California Employment Law Archives - Page 3 of 6 - California Labor & Employment Law

Can My Facebook Page Impact My Employment?

November 16, 2017 by Beck Law P.C.

You 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?

November 3, 2017 by Beck Law P.C.

Can 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.

Firefighters Need Legal Protection

October 17, 2017 by Beck Law P.C.

Recent 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…]

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

Criminal History? Can’t find Employment?

September 8, 2017 by Beck Law P.C.

Do 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.

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

August 15, 2017 by Beck Law P.C.

Can 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…]

Filed Under: Blog, California Employment Law Tagged With: California employment attorneys, family medical leave act, fmla, paid time off

Employee or Independent Contractor?

August 10, 2017 by Beck Law P.C.

Let’s say an employer hires you and suggests that you accept independent contractor status rather than being labeled as a regular company employee. To sell the idea, the simple tax form and reduced monthly deductions you would be required to pay are put on the table. What should you do?

Who Determines Independent Contractor Status?

To be clear, employers are not allowed to make this determination willy-nilly, even though there are noteworthy benefits to employers who engage independent contractors. Hiring an individual as an employee has significantly different requirements for employers than hiring that same individual as an independent contractor. The benefits are so tempting, in fact, that employers could face significant penalties when they erroneously classify an employee as an independent contractor. Several government agencies oversee classification controversies, including the Division of Labor Standards Enforcement (DLSE), and the Employment Development Department (EDD).

Employer Benefits of Hiring Independent Contractors

Tax forms and withholding amounts differ, as well as employer tax burdens. Sometimes employers might prefer to have independent contractors in order to avoid payroll taxes, overtime and minimum wage requirements, rest and meal breaks, worker’s compensations insurance, social security, disability insurance, and reimbursements for business expenses.

Are You an Employee or an Independent Contractor?

Because the law does not specifically call out a definition of an independent contractor, court interpretations and agency precedents must be relied upon to make individual determinations. The Division of Labor Standards Enforcement (DLSE) starts with the presumption that an individual is an employee, and then applies several tests to determine whether or not independent contractor status is appropriate.

The primary consideration is whether or not the employer has the right to control how tasks are accomplished. For instance, an employee performing janitorial tasks may be required to use particular cleaning products, whereas an independent contractor who performs those same janitorial services is simply held to completing the task by whatever means he or she feels appropriate.

Several other factors are considered, including:

Whether or not the individual performing the services does so separate from the employer;
Whether or not the individual supplies the space, tools, and materials required for the job;
Whether or not specialized skills are required for the task;
Whether payment is dependent on time or job completion.

Three factors that indicate an employer/employee relationship, regardless of other factors, include:

The primary control of the operation lies squarely with the employer;
The duties of the worker are key to the success of the business;
Detailed supervision of the work is inessential due to the nature of the work.

Rideshare Operators Are Having Legal Issues

August 8, 2017 by Beck Law P.C.

Lyft, Uber, and other rideshare operations have snagged customers from the taxi industry, leaving cab drivers unsettled and anxious about the future of the taxi business. It seems rideshares have upended the transportation industry, netting billions of dollars. But not everything has been coming up roses in the rideshare business. If you drive a cab and believe you have a legal claim against a rideshare company, consulting with an employment attorney might be advisable.

Legal Issues

Believe it or not, despite the huge earnings of rideshare apps, taxi drivers and others have begun to call attention to some serious concerns with the new system, and as a result, these new companies are facing real legal problems:

Regulations that differ from city to city: Taxi companies are quick to note that rideshare drivers are not held to the same standards as cab drivers. Some localities have responded by filing lawsuits alleging deceptive and unfair business practices because rideshare drivers do not adhere to the same regulations as cabbies. In some cases, the regulations of note regard commercial drivers license rules, car inspection expectations, insurance laws, licensing fees, and uniform rates.
Airports are losing money on fees and permits in some cities: Airports typically collect revenue through permitting, and some airports are now banning rideshares. In San Francisco, in fact, airport officials were even arresting rideshare drivers for trespassing. It is looking like regulation is going to have to come down quickly in order to avoid more of this type of issue.
Insurance is not always verifiable: Despite claims of million-dollar liability policies, several states have warned passengers that they may not be covered in the event of an accident. Instances involving limited coverage have occurred here in California.
Company cars do not necessarily meet ADA standards: When the vehicle you call up on your app is not wheelchair friendly, it can be a real problem. Disabled patrons are denied service because they offer no alternatives for mobility-impaired persons. That means they are not meeting the guidelines established in the Americans with Disabilities Act.
Drivers with criminal backgrounds slip through the cracks: In California, over 20 rideshare drivers with felony backgrounds that were quite serious were discovered on the road in 2016. That led to stricter rules regarding background checks, with heftier fines for companies that hire sex offenders and violent felons or terrorists.

