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 who take notes and can provide 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. The employment law attorneys at Beck Law P.C. are available to answer employment law related questions. Contact the employment attorneys at Beck Law P.C. to schedule a free initial consultation.

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.If you have a small business employee handbook question or any other labor and employment law questions and do business in Lake County, Mendocino County or Sonoma County California, please contact our Beck Law P.C. employment and labor law attorneys at 707-576-7175 to schedule a  free and confidential initial consultation.

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

Summary of 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.

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 a reasonable opportunity to take an uninterrupted 30-minute breaks:  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 Manner:  Current 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 Break:  Only 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 Penalty:  In 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).

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.