Government Shutdown – Do’s and Don’ts for Furloughed Employees

January 15, 2019 by

partial government shutdownIf you are a federal employee who has been furloughed due to the partial federal government shutdown, you are likely frustrated by your situation. During the government shutdown, there are some definite do’s and don’ts of which you should be aware:

During Government Shutdown Do…

  • Understand that your paycheck is not guaranteed at the end of the shutdown. Congress must vote on whether or not employees will receive back pay for the period during which they were furloughed.
  • Feel free to make health insurance claims during the furlough. Your benefits through the Federal Employees Health Benefits program continue even if premium payments are late.  The employee portion of your premiums will be accumulated and tacked on to your checks once they start rolling in again.
  • Consider yourself continuously employed in terms of years of service for retirement. A break in service will not be a factor until or unless the shutdown lasts at least six months in one calendar year. (Let’s hope that is not a bridge you have to cross!)
  • Consider filing for unemployment benefits. Eligibility is based on your being unemployed due to no fault of your own. While furloughed, you are still considered an employee of the federal government, but since you are not collecting a check, you may qualify. Make sure you understand the requirements that go along with receiving this support.
  • Seek a second job—with caution. There are strict ethics rules that apply to federal employees and outside work, which are still in effect during the furlough. You could jeopardize your federal job if you violate those rules.
  • Feel free to contact your members of Congress to express your views on the federal government shutdown. Freedom of speech is still alive and it is your right to express your concerns as a furloughed government employee, without fear of retribution.

During Government Shutdown Don’t…

  • Don’t volunteer to go into the office even though you are not getting paid. You are not permitted to perform any job-related tasks during a federal shutdown. Period.
  • Don’t make the mistake of thinking you can take your annual leave or paid time off during the furlough. The Antideficiency Act prohibits using paid leave at this time, even if that leave was previously scheduled.  
  • Do not anticipate growth in your federal retirement plan. Payments cease during a furlough, meaning neither employee contributions or agency matches will be made. On a positive note, if congress does issue back-pay when the furlough ends, these payments can be made retroactively.
  • Don’t use your government-issue cell phone or laptop except to check in on the status of the furlough.

[Read more…]

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Complaining at Work can Get You Fired

October 17, 2018 by

complaining at workCan I be fired for complaining at work? Let’s say you have a complaint about how things are going at work. If you are under the impression that free speech is a God-given right to which you are entitled anytime, anywhere, you are wrong. Although the Fair Work Act makes it illegal to fire someone just for complaining, your employer can limit certain speech in terms of the time and venue in which you express your complaints.

Complaining at Work – Google Drops the Hammer

James Damore was—emphasis on was—an employee at Google. That is, until he posted a lengthy document about the company’s efforts to improve diversity among employees on a company platform. His views were allegedly steeped in sexism, and were offensive to fellow employees, who refused to buy into the notion that the biological superiority of men was the cause of the gender gap in the technology industry. Whether you agree with Damore or not, the legal issue centers on an employer’s right to control speech on a platform paid for by the company. As it turns out, although public and government entities are not allowed to restrict your free speech, the same is not true for private companies. So, how do you, as an employee, know what the rules are when it comes to expressing yourself?

Does Your Company Policy Cover Complaining at Work?

When Google CEO Sundar Pichai responded to Damore’s post, he specifically referred to the code of conduct at Google. Most companies have an employee handbook that details expectations related to this type of thing, and they generally close by stating that failure to abide by the company’s expectations can lead to disciplinary procedures, and, potentially, termination.  It would behoove employees to be clear about company policies.

Know What You are Talking About

Damore was taking the company to task for policies promoting diversity, but his point became lost in controversial statements that have been scientifically disproven. His complaint became weak and his argument ineffectual.

