Termination Considerations for At-Will Employment

October 27, 2017 by Beck Law P.C.

Employee termination without cause. Can California workers be terminated without cause? California is an at-will state, meaning that either the employer or the employee may terminate the relationship at any time. Even so, California courts look at a number of factors when employees claim that a wrongful termination has occurred. If you find yourself without a job and believe the termination was unlawful, a local employment attorney can help.

Implied-in-Fact Contracts

Sometimes employers and employees have unspoken agreements that take precedence over an employer’s ability to fire at will. California courts do consider whether or not there is an implied contract. These determinations rest on the totality of several factors, including the employee’s length of employment with the company, employment practices within the industry, company policies, and employer actions that would give an employee a reasonable expectation of continued employment. One such case involved Wayne Pugh vs. Sees Candies. When Pugh was fired from his Palo Alto job without explanation, the courts found that, absent a written contract, the implied contract between employee and employer negated any right to fire without cause.

Express Contracts

When an employee’s contract expressly states that termination may only occur with cause, employers must have legitimate reasons documented for a termination. Often these contractual obligations are through a labor union, although oral agreements may be just as valid.

Statutory Protections from Termination

Despite being able to fire at-will employees without cause, employees cannot be terminated for a number of protected reasons.

Federal law calls out several protections, including race, gender, age, religion, and disability. California law piggybacks federal statutes, and adds additional protections for sexual orientation.
Public sector workers generally have termination policies and civil service laws that protect them from random terminations;
Union activity is also protected, so employees may join a union and exercise any collective bargaining rights without threat of termination.
Employees are also entitled to certain types of leave without fear of termination. Employees may miss work to vote in a state election, may take leave under the Family Medical Leave Act to care for sick family members, and may miss work to serve as a juror. Maternity leave is also protected for women. These are common reasons for which employees are entitled to take leave without fear of termination.
Federal whistleblower protections exist for individuals who report safety violations, discrimination, or other violations of either state or federal law.
Employees cannot be fired for their behavior or activities that occur outside of work. If the behavior is legal, employers cannot consider it in a termination.

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.

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

April 28, 2017 by Beck Law P.C.

Do 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…]

Filed Under: Blog, Employee Rights Tagged With: california employment lawyer, employee training programs

Wrongful Termination in California

April 14, 2017 by Beck Law P.C.

Wrongful 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.

Filing Deadline to Sue an Employer in California

November 4, 2016 by Beck Law P.C.

What is the filing deadline to sue an employer in California? Reginald Mitchell worked as a health facilities investigator for the California Department of Public Health until 2011. After he resigned, he filed a complaint with the Equal Employment Opportunity Commission (EEOC). The complaint alleging that he had been subjected to racial discrimination. A copy of his EEOC complaint was also filed with the California Department of Fair Employment and Housing (DFEH), which issued him a right-to-sue notice.

The right-to-sue notice stated that he could bring a civil action against his employer within one year from the date of the letter – September 9, 2011. It also stated that the one-year period would be tolled during the time that the EEOC investigated his complaint.

On September 30, 2013, the EEOC found that there was reasonable cause to believe that Mitchell had been the victim of discrimination. A right-to-sue notice was later issued by the U.S. Department of Justice. Mitchell received the notice on March 21, 2014.

Mitchell then filed a civil action under the California Fair Employment and Housing Act (FEHA) on July 8, 2014. This was 107 days after he received his federal right-to-sue letter. The federal right-to-sue period lasts only 90 days.

Was Mitchell still eligible to file that action? On one hand, his federal filing deadline had expired. But on the other hand, he had been informed by the state of California that he had a year to bring a suit against his employer – and that this time period would be tolled while the EEOC was investigating. And when Mitchell filed his complaint, far less than a year had passed since the conclusion of the EEOC’s investigation.

Can the Filing Deadline Be Extended?

The case of Mitchell v. California Department of Public Health revolved around whether an employee in Mitchell’s situation can file a complaint after the federal right-to-sue period has ended. A California appeals court provided an answer that will please plaintiffs in employment discrimination cases – but not employers.

