Cardenas v. Fanaian Firing Violated Public Policy Exception

November 11, 2015 by

public policy exceptionLast August we discussed California’s public policy exception for at-will employment – which prohibits employers from firing employees for reasons that contravene public policy. Since then, a California appeals court has ruled in favor of an employee who was fired for reporting a crime to the police, holding that her termination was in opposition to public policy.

Carcenas V. Fanaian – Facts of the Labor Law Case

In 2010, Rosa Lee Cardenas was working as a dental hygienist for a dentist named Masoud Fanaain. She realized one day that her wedding ring was missing and concluded that it had been stolen from Dr. Fanaian’s office. Cardenas and her husband filed a theft report with the police, and soon after, some police officers showed up at the dental practice and questioned employees.

After the police came to the office a second time, Fanaian terminated Cardenas’s employment. He told her that the presence of the police was making the staff uncomfortable. Cardenas filed a complaint against his practice in 2011, asserting that her firing was in violation of public policy.

Cardenas’s complaint also stated that her firing violated Section 1102.5 of the California Labor Code. 1102.5 prohibits an employer from retaliating against an employee for giving information to law enforcement, if the employee has reason to believe that the information pertains to a violation of the law. (It also protects employees who testify about legal violations and employees who give information to coworkers who have the authority to investigate legal violations.)

The Court’s Employment Law Holding

At trial, the jury sided with Cardenas regarding both causes of action and awarded her $117,768 in damages. Fanaian appealed the verdict to the Court of Appeal for California’s Fifth District, arguing that the firing did not contravene public policy.

The Court of Appeal upheld the decision. According to the opinion, Cardenas was engaging in protected behavior when she reported the theft of her wedding ring to the police because theft is a violation of the California Penal Code. Because there was a causal link between Cardenas’s police report and the decision to fire her, the termination was in violation of public policy.

Fanaian’s appeal asserted that that 1102.5 applies only when an employee discloses information about wrongdoing that is specifically related to the employer’s business activities. The Court of Appeal rejected this argument, holding that the plain language of 1102.5 does not contain any requirement that the information be about business activities. According to the opinion, the statute reflects an intent by the legislature to encourage employees to report unlawful conduct in general, and not just unlawful conduct by their employers. [Read more…]

Filed Under: California Employment Law Tagged With: , , , , ,

Big Win for California On-site On-call Employees

March 10, 2015 by

california on-site on-call employees, santa rosa employment lawyer, petaluma employment lawyer, ukiah employment lawyerBig win for California on-site on-call employees. CPS Security Solutions, Inc., a California employer was delivered a crushing blow when the California Supreme Court ruled that the company’s compliance with a federal employment law that permitted the exclusion of compensation for sleep time was irrelevant in determining CPS compliance with California employment law. In Mendiola v. CPS Security Solutions Inc. the dispute was whether California’s Wage Order 4 was being adhered to by CPS. In determining that CPS’s wage policy violated the Wage Order 4, CPS and other California employer’s will now have to determine what retroactive effect if any the ruling will have on their compensation policy for employees.

The California On-site On-call Employees of CPS

The ruling in Mendiola requires that on-call security guards employed by CPS at different construction worksites are entitled to retroactive pay for 24 hours of work, despite the fact that their same employees only actively worked 8 hours per day. Originally, the on-call security guards employed by CPS had a written agreement with the company to reside in trailers provided by CPS. While residing at these trailers, the on-call/site security guards were allowed to rest and enjoy other leisure activities, though with some limitations. The guards were compensated at an hourly rate for all time spent patrolling their construction worksite. However, no compensation was received for time spent on-call at the worksite trailers unless an alarm went off or other circumstances required the attention outside of the trailer, or during the time spent waiting to be relieved from work by another guard. Ultimately guards were only paid for their time spent patrolling sites, and time spent in the investigation of disturbances occurring at the site.

