employment law Archives - California Labor & Employment Law

Should You Sign a Separation Agreement?

December 27, 2018 by Beck Law P.C.

Let us say that, as you prepare to exit a job, your employer approaches you and asks that you sign a separation agreement before your final departure. Perhaps they have some concerns about the knowledge you have accumulated over time. Maybe you are leaving under unpleasant circumstances, and they fear that you will spread rumors about them, or even file a lawsuit against them. Should you sign the document they have presented to you? A local employment attorney can help you make the right decision for your unique circumstances.

Terms of a Separation Agreement

California law does not require a separation agreement, so when your employer proffers one, chances are it has something of value for both parties that is not required by law. Generally speaking, employers are looking for company secrets to be locked down and may wish to protect themselves from future lawsuits. What might they offer in exchange? The terms of the agreement might include the following:

A severance package, which may include wages and/or benefits in a lump sum, for a defined period of time, or in some combination of these;
A written plan regarding how and when payouts will occur;
Education benefits;
Tax and insurance benefits;
A non-compete clause that limits your opportunities in the field for a specified period of time;
A non-disparagement clause, barring you from saying negative things about the company or your reasons for leaving;
A statement agreeing that there was no coercion involved;
Clauses related to what will happen to company property that is in your possession, potential for rehire, or other matters of concern.

Unlawful Separation Agreement Requests

While it may be reasonable for an employer to attempt to protect itself from future legal action, California law states that employers can not request that you waive your claim to legal action regarding certain areas, including:

Minimum Wage;
Workers’ Compensation;
Unemployment insurance;
Overtime.

You Have Leverage Over Signing a Separation Agreement

When considering whether or not you want to sign a separation agreement, you need to remember that you do have some leverage here. Clearly, the company is hoping to gain something. Knowing this, do not be afraid to negotiate to get the things that you want. If they are offering a one-month severance package, try pushing it to six weeks. If you really need health insurance, or you would like to keep the company car you have been driving for the past five years, ask; you may get more than you ever imagined. Presumably they are asking you to give up legal rights. What is it worth to them? [Read more…]

Filed Under: Blog, California Employment Law Tagged With: employment law, separation agreement, severance package

Federal Court Supersedes California Immigration Laws

September 6, 2018 by Beck Law P.C.

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

Assembly Bill 450

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

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

Immigration Laws – New Federal Push

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

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

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

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

What Parts of California Immigration Laws Still Stand?

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

Consequences for Employers with Documentation Improprieties

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

Filed Under: Blog, California Employment Law Tagged With: employment law, ICE, immigration-related employment retaliation

Pregnancy Discrimination Costs AutoZone Big Bucks

August 30, 2018 by Beck Law P.C.

A case of pregnancy discrimination. A San Diego AutoZone manager was told that she could not handle the responsibilities of management after becoming pregnant. Pressured to step down, she stood her ground. After having her child, she was subjected to a reduction in pay and a demotion, and was later set up to be fired. She did not take the alleged pregnancy discrimination actions sitting down. In the lawsuit that ensued against her employer, Juarez was vindicated and AutoZone learned an important lesson.

Pregnancy Discrimination, A Glass Ceiling for Women?

In her suit, she asserted that female employees are limited in their ability to be promoted. In fact, only about 10% of AutoZone stores in the San Diego area had female managers. During the trial, one man who had formerly been a district manager testified that he had been admonished for promoting too many women into management positions. He had been instructed to get rid of the women, as the company was not running a boutique. Another district manager was offered a promotion in exchange for terminating all females in the stores he managed. It would seem that in addition to pregnancy discrimination, all females’ jobs were in a precarious position.

Anti-Pregnancy Discrimination Laws

Gender bias laws have been on the books for decades. The Federal Pregnancy Discrimination Act of 1978 specifies that pregnant women should be accommodated in their jobs, in the same manner as an individual with a disability or who had experienced an injury. Providing light duty and making other reasonable adaptations for pregnant woman is required by law.

Additionally, California law bans workplace discrimination. Contrary to federal law, the state has no cap on awards for punitive damages and emotional suffering. In the Juarez case, the decision was made to bring the case to state court, arguing that Juarez was discriminated against under California’s Fair Employment and Housing Act.California law obligates employers to do the following:

Provide reasonable accommodations, such as allowing extra breaks, allowing employees to sit, and so forth;
Transfer pregnant employees to a lateral position to avoid strenuous or hazardous conditions;
Provide as much as four months of pregnancy disability leave (PDL);
Allow employees to return to their same position following PDL;
Provide appropriate lactation breaks following the birth of a child.