The court ruled that FEHA’s one-year filing deadline limitation period was tolled while the EEOC investigated, and thus Mitchell’s complaint was timely. The ruling points out that, according to Section 12965 of California’s Government Code, the limitation period can be tolled when the following three factors are met:

Concurrent charges filed with the EEOC and DFEH
The DFEH defers investigation of the charges to the EEOC, and
Charges are deferred to the EEOC and right-to-sue notice issued by DFEH.

The court held that all three of these factors were met in Mitchell’s case. According to the ruling, even though the federal right-to-sue period had expired, the equitable tolling meant that Mitchell’s right to take action under FEHA was still valid on the day he filed his complaint.

The court’s opinion argues that equitable tolling of the FEHA limitation period is in the public interest. It points out that, with equitable tolling, the defendant will receive notice of the claim, and the plaintiff will not have to pursue simultaneous actions based on the same set of facts. It also notes that equitable tolling prevents the costs of duplicate proceedings. [Read more…]

Filed Under: Blog, Employee Rights Tagged With: california employment lawyer

I’m Being Laid Off But Must Train My Replacement?

March 5, 2015 by Beck Law P.C.

I’m being laid off but have to train my replacement? SCE is Southern California’s biggest utility provider. The company has recently faced public criticism after it was confirmed that SCE would be laying off many members of its large IT department in order to replace them with new hires from Tata Consultancy Services (TCS) in Mumbai, India, as well as from Infosys, an IT company in Bangalore. These new employees will be allowed to begin work in Southern California through the U.S. federal government’s H-1B program. The intent of the H-1B program is to allow foreign workers to access jobs in the U.S. that employers are unable to fill with U.S. employees. The main complaint about using the two Indian companies is that SCE already had U.S. employees who were trained, ready and willing to complete the work required, thus negating the very need for H-1B employees in the first place.

SCE and the Alleged H-1B Program Abuse

SCE is one of Southern California’s largest utility companies, which, before layoffs, reported having 1,800 employees in its IT department alone, with an additional 1,500 workers on contract. The IT department’s transition effort will result in an estimated 400 employee layoffs along with an additional 100 employees terminating their employment voluntarily. The employees who will be leaving SCE’s IT department have years of experience in their jobs, and will be forced to train their replacements in the upcoming months as part of the broader transition effort. Not surprisingly, many of the workers feel betrayed by SCE, and believe this transition is an attempt to pay lower wages to foreign employees, through the abuse of the U.S. federal government H-1B program. This argument is somewhat persuasive when one considers the very goals and purpose of the H-1B program, which is to provide employers access to non-U.S. employees when there are not enough domestic employees to provide the unique services that their businesses require. However, as one employee put it,

“Not one of these jobs being filled by India was a job that an…employee wasn’t already performing”.

Laid Off and Training My Replacement

The fact that some of the laid-off U.S. employees will be training their own successors seems to support the claim that the U.S. employees are skilled, trained and capable of providing all of the employment services that SCE requires.

In response, SCE has stated that the transition towards using Tata and Infosys H-1B employees will inevitably “lead to enhancements that deliver faster and more efficient tools and applications for services that customers rely on. Through outsourcing, SCE’s information technology organization will adopt a proven business strategy commonly and successfully used by top U.S. companies that SCE benchmarks against.”

However, SCE’s response does not touch on the issue of why California, home to Silicon Valley and some of the most advanced tech specialists and professionals, was not an adequate location to find the employees that SCE required. Some from within SCE have voiced concerns that the new Indian tech workers do not posses the necessary skill levels of the very people that they will soon replace.

The layoffs at SCE are a unique example of the immigration issues involved in foreign labor and employment. If you think you need a Santa Rosa Labor Attorney, or Mendocino County Labor Lawyer, contact the California labor and employment lawyers at Beck Law P.C. in Santa Rosa today.

Filed Under: Blog, California Employment Law, Labor Law Tagged With: California employment attorney, california employment lawyer, lake county labor lawyer, Santa Rosa Labor Lawyer, Ukiah Labor Attorney

Understanding the Basics of California Age Discrimination Laws

December 2, 2014 by Beck Law P.C.

