California Employment Law Archives - California Labor & Employment Law

Can Protesting Affect Your Job?

July 1, 2020 by Beck Law P.C.

These are highly political times we are living in, with the sudden advent of mass protests across the nation in support of George Floyd and the Black Lives Matter movement. What does protesting have to do with your job? A local labor and employment attorney can answer this, and other questions you may have.

Laws to Consider

While clearly the First Amendment is a central issue relating to any protest, employees and employers alike should be aware that other laws may apply to actions, as well. It is important to be aware of California’s Government Code 3203, which bars an employer from participation or involvement in political activities. An employee may demonstrate or express political views without reprisal, as long as it does not occur on company time or using company technology or materials. It is also important that employees cannot be wearing their workplace uniforms while involved in political actions (Government Code 3206).

Employer Involvement in Political Action

In some cases, employers may want employees to participate in political action. While it is lawful for them to broach current issues and talking points with employees, they may not incite employees to participate in political action, or pressure them into taking a certain stance on a particular issue.

Can You Legally Criticize Your Employer Publicly?

The First Amendment—freedom of speech—is a constitutional right. Nonetheless, if your public comments can be linked to workplace disruptions in operations, it could get an employee into trouble if the employee either:

Shared company secrets, or;
Misrepresented their views as those of the company’s, or;
The employer’s interests are seen to outweigh your right of privacy in your personal life.

More specifically, if your employer can prove that your actions caused significant harm to the company’s reputation, or that those activities limited your ability to do your job effectively, including preventing you from being able to work with colleagues, then employer can take action against you.

What if You are Arrested During a Protest?

Unless you are a law enforcement officer, your boss cannot fire or otherwise reprimand you for being arrested. On the other hand, if you do not show up for work as scheduled because you are behind bars, and you do not have personal days to use for un-prescribed purposes you may have a problem. It only becomes an employer issue if various employees are treated differently based on their views, race, ethnicity, or other protected area. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: employees' rights, protests

Coronavirus Lockdown Orders Impacts Businesses: Banks Offer Relief

April 30, 2020 by Beck Law P.C.

Coronavirus lockdown orders have permeated the country creating dire consequences for employers and employees. Coronavirus has led to social distancing measures to protect communities, but the collateral damage on businesses, particularly small businesses, is proving to be devastating. Enter the banking industry.

Coronavirus Lockdown Orders – Essential vs. Nonessential Businesses

California’s Governor Newsom issued executive coronavirus lockdown orders in March requiring residents to stay home unless they were needed to maintain “essential infrastructure.” That means a number of businesses have been shuttered, and employees left wondering how they will pay their bills. The businesses considered essential, to date, include grocery stores, pharmacies, banks, laundromats, law enforcement, fire and EMT, gas stations, and, of course, medical services. Some manufacturers and distributors, particularly those involved with the medical field, are also remaining in business. Likewise, employees who assist vulnerable populations in areas such as food and shelter operations may continue to work, as well as those dealing with child abuse and elderly care. Public works and communications employees are still going to work, and electricians, plumbers, and sanitation workers continue to support the community. Additionally, veterinary services are still available to the public. Finally, those working in mortuary, funeral, and cemetery services are deemed essential. That leaves entertainment venues, salons, fitness centers and more with no way to make money. Those in transportation, and hospitality industries have limited employment. Indoor dining is prohibited, so restaurants can earn a marginal income through take-out and delivery orders.

State Options for Your Business

The governor has worked with both national banks and state-chartered ones, along with credit unions, to create a grace period on loan payments in the wake of the COVID-19 outbreak prompted coronavirus lockdown orders. Additional programs centered around payment deferrals, fee waivers, interest rate adjustments, and various loan modifications are available to assist business owners who have been negatively impacted by the pandemic.

Federal Assistance

The federal government has enacted legislation to address financial assistance for small businesses that have been hit by the virus. Organizations with 500 or less on the payroll may obtain loans from the Small Business Administration to help with business expenditures. This may include the following:

Payroll and compensation;
Healthcare costs;
Mortgage and other interest obligations;
Rent and utilities.

These loans are provided with no collateral or personal guarantees, and costs associated with employee payroll will be forgiven up to $100,000. The remainder of the loan will carry no more than 4% interest. [Read more…]

Filed Under: California Employment Law, COVID-19 Tagged With: coronavirus, economy, recession

Strippers $3.65M Lawsuit Settlement

February 14, 2020 by Beck Law P.C.