Complaining at Work – Protect Yourself

If you have legitimate complaints about the job, there are some things you can do to ensure your complaining at work is heard without resulting in unemployment:

  • Formalize the complaint: Whether that means inviting a union representative, scheduling a meeting with management or HR, or simply writing your issues on a workplace form, demonstrate that you are serious about a workplace issue.
  • Assemble prior performance reviews and other documentation that may rebut allegations against your job performance in the event the complaint ruffles some feathers.
  • Offer constructive criticism, and, if possible, tell management what you would like to have happen.
  • Handle yourself professionally. Your supervisor will have a tough time saying you have an attitude problem if you do.
  • Document the interaction. If your complaint is related to discrimination or other legal issues and the company fails to respond appropriately, they could be facing legal trouble.

[Read more…]

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Employee Lawsuits: Why and How

June 13, 2018 by

Employee LawsuitsEmployee lawsuits happen. Employees sue their employers for a number of issues, generally centered around discrimination complaints. The complaint may be against managers, co-workers, or even individuals who are not a part of the organization. A local Santa Rosa labor attorney can help you fight back. What types of discrimination might warrant legal charges?

  • Age: Individuals over age 40 are protected in the workplace;
  • Disability: Physical and emotional limits must be accommodated;
  • Pregnancy: The same accommodations given to any injured employee must be given to pregnant women;
  • Race/national origin: Hiring/firing, promotions, training and so forth may not be based on race;
  • Religion: Reasonable accommodations for an employees’ religions beliefs must be made;
  • Sexual Harassment: Harassment directed toward an employee based on gender, sexual preferences, or sexual identification is illegal;
  • Sex: Gender or sexual preference cannot be factored in when considering promotions, training, or hiring and firing;
  • Genetic information: Genetic predispositions toward disease that may incur insurance costs cannot be a factor in employment decisions;
  • Retaliation: Employees who report problems must not be retaliated against.

Employee Lawsuits – Filing Charges

Employees may file charges for discrimination with the US Equal Employment Opportunity Commission (EEOC) or with local agencies here in California. Your attorney will know the best route to proceed.

California Laws on Employee Lawsuits

In California, lawsuits against employers are 46% higher than the national average. The reason for this is that state laws are more stringent than federal laws or than many other state laws in the nation. Some of the issues addressed in California state law that are less strict in federal law include:

  • Credit checks: Employment decisions may not be made based on an individual’s credit history;
  • Pregnancy accommodation: Unless the business would suffer a significant hardship by accommodating the needs of pregnant employees, they must adapt the job requirements for these women;
  • Criminal Record: Job applications may not ask whether or not applicants have been convicted of a crime.

Employee Lawsuits and Issues With Retaliation

The number of lawsuits that charge retaliation is astounding; nationwide, 45.9% of charges include this claim. Victims assert that they are passed over for promotions, training opportunities, and raises because they have become a thorn in the side of management. Even if the accused harasser is dealt with effectively, businesses are at risk of retaliation lawsuits if those who report discrimination are held back after their complaints are filed.

Nationally, nearly one in four lawsuits result in payouts based on discrimination, averaging $160,000 for each case. Most of these lawsuits are resolved in less than one year. [Read more…]

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Immigration Sweeps and California Employers

April 6, 2018 by

immigration sweepsCalifornia employers warned to steer clear of immigration sweeps. California’s Attorney General Xavier Becerra has made it clear that employers are not to assist federal ICE agents with illegal immigrant roundups. If they do, he cautioned, they could face fines of as much as $10,000, along with other legal consequences.

Immigration sweeps – California Employers Between a Rock and a Hard Place

Employers in California have been caught in the middle of conflicting state and federal expectations. While Becerra promises prosecutions for violations of state laws, federal immigration agents continue to expect cooperation as they search for undocumented immigrants.  Current acting director of Immigration and Customs Enforcement (ICE), Thomas Homan, has threatened that Californians need to hold on tight, asserting that federal agents are determined to protect local communities in spite of sanctuary laws. The battle between state and federal agencies puts employers in a tough spot when asked for information about and/or access to employees.