California age discrimination law – Understanding the basics. Age discrimination is the unlawful practice of treating someone differently because of their perceived or actual age. Age discrimination is specifically prohibited under both employment law and housing law. Age discrimination is one of the many forms of discrimination along with discrimination based on sex, race, and religion, and is explicitly prohibited under both California state and federal laws. Under federal law, the Age Discrimination in Employment Act (ADEA) prohibits age discrimination in the workplace against people who are 40 years old or older. This law does not provide protections for those workers who are under the age of 40 and face age discrimination in the workplace, and the ADEA also does not make it illegal for an employer to favor an older worker over a younger worker, even if both workers are 40 years of age or older.

The FEHA & Employment Discrimination

The California state law that provides protections against age discrimination in the workplace is the Fair Employment and Housing Act (FEHA). The FEHA prohibits discrimination, retaliation and harassment in both housing and employment when such illegal practices are based on a person being 40 years or older or because of that person’s “religious creed, color, national origin, ancestry, physical disability (including AIDS and HIV), mental disability, medical condition, marital status, sex (including pregnancy, childbirth, or related medical conditions), age (40 or older), or sexual orientation (heterosexuality, homosexuality, and bisexuality).”

The FEHA is part of California’s broader public policy goals of protecting residents’ civil rights to obtain, hold and seek employment while being free from discrimination. The FEHA is enforced by the Department of Fair Employment and Housing (DFEH), the agency that prosecutes cases brought under the FEHA, and the Fair Employment and Housing Commission (FEHC), the state agency that rules on cases brought by the DFEH and citizens. Claims that an employer has violated the FEHA can be litigated either in an administrative hearing before the FEHC, or in civil court. If an administrative hearing is held, an employee who wins a claim against an employer can recover past wages, out of pocket expenses, and also up to $150,000 in emotional distress damages. When an FEHA case is litigated in civil court, the employee can recover unlimited monetary damages for emotional distress, punitive damages, past wages, attorney’s fees and any other out-of-pocket expenses associated with the case.

Employers Covered Under FEHA

Any employer that regularly employs five or more persons is covered under the FEHA. Ultimately, private employers, as well as state, local, counties and all other governmental bodies are covered by the FEHA, as well as labor organizations, apprenticeship programs and employment agencies. Furthermore, an exception to the five-employee minimum requirement exists when harassment is alleged. In such a situation, all employers who employ one or more persons or receive the services of one or more independent contractor(s) can be found guilty of violating the FEHA because harassment occurred based on age in the workplace. Under the FEHA, an employer is guilty for harassment that occurred in the workplace that the employer either ignored, or should have known about, but did not act to prevent further discrimination, harassment or retaliation. Furthermore, individual co-workers can be found personally liable for violating the FEHA, but only if they engaged in harassment.

Do you need legal representation in an age discrimination employment law suit? Contact an employment law attorney at Beck Law P.C. in Santa Rosa, California today.

Filed Under: Age Discrimination, Blog, California Labor Law Tagged With: California employment attorney, california employment lawyer, Labor attorney santa rosa, Petaluma Labor Lawyer, Ukiah Labor Attorney

Landmark CA Temporary Worker Protection Law

October 31, 2014 by Beck Law P.C.

Landmark California temporary worker protection law. This month, Governor Jerry Brown of California signed a new bill into law that will finally hold businesses responsible for situations when subcontracted temporary staffing agencies that a business utilizes underpay and/or endangers temporary workers. The law, previously known as Assembly Bill 1897, was created to address at least some of the accountability issues facing the temporary worker industry. In industries such as food processing and warehousing, outsourcing work to low-paying temporary staffing agencies has become extremely profitable practice for two reasons. First, the cost of using temporary workers is less than the costs associated with utilizing full-time employees. For example, under the Affordable Care Act, businesses are not required to provide health insurance policies for temporary workers, though they are required to cover the costs associated with providing health insurance to full-time employees. Second the use of temporary workers has allowed companies to skirt responsibilities regarding the adherence to workplace regulations and laws. Companies have been able to avoid responsibility for workplace regulation violations even if they are the one’s overseeing the work of temporary employees.

Temporary Worker Protection Law Aims to Curb Abuse of Temporary Worker Status

In the past decade, Southern California’s Inland Empire has become the home to a massive retail distribution industry that has been known to exploit low-wage temporary workers in order to produce a wide assortment of retail products at low costs. These temporary workers have spoken out about the unsafe working conditions and rampant wage theft that they have experienced. Worker advocates and labor unions have criticized the businesses who exploit the labor of California’s temporary workers, and the state has finally decided to take notice with the implementation of the new law specifically created to protect temporary workers.