The Pregnancy Discrimination Judgment

The jury found in favor of Juarez, and the court upheld the verdict, awarding her nearly $875,000 in compensatory damages and $185 million in punitive damages. They found that AutoZone, had, indeed, discriminated, harassed, and retaliated against Juarez due to her pregnancy. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: employment law, pregnancy discrimination

Immigration Sweeps and California Employers

April 6, 2018 by Beck Law P.C.

California 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…]

Filed Under: Blog, Employee Rights Tagged With: employment law, ICE, immigrant worker protection act, immigration-related employment retaliation

Workplace Gender Discrimination

April 4, 2018 by Beck Law P.C.

Women in this country face workplace gender discrimination on a regular basis. In fact, over 40% of women report encountering work-place discrimination at some time in their lives. If that is something to which you can relate, the services of an experienced employment attorney may be helpful.

What Workplace Gender Discrimination Looks Like

This is a many-headed monster, impacting women with a bachelor’s degree at much higher levels than women with less education. Those with post-graduate education report discrimination at still greater levels. Overall, women submit that they come head to head with discrimination in a variety of forms:

Lower earnings for the same work (25%);
Treated as if incompetent (23%);
Being slighted repeatedly in the workplace (16%);
Not being supported by senior management (15%;
Being overlooked for key assignments (10%);
Feeling isolated at work (9%);
Failing to be promoted (7%);
Not getting hired (7%).

Why Workplace Gender Discrimination is so Prevalent

One theory states that stereotypes begin at birth and are nurtured throughout a female’s lifetime, eventually reaching fruition as gender discrimination in workplace situations. This makes sense when you think of pink and blue baby blankets, dolls and Hot Wheels, ballet class and karate class. Gender grooming through advertising, opportunity, and social beliefs feed female employment choice expectations. Research abounds demonstrating the imbalance in focus toward boys in math and sciences and many programs such as debate, sports, and science focus on male participation in secondary schools, while females are encouraged to do volunteer work. Ultimately, college courses in business and technical fields are dominated by males, whereas females fill courses related to caregiving areas such as education and nursing.

Once women make it into a profession, they often lack female role models and have to fight to make it to the top. Are trends changing? To some degree, yes. Women have taken the lead over their male counterparts when it comes to business startups. Even so, they tend to go into fields customarily viewed as “female” work. Those who do break into a male-dominated field often find themselves battling sex and gender discrimination at surprisingly high rates.

Doing Away With Workplace Gender Discrimination

Without a doubt, women are underrepresented in high-level positions in this country. When it comes to Fortune 500 companies, only 5% of CEOs are female. Females do slightly better attaining executive positions, with 15% of women scoring those jobs. This is troubling when considering the influx of women into the workforce in recent decades. While plenty of organizations have instituted training programs to battle discrimination, the evidence suggests that women still have bias to confront, whether conscious or not.

What is a well-intended CEO to do? Diversity training is a good starting point, but it should not stop there. Other approaches include:

Mentoring programs;
Diversity committees;
A staff position dedicated to diversity;
Having joint committees to look at hiring and promotion decisions;
Acknowledging bias issues and addressing them publicly.

How to Avoid an Employee Lawsuit as an Employer

March 2, 2018 by Beck Law P.C.

The last thing you need as an employer is an employee lawsuit. Running a business is not easy. It requires an assortment of skills that include business savvy, financial prowess, organizational mastery, and schmoozing finesse to deal with customers, competitors, and employees. In the event that you wind up battling an employee lawsuit, consulting with an experienced employment attorney is your best bet.

Employee Lawsuit – Why do Employees Sue?

