 6 hours), and a 10 minute rest break time after each 3 ½ hours of work.

10 Minute Breaks Must Be Paid By Employer.  Not only must an employer require a non-exempt employee to take an un-interrupted lunch or Rest break, but the employer must pay for it, according to current labor laws.  rest break violations and meal break violations can occur if a non-exempt employee is interrupted during a break or meal period and said employee is entitled to additional compensation for working through a meal break.  In addition to the one hour of pay, the extra compensation can increase the amount of overtime that you are due.

Employers May Not Pressure or Coerce the Non-Exempt Employee to Forgo a Lunch or Rest BreakOnly if ALL of the above are met will an employee be deemed to have taken a break. In particular, the California Supreme Court noted that the “wage order and the governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.”

What this means, in simple terms is:  A written company policy stating that you permit meal breaks and rest periods will not be legal if you do not enforce your employees to take timely breaks, that are monitored with accurate time keeping records that demonstrate that non-exempt employees “clocked in” and “clocked out” on time, every work day.  Even on extremely busy days, managers must not pressure non-exempt employees to work through breaks and must ensure rest and meal breaks are taken on time and un-interrupted, or compensate the employee in the amount of one hour’s wage for each interruption or violation.

Missed Meal Breaks and Rest Periods are considered a Wage and Not a PenaltyIn Murphy v. Kenneth Cole Productions, Inc. the courts decided that missed meal breaks are considered a wage and not a penalty. What this means is under California labor law code meal break rule violations can be collected by employees for 3 years and sometimes 4 years under the California unfair competition statute, whereas a penalty is only collectable for 1 year.

What are the Timing Requirements that Comply with First or Second Meal Periods during the Workday?

Train your management to keep in mind the 5-hour mark.  When an employee works more than five hours, a meal period must be provided no later than the end of the employee’s fifth hour of work (simply stated:  no later than the start of the employee’s sixth hour of work).  When an employee works of a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s tenth hours of work (no later than the start of the employee’s eleventh hour of work).

Santa Rosa Employer Employee Data Privacy Protection

New Nightmare for Santa Rosa Employer Employee Data Privacy Protection & Employer ResponsibilitiesUnder Lock and Key

Scenario:  A key employee resigns and you find that they have shared private and personal information about your customers on Facebook.

Nowadays, employers collect a great deal of personal information about their employees, customers, patients, clients, and others along the course of the work day. Companies use employees’ personal information for many reasons such as administration of payroll, employee benefit plans, and evaluation of employment applications, the handling of independent contractors, terminated employees, retired employees and so forth.  In this computer dependent age, personal data is being shared and transferred between organizations online; and thus, maintaining compliance with applicable data privacy laws is an ever increasing responsibility of employers.

Companies need to be aware of their obligations under the profusion of data protection laws and regulations that govern the collection, use and transfer of personal information. Additionally, data privacy laws include not only active employee information, but extend to any non-employee groups whose personal data they may acquire.

Minimizing Employer Risk

The Petaluma employment law attorneys at Beck Law P.C. suggest the following to attempt to minimize employer risk.

Companies should seek counsel annually with an experienced employment law attorney, to acquire the appropriate legal interpretive guidance on compliance matters so as to avoid legal violations and security breaches involving employee personal data.

Policies should include legal language specifically directed to employee procedures in regard to data privacy to ensure the best practices that aim to limit the amount of personal data they collect, process, transfer and store.

Companies should limit access to personal data and provide training to staff that handles personal data.

Companies should include legal language in their policies stating that business computers will be monitored and reviewed periodically to ensure employees are applying appropriate security measures regarding personal data.

Even Still:   All the precautionary measures in the world will not stop a dishonest employee from selling your business’s personal information, such as your customer social security numbers online and you, as the business owner will be held accountable for their actions.

There is absolutely nothing an employer can to do to prevent an employee from texting information from their personal phone or simpler still, writing down the information and throwing it in their purse or pocket before walking out the door.

Therefore, the labor and employment attorneys at Beck Law P.C. offer these further tips:

Perform all due diligence during the interview process when hiring a new employee.  Take your time, and have multiple interviews so that you begin to trust the person you are about to hire, before you hire them.  Call all references and carefully listen to not only what they say, but more importantly, what they don’t say.  Ask lots of questions to cull out information that may give you more clues to this person’s integrity.  Use your intuition, and perform all interviews with other trusted staff members to get their feedback,  and if any one of you feel something is not quite right with this person’s integrity, move on until you feel very comfortable with who you are going to hire.

For current employees:  Know your employees, be attentive and listen to them, use good communication and eye contact.  Always honor and praise good work.  Be on the look- out for suspicious behavior such as when an employee uses negative body language or challenges you in ways that you find inappropriate to the situation, as this may an indication of guilt that they may be doing something behind your back.  Listen to other employees who report that they do not feel comfortable about another employee’s actions.  If you feel a negative feeling about an employee, trust your feeling, as you are most likely correct.  If you suspect and employee of dishonesty, begin your due diligence research and contact an experienced employment attorney, such as Beck Law P.C. to handle the appropriate legal remedy and counseling process to remove said employee from your work place.

Silicon Valley venture capital firm subject of gender discrimination lawsuit

 Silicon Valley venture capital firm subject of gender discrimination lawsuit (via The Bay Citizen)

Storied Menlo Park venture capital firm Kleiner Perkins Caufield & Byers has funneled money into some of the world’s most high profile companies: AOL, Amazon, Genentech, WebMD, and Zynga — to name a few. And now it’s the subject of a gender discrimination suit. Ellen Pao, a partner in the firm,…

[Read more...]

Fair Housing Organizations File Discrimination Complaint Against U.S. Bank



Fair Housing Organizations File Discrimination Complaint Against U.S. Bank (via redOrbit)

National Fair Housing Alliance Alleges Discrimination in Marketing and Maintenance of Foreclosed Properties WASHINGTON, April 17, 2012 /PRNewswire-USNewswire/ — Today, the National Fair Housing Alliance (NFHA) and four of its member organizations announced a federal housing discrimination complaint…

[Read more...]

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