In an industry fraught with unscrupulous club owners, the financial plight of strippers has gone largely unnoticed by the legal system. That is, until AB5 gave strippers a leg up on the issue.

Disparities in the Industry

In a general sense, strippers go to work, take the deal club owners offer, and make it out of there with as much cash as possible. Unfortunately, the amount they wind up with can be pretty paltry. More often than not, strippers work strictly for tips, which they are often required to share with bartenders, wait staff, house moms, managers, and DJs. In addition to that, dancers fork over a variety of fees to club owners, including stage fees, dance fees, or other house fees. Sometimes, fees are based on the degree of nudity achieved by the end of a performer’s act. Naturally, the dancers are considered independent contractors, meaning they are ineligible for sick leave, workers’ compensation, insurance, and other benefits. Overall, the finances of the business seem pretty shady in many cases.

Strippers Lawsuit Emerges

A class action lawsuit was filed against Spearmint Rhino strip clubs claiming that dancers were being misclassified as independent contractors. The suit alleged that the law was being violated because strippers were not being paid minimum wage, and they were not even allowed to keep a significant portion of their tips. They were also responsible for purchasing their own wardrobes. Finally, dancers were never provided legally required wage statements.

The Settlement

Although the suit was brought in 2017 before AB5 was on the books, the plaintiff clearly saw the writing on the wall, and agreed to a settlement of $3.65 million. Here is how it was broken down:

$10,000 to be divided between the four strippers who brought the original suit;
$75,000 to the state’s Labor and Workforce Development Agency;
Just over $900,000 for attorney’s fees;
$2.6 million to be divided among all eligible class members who submit a claim.

In addition to the strippers financial payout, dancers have been reclassified as employees.

Tensions Over AB5

Despite the influence of AB5 in this case, there are many in the exotic dancing field who see the other side of the coin. They prefer the flexibility of being independent contractors and like choosing multiple clubs on the schedule that is convenient to them. Giving up their independence and having to be under the control of an employer is the last thing they want, and they said as much in a protest in front of Los Angeles City Hall. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: exotic dancers, independent contractors, strippers

The End of The “No Rehire” Clause

November 27, 2019 by Beck Law P.C.

Have you been forced to sign a no rehire clause in order to settle a workplace dispute? When California Highway Patrol analyst Camryn Fields experienced sexual harassment at work, she followed company protocol and reported the issues to her supervisors. They, in turn, did nothing to quell the problem, leading Fields to seek legal redress. California Highway Patrol eventually settled the suit, and included in the final documentation a no rehire clause. It meant that Fields could not find work in any related state agencies after signing the agreement, which led her to a senate hearing where she bemoaned the unfairness of the double victimization.

What is a No Rehire Clause?

As the name implies, a no rehire clause bars employees from future employment with an entity following her departure. In Field’s case, even other government agencies were empowered to dismiss her applications without consideration because she had signed such an agreement.

California’s Ban

In October 2019, Governor Gavin Newsom signed AB-749 into law, banning the use of these clauses after an individual has settled an employment dispute. While individuals who have engaged in sexual assault or harassment may be barred from future employment with an entity, a victim of such cannot. The law takes effect in January 2020, and faces stiff opposition from the California Chamber of Commerce. Their fear is that employees fired for legitimate reasons will be able to claim that they were retaliated against if they are not rehired down the road. Nevertheless, employers should take the law seriously, and revise any agreements accordingly in the new year. The details of the bill have provisions banning the following:

Contracts of any kind that restrain individuals from lawful employment;
Settlement agreements that limit an aggrieved individual’s right to work for an affiliate or subsidiary of a parent company, in another division of an employer’s business.

Who is Not Protected by AB-749?

Limited options are available for employers who are unhappy with the new law. No Future Employment provisions may be included in agreements if there have not been legal claims initiated by the aggrieved party, which is someone who has filed a claim in any of the following places:

A court;
An administrative agency;
Through an employer’s complaint process;
Any formal forum used to address disputes.

Other instances where rehire ineligibility may be legal include when there is documentation of an employee’s misconduct or subpar job performance, or when there is reasonable evidence that the employee engaged in sexual assault or harassment. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: California employment attorneys, no-rehire

Mandatory Arbitration Mostly Prohibited in California

November 8, 2019 by Beck Law P.C.

