Blog Archives - Page 11 of 24 - California Labor & Employment Law

When can Trade Secrets be Disclosed?

September 6, 2017 by Beck Law P.C.

Do you know the inner-workings and trade secrets of your company, and suspect the company is operating in violation of the law? Are you reluctant to share company secrets for fear of facing federal, private, or civil action for trade-secret misappropriation? You are in a difficult spot: A good employment attorney may be able to help.

The Defend Trade Secrets Act

The DTSA protects trade secrets associated with products and services used in foreign or interstate commerce. It affords U. S. businesses both protections and legal remedies for the misappropriation of proprietary information. This relatively new federal law provides a uniform way to view the definition of trade secrets, statutes of limitations, and intellectual property.

What is a Trade Secret?

The DTSA intentionally defined trade secrets rather broadly:

“all forms and types of financial, business, scientific, technical, economic, or engineering methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically graphically, photographically, or in writing if

The owner thereof has taken reasonable measures to keep such information secret; and
The information derives independent economic value, actual or potential, from not being generally know to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.”

What is “Misappropriation?”

The DTSA is quite specific as to what constitutes a misappropriation:

The attainment of information by improper means;
Obtaining information from someone who had the duty to protect it;
Knowingly acquiring a trade secret that was discovered by accident.

SnapChat Trade Secrets Lawsuit

One former employee is suing SnapChat, claiming that the company pressured him to reveal proprietary information about his former employer, Facebook. The employee, Anthony Pompliano, was terminated three weeks into his employment allegedly because he was incompetent. Pompliano claims he was lured to the company under false pretenses and was asked to share secrets about Facebook operations. Had he done so, he may have been subject to federal penalties.

Trade Secrets Sharing – Remedies

A number of remedies are available in the event of trade secret sharing:

Civil seizure;
Injunctions to prevent potential misappropriations;
Royalty payments, exemplary damages, and other damages.

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

Workplace Age Discrimination

July 24, 2017 by Beck Law P.C.

Labor law and workplace age discrimination. You have worked for your employer for some time, and you are starting to notice a disturbing trend. Younger employees seem to be passing you by at an alarming rate. Are these colleagues outperforming you, or are you experiencing workplace age discrimination? If you suspect ageism is at the root of the issue, it may be worthwhile to consult an employment attorney for advice.

What is Workplace Age Discrimination?

When individuals who are 40 and older experience roadblocks in the workplace and age is a primary factor, it is age discrimination. Federal law addresses the issue through the Age Discrimination in Employment Act (ADEA). Under ADEA, making age a factor in employment decisions with regard to hiring and firing, promotions and assignments, and compensation and perks is unlawful. In addition to the ADEA, the California Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) support fair practices for aging workers and potential workers.

Workplace Age Discrimination Complaints on the Rise

If you suspect workplace age discrimination is holding you back, you are not alone. According to the U.S. Equal Employment Opportunity Commission (USEEOC), the number of workplace age discrimination complaints in this country has grown from 19.8%in 1997 to 22.8% of all discrimination complaints. Nearly 21,000 such complaints were filed last year.

Whether or not complaints have been filed, older Americans report that age discrimination is alive and well in America. In fact, nearly 70% of workers aged 45-75 note that they have either seen or personally experienced the problem. Astonishingly, age is cited as one of the biggest obstacle to workers over the age of 35, particularly in high tech industries. The most common form of age discrimination, in fact, is related to not getting hired in the first place.

What We Know About Older Workers:

Research confirms several key points about older workers and what they need and want from their jobs:

Most older Americans are working for economic reasons. They need a salary, or benefits, or both;
Many older Americans are simply working because they enjoy it, and some are working on building up a nest egg for the future;
Older workers want respect;
These workers wish to be in a position that utilizes their particular talents and abilities.
Older workers report being significantly more engaged in their work than their younger counterparts.

How do I Know if Workplace Age Discrimination is the Problem?

Proving age discrimination requires a significant burden of proof. Some things that may tip your employer’s hand include:

Younger workers are being hired to replace fired older workers;
You are assigned unenviable tasks in an attempt to get you to leave voluntarily;
Your boss informally chats you up and asks when you are planning on moving on to greener pastures;
After receiving glowing performance reviews for some time, you suddenly see your reviews take a significant dip. It looks like someone’s building a case to let you go;
Everyone around you seems to be getting raises, but your pay is stagnant, despite equivalent job performance.

Sick Leave in California

July 17, 2017 by Beck Law P.C.

Do California seasonal employees accrue sick leave? Let’s say you are a seasonal employee, and you suddenly become ill. Should you show up to work anyway, and risk infecting others? That may seem like a better option than losing a day’s pay, or even your job, right?

