Articles Posted in Labor and Employment

Published on:

1071008_target_and_arrow_1.jpg
Many California businesses use independent contractors. They do so for a handful of reasons, but one of the most common reasons is to save money. An independent contractor does not involve the same costs that an employee does, such as overtime, payroll taxes, vacation and sick time, and other benefits.

The perceived cost savings can come at a steep price for the employer in the form of an employee lawsuit for misclassification or a payroll audit by a governmental agency. The end result can be that an independent contractor is reclassified as an employee. This will cost the business owner significant amounts of money for unpaid overtime, payroll taxes, and other penalties, reaching backward in time three to four years.

Reclassification turns the independent contractor into an employee, retroactively, just like a zombie. And we all know how hard it is to kill zombies, especially ones that are due a lot of money.
Continue reading →

Published on:

938292_california.jpgThere are a number of important changes in the law for 2013 affecting California employers. Part 1 discusses new laws for issues ranging from religious dress to commission payments. Part 2 covers issues ranging from whistleblower protection to information that must be provided to all new hires. The items discussed here are not a full list of all changes to the law this year, nor are the points referred to comprehensive of each law, given the nature of this summary. Unless otherwise noted, these laws take effect on January 1, 2013.

New Hire Information – AB 469 affects Labor Code § 2810.5 and requires employers to provide new hires with written information before work commences. Among other things, the employee must receive information specifying their rate of pay and how it is computed, the regular paydays, the legal name (and d.b.a. name) of the employer, the physical address of the employer’s main office or principal place of business, the employer’s telephone number and the contact information for their worker’s compensation carrier. When changes occur to this information, the employer must notify its employees in writing within seven calendar days. There are a few, limited exceptions to the requirement of providing this information.
Continue reading →

Published on:

938292_california.jpgThere are a number of important changes in the law for 2013 affecting California employers. Part 1 discusses new laws for issues ranging from religious dress to commission payments. Part 2 covers issues ranging from whistleblower protection to information that must be provided to all new hires. The items discussed here are not a full list of all changes to the law this year, nor are the points referred to comprehensive of each law, given the nature of this summary. Unless otherwise noted, these laws take effect on January 1, 2013.

Social Media – At the top of the list is a law affecting social media policies and practices. AB 1844 added Labor Code § 980 that prohibits employers from asking employees or job applicants for their social media passwords. There is an exception that allows employers to request passwords in conjunction with certain types of workplace investigations. The Labor Code does not prohibit employers from requiring employees to provide a password for access to an employer issued electronic device.

Employers should be aware there is increased scrutiny on how employers draft and enforce social media policies. Employers should be careful not to draft overly broad policies that might restrict concerted activity or punish legitimate off-the-clock activity by employees. Many employers are unaware that the Labor Code prohibits employers from taking action against employees for lawful conduct occurring during nonworking hours away from the employer’s premises. This is an important consideration in drafting and enforcing social media policies.

Businesses should develop reasonable policies that ensure the content created by their employees for the business are clearly the property of the business. Contact this office for assistance in developing appropriate social media policies.
Continue reading →

Published on:

1314902_medical_doctor.jpgMany employees and employers are surprised to learn there is a California statute allowing employees to use up to one-half of their annual sick leave for the care of an immediate family member. The statute, Labor Code § 233, is informally referred to as Kin Care because it applies to the care of an employee’s immediate family. Under Labor Code § 233, an employer must allow the employee to use sick leave to attend to his or her child, parent, spouse, or domestic partner. The amount of sick leave that can be used for this purpose is equal to the sick leave the employee earns in the six preceding months.

An employer violates this statute when it denies the employee the right to use his or her leave this way, terminates the employee, or discriminates against an employee that wants to or uses sick leave in this manner. When a violation is proven, the employee is entitled to reinstatement and actual damages, among other remedies.

The California Supreme Court took up the issue of Kin Care in McCarther v. Pacific Telesis Group in 2010. However, the major holding of that case is unlikely to affect most California employers. The employer in that matter had a sick leave policy that allowed for an indefinite number of paid sick days, in contrast to a traditional sick leave policy of a defined number of days per year. Because of that distinction, the employer did not violate the Kin Care provision of Labor Code § 233.

Published on:

1229466_dollar_sign.jpgOne of the major concerns in defending an employment lawsuit is the financial cost of doing so. Aside from the very real ‘business’ cost of having to focus management’s attention on the case, an employer must pay its own attorney to defend the company. The employer will also be liable for the employee’s statutory attorney’s fees if the employee obtains a judgment. The attorney’s fee statute is one-sided, favoring the employee. This often forces an employer to consider if it should settle a case with minimal damages to avoid its exposure to a larger award of attorney’s fees.

In a rare piece of good news for California employers, the California Supreme Court upheld a trial court’s decision that denied attorney’s fees under the Fair Employment and Housing Act (FEHA) to an employee, even though the employee prevailed in the lawsuit. The case of Chavez v. City of Los Angeles broke tradition with the practice under the FEHA that a prevailing employee automatically receives an attorney’s fees award.
Continue reading →