California law on mandatory arbitration is about to change. Will the new law be better or worse for employees and businesses? Do you have a bone to pick with your employer? If employment policies or practices are illegal and unfair, you may wish to pursue legal action against your employer. Starting in January 2020, that right will be afforded to you, thanks to a new bill that was just signed into law here in California.

AB 51

Governor Newsom signed AB 51 into law, prohibiting employers from requiring employees to waive their right to sue when it comes to allegations of impropriety in the workplace. This could include anything from discriminatory behavior, labor violations, sexual harassment, retaliation, and any other offenses that may be illegal. While up until now many businesses compelled employees to agree to private arbitration in lieu of a lawsuit, the new legislation eliminates forced arbitration altogether.

Understanding Mandatory Arbitration Agreements

Arbitration agreements are designed to handle workplace disputes without involving the courts. Employers generally favor them for a number of reasons:

Arbitration is faster than a courtroom proceeding;
Arbitration is generally less expensive than lawyer fees and court costs;
Claims against employers never make it to a jury, avoiding massive payouts from employers.

For employees, however, mandatory arbitration can be a huge disadvantage when they have a solid case of wrongdoing. Juries are often quite supportive when it comes to the mistreatment of workers, and have been known to award hefty damages. Even the threat of a jury trial can result in higher offers from companies who wish to avoid a courtroom battle.

Is Arbitration Fair?

In some cases, arbitrators, who are themselves employed by arbitration firms, tend to have a certain amount of bias toward employers who regularly utilize them. Researchers call this the repeat player effect, and report that workers are 500% less likely to prevail against an employer who had previously used a particular arbiter. In situations when workers did win, they were paid significantly less in settlements.

A Tricky New Law

What makes the whole thing somewhat controversial is the fact that the Supreme Court has previously determined that mandatory arbitration agreements are, indeed, legal. In California, it means that, while these agreements may be offered, and may be enforced if signed, employees now have a choice when it comes to signing such an agreement. Employers may not retaliate against anyone who refuses to sign this document, and may not revoke any job offers in the event a would-be employee chooses not to sign on to such an agreement. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: Arbitration Agreement Law Office Lake County

Unpaid Internship? Not so Fast!

June 11, 2019 by Beck Law P.C.

If you have been offered an unpaid internship and are jumping at the chance to get some experience under your belt, you should be aware that the Fair Labor Standards Act (FLSA) has something to say about it. There are multiple stipulations associated with the ability to legally contract with unpaid interns, and if the company does not meet all of them, they must pay such trainees.

FLSA requirements for an Unpaid Internship

The FLSA criteria are unflinching: All six of the following requirements must be met in order for a company to offer an unpaid internship:

The training involved must be comparable to that which would occur in a vocational school. In best-case scenarios, a training program will be developed with specific goals designed to help the intern gain qualifications for real-world work. Although operational tasks and duties might be part of the internship, a classroom and/or educational setting should be a part of the training involved. Ideally, the training would go hand in hand with coursework and credit or certification of some kind.
All training should be designed to be for the primary benefit of the intern. Duties should provide necessary and marketable skill development.
Interns cannot be used in lieu of regular employees. Rather, they must work under close supervision. Presumably, they would assist regular employees with critical work, but would not be entrusted with the responsibility for such tasks on their own.
Employers should derive no particular or specific immediate benefits by having interns on the premises, and, in fact, may actually experience some degree of slow-down in processes or outcomes for a period of time, as employees’ time will be split between training and their regular responsibilities.
Interns should have no guarantee of future employment with the company at the end of the internship. A written agreement stating as much should be a part of an internship agreement.
Both the intern and the employer must have a common understanding that wages will not be a part of the agreement. A written contract must stipulate that the training will occur with no expectation of or intention to assign wages in exchange for any work done by the intern.

Ultimately, when courts are asked to examine the legality of an unpaid internship, they tend to consider who the primary beneficiary in the arrangement is. If the intern gains substantially from the training experience, it could legally be deemed a trainee experience, and salary is not required. If the employer is the primary beneficiary and gains through the intern’s work product to a substantial degree, the intern must be viewed as an employee, and compensation is required. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: California employment law, unpaid intern

Job Interview Questions That are Off-Limits

February 12, 2019 by Beck Law P.C.