The fact of the matter is, you do not have to make that choice if you work 30 hours a week or more. Paid sick leave (PSL) is available to temporary, seasonal, hourly, exempt, and nonexempt employees. California law requires employers to provide at least on hour of paid sick leave for every 30 hours worked. So, take the day off and stay home in bed where you belong! Your employer cannot ask you for a doctor’s note and cannot retaliate against you for using your PSL. If your employer is not following the law, contact an experienced employment attorney.

What if I do Not Use My Sick Days?

On the other hand, let’s say you are super-healthy and never need to take time off. What happens to your paid leave? Gone are the days of use-it-or-lose-it. California law allows you accumulate up to 48 hours of unused leave. Even if you can only earn 24 hours of leave each year, hours can be rolled over into the next year. The exception is if employers provide the hours in a lump sum at the beginning of the year. In that case, they are not required to allow a rollover.

Exemptions in the Law

There are, however, exceptions to the rule. Workers who are not entitled to sick leave under this law include:

Certain aviation employees, including cabin crew from particular airlines;
Home Support Service employees;
Construction employees;
Employees with a collective bargaining agreement who earn not less than 30% of the state minimum wage.

Compliance with the Law

Employers are required to do several things in order to remain in compliance with California law regarding sick leave mandates:

Provide a written copy of the sick leave policy;
Display a poster of the sick leave poster;
Provide a minimum of 24 hours of paid leave per eligible employee per year;
Calculate, track and report employee sick leave balances on pay stubs;
Keep sick leave records for at least three years.

Use PSL for Other Circumstances

Employees may use paid sick leave to care for sick family members, too. If your child, spouse, registered domestic partner, parent (or parent-in-law) grandparent, sibling, or grandchild is ill, you have paid time off to provide care. In fact, PSL may be used if you are a victim of domestic violence, stalking, or sexual assault. [Read more…]

Filed Under: Blog, Paid Sick Leave Tagged With: California employment attorney, California paid sick leave law, paid sick leave, part time workers, seasonal workers, temporary workers

Pregnancy or Career – Can You Have Both?

July 5, 2017 by Beck Law P.C.

Are you currently pregnant or considering pregnancy? Well the decision to start a family is complex and requires a number of considerations, but pressure from your employer should not be one of them. The law offers specific discriminatory protections for mothers or potential mothers in the workplace. An experienced employment lawyer can help you with issues in the event you feel you are experiencing pregnancy discrimination.

Federal Protections

The Pregnancy Discrimination Act (PDA) prohibits workplace discrimination related to pregnancy. That means that being pregnant cannot influence any decisions regarding hiring, pay, job assignments, training opportunities, layoffs or firing. Additionally, benefits relating to health insurance or leave cannot be determined based on this status.

Physical Limitations

If your pregnancy interferes with your ability to perform duties normally associated with your position, your employer must provide alternate assignments, disability leave, or other leave just as it would for any other temporarily disabled employee. If your pregnancy results in additional health issues, such as preeclampsia, for example, the law requires reasonable accommodations. These types of medical conditions are covered disabilities under the Americans with Disabilities Ace Amendments Act of 2008.

Reasonable Modifications

Modifications must be based on individual circumstances and needs. Some common accommodations that might be required include:

Eliminating non-essential functions (such as heavy lifting) from the workload for a period of time;
Allowing frequent restroom breaks;
Modifying daily schedules to accommodate morning sickness;
Allowing an employee to be seated when standing might normally be expected.

What is Harassment and Discrimination?

Clearly, harassment, intimidation, and any discrimination surrounding pregnancy or childbirth is unlawful. Any behavior that creates an offensive or hostile work environment due to its frequency or severity, or that results in an unfavorable job action, may be actionable. Refusing to provide reasonable accommodations could also be considered discrimination.

Pregnancy and Maternity Leave

If an employer allows disabled persons to take disability leave with or without pay, the same must be offered for pregnancy-related issues. Pregnancy cannot be singled out with special rules or procedures. In addition, the Family Medical Leave Act (FMLA) of 1993 allows any new parents up to 12 weeks of paid or unpaid leave for the care of a new child, given the employee has worked for a year prior to the requested leave.

Finally, the Fair Labor Standards Act (FLSA) provides that nursing mothers must be afforded the time and private location (not just a bathroom) to express milk. [Read more…]

Filed Under: Blog, Workplace Harassment Tagged With: discrimination, Employment Discrimination Law Office Lake County, pregnancy, workers' rights

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.

Forced Retirement? Not so Fast!

