Understanding the Basics of California Age Discrimination Laws

December 2, 2014 by

California age discrimination lawCalifornia 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: , , , ,

Why Does My Small Business Need an Employee Handbook?

April 25, 2013 by
Employee Handbook for a small businessToo small for an employee handbook?

One of the first questions we ask a new small business owner client is: Do you have an employee handbook?  More often than not, they say “NO” and on the rare occasion that they do have one, it was written years ago, has never been updated and sits in some storage room nearly forgotten.

It’s remarkable the number of small businesses that have no handbook at all!  There are many good reasons to create an employee handbook, and in fact, small businesses can do themselves great financial harm without one.

Courts, the Department of Labor, and the EEOC will automatically assume, if you have no employee handbook, that you have not informed your employees of the up to date information that you are legally bound to tell employees in writing, such as their right to vote, their earnings breakdown, their right to pregnancy leave and so forth. The list of what businesses must legally tell employees grows longer every year.  Not having an employee handbook may lead these agencies to dig more deeply into your business practices to determine your compliance with wall postings, payroll accounts and such, which could then lead to severe penalties if you are not in compliance and up to date.

Having an employee handbook, and updating it annually, can protect an employer from liability if an employee decides to sue.  The employee handbook is a document where important policies and procedures are outlined in detail and explained to the workforce.

Here are some guidelines as to what must be included in the company employee handbook:

  • Workplace rules (e.g., work schedules, length of breaks, days off, etc.).
  • Strong language that supports an “off clock” break policy and enforcement of such;
  • Description of the culture of your organization;
  • Employment at Will language written appropriately with the inclusion that the business owner has the only right to choose an employment agreement;
  • Anti-discrimination policies;
  • Sexual harassment policies;
  • Leave policies;
  • Open door policies;
  • Anti-retaliation policies;
  • Termination procedures;
  • Insurance and COBRA information;
  • Pregnancy and Postpartum policies;
  • Exempt vs. Non-Exempt language;
  • Clocking in to work policies;
  • No working off clock policy;
  • Overtime policies;
  • FTO/Vacation policies;
  • Right to Vote policy;
  • Non-discriminatory dress code policies;
  • Non-discriminatory smoking policies;
  • Disclaimer regarding technology ownership;
  • Technology Use policies;
  • Employee Fiduciary Duty to Employer language;
  • Employee Duty of Loyalty to Employer language.

All employees should be given time to review the employee manual and then be required to sign and date a letter of agreement or acknowledgement page that clearly states they’ve read the handbook and understand its contents.

Employee handbooks should be updated annually. The new employee handbook should then be , re-distributed and A new letter of agreement or acknowledgement page should be signed by all employees and saved in each employee’s file. [Read more…]

Filed Under: Employee Handbook, Employment Law, News Tagged With: , , , , , ,

Current California Lunch Break and Rest Period Employee Labor Laws

October 25, 2012 by

The Santa Rosa Labor Law Attorneys at Beck Law P.C. work with both employees and employers in regard to all areas governing compliance with California Labor / Wage and Hour Laws.  So as not to violate current California lunch break and rest period employee labor laws, as of April 12, 2012 it is a California requirement that all non-exempt employees get uninterrupted meal breaks and rest periods according to a decision by the Supreme Court (Brinker vs. Superior Court) See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.  The Petaluma Employment Law Lawyers at Beck Law P.C. suggest to employers that all Employee Handbooks and Policies are updated by an experienced labor attorney to ensure compliance with these new laws so that overtime violations will be avoided.  In turn, we encourage employees to contact an experienced labor and employment lawyer, such as Beck Law P.C., if they feel their legal rights are being violated.

GENERAL GUIDELINES FOR EMPLOYERS AND EMPLOYEES

The employer must relieve the employee of all duty:  The Wage and Hour Labor Law Attorneys Beck Law P.C. interpret this to mean that literally ALL NON-EXEMPT EMPLOYEE DUTY must be relieved. We encourage employers to have built in contingencies to their policies to ensure that non-exempt employees do not eat at their desks or take any phone calls or instructions while they are “clocked out”.

The employer must relinquish control over all activities of the employee:  The Ukiah Labor Attorneys at Beck Law P.C. suggest all of our business clients provide a break area for employees and to encourage non-exempt employees to take a full break as well as leave the premises whenever necessary.

The employer must permit an uninterrupted 30-minute break:  The Lake County Labor and Employment Lawyers at Beck Law P.C. suggest our business clients provide a break schedule and appoint an Office Supervisor that monitors all non-exempt employees to make sure breaks are taken in a timely manner.  All non-exempt employees must “clock in” and “clock out” and are never permitted to work at home or “off clock.”

The employer must not impede or discourage the employee from taking their 30-minute meal break:  In order to demonstrate compliance with this law as well as avoid meal period violations, the attorneys at Beck Law P.C. suggests employers hire experienced employment law attorneys to prepare the appropriate legal language to be included in all Employer Handbooks and Policies that clearly outlines the break schedule stating that employees have a responsibility to take their breaks in a timely manner.  Additionally, we encourage fellow employees to never discuss work related matters with a non-exempt employee while they are taking a break.

All Non-Exempt Employee Lunch Breaks and Rest Periods Must be Provided and Taken in a Timely Manner:  Current California labor laws for rest breaks and meal periods require that the employer provide non-exempt employees with a 30 minute uninterrupted meal break after 5 hours of work (unless the employee’s workday is completed within 6 hours), and a 10 minute rest break time after each 3 ½ hours of work.