Did you know that some job interview questions are none of your new potential employer’s business? With the unemployment rate hovering right around 4% in California, looking for a job is a pretty competitive business. As employers vie to capture the most qualified and able applicants for their companies, they all too frequently delve into interview topics that are, frankly, none of their business. In fact, certain issues are so far out of the realm of acceptable inquiry that they can land the company in court. If you have suffered enquiries that are legally off-limits, a local employment lawyer can assist with next steps.

What Job Interview Questions are Off-Limits?

A number of topics should never be broached during a job interview here in California. Among some of these job interview questions are the following:

What is Your Marital Status? How many kids do you have? Potential employers are not allowed to ask about your family status, whether or not you are pregnant or intend to be, or in any other ways fish around into your family status.
What year did you graduate from high school? This question gets at a person’s age, which is not allowed under the Age Discrimination in Employment Act and the Federal Employment and Housing Act. The only exception is when an employer is confirming that minimum age requirements are being met.
Have you ever been convicted of a crime? It has been illegal to ask about one’s criminal history since the legislature passed AB 1008 in 2017. The law applies to any company that employs six or more employees. Specifically, employers may not:
- Ask any questions related to criminal convictions on the application;
- Put any weight on an applicant’s criminal history until after a conditional job offer has been put forward;
- Consider or share any information discovered during a criminal background check relates to specific criminal activities or convictions.
What are you earning at your current job? In 2018, AB 168 became effective, requiring potential employers to steer clear of questions related to an applicant’s previous earnings. Knowledge of one’s salary history may not be allowed to influence whether or not an applicant is hired or the amount of pay that is offered. The exception to this rule is when the applicant offers unsolicited information related to previous earnings, and other factors are also weighed in determining future salary.
Are you a citizen of the United States? Where are you from? Although seemingly innocuous, questions related to one’s background may be a way for an employer to determine an applicant’s culture or national origin. While it is acceptable to ensure that an applicant is legally entitled to work in this county, asking questions that narrow down an applicant’s background is not allowed.

New Laws Boost Women in California Workplaces

January 9, 2019 by Beck Law P.C.

Women in California in the workplace have been given greater protections and opportunities in 2019 by the California legislature. 2019 brings with it a number of new laws that will impact California businesses and their employees. In particular, female workers have been given greater protections and opportunities by the California legislature. As a worker, if you find that your boss is not willing to comply with the new regulations, getting an experienced and effective labor lawyer on your side can make a significant difference.

Women Take the Lead

The Governor signed SB 826, requiring all companies that are publicly traded in California to include women on their boards. The bill specifies that such companies must have at least one female on their boards by the close of 2019, and those with five members are required to have two women by the time 2021 wraps up. Half of directors on six-person boards must be female by that deadline.

Harassment Legislation – Women in California

Governor Brown signed SB 1343 into law, requiring that any business with five or more employees provide training related to sexual harassment – what it is, how to prevent it, and how to report it. Such training must occur before the end of 2019, and is required every couple of years from then on. This will impact a number of small businesses, since mandatory training was previously required only for businesses employing at least 50 workers. The California Department of Fair Employment and Housing (DFEH) has been directed to created necessary training materials which can be loaned out for training sessions. Employers may choose a number of ways to deliver the training:

In small groups;
By department;
Company-wide;
In another format that makes sense.

Additionally, AB1870 extends the time limit victims have to file a charge with DFEH to three years, a substantial increase over the previous limit of one year. This applies to any harassment related to prohibited conduct against protected classes based on gender, race, culture, age, sexual orientation, or religion.

Confidentiality Restrictions

SB 820 shuts down provisions for confidentiality that have previously been included in settlements in sexual harassment or sexual discrimination cases. Although discrimination and harassment are not restricted to one gender, women experience the lion’s share of such behavior, and will be the biggest benefactors of the new law. However, it is not retroactive, so only those cases that reach a settlement starting in January of 2019 are required to comply with the new law.

Women in California – Accommodating New Mothers

Another piece of legislation that will impact many women in California on the job is AB 1976. This law, which aligns with federal regulations, requires businesses to provide an appropriate area that is not a bathroom in which lactating women can be accommodated. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: santa rosa sexual harassment attorney, women

Should You Sign a Separation Agreement?