Rideshare Taking Unfair Advantage

The rideshare market is increasing globally, largely because the supply of drivers is endless, since virtually anyone can become a rideshare driver. That fact, combined with unfair regulation discrepancies compared to cab companies, has created a disparity that has left cab drivers wanting more of the transportation pie. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: California employment attorneys, rideshare

Telecommuting – Legal Considerations

June 27, 2017 by Beck Law P.C.

Work from home ad made by post it

Telecommuting seems like a no-brainer for many companies these days. Well over 30 million people in this country work from home at least once a week, and that does not include the three million self-employed people who work from home most of the time. The number of e-commuters is expected to approach 70 million in the next year! If your company is one that is considering this move, an experienced employment lawyer can help you get your ducks in a row so the transition works smoothly for everyone involved.

Telecommuting – A Popular Trend

Telecommuting has become a fantastic compromise for companies and their employees. This practice has increased by over 80% in recent years. The freedom that workers enjoy in terms of scheduling work may even increase productivity. Workers avoid horrendous California commutes, eliminating the stress other workers cannot avoid. Companies do not have to worry about providing a workspace, which can save big bucks. No wonder so many companies are looking to expand work opportunities to include telecommuting. However, employees and employers alike should be aware of serious considerations with regard to this this modern-day work arrangement.

Legal Considerations of Telecommuting

Confidentiality: Companies should do everything possible to ensure that company information remains confidential; nondisclosure agreements are highly recommended. Beyond that, the home work area should be relatively private, and companies must guarantee that they can retrieve files at any time from employees who work at home. Likewise, employees must understand that their work may be monitored at any time.
Security: Employees need a secure, encrypted network with a reliable firewall. It is the only way sensitive information can be protected.
Wages: Although salaried employees may not face additional issues, hourly employees may be eligible for overtime pay. Businesses must necessarily establish a clear-cut means for tracking hours.
Liability Issues: Employers must understand that if an employee is injured at home, it may be deemed the employer’s responsibility. Damage to property or to a third party during telecommuting work that is caused through the negligence of the employee could be deemed the employer’s responsibility, as well. Frequently in these situations, homes are considered an extension of the workspace by the courts. Consider, too, that many telecommuters conduct their business from coffee shops and other public spaces. It is critical that clear guidelines exist as to where and when work may be done for the company.
Discriminatory Practices: Telecommuter opportunities must not be limited to particular workers, such as only young or female workers.
ADA Implications: The Americans With Disability Act provides for reasonable accommodations for disabled employees. This may include telecommuting for some positions within the company.
Divergent Laws: Since employees may not be located in the same geographical area, the possibility of encountering different laws, around taxation, for example, must be considered.
Written Policies: It is more important than ever to devise policies addressing these and other issues, and put them into writing. Making sure everyone is on the same page with regards to expectations from the start will help employers and employees avoid conflicts down the road.

Workplace Protection

April 26, 2017 by Beck Law P.C.

Last January, a number of bills, signed into law by Governor Jerry Brown in 2016 become effective. Many of those bills involve workplace protection, and compliance is required of California’s employers. If you are unclear about workplace protection compliance mandates with these or any employment laws, you may wish to enlist the help of an experienced employment law attorney.