There are all kinds of reasons for an employee lawsuit. Employees will definitely take to the courts to deal with their grievances. Here are some of the employee lawsuit biggies with suggestions on how to avoid these issues:

Employees feel they have been mistreated: When human dignity is secondary to the company’s bottom line, workers feel it. Whether they are still employed, demoted, or no longer with the company, if people believe they are or were disposable, it hurts. This is likely the number one reason individuals seek retribution against an employer – because they believe their efforts on behalf of the company went unrecognized and underappreciated.
To avoid this pitfall: Treat employees respectfully. Make sure managers get the message that people matter, and build recognition into the culture of the workplace.
Employees are disciplined, demoted or fired for engaging in a protected activity: Oftentimes employers may feel uncomfortable with, say, union participation. Or perhaps an employee has reported discriminatory behavior in the workplace. If negative consequences follow this kind of protected activity, it is unlawful, and could result in a lawsuit.
To avoid this pitfall: Make sure HR documents issues with employees so there is a clear paper trail leading up to job actions. Additionally, stay up to date on the laws regarding employee rights, and make timely responses to employee concerns regarding discrimination.
Employees working under the direction of a bad manager: When a manager lacks the leadership skills and the ability to represent the values of the company adequately, no matter how wonderful the mission statement is, it could be trouble. One harasser, one cheater, one cruel manager, and the company is at risk.
To avoid this pitfall: Train managers well, and perform regular evaluations to ensure they are working within the law and treating employees properly.
Employees see unfair application of rules: Employee A is written up for excessive tardiness, but Employee B gets away with it on a regular basis. It irks everyone to see that type of thing, especially if it looks like the uneven enforcement is related to race, gender, or other protected status. When employees can prove unequal treatment occurred, it can be expensive for employers.
To avoid this pitfall: Have clear rules and expectations, and specific policies in place to intervene when there is a problem.

[Read more…]

Filed Under: Blog, California Employment Law Tagged With: employment law, employment law in California

Personnel Records

February 27, 2018 by Beck Law P.C.

If 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…]

Filed Under: Blog, Employee Rights Tagged With: employment law, employment records, personnel records

Limiting Political Discussions in the Workplace

February 1, 2018 by Beck Law P.C.

Limiting political discussions in the workplace? It seems that everyone has an opinion on the current state of affairs in Washington, not to mention right here in California. Employers and employees alike may be experiencing some discomfort as the temperature rises in some of these discussions, and one might wonder if limits on speech in the workplace are a reasonable, desirable, or even legal option.

Political Discussions and the First Amendment

Censorship of free speech is against the law, right? Well, not necessarily. Constitutionalists generally agree that the first amendment applies to government censorship. That means that a company is entirely within its rights to limit, or even banish political discussions in the workplace entirely. The rationale behind such regulations generally relates to productivity and efficiency. While state and federal laws guarantee employees protection from discrimination based on political affiliation, employers may sanction or even fire an employee who disrupts the workplace, lacks efficiency, or engages in practices that create a conflict of interest with the company. That being said, California Labor Code prohibits policies that direct or control employees’ political activities.

Wearing Political Buttons at Work

Again, employers have the right to dictate the dress code in the workplace, which means policies that ban political buttons, t-shirts, and so forth are allowable. Of course, an employer cannot pick and choose, allowing some political views to be put on display and disallowing others.

On the other hand, the National Labor Relations Act (NRLA) expressly allows for the right of employees to wear items associated with their labor union in the workplace. Although unions are somewhat political organizations, union members may wear union-sponsored buttons or other apparel that send political messages.

Political Discussions During Lunch?

You would think that during your lunch hour in the break room, you could say whatever you would like, but you would be wrong. Employers are tasked with making sure employees in protected categories do not feel disaffected. If an employee were to state, for example, that it is a good thing Hilary Clinton was not elected because she is a woman, it could mean trouble. Why? Because the comment centers on a protected factor – gender. Women who hear the comment could take offense or feel alienated due to gender discrimination. Employers would be wise to have strong anti-discrimination and anti-harassment policies in place and to quickly investigate complaints and rectify situations that cause discomfort among workers.

Are Off-Duty Political Activities Protected?

In California, employers may not intimidate or prohibit workers from engaging in legal political activities, including managing a campaign or running for office. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: employment law, free speech, politics

The Rights Employees do and do Not Have

January 15, 2018 by Beck Law P.C.

What are my rights as an employee? Is your employer crimping your style at the office? Does it feel as though you are walking on eggshells because you are so unsure of what is ok and what is not? Sure, everyone knows discrimination is illegal and that the workplace has to accommodate for disabilities. What about the nitty-gritty things that nobody ever talks about? Uncertainty is an ugly companion on the job; it is better to clarify your rights at work from the get go. If serious concerns arise, a local employment attorney could help.

