How to Avoid an Employee Lawsuit as an Employer

employee lawsuitThe last thing you need as an employer is an employee lawsuit. Running a business is not easy. It requires an assortment of skills that include business savvy, financial prowess, organizational mastery, and schmoozing finesse to deal with customers, competitors, and employees. In the event that you wind up battling an employee lawsuit, consulting with an experienced employment attorney is your best bet.

Employee Lawsuit – Why do Employees Sue?

There are all kinds of reasons for an employee lawsuit. Employees will definitely take to the courts to deal with their grievances.  Here are some of the employee lawsuit biggies with suggestions on how to avoid these issues:

  • Employees feel they have been mistreated: When human dignity is secondary to the company’s bottom line, workers feel it. Whether they are still employed, demoted, or no longer with the company, if people believe they are or were disposable, it hurts. This is likely the number one reason individuals seek retribution against an employer – because they believe their efforts on behalf of the company went unrecognized and underappreciated.
  • To avoid this pitfall: Treat employees respectfully. Make sure managers get the message that people matter, and build recognition into the culture of the workplace.
  • Employees are disciplined, demoted or fired for engaging in a protected activity: Oftentimes employers may feel uncomfortable with, say, union participation. Or perhaps an employee has reported discriminatory behavior in the workplace. If negative consequences follow this kind of protected activity, it is unlawful, and could result in a lawsuit.
  • To avoid this pitfall: Make sure HR documents issues with employees so there is a clear paper trail leading up to job actions. Additionally, stay up to date on the laws regarding employee rights, and make timely responses to employee concerns regarding discrimination.
  • Employees working under the direction of a bad manager: When a manager lacks the leadership skills and the ability to represent the values of the company adequately, no matter how wonderful the mission statement is, it could be trouble. One harasser, one cheater, one cruel manager, and the company is at risk.
  • To avoid this pitfall: Train managers well, and perform regular evaluations to ensure they are working within the law and treating employees properly.
  • Employees see unfair application of rules: Employee A is written up for excessive tardiness, but Employee B gets away with it on a regular basis. It irks everyone to see that type of thing, especially if it looks like the uneven enforcement is related to race, gender, or other protected status. When employees can prove unequal treatment occurred, it can be expensive for employers.
  • To avoid this pitfall: Have clear rules and expectations, and specific policies in place to intervene when there is a problem.

[Read more…]

Limiting Political Discussions in the Workplace

political discussionsLimiting political discussions in the workplace? It seems that everyone has an opinion on the current state of affairs in Washington, not to mention right here in California. Employers and employees alike may be experiencing some discomfort as the temperature rises in some of these discussions, and one might wonder if limits on speech in the workplace are a reasonable, desirable, or even legal option.

Political Discussions and the First Amendment

Censorship of free speech is against the law, right? Well, not necessarily. Constitutionalists generally agree that the first amendment applies to government censorship. That means that a company is entirely within its rights to limit, or even banish political discussions in the workplace entirely. The rationale behind such regulations generally relates to productivity and efficiency. While state and federal laws guarantee employees protection from discrimination based on political affiliation, employers may sanction or even fire an employee who disrupts the workplace, lacks efficiency, or engages in practices that create a conflict of interest with the company. That being said, California Labor Code prohibits policies that direct or control employees’ political activities.

Wearing Political Buttons at Work

Again, employers have the right to dictate the dress code in the workplace, which means policies that ban political buttons, t-shirts, and so forth are allowable. Of course, an employer cannot pick and choose, allowing some political views to be put on display and disallowing others.

On the other hand, the National Labor Relations Act (NRLA) expressly allows for the right of employees to wear items associated with their labor union in the workplace. Although unions are somewhat political organizations, union members may wear union-sponsored buttons or other apparel that send political messages.

Political Discussions During Lunch?