June 15, 2017 by Beck Law P.C.

Are you being targeted for forced retirement? You enjoy working. You show up every day, ready to tackle the next project that comes your way. So, you are more than a little surprised when your boss suggests that retirement is something you should seriously consider. As time progresses, you find less significant tasks being assigned to you, and you notice younger employees eagerly attacking projects that used to be in your domain. Your employer is gently compelling you to ease on out the door. You start to question yourself: Are you too old for the job? Before you concede to your employer’s pressure to leave, you should really consult a knowledgeable employment attorney.

Forced Retirement – Legal Protections

Before you comply with the not-so-subtle forced retirement suggestion to pack up and leave, consider this: Federal law protects workers from being pushed out of a job with the Age Discrimination in Employment Act (ADEA) of 1967. Although some may view 65 as the desirable age for retirement, workers cannot be discriminated against due to their age. They certainly cannot be forced into a retirement that they do not want. The law applies to individuals aged 40 and older who work for a private company with at least 20 employees, or for any government entity. Not only are you protected from being forced out; if you are capable of performing your duties, your employer cannot demote you, insist you take a position with les responsibility, lower your pay, or move you into part-time work.

What About Benefits on the Job?

Older workers must be provided access to the same benefits as all other workers, as well. Even if you are eligible for Medicare, your health insurance benefits cannot be reduced. Beyond health care, other opportunities cannot be denied simply because of your age. You must have equal access to:

Training opportunities;
Prospects for promotions;
Lateral movement in the company.

Exceptions: BFOQ

On the other hand, if your employer can demonstrate that your age is a bona fide occupational qualification (BFOQ), they may have grounds to discriminate. This is an unusual circumstance and is difficult to prove. (One possibility might be in casting for a commercial requiring a child actor). The employer, who has the burden of proof, must show three key facts:

The job qualifications expected are reasonable and essential to the functioning of the business;
Individuals over a particular age limit could not perform those duties with efficiency and safety;
The practicability of assessing fitness for the job on an individual basis is unreasonable or impossible.

Are Arbitration Agreements Enforceable?

June 8, 2017 by Beck Law P.C.

When you were hired by your current employer, were you required to sign an arbitration agreement? The agreement stated you would use an arbitrator to deal with any workplace-related legal claims, rather than going through the courts. At the time, it seemed a minor issue—just another piece of paper you signed in order to get the job you wanted. Now, you may find yourself regretting that signature. Perhaps a group of employees has asked you to join in a class action lawsuit against your employer, fighting for employee rights. You believe in the cause—but there is the matter of that pesky arbitration agreement you signed. What now? An experienced employment lawyer can help you to understand both your rights and your responsibilities in this situation.

The Arbitration Process

Pursuing a remedy to workplace issues through an arbitration process has benefits, to be sure. For instance, the proceedings are often much speedier. Disputes among parties can be raised over the phone with an arbitrator, instead of through the motions required in the court system. Besides saving time, arbitration can save everyone a lot of money. Employees, in particular, save money because employers are required to pay all arbitration fees in California. Arbitration is also a more private venue than the court, and no public records will be filed.

Federal Ruling

The 9th Circuit court recently issued an opinion striking down mandatory class waivers (Morris v. Ernst & Young). In this case, the plaintiff had signed an arbitration agreement spelling out that “covered disputes pertaining to different employees will be heard in separate proceedings.” Nonetheless, the plaintiff claimed that he and others had been wrongfully labeled as exempt from overtime pay, and filed a class and collective action against his accounting firm, Ernst & Young. The court found that agreements that take the rights of the worker to obtain federal relief from a work-related claim are untenable, and ruled for the plaintiff.

Arbitration Agreement Uncertainty in California Law

On the other hand, the California Supreme Court has upheld arbitration agreements that include class action waivers (Iskanian v. CLS Transportation Los Angeles, LLC.).

This leaves us with some ambiguity regarding the enforceability of arbitration agreements that include class action waivers. The federal court clearly states that employees do have a right to band together to pursue work-related claims. The state court differs. So, is an arbitration agreement enforceable in the state of California?

In general, a well-drafted agreement that is implemented fairly and appropriately should be enforceable. What makes an agreement unenforceable? The courts have found certain factors to be non-starters such as:

Agreements that require employees to waive statutory damages;
Agreements that require employees to waive statutory remedies;
Agreements that do not allow the employee to recover attorney’s fees if successful;
Agreements that contain class action waivers, precluding employees’ rights to band together to ensure their rights are preserved and protected.

[Read more…]

Filed Under: Binding Arbitration, Blog Tagged With: Arbitration Agreement Law Office Santa Rosa