Immigration sweeps and California Immigrant Worker Protection Act

California’s governor signed the Immigrant Worker Protection Act into law in January of this year. It spells out the legal requirements of employers toward their workers, irrespective of their immigration status. Essentially, employers are not to assist in any activity that would result in an employee being detained while at work. The specifics of the bill spell out the employer expectations to:

  • Ask to see a warrant before giving ICE agents access to the site;
  • Not give out confidential employee information to ICE agents unless subpoenaed to do so;
  • Not re-verify information on employment forms without federal coercion.

Furthermore, the exclusive authority to enforce state labor laws has been given strictly to the state attorney general and the state labor commissioner, leaving federal authorities with no authority.

Immigration Sweeps – ICE Raids California Businesses

In the span of just five days, 122 businesses were swept up in the federal government’s clampdown on undocumented immigrants. Over 200 arrests took place in Southern California businesses. ICE agents explained that any alien found to be in violation of United States immigration laws was subject to deportation, regardless of other crimes, or the lack thereof.

Immigrations Sweeps – Be Prepared

California employers are urged to be ready for potential interactions with federal agents. Both supervisors and employees need to be aware of their obligations under the Immigrant Worker Protection Act, and should be instructed to ask agents for subpoenas or warrants when required by California law. Furthermore, employers should be prepared to address all pre- and post-inspection requirements. [Read more…]

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10 Things A New Hire Should Know

March 20, 2018 by

new hireIf you’re a new hire at a company, it’s important to know your rights and exercise them. Here are some things a new hire may not know that are definitely worth knowing.

New Hire Check List

  • Are you are required to wear a particular uniform? Your employer cannot force you to purchase it. Should you leave the job without returning the uniform, you may consent in advance to having the cost of the uniform deducted from your final paycheck.
  • Do you earn less than double minimum wage? If so, your employer cannot expect you to pay for the tools or equipment needed to perform your job.
  • Does your employer require medical tests, physical exams, or drug tests as a condition of your employment? They cannot require you to pay for those tests.
  • If your employer enacts a wage reduction or change of pay periods, notice must be provided before the change occurs.
  • Employers are limited as to what may be deducted from an employee paycheck to those deductions expressly required by state or federal law. This excludes:
    • Portions of gratuities;
    • Costs associated with photos or badges required by the employer;
    • Bonding fees;
    • Uniforms costs, unless as described above;
    • Expenses related to the termination of employment;
    • Expenditures related to equipment and/or tools except as described above;
    • Losses due to broken property, checks that bounce, or cash shortages, unless those losses can be proven to be a result of gross negligence or dishonesty.
  • When employees resign and give 72 hours notice or more, employers are required to pay out any remaining wages due on their last day.
  • If a labor dispute results in an employee’s resignation or termination, all wages due must be paid by the next scheduled pay day.
  • For companies employing 25 or fewer workers, the minimum wage is $10.50. For larger companies, the minimum rate is $11.00.
  • Hourly employees must be paid at 1.5 times the normal rate for all hours over 40 in one week, and for the first eight hours worked on the seventh day of any given week. They must be paid double the normal rate for any hours exceeding 12 in one workday, and for all hours beyond eight on the seventh consecutive workday.
  • Employees are entitled to a 30-minute break for every five hours they work consecutively.  During that time, they are to be exempt from performing any duties whatsoever related to their employment. Employees are allowed to leave the premises during this break.

[Read more…]

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Personnel Records

February 27, 2018 by

personnel recordsIf you are concerned about what is contained in your personnel records file, there is a simple way to find out – simply make a request. If you hit roadblocks, a local employment attorney can help.

Personnel Records – Your Right to Know

California law provides the opportunity for employees—whether current or former—to take a look at their personnel records and any files documenting employee performance. Additionally, employees have the right to any documentation related to grievances with which the employee is associated. Copies of these documents must be made available to the employee for the cost of reproduction within 30 days of the request. What does this mean for employers?