December 27, 2018 by Beck Law P.C.

Let us say that, as you prepare to exit a job, your employer approaches you and asks that you sign a separation agreement before your final departure. Perhaps they have some concerns about the knowledge you have accumulated over time. Maybe you are leaving under unpleasant circumstances, and they fear that you will spread rumors about them, or even file a lawsuit against them. Should you sign the document they have presented to you? A local employment attorney can help you make the right decision for your unique circumstances.

Terms of a Separation Agreement

California law does not require a separation agreement, so when your employer proffers one, chances are it has something of value for both parties that is not required by law. Generally speaking, employers are looking for company secrets to be locked down and may wish to protect themselves from future lawsuits. What might they offer in exchange? The terms of the agreement might include the following:

A severance package, which may include wages and/or benefits in a lump sum, for a defined period of time, or in some combination of these;
A written plan regarding how and when payouts will occur;
Education benefits;
Tax and insurance benefits;
A non-compete clause that limits your opportunities in the field for a specified period of time;
A non-disparagement clause, barring you from saying negative things about the company or your reasons for leaving;
A statement agreeing that there was no coercion involved;
Clauses related to what will happen to company property that is in your possession, potential for rehire, or other matters of concern.

Unlawful Separation Agreement Requests

While it may be reasonable for an employer to attempt to protect itself from future legal action, California law states that employers can not request that you waive your claim to legal action regarding certain areas, including:

Minimum Wage;
Workers’ Compensation;
Unemployment insurance;
Overtime.

You Have Leverage Over Signing a Separation Agreement

When considering whether or not you want to sign a separation agreement, you need to remember that you do have some leverage here. Clearly, the company is hoping to gain something. Knowing this, do not be afraid to negotiate to get the things that you want. If they are offering a one-month severance package, try pushing it to six weeks. If you really need health insurance, or you would like to keep the company car you have been driving for the past five years, ask; you may get more than you ever imagined. Presumably they are asking you to give up legal rights. What is it worth to them? [Read more…]

Filed Under: Blog, California Employment Law Tagged With: employment law, separation agreement, severance package

Should You Sue Your Employer?

November 1, 2018 by Beck Law P.C.

Should you sue your employer? Plenty of people dislike their jobs. Sometimes it is because of the work itself, sometimes it is due to personnel issues, and sometimes it is because of a toxic work environment. When does simple disgruntlement become a legitimate reason to sue your employer? Every situation is different, and only an experienced employment attorney can answer that question for you.

Common Reasons to Sue Your Employer

Suing an employer is a pretty bold move, but all too often it is justified, and is the only way employees can be empowered to regain the dignity, wages, and satisfaction they deserve after mistreatment on the job. Here are just a few of the most common reasons employees decide to fight back against unscrupulous employers:

Firing without giving a reason: Some employers think that just because California is an at-will state, they can terminate anyone without providing an explanation. What they do not realize is that if they fail to explain the motivation behind their decision, the employee may rightfully suspect the termination is based on discrimination, retaliation, or some other unsavory factor. This can land the employer in court pretty quickly.
Claiming poor performance when the evidence says otherwise: If an employee has a long track record of satisfactory job performance and things suddenly change due to new management or some other issue, defending the termination will be tricky against a skilled prosecution team.
The timing for termination stinks: When an employee files some sort of complaint with HR, Workers’ Compensation, or another work-related entity, and is suddenly on the firing line, it may not be too difficult to connect the dots.
Delaying the investigation for a complaint: If the employer drags out an investigation about harassment or some other issue, it can become ammunition in a lawsuit;
Ignoring company policies: When policies are on the books, employees can expect their bosses to follow them. If that does not happen, the end result may be a lawsuit.
Discrimination: State and federal laws offer protections for employees based on a number of circumstances, including race, age, gender, disability, sexual orientation, pregnancy, and religion. When employers discriminate in the hiring, training, pay, promotion, or termination of individuals based on a protected status, it is simply a lawsuit waiting to happen.
Failing to accommodate: In addition to discrimination based on protected status, failing to provide reasonable accommodations is unlawful. Whether in regards to requirements related to attire, schedules, physical surrounding, job requirements, or other simple adjustments, employers must comply with EEOC rules.

[Read more…]

Filed Under: Blog, California Employment Law Tagged With: California employment attorney