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…]

Criminal History? Can’t find Employment?

criminal history searchDo you have a criminal history? An ex-felon perhaps? You’re trying to get a job and finding nothing but brick walls in your path? You are not alone. Between 1.5 and 1.7 million former offender were unemployed according to 2010 statistics, and all indications tell us that things have not improved much since then. If you are trying to get your life back on track but are carrying your criminal history around with you, is finding a decent job simply out of reach?

Why Employers Screen for Criminal History

Employers surveyed report a number of reasons for screening job applicants for criminal convictions:

  • In a effort to avoid workplace fraud and theft;
  • Due to concerns about workplace violence;
  • Fear of liability due to negligence in hiring practices;
  • Compliance with state and federal laws.

Criminal History, Race, and National Origin Disparities

While federal law prohibits discrimination based on race, religion, national origin, and other factors, criminal history is not a protected status. That said, the Equal Employment Opportunity Commission recognizes the potential for disparate treatment when employers refuse to hire felons:

  • Disparate treatment liability is a potential problem if employers view an applicant’s criminal history differently depending on the national origin or race of the applicant;
  • Factually, excluding workers based on a criminal history does have a disparate impact on certain races.

Indicators of Illegal Criminal History Discrimination

Proving discrimination requires the documentation of specific behaviors. If an employer refuses to hire, for example, someone with a criminal record who is a member of a racial minority group, but hires an equivalent applicant who is white, that may be one indicator that discrimination is at work. In fact, if it can be demonstrated that an employer utilizes a practice, such as screening for criminal history, and it has a disparate impact on race or another protected category, the practice itself may be unlawful. Other problems include:

  • Biases or stereotypical comments related to race;
  • Inconsistent hiring practices with regard to racial minorities;
  • Indiscriminate application of the screening process;
  • Statistical analysis that reveals discriminatory practices with regard to hiring, promoting, etc.

EEOC Recommended Procedures

To avoid liability, the EEOC provides guidelines to employers who choose to screen for criminal history:

  • Conduct an individual assessment of each applicant;
  • Tailor screenings narrowly to correspond with job requirements;
  • In general, avoid making inquires about criminal history;
  • When such inquiries are made, make sure applicants would only be excluded based on job-related factors;
  • Keep information about criminal histories confidential.

Government Incentives to Hire Former Offenders

The Federal Bonding Program (FBP) and the Work Opportunity Tax Credit (WOTC) are a couple of incentives available to support employers who hire former offenders. Credits of 25-40 percent of wages earned in the first year are available to employers.

Additionally, California laws are working to protect those with convictions that have been set aside or are sealed (Cal. Lab. Code § 432.7(a)). Additionally, this legislation puts the burden on employers to show that their screening policy is necessary to the job at hand and takes into account several factors:

  • Nature and severity of the crime;
  • Time passed since the arrest;
  • Nature of the job responsibilities.

[Read more…]

Is Missing Work to Care for A Grandparent Covered by the Family Medical Leave Act?

Family Medical Leave ActCan you use medical leave to take care of your grandmother? Imagine your grandmother has had hip replacement surgery, and is going to require extensive care for the next several weeks. You approach your boss for some time off and are denied. But what about the Family Medical Leave Act (FMLA), you challenge. Does it not provide time off to care for family members? If you find yourself in a confrontation with your employer over the provisions of FMLA, an employment law attorney may be able to assist.

Family Medical Leave Act (FMLA) Provisions

FMLA provides that eligible employees are allowed to take up to 12 weeks of unpaid, job-protected time off with continued group health insurance coverage in certain circumstances.  The part of the law relevant to this situation is pretty explicit: An employee may take the time off of work to care for a spouse, child or parent with a serious health issue. Grandparents are not mentioned. It looks pretty cut-and-dried. Or is it?

Family Medical Leave Act and Parental Relationships

In fact, the FMLA does have some wiggle room when it comes to defining family relationships.   The law actually provides consideration to those who are able to demonstrate a factual, or in loco parentis relationship. This refers to anyone who has essentially served in a parenting role toward the employee. Now, the law does not specify exactly how that parenting role presents, but some factors might include:

  • Providing food, shelter, and clothing;
  • Addressing medical needs and having health insurance;
  • Providing transportation to and from school.

If an employee can establish that his of her grandparent raised him or her, or, at a minimum, met the above criteria, he or she may have a case for in loco parentis status. If, indeed, the grandparent discharged obligations as in a parent-child relationship when the employee was a minor child, FMLA may cover time off of work now for the employee to care for his or her grandparent.

Of note, the in loco parentis interpretation goes even further. The individual who took on the parenting role does not even have to have a legal or biological relationship to the employee.  Simply showing that that person provided financial support and performed duties typically associated with a parent is generally enough.

Employer Rights

Employers are entitled to documentation of any claims of in loco parentis relationships, of course, just as they may seek documentation showing the need for FMLA in other allowed circumstances. That documentation, however, can simply be the employee’s assertion of the relationship with minimal details. [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.