For starters, employers must hang onto employee records for at least three years following the conclusion of employment. Then the employer must make said personnel records available for inspection and copying following any such request. These requests must be honored at least once per year upon request.

In the event an employee was terminated due to illegal actions, an employer may comply with a request for records by mail, or at a location other than the workplace, if that location is within a reasonable distance from the former employee’s home. In this case, records associated with a criminal investigation are not required to be included.

Making a Personnel Records Request

Companies may vary in the procedures related to record requests, but either of two methods of request are acceptable according to Labor Code 1198.5:

  • Written requests;
  • Written requests using a form provided by the employer:

The law requires compliance with any written requests within 30 days of notification to the employer. That request may come from any employee, former employee, or representative of an employee. The employer is not required to provide time during the workday for the inspection.

What Documents are Available?

A number of records must be made available, including:

  • Any paperwork signed by the employee at the time of hire;
  • Payroll records;
  • Explanations of piece rate policies or incentive plans;
  • Production records;
  • Documentation of exposure to hazardous materials;
  • Attendance documentation;
  • Records of training or education;
  • Official warnings, discipline and/or termination;
  • Notices related to garnishment of wages;
  • Performance ratings and reviews;
  • Notices related to vacations or other time away from work.

What Personnel Records are Not Available for Inspection

A number of items in an employee file are not necessarily available for inspection. Such documents include:

  • Letters of recommendation;
  • Records acquired prior to hire;
  • Documents prepared by persons or committees who would be easily discernable;
  • Records related to criminal investigations;
  • Records related to promotional testing.

[Read more…]

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Unsafe Work Environment and California Law

November 8, 2017 by

unsafe work environmentUnsafe work environment and employer responsibility.Everyone deserves a safe working environment, but what if your employer fails to implement common sense procedures, training, and equipment in order to keep workers safe and productive? If you are injured due to employer negligence, you may be entitled to more than just workers’ compensation. Your employer may be on the hook for compensatory and even punitive damages. An experienced employment law attorney can help.

Facts About an Unsafe Work Environment and Workplace Injuries

The truth is, workplace injuries are an epidemic, with nearly 4 ½ million occurring in this country every year, not counting the fatal injuries. These unsafe work environment accidents cost billions annually in medical and insurance costs, not to mention lost wages, interruptions in production, and other costs.

Unsafe Work Environment and Employer Responsibilities

Workplace safety is no minor responsibility. The Occupational Safety and Health Administration (OSHA) details specific practices and procedures that employers must follow. Among the requirements are:

  • Provide a hazard-free workplace that is in compliance with OSHA standards;
  • Regularly conduct inspections to determine workplace complies with OSHA safety standards;
  • Ensure that employees use properly maintained equipment and tools;
  • Warn of potential hazards with posters, labels and/or color coding, and make sure employees are aware of health/safety rules;
  • Regularly update and communicate operating procedures related to safety issues;
  • Provide safety training in a language understood by employees;
  • Implement a written program to communicate information relating to hazardous chemicals and train employees in intervention methods;
  • Post employee safety rights and responsibilities;
  • Maintain accurate illness and injury reports;

Employee Rights When There is an Unsafe Work Environment

When an employee believes that the working environment is dangerous, the National Labor Relations Board (NRLB) protects that employee’s right to refuse to work. This applies to all workers, whether or not they are union members.

Unsafe Work Environment and Employer Penalties

State and federal governments intently regulate safety practices, and violations can result in serious and expensive consequences:

  • When a GM plant in New York experienced multiple violations, including blocked exit routes, improper protective equipment, and inadequate guards around moving machinery parts, they were fined $160,000;
  • A Weyerhauser plant in West Virginia under reported injuries and illnesses, they were fined $77,000 and audited for 9 months;
  • Fru-Con Construction Corp failed to properly secure a launching truss, they were fined $280,000.
When Can You Sue for a Workplace Injury?

