Federal Court Supersedes California Immigration Laws

September 6, 2018 by

immigration lawsCalifornia immigration laws. When the Immigrant Worker Protection Act became law in January 2018, many hoped it would keep local immigrants safe from ICE agents and their workplace investigations. The feds have temporarily enjoined a number of the provisions in California’s law, however. So, where do things stand right now? A local labor and employment attorney might be worth consulting.

Assembly Bill 450

California’s bill, alternately referred to as AB 450 and the Immigrant Worker Protection Act, banned employers from cooperating with immigration agents in several ways:

  • Immigration enforcement agents were not be allowed access to areas of the facility that were not open to the public;
  • These agents were not allowed to obtain or view employee records;
  • Agents were unable to re-verify the Employment Eligibility Verification form (Form I-9), without a requirement by federal law.

Immigration Laws – New Federal Push

A new temporary injunction orders the state to stop impeding private business from cooperating with federal investigators looking into illegal immigration. The injunction prevents the state from putting restrictions on when and how employers can cooperate with ICE agents with regard to I-9 issues.

The impetus behind the federal push for relaxing state requirements on employers is based on the perceived “precarious situation” employers have been put in when crushed between state law and federal expectations. The federal intervention is designed to enhance cooperation between federal enforcement officers and business owners.

Additionally, the injunction was meant to address ambiguities within the California immigration laws, which do not provide a definition for who, exactly, is considered an immigration enforcement agent.  That has been problematic for employers who hire foreign nationals through the U.S. Citizenship and Immigration Service (USCIS), since that agency approves applications only in conjunction with the employer’s agreement to cooperate with record-sharing and premises inspections.  Backing out of that promise could lead to a number of problems, including:

  • Reviving particular immigrations cases;
  • Prompting larger investigations;
  • Rescinding the USCIS approval for foreign nationals.

What Parts of California Immigration Laws Still Stand?

According to the federal decision, the notice obligation for California employers remains intact. Employees must be told of I-9 reviews or other inspections related to immigration status within 72 hours of notification from ICE.

Consequences for Employers with Documentation Improprieties

When I-9 forms are not properly completed, employers are subject to fines of up to $2,191 per infraction. Knowingly hiring workers who are not authorized to work in the country can mean a fine of $16,000 per incident. [Read more…]

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

Thank You California Firefighters for Putting It All on the Line

August 3, 2018 by

thank you california firefightersThank you California firefighters. By July 9, 2018, nearly 200,000 acres had been scorched in California wildfires. That is more than double the amount burned in each of the previous five years. Sadly, some parts of California have been so dry this year that they were never removed from drought status from last year. As of July 30, more than 10,000 people have been mandatorily evacuated from Mendocino and Lake Counties. The Ranch Fire along Highway 20 and the River Fire north of Hopland put residents across more than 35 miles at risk. With six out of the previous seven years experiencing severe drought across the state, hot, windy conditions make fighting these fires incredibly difficult and dangerous. It has been undeniably devastating for people who live and work in the area; but what has it been like for firefighters?

Hazards for California Firefighters

The men and women who fight these enormous fires are heroes in everybody’s eyes. The perils they confront as they protect Californians are many:

  • Thick smoke;
  • Winds that lead fires to change directions without warning;
  • Narrow roads that make traveling difficult;
  • Falling branches and exploding trees;
  • Fallen trees blocking roads;
  • Fatigue from working long hours;
  • Fallen power lines posing dangers to firefighters;
  • Dehydration;
  • Heat Stress as a result of vigorous manual labor, heavy gear, poor acclimatization to severe heat, and personal risk factors.

Work Schedules for California Firefighters

When situations are urgent, firefighters are often required to work long hours. In the case of these devastating wildfires, many of these heroes are unable to spend any time with their families and friends for days and weeks at a time. They grab sleep when at the brink of exhaustion, only to go back out to continue the demanding work again until communities are safe. While the fire season was once limited to the summer months, these days, California has deadly wildfires year-round. In the past six years, at least one wildfire has been burning during every single month of the year. While firefighters used to have the cooler months to refresh and regroup, the extended heat and drought have vaporized those opportunities.  

Injuries and Death a Constant Concern for California Firefighters

Firefighters put their lives at risk every time they confront a blaze. Consider these daunting statistics from 2016:

  • Over 60,000 serious injuries were incurred by individuals fighting fires;
  • Over half of the injuries involved respiratory problems;
  • There were 69 firefighters who lost their lives in the line of duty;

As of July 30, 2018, 59 firefighters have died on the job. A study of firefighter deaths indicates that firefighter fatalities for those involved in wildfires has increased by 26% in recent years. The primary causes of death between 2007-2016 include:

  • Vehicle accidents;
  • Aircraft accidents;
  • Heart attacks;
  • Entrapments;
  • Falling rocks and trees.

[Read more…]

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

When Employers Claim Employees are Independent Contractors

May 30, 2018 by

independent contractorsFor some companies, labeling employees as independent contractors has not turned out to be such a great money-saving idea after all. Some companies will do anything to save themselves a buck, even if it harms workers and violates state and/or federal law. This appears to have been the case for CMI Transportation, K&R Transportation California, and Cal Cartage Transportation Express, all subsidiaries of NFI Industries,

Claims in the Case

According to court documents regarding these port-trucking companies,workers were classified as independent contractors, and were then hired to get products transported. This saved the companies a boatload of money, but how?  

The Cost of Doing Business

The Bureau of Labor Statistics determined that wages account for roughly 70% of employee compensation, while benefits take up the additional 30%. So, if employers can avoid benefits that are mandated by law, such as Social Security, unemployment insurance, workers’ compensation, and Medicare, they can really make out well. Additionally, they never have to go to the bargaining table to discuss issues like vacation pay, sick pay, pensions, paid leave, and the like.

Employees or Independent Contractors?

With the huge savings associated with hiring independent contractors, why does every business not label workers that way? The fact is that making such determinations is not a matter of personal choice. There are legal questions to consider. Answering yes to one or more of these questions likely means workers are employees, deserving of all benefits the law dictates:

  • Is the business reliant on the work in order to do business? Someone who lays carpet in a department store is not essential to daily business operations, whereas clerks and warehouse workers are.
  • Is termination without cause a right of the employer? If so, the worker is not an independent contractor who can only be terminated only if the terms of the contract are violated.
  • Is the worker considered to be semi-skilled or unskilled? If so, they are the target audience for protections by the California Unemployment Insurance Appeals Board.
  • Did the employer train the worker? Independent contractors usually provide a service for which they are already certified.
  • Is the worker expected to provide his or her own supplies for the job? Employers do not generally provide tools and such to independent contractors.

Independent Contractors and the Consequences of Misclassification

In California, there is a big price to pay when employers intentionally misclassify their workers. In one case, a judgment for $13 million was won when janitors were misclassified as independent contractors by a couple of companies. What will happen in the trucking lawsuit remains to be seen. [Read more…]

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How to Avoid an Employee Lawsuit as an Employer

March 2, 2018 by

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…]

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

Limiting Political Discussions in the Workplace

February 1, 2018 by

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…]

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

New Employment Laws to Benefit Employees

January 25, 2018 by

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…]

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The Rights Employees do and do Not Have

January 15, 2018 by

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.

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

Ethical Issues Can Lead to Legal Consequences in Business

January 3, 2018 by

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…]

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

8 Common Errors for Employers to Avoid

December 29, 2017 by

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…]

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Apprenticeship Plans

December 5, 2017 by

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…]

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