10 Minute Breaks Must Be Paid By Employer.  Not only must an employer require a non-exempt employee to take an un-interrupted lunch or Rest break, but the employer must pay for it, according to current labor laws.  rest break violations and meal break violations can occur if a non-exempt employee is interrupted during a break or meal period and said employee is entitled to additional compensation for working through a meal break.  In addition to the one hour of pay, the extra compensation can increase the amount of overtime that you are due.

Employers May Not Pressure or Coerce the Non-Exempt Employee to Forgo a Lunch or Rest Break:  Only if ALL of the above are met will an employee be deemed to have taken a break. In particular, the California Supreme Court noted that the “wage order and the governing statute do not countenance an employer’s exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.”

What this means, in simple terms is:  A written company policy stating that you permit meal breaks and rest periods will not be legal if you do not enforce your employees to take timely breaks, that are monitored with accurate time keeping records that demonstrate that non-exempt employees “clocked in” and “clocked out” on time, every work day.  Even on extremely busy days, managers must not pressure non-exempt employees to work through breaks and must ensure rest and meal breaks are taken on time and un-interrupted, or compensate the employee in the amount of one hour’s wage for each interruption or violation.

Missed Meal Breaks and Rest Periods are considered a Wage and Not a Penalty:  In Murphy v. Kenneth Cole Productions, Inc. the courts decided that missed meal breaks are considered a wage and not a penalty. What this means is under California labor law code meal break rule violations can be collected by employees for 3 years and sometimes 4 years under the California unfair competition statute, whereas a penalty is only collectable for 1 year.

What are the Timing Requirements that Comply with First or Second Meal Periods during the Workday?

Train your management to keep in mind the 5-hour mark.  When an employee works more than five hours, a meal period must be provided no later than the end of the employee’s fifth hour of work (simply stated:  no later than the start of the employee’s sixth hour of work).  When an employee works of a period of more than 10 hours, a second meal period must be provided no later than the end of the employee’s tenth hours of work (no later than the start of the employee’s eleventh hour of work).

Filed Under: Blog, California Employment Law, California Labor Law, Employment Law, Labor Law, Meal Break Violations, News, Overtime Violations, Rest Break Violations, Wage and Hour Law Tagged With: , , , , , , , , , , ,

Santa Rosa Employer Employee Data Privacy Protection

October 19, 2012 by

internet securityNew Nightmare for Santa Rosa Employer Employee Data Privacy Protection & Employer Responsibilities

Scenario:  A key employee resigns and you find that they have shared private and personal information about your customers on Facebook.

Nowadays, employers collect a great deal of personal information about their employees, customers, patients, clients, and others along the course of the work day. Companies use employees’ personal information for many reasons such as administration of payroll, employee benefit plans, and evaluation of employment applications, the handling of independent contractors, terminated employees, retired employees and so forth.  In this computer dependent age, personal data is being shared and transferred between organizations online; and thus, maintaining compliance with applicable data privacy laws is an ever increasing responsibility of employers.

Companies need to be aware of their obligations under the profusion of data protection laws and regulations that govern the collection, use and transfer of personal information. Additionally, data privacy laws include not only active employee information, but extend to any non-employee groups whose personal data they may acquire.

Minimizing Employer Risk

The Petaluma employment law attorneys at Beck Law P.C. suggest the following to attempt to minimize employer risk.

Companies should seek counsel annually with an experienced employment law attorney, to acquire the appropriate legal interpretive guidance on compliance matters so as to avoid legal violations and security breaches involving employee personal data.

Policies should include legal language specifically directed to employee procedures in regard to data privacy to ensure the best practices that aim to limit the amount of personal data they collect, process, transfer and store.

Companies should limit access to personal data and provide training to staff that handles personal data.

Companies should include legal language in their policies stating that business computers will be monitored and reviewed periodically to ensure employees are applying appropriate security measures regarding personal data.

Even Still:   All the precautionary measures in the world will not stop a dishonest employee from selling your business’s personal information, such as your customer social security numbers online and you, as the business owner will be held accountable for their actions.

There is absolutely nothing an employer can to do to prevent an employee from texting information from their personal phone or simpler still, writing down the information and throwing it in their purse or pocket before walking out the door.

Therefore, the labor and employment attorneys at Beck Law P.C. offer these further tips:

Perform all due diligence during the interview process when hiring a new employee.  Take your time, and have multiple interviews so that you begin to trust the person you are about to hire, before you hire them.  Call all references and carefully listen to not only what they say, but more importantly, what they don’t say.  Ask lots of questions to cull out information that may give you more clues to this person’s integrity.  Use your intuition, and perform all interviews with other trusted staff members to get their feedback,  and if any one of you feel something is not quite right with this person’s integrity, move on until you feel very comfortable with who you are going to hire.

For current employees:  Know your employees, be attentive and listen to them, use good communication and eye contact.  Always honor and praise good work.  Be on the look- out for suspicious behavior such as when an employee uses negative body language or challenges you in ways that you find inappropriate to the situation, as this may an indication of guilt that they may be doing something behind your back.  Listen to other employees who report that they do not feel comfortable about another employee’s actions.  If you feel a negative feeling about an employee, trust your feeling, as you are most likely correct.  If you suspect and employee of dishonesty, begin your due diligence research and contact an experienced employment attorney, such as Beck Law P.C. to handle the appropriate legal remedy and counseling process to remove said employee from your work place.

Filed Under: Blog, Employee Data Privacy, Employer Data Privacy, Employment Law Tagged With: , , , , , , , , , , ,
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