If your employer knowingly facilitated a hazardous workplace, you may be able to seek damages through the courts. Because you have legitimate expectation to a safe working environment, egregious or intentional conduct that leads to injury may be compensable. Additionally, if your injury was the result of defective equipment or other products, the manufacturer may be liable for damages. [Read more…]

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Intellectual Property: Who Owns Your Ideas?

September 12, 2017 by

intellectual propertyIntellectual property ownership. Let’s say a corporation hires you as an employee or an independent contractor. After completing a number of projects, you decide it is time to move on, and figure you would like to take your ideas with you. After all, none of the new programs, flow charts, and materials you created would exist without you. Your employer, however, believes that the intellectual property belongs to them, as it was created while in their employ. Who is right? An experienced employment attorney may be necessary to unravel those legal answers.

Intellectual Property – Things to Consider

While both you and your employer claim ownership of the intellectual property, your employer will have a stronger claim on these materials if you signed a contract agreeing to as much prior to starting work. These documents, referred to as an assignment of inventions or ownership of discoveries, generally assign the company ownership of all intellectual property created in the course of employment. If such an agreement does not exist, you have a greater claim to your ideas. Your case could be even stronger if you called out specific areas of ownership interest in an employment addendum prior to employment or preceding work on a specific assignment.

Written Contracts

Again, if there is no written agreement outlining specific ownership provisions, you may have a strong case for ownership. If there is a written contract, consider the following:

  • Does it assign rights or ownership of intellectual property, copyrights, or trademarks?
  • Was it executed prior to employment or later? If later, were you offered additional compensation or consideration in exchange for giving up ownership?
  • Were you, as a prospective employee or independent contractor, allowed to specify any intellectual property you owned prior to this contract?
  • Was there a regular communication as to what intellectual property you owned and what you did not?
  • Does it specify consequences for infringing on company ownership of intellectual property?

Intellectual Property and Rules for Independent Contractors

Independent contractors often experience this conflict when it comes to intellectual property, even though it may be assumed they can keep what they create. They generally own their work, except in specific situations, such as:

  • A cooperative project;
  • Audiovisual work;
  • A translation;
  • A supplement to an existing piece;
  • A compilation of works;
  • An atlas;
  • Any test;
  • An answer key to a test.

Determining Whether Ideas Were Developed During the Course of Employment

If there is no written contract regarding intellectual property, determining ownership becomes a bit trickier. The courts generally then consider whether your ideas were developed during the course of the employment relationship. That is, were they a direct result of your work, beyond simply occurring during the time frame in which you were employed? Making that determination requires the court to examine the reasons for employment, including any directives or job descriptions. Is the material in question a direct result of your employment goal? If so, it may belong to the employer. Even if the work was completed at home, on your personal computer, it may still belong to your employer if it can be directly connected to your work responsibilities. [Read more…]

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Can You be Asked to Reimburse Your Employer for Training Costs?

April 28, 2017 by

training costsDo I have to reimburse training costs to my employer? Additional training for employees benefits everyone, right? Employees become more adept at their jobs, performing with greater skill and confidence. Employers enjoy a business that operates like a well-oiled machine, with employees’ performance at the highest levels possible.  But what if, after engaging in a costly training program, an employee jumps ship? Particularly when that employee decides to work for a competitor, employers might resent the dollars that they dumped into training. Can an employer require reimbursement for those instructional costs?  If you are facing this situation, you may wish to engage the services of an experienced employment lawyer.

California Precedent for Training Costs Reimbursement

A recent court case pitted the city of Los Angeles and the LAPD against officers who had completed training in the LAPD police academy, but who left LAPD within a short time after hire.