These Activities Fall Within Your Rights:

Discussing working conditions: If you have concerns about safety conditions, are curious about how much money your co-workers make, or believe certain policies are unfair, you have every right to discuss those issues with your colleagues. If you have been forbidden to do so by policy or contract, there is a good possibility your employer is breaking the law.
Keeping copies of signed documents: When you hire on with a company, they may ask you to sign a mountain of paperwork, from arbitration clauses to confidentiality agreements. Make sure you get copies of everything you put your signature to, so if problems arise later, you are clear about what their expectations are, and you can better evaluate how you will handle disputes.
Having a copy of the employee manual: Are you required to read and know what is in the employee manual? If so, you are entitled to have a copy, whether it is a hard copy or an online manual.
Receiving overtime pay for hours over 40: If you are an hourly employee, you must be paid time and a half for any hours exceeding 40 in one week. Employers sometimes try to get around paying for overtime by misclassifying workers as salaried, requiring employees to complete duties off the clock, requiring both exempt and non-exempt duties in your job description, and a multitude of other tricks.

These Activities are Not Protected at Work

That does not mean, however, that employees have free reign at work. There are plenty of activities in which employees assume they can engage, but that could get them into legitimate trouble with the boss.

Complaining about your job: You can actually be fired for complaining about problems at work if those problems are not the result of illegal behavior. So, if you want grouse about how unprofessional your boss is in his or her attire, bite your tongue. Even away from work, those kinds of comments can get you canned.
Getting into an argument with a co-worker: Whether talking about politics, education, or any other topic, do not assume you can freely spout your opinions. You are being paid to do a job, not change the world with your views on the state of the White House. Avoid disputes that should not be occurring in the office.

Protecting Workers’ Rights

At Beck Law P.C., we work hard on behalf of clients whose workplace rights have been violated. If you need legal advocacy in Sonoma County, Mendocino County, or Lake County California, contact us in Santa Rosa today.

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

Ethical Issues Can Lead to Legal Consequences in Business

January 3, 2018 by Beck Law P.C.

Ethical considerations sometimes get pushed aside when an organization’s managers makes decisions based purely on a cost-benefit analysis. In such instances, the bottom line may ultimately suffer, anyway. Why? If legal lines get blurred as the ethics fade away, lawsuits could spring up, costing much, much more in the long run. If you are concerned about ethical failures with regard to the policies that govern standard operating procedures at a local corporation, an experienced business attorney may be able to help.

Lapse of Ethics – Enron and Ford

Companies large and small are not immune to these hiatuses from sound judgment. Unfortunately, consumers often have to pay a high price before these businesses are reined in.

Enron

When the Securities and Exchange Commission investigated Enron for questionable bookkeeping practices, it was discovered that high-level executives were doctoring the books to hide losses and liabilities from stockholders. The company was eventually bankrupted, and key leaders of the corporation were tried on multiple counts of money laundering, bank fraud, conspiracy, and insider trading. Convictions ranging from 25-45 years were handed down to Kenneth Lay, Jeffrey Skilling, Andrew Fastow, and other key administrators.

Ford

Another example involves Ford’s efforts to break into the small car market in the 1970s. When the company’s crash data on the Pinto car revealed dangers associated with rupturing fuel tanks during rear-end collisions, Ford managers had to decide whether to address the problem or to go forward with production. The decision was made to proceed. The business thinking was methodical and completely void of ethical considerations; the costs associated with redesigning the vehicle exceeded projected costs associated with potential lawsuits down the road. That decision resulted in 900 injuries and dozens of deaths when fiery crashes occurred on roadways across the country.

The fallout for Ford was massive. 1.5 million Pintos were recalled, and Ford paid a legion of lawyers to defend them in court. After fighting criminal charges and numerous civil cases, Ford far outspent the $137 million it would have cost them to fix the car before releasing it to the public. In fact, just one California jury awarded a $128 million verdict. Many other cases were settled for undisclosed amounts, but it can be surmised that the decision to put the Pinto on the road cost Ford a pretty penny. Beyond that, Ford’s reputation was crushed.

What Constitutes an Ethical Issue?

When a lack of ethics leads to decisions that cause serious harm to the public, legal proceedings may ensue. In public service, the primary violation relates to bribery, and is punishable by two to four years in prison. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: employment law, ethics