The difficulty in this case is the fact that CPS did not intend to violate California state law when developing its compensation plan for on-site, on-call employees. In fact throughout the 1990s CPS worked with the California Labor Commissioner in order to ensure that the compensation policy in place, which excluded sleep time at the trailers, was in compliance with relevant federal and state law. The basis for this suit was a request by CPS for a declaratory relief action, requesting assistance from the California courts to review the compensation plan, and to also rule on its viability. Ultimately it was determined that though the federal law provided an express provision allowing the exclusion of sleep time in compensation, this fact was irrelevant in the determination of whether CPS was in compliance with state law because, as the court put it, California “is free to offer greater protection.” As a result, subject to Wage Order 4, CPS will be required to retroactively pay its employees for their rest time while on-site and on-call.

The ruling in the CPS case is interesting in that it does not involve an employer attempting to thwart labor employment law. In fact the unfavorable ruling was the result of CPS attempting to ensure their compliance with California state law. However, the holding means that other employers in California who do not pay compensation for rest time at on-site locations for on-call employees could be required to provide retroactive compensation to these employees. If you have any legal questions regarding California’s wage and compensation laws, and live in Sonoma County, Mendocino County or Lake County California contact the attorneys at Beck Law P.C. in Santa Rosa today.

Filed Under: Blog, California Employment Law, Wage and Hour Law Tagged With: , , , , ,

Employers Warned Against Providing Financial Incentives to Buy Non Employer Health Coverage

January 8, 2015 by

affordable care act, non employer health coverageWhy is the Government warning employers against providing financial incentives to buy non employer health coverage? The implementation of the Affordable Care Act (ACA) has effectively revolutionized the U.S. healthcare insurance system. Now there is no longer an emphasis primarily on employers sponsoring the bulk of workers’ health insurance plans. In fact, there are now online exchanges where employees can shop for and purchase their own medical coverage instead of paying into their existing employment based plan. Some employers have welcomed this shift in burdens. However, some employers may be taking it too far, and the federal government has gone on record warning employers against providing financial payments to their high-cost employees as incentive for them to leave their employer’s medical plan in favor of purchasing their own individual market policy.

Non Employer Health Coverage, Rising Costs and Employer Incentive

From the employer standpoint, the costs associated with providing employee healthcare have risen so much since the ACA’s implementation that they are looking for any way to lessen their financial burdens. Some employers are finding it cheaper to pay their high-cost workers in exchange for the worker agreeing to exit their existing benefit plans, so that the employer does not have to continue making contribution payments on that employee’s behalf.

A November 14, 2014 memo released by the U.S. Department of Labor, Treasury, and Health and Human Services (the “Departments”) stated that providing payments in exchange for employees purchasing individual market policies is considered unlawful discrimination against employees on the basis of their health status. In fact, according to a May Kaiser Health news report, health insurance consultants and brokers have been advising employers to shift workers with expensive health conditions into individual market policies as a cost-cutting mechanism. Such practices are in direct opposition of the ACA, which requires that health insurance exchange plans accept all applicants, regardless of their existing illnesses or health conditions. This acceptance must be at prices that have been pre-established before acceptance.

The reality is that the costs associated with implementing the ACA have resulted in some companies’ health insurance liability costs increasing by over 100 percent. As a result, large, self-insured employers are looking for any way to cut costs. Employers are finding that the removal of just one high-cost employee from the group insurance plan can result in annual savings of hundreds of thousands of dollars. For some, a one-off lump sum payment to an employee is well worth the future financial benefits associated with that employee’s exit from the group policy.

Both the federal government as well as consumer advocates are concerned about this practice because it could erode the effectiveness of employer-based coverage, while creating higher costs and premiums for the entire insurance marketplace. If employees who would be better suited in employer-based plans are incentivized to switch to individual market policies, the entire marketplace would be forced to absorb the costs associated with the employee’s sickness instead of the employers, which are the one’s with the actual vested interest in the employee’s well being.

Employer payments in exchange for a worker exiting their existing employment based insurance policy is a violation of the ACA, and is considered unlawful discrimination. If an employer has propositioned you about switching to an individual market policy in exchange for payment, you should contact the Santa Rosa, Ukiah, Lake County California employment law attorneys at Beck Law P.C. today.

Filed Under: Affordable Care Act, Blog, California Employment Law 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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