You would think that during your lunch hour in the break room, you could say whatever you would like, but you would be wrong. Employers are tasked with making sure employees in protected categories do not feel disaffected. If an employee were to state, for example, that it is a good thing Hilary Clinton was not elected because she is a woman, it could mean trouble. Why?  Because the comment centers on a protected factor – gender. Women who hear the comment could take offense or feel alienated due to gender discrimination. Employers would be wise to have strong anti-discrimination and anti-harassment policies in place and to quickly investigate complaints and rectify situations that cause discomfort among workers.

Are Off-Duty Political Activities Protected?

In California, employers may not intimidate or prohibit workers from engaging in legal political activities, including managing a campaign or running for office. [Read more…]

New Employment Laws to Benefit Employees

new employment lawsNew employment laws for 2018. If you are an employee who feels that unfair or illegal procedures have impacted your success at the workplace, you are not alone. Studies indicate that across the nation, nearly 12% of businesses experience a legal challenge to business practices at some point; California’s rate is 40% higher than the national average. If you find yourself wondering whether or not your legal rights have been violated on the job, discussing your concerns with a local employment attorney may be helpful.

2018 Rings in New Employment Laws

Several new employment laws went into effect in January that may positively impact employees. A few important ones include:

  • AB 1008: This law applies to employers with more than four employees, and deals with the actual application process. Now, questions related to criminal history prior to employment are banned, except for positions where a background check is required by law (such as public education, law enforcement, etc.). After a conditional offer of employment has been made, an employer may investigate an applicant’s criminal history, but cannot refuse employment without first determining that the criminal history would have a direct impact on the performance of job duties, giving the applicant a written explanation of the reason for the rejection, and providing an opportunity for the applicant to contest the decision, providing a second written determination of the final decision not to employ the applicant.
  • SB 63: This law, which applies to employers with more than 19 employees, requires eligible workers to be offered as much as 12 weeks of unpaid leave to bond with a new child. Whether the child was adopted, is a foster child, or is a newborn to the employee, this leave is now available. While on leave, employers are required to pay for health care coverage under any group plan. Following the leave, the employee is guaranteed an equivalent position back in the company.
  • SB 179: Residents of the state may now choose one of three options to identify their gender on state I.D. cards and birth certificates: male, female, or nonbinary. (The same will apply to driver’s licenses in 2019). Changing one’s gender on other legal documents is now much easier, as well.
  • AB 46: Public employers are now required to provide the same protections offered through California’s Fair Pay Act (against gender, race, and ethnicity discrimination) that private employers have been held to for years.
  • SB 396: Covered employers must now include information about harassment related to sexual orientation and gender identity and expression in their required sexual harassment trainings.

[Read more…]

The Rights Employees do and do Not Have

Employee RightsWhat are my rights as an employee? Is your employer crimping your style at the office? Does it feel as though you are walking on eggshells because you are so unsure of what is ok and what is not? Sure, everyone knows discrimination is illegal and that the workplace has to accommodate for disabilities. What about the nitty-gritty things that nobody ever talks about? Uncertainty is an ugly companion on the job; it is better to clarify your rights at work from the get go. If serious concerns arise, a local employment attorney could help.

These Activities Fall Within Your Rights:

  • Discussing working conditions: If you have concerns about safety conditions, are curious about how much money your co-workers make, or believe certain policies are unfair, you have every right to discuss those issues with your colleagues. If you have been forbidden to do so by policy or contract, there is a good possibility your employer is breaking the law.
  • Keeping copies of signed documents: When you hire on with a company, they may ask you to sign a mountain of paperwork, from arbitration clauses to confidentiality agreements. Make sure you get copies of everything you put your signature to, so if problems arise later, you are clear about what their expectations are, and you can better evaluate how you will handle disputes.
  • Having a copy of the employee manual: Are you required to read and know what is in the employee manual? If so, you are entitled to have a copy, whether it is a hard copy or an online manual.
  • Receiving overtime pay for hours over 40: If you are an hourly employee, you must be paid time and a half for any hours exceeding 40 in one week. Employers sometimes try to get around paying for overtime by misclassifying workers as salaried, requiring employees to complete duties off the clock, requiring both exempt and non-exempt duties in your job description, and a multitude of other tricks.