In an attempt to curb the attrition rate of police officers, the city enacted a policy that required any officer who had been through academy training but who voluntarily transferred to another agency after working for less than five years with the LAPD to reimburse some training costs. The required reimbursement was prorated, and was based partly on a signed agreement indicating a five-year commitment to LAPD. In that contract, new employees agreed to reimburse the direct and indirect costs associated with employment if those employees joined another agency within one year after voluntarily terminating employment with LAPD. This contract was commonly referred to as the acknowledgment.

The details of the case involve Anthony Alvo, who, according to the city, was required to reimburse the city $34,000 after leaving the LAPD. Alvo and another former LAPD officer, Daniel Fernandez, filed a cross-complaint. Fernandez had been threatened with legal action after leaving the LAPD. The two men sought to have all related suits litigated in one coordinated proceeding, and the Chair of the Judicial Council agreed.

The case ultimately involved 43 former LAPD officers. Three of these officers had previously been found guilty of breach of acknowledgment and a judgment had been entered against them.

Labor Code section 2802 formed the basis of the appeal. It states, in part, that employers must indemnify employees for any expenditure incurred that was necessary to complete required duties. The appellants argued that since the academy is required of all new officers, it is a necessary expenditure, making the acknowledgment void.

In contrast, the city contended that because the training is required in order to receive Peace Officer Standards and Training (POST) certification, Labor Code 2802 was not applicable.  To wit, Labor Code does not specifically require employers to pay for costs associated with licensing requirements.

Complicating matters, LAPD required 420 hours of required department training in addition to the 644 hours of POST training.  Because the city required recruits to attend its own academy for all of the training, the court found in favor of the defendants. [Read more…]

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Wrongful Termination in California

April 14, 2017 by

Wrongful TerminationWrongful termination? If you work as an at-will employee, with no union protections or contracts, you can be fired any time, for any reason, right? Wrong! California courts and laws require any terminations to be based on legitimate business reasons. Beyond that, there are several termination procedures that must be followed by law. If you believe your termination was not based on a lawful business rationale, you may wish to discuss it with a knowledgeable employment lawyer.

Legitimate Termination

No termination may violate state or federal regulations, such as those related to anti-discrimination. Beyond that, the firing or layoff must clearly be in the best interests of the company, and employers would do well to consider a number of factors:

  • What written policies regarding dispute resolution, arbitration, discipline, or “just cause” are on the books?
  • What process of progressive discipline was employed, if any? If no process was followed, is there a legitimate reason?
  • Was any contract violated, whether written or verbal? An implied contract deserves consideration just as much as a written one does.
  • Is the employee who is being terminated a long-term employee (five years or more?)
  • Is there previous evidence of job security, such as promotions or commendations?
  • Is the terminated employee pregnant?
  • Has the terminated employee filed a claim with worker’s compensation?
  • Has the employee been involved in “whistleblower” types of complaints?
  • Does documentation exist substantiating misconduct or other reasons supporting a decision to terminate?

Additional Employer Responsibilities Related to Termination

Once the decision to terminate has been made, employers have certain responsibilities toward the terminated individual:

  • Final wages must be paid immediately. This includes unused vacation pay that may have been accrued, any commissions or reimbursements due, and profit sharing or bonus monies.
  • A number of forms must be provided to terminated employees, including Notice to Employee as to Change in Relationship; For Your Benefit, California’s Program for the Unemployed; Health Insurance Premium Notice (HIPP); and any relevant COBRA and Cal-COBRA publications.
  • Discussions regarding the circumstances of termination must be kept confidential. Only those within the company who need to know the details should be privy to them. Information provided during reference checks must also be limited in scope.

Common Wrongful Termination Issues

Terminations that result in lawsuits tend to share one of a handful of particular themes that the courts generally do not take lightly:

  • Discrimination on age, race, sexual origin, gender, religion or other protected area;
  • Employee failure to pass a drug test;
  • Whistleblower retaliation;
  • Engagement in protected activities.

[Read more…]

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