AB 1897 requires “the client employer to share with a labor contractor all civil legal responsibility and civil liabilities when it comes to paying wages to temporary workers. AB 1897 also prohibits client employers who utilize temporary staffing agencies from shifting the legal duties and liabilities associated with workplace safety to the contracted agency. As a result of these regulations, the state of California now has the right to fine businesses when the temporary staffing agencies they have contracted with have violated federal and state workplace laws.

Though it may seem obvious to some that businesses employing temporary staff should be held accountable for violations and bad working conditions that are experienced by temporary workers, the new law has created some discord amongst the business community. In fact, the California Chamber of Commerce has spoken out against AB 1897, stating that the law would “discourage further growth in this state, and will certainly discourage out-of-state companies from [re]locating here.” However, regardless of this dissent, California remains committed to protecting the rights and safety of all California employees regardless of their status as a full-time or temporary employee. In fact, AB 1897 is one of the many labor-friendly laws that has been recently passed in California. Other relevant laws include raising California’s minimum wage to $10 per hour, as well as newly governor-approved bill that will require employers to provide employees with paid sick leave.

If your business needs legal representation in Sonoma County, Mendocino County, or Lake County California contact the attorneys at Beck Law, P.C. We are prepared to help you in any way that we can.

Filed Under: Blog, California Employment Law, California Labor Law Tagged With: California employment attorney, california employment lawyer, Petaluma Labor Attorney, Santa Rosa Labor Attorney, ukiah lalabor attorney

What Does The California Paid Sick Leave Law Do?

September 15, 2014 by Beck Law P.C.

What does the California paid sick leave law do? Our California Governor Jerry Brown signed into law recently the Healthy Workplaces, Healthy Families Act of 2014, which mandates paid sick leave for California employees. According to the governor’s office, nearly 6.5 million people – 40% of California’s workforce – had no paid sick leave benefits prior to the passage of this law.

California Paid Sick Leave Law

The Healthy Workplaces, Healthy Families Act of 2014, which takes effect in July 2015, mandates the following in California:

part-time and full-time employees can receive up to 3 paid sick days per year; employers may allow more paid time off at their discretion
workers accrue 1 hour of paid sick time off for every 30 hours worked
workers may use accrued time after 90 days of employment
sick days may be used to care for an ill family member

The law does not apply to certain employees who are part of collective bargaining agreements, airline flight crews or in-home healthcare workers. Employers will be required to post signs in the workplace informing employees of paid sick leave laws. Employers are prohibited from retaliating against employees who request paid sick leave and face fines of up to $4,000 a day for refusing to allow employees to take paid sick time as allowed under the new law.

Paid Sick Leave Trending

San Francisco County has had mandatory paid sick leave in place since 2006. California is now the second state in the nation to pass paid sick leave laws. Connecticut enacted a paid sick leave law in 2011. Various localities such as the District of Columbia and New York City have also enacted laws mandating paid sick leave for certain employees. Approximately twenty other states have proposed legislation involving paid sick leave. There is no federal law guaranteeing paid sick leave for employees.

Not Without Controversy

While Governor Brown said of California’s new paid sick leave law, “Whether you’re a dishwasher in San Diego or a store clerk in Oakland, this bill frees you of having to choose between your family’s health and your job”, the law is not without its critics.

Business owners, especially small business owners, have expressed their concern over the additional costs that their businesses will have to bear once the new law goes into effect. California also recently increased the state’s minimum wage. Another increase in minimum wage is scheduled to take effect in January 2016.

Employers will also incur the administrative costs involved with keeping track of accrued paid sick leave, as well as the productivity costs involved with having workers call in sick.

Experienced Employment Attorneys

In light of the passage of the paid sick leave law in California, employers may consider updating their handbooks, trainings and other policies. Beck Law P.C. has years of experience advising employers on how to remain compliant with various laws, including wage and hour laws, paid time off and other issues. Please contact us to discuss your business’s needs.

Filed Under: Blog, California Employment Law, California Labor Law, Paid Sick Leave Tagged With: california employment lawyer, california labor attorney