These Activities are Not Protected at Work

That does not mean, however, that employees have free reign at work. There are plenty of activities in which employees assume they can engage, but that could get them into legitimate trouble with the boss.

  • Complaining about your job: You can actually be fired for complaining about problems at work if those problems are not the result of illegal behavior. So, if you want grouse about how unprofessional your boss is in his or her attire, bite your tongue. Even away from work, those kinds of comments can get you canned.
  • Getting into an argument with a co-worker: Whether talking about politics, education, or any other topic, do not assume you can freely spout your opinions. You are being paid to do a job, not change the world with your views on the state of the White House. Avoid disputes that should not be occurring in the office.

Protecting Workers’ Rights

At Beck Law P.C., we work hard on behalf of clients whose workplace rights have been violated. If you need legal advocacy in Sonoma County, Mendocino County, or Lake County California, contact us in Santa Rosa today.

Ethical Issues Can Lead to Legal Consequences in Business

ethicalEthical considerations sometimes get pushed aside when an organization’s managers makes decisions based purely on a cost-benefit analysis. In such instances, the bottom line may ultimately suffer, anyway. Why? If legal lines get blurred as the ethics fade away, lawsuits could spring up, costing much, much more in the long run. If you are concerned about ethical failures with regard to the policies that govern standard operating procedures at a local corporation, an experienced business attorney may be able to help.

Lapse of Ethics – Enron and Ford

Companies large and small are not immune to these hiatuses from sound judgment. Unfortunately, consumers often have to pay a high price before these businesses are reined in.

Enron

When the Securities and Exchange Commission investigated Enron for questionable bookkeeping practices, it was discovered that high-level executives were doctoring the books to hide losses and liabilities from stockholders. The company was eventually bankrupted, and key leaders of the corporation were tried on multiple counts of money laundering, bank fraud, conspiracy, and insider trading. Convictions ranging from 25-45 years were handed down to Kenneth Lay, Jeffrey Skilling, Andrew Fastow, and other key administrators.

Ford

Another example involves Ford’s efforts to break into the small car market in the 1970s. When the company’s crash data on the Pinto car revealed dangers associated with rupturing fuel tanks during rear-end collisions, Ford managers had to decide whether to address the problem or to go forward with production. The decision was made to proceed. The business thinking was methodical and completely void of ethical considerations; the costs associated with redesigning the vehicle exceeded projected costs associated with potential lawsuits down the road. That decision resulted in 900 injuries and dozens of deaths when fiery crashes occurred on roadways across the country.

The fallout for Ford was massive. 1.5 million Pintos were recalled, and Ford paid a legion of lawyers to defend them in court. After fighting criminal charges and numerous civil cases, Ford far outspent the $137 million it would have cost them to fix the car before releasing it to the public. In fact, just one California jury awarded a $128 million verdict. Many other cases were settled for undisclosed amounts, but it can be surmised that the decision to put the Pinto on the road cost Ford a pretty penny. Beyond that, Ford’s reputation was crushed.

What Constitutes an Ethical Issue?

When a lack of ethics leads to decisions that cause serious harm to the public, legal proceedings may ensue. In public service, the primary violation relates to bribery, and is punishable by two to four years in prison. [Read more…]

8 Common Errors for Employers to Avoid

ErrorsEmployer errors to avoid. Employment laws are written to ensure the safety and fair treatment of everyone in the workplace. When employers fudge their policies, it can open them up to potential lawsuits, and experienced legal assistance will be needed. Here are some key errors every employer should avoid:

  • Improper employee classification: Just because an employer wants to list everyone as exempt, it does not make them so. Only high-level administrators or professionals generally qualify for this classification; everyone else is entitled to rest and meal breaks, as well as overtime pay. Failure to pay overtime is a key issue that lands employers in court.
  • Independent contractor classification errors: Not anyone can be an independent contractor.  This classification is determined based on who holds the decision-making power as to how the work is performed. Additionally, consideration is given to the degree to which the person’s work is integral to the daily business of the company. Someone who paints the office is an independent contractor. Someone who contributes to the product your company sells is an employee.
  • Neglecting to train supervisors about harassment or discrimination: If you have 50+ employees, there is a legal requirement to provide sexual harassment training every two years.  Even if you have fewer employees, providing such training reduces your exposure in the event of a lawsuit.
  • Terminating employees who take leaves of absence: Employers are legally required to provide leave for a number of life events, including military leave, pregnancy, family and medical leave, disability, and others. Employees are entitled to return to their positions, or an equivalent position, following leave.
  • Insisting on non-compete agreements: Sorry, these are prohibited in California, except in very limited circumstances. You cannot force someone to stay with your company or restrict their ability to work elsewhere.
  • Eliminating vacation days that are not used: Employees in California are allowed to accrue vacation days with the expectation that they will be paid out at the time of termination at the current salary rate. Although accrual may be reasonably limited, it cannot be eliminated altogether.
  • Deducting unauthorized amounts from paychecks: California law provides for withholding taxes, insurance, wage garnishments, child support orders, and other specific items. It is unlawful to require loan repayments to the company through deductions.
  • Withholding a paycheck if an employee has not returned company property: Let us say an employee is terminated, yet still has possession of company property such as a cellphone, tools, or other items. Employers are not justified in hanging onto that employee’s final check.  California law requires a final check to be available within 72 hours of termination. You will have to pursue the return of your property in another way.

[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…]

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.

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…]

Firefighters Need Legal Protection

firefightersRecent events in Mendocino, Lake, Napa and Sonoma County have highlighted the perils that firefighters face in the line of duty every single day. These heroes put their lives in danger in an attempt to salvage homes and businesses, not to mention crops, livestock, and of course, human life. For the most part, their bravery is rewarded with public adoration and appreciation. Sometimes, firefighters are placed in unpleasant situations that are legally untenable. In such circumstances, they have no choice but to seek local legal counsel.

Recent Firefighters Cases in the News

  • When firefighter Todd Milan spilled the beans on an OSHA violation that occurred, putting him in a particularly dangerous situation, he felt the response from his department was outright retaliation. A jury thought the same thing, awarding him over $2.3 million for emotional distress, past and future wages, and legal fees.
  • Santa Rosa firefighters filed suit in District Court in the spring of 2017, alleging an improper calculation of overtime pay. According to the suit, they wish to be reimbursed for the past three years of work, in addition to attorney’s fees. Why three years of back pay? That is the time frame allowed by the Fair Labor Standards Act.
  • A 27-year veteran firefighter in Los Angeles won a lawsuit in which he was awarded damages of over $1 million for racial discrimination, harassment, and retaliation. According to the suit, Jabari Jumaane’s captain falsified performance evaluations with the sanctioning of his battalion chief. Jumanne was disciplined, and even suspended for the poor evaluations. After over two weeks of deliberation, the jury found in favor of Jumaane.
  • Merely hours after learning of needed neck surgery, Chula Vista City fired their fire chief, James Garcia. He filed suit claiming discrimination based on a disability. The jury agreed, awarding him over $1 million.

Do Not be Deterred by the Fireman’s Rule

In addition to injustices, firefighters may wish to file civil suits base on injuries that occur during the workday. Because Workers’ Compensation laws seem adequate to cover injuries, the California Fireman’s Rule disallows firefighters from filing civil suits based on workplace injuries. However, there are specific exceptions to this rule:

  • When the injury was intentionally caused;
  • When unintentional actions occur that lead to injury, and the person causing the injury knew or should have known a public safety officer was involved;
  • When statutes, regulations, or ordinances created to protect public safety officers are ignored or violated.

[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.