Workplace Protection – New Laws that Impact You

SB 1732: Toilet facilities in businesses, government agencies, or places of public accommodation that are single-user facilities must be designated as all-gender facilities as of March 2017.
AB 1887: Travel prohibitions have been established forbidding state agencies from requiring employees to travel to states with laws that do not have protections against discrimination based on gender identity, sexual orientation, or gender expression. This means that state dollars may not be used for travel to states who repealed these types of laws.
SB 1234: Eligible employers, based on the number of eligible employees, who do not currently offer retirement plans must now participate in a payroll deposit savings arrangement allowing employees to join in the California Secure Choice Retirement Savings Program.
AB 2337: Employers are required to inform employees of their rights when experiencing domestic violence, stalking, or sexual assault. Forms created by the Labor Commissioner’s office must be posted by July 1 of this year.
ABX2-7: This law expands smoking restrictions in hotel lobbies, taverns and bars, banquet rooms, employee break rooms, and warehouses. Tobacco is no longer allowed in these areas, even in owner-operated businesses.
SB 1167: The Division of Occupational Safety and Health is required to propose a heat illness and injury prevention standard related to indoor employment locations by January of 2019.
SB 1241: Employers are prohibited from requiring employees who reside and work primarily in California from having claims adjudicated outside of California.
SB 1007: Employees who are involved in arbitration hearings are entitled to have a certified shorthand reporter available to transcribe proceedings, hearings, or dispositions.
SB 3: For employers with more than 25 employees, minimum wage increased from $10.00 to $10.50 per hour in January 2017. That increase will apply to employers with fewer employees in 2018. Further incremental increases have been established up to the year 2023.
SB 1015: The Domestic Worker Bill of Rights, originally scheduled to expire this year, has been extended indefinitely, providing wage and hour protections to domestic workers.
SB 1063: Workers of all races and ethnicities must be paid the same amount for work that is essentially the same.

Penalties for Workplace Compliance Employment Law Violations [Read more…]

Filed Under: Blog, California Employment Law Tagged With: California employment attorneys, workers' rights

Pregnant Workers That Face Discrimination in California

December 16, 2016 by Beck Law P.C.

Working mothers and pregnant workers face challenges that many employers struggle to understand. This is never truer than when women try to balance pregnancy with the demands of a job. If you have faced discrimination based on pregnancy, you want an experienced attorney to assist you in securing your rights, and compensation when those rights have been violated.

Common Workplace Violations Against Pregnant Workers

The U.S. Equal Employment Opportunity Commission (EEOC) is dedicated to ensuring fair treatment for all workers under the law. That includes employment opportunities for women who are pregnant and who wish to continue working at their jobs, but who require temporary accommodations at their workplaces. Title VII of the Civil Rights act prohibits discrimination on the basis of pregnancy.

Unfortunately, there are still some employers who need a little push when it comes to doing what is right. Since 2011, in fact, the EEOC has filed 44 suits involving discrimination claims for women who were pregnant. The suits have revolved around a number of claims of unlawful activities related to violations that occurred during the workers’ pregnancies:

Refusing to hire pregnant workers, or firing workers when employers learned of pregnancy;
Failing to promote, or, in some cases, demoting pregnant workers;
Curbing employment growth opportunities by compelling pregnant workers to take involuntary leave, restricting work hours or limiting assignments;
Refusing accommodations for pregnant workers that would be available to other non-pregnant workers;
Participating in retaliation when pregnant workers and/or coworkers complained about discrimination.

Legal Protections Continue After the Pregnancy

Discrimination sometimes persists after the pregnancy, as well, when employers resist providing appropriate leave and/or accommodations for lactating employees.

The law provides protections for workers who wish to take unpaid leave in order to care for and/or bond with a newborn. Under the Family and Medical Leave Act (FMLA), workers who qualify are entitled to up to 12 weeks of job-protected leave.

Pregnancy Disability Leave (PDL) is another option for pregnant workers who have complications related to pregnancy or childbirth. Under this provision, workers have up to four months of leave, with continued health benefits. Finally, the California Family Rights Act provides up to 12 weeks of unpaid leave for workers to bond with newborns. It is unlawful for your employer to refuse such leave, or to retaliate against you by leveraging promotions or imposing other workplace restraints on you.

Accommodations for Lactation

California labor codes require employers to provide accommodations for lactating mothers including:

Reasonable break times;
A private location other than a bathroom.