Jointly Employed? New NLRB Ruling Has Major Implications

September 9, 2016 by

Jointly EmployedDoes your business include employees who are jointly employed (meaning that they work for you and another employer), as well as employees who work only for you? If the answer is yes, a new ruling from the National Labor Relations Board (NLRB) may complicate how your company handles collective bargaining.

In the case of Miller & Anderson, Inc., the NLRB was faced with the issue of whether workers who are solely employed by one employer can collectively bargain alongside jointly employed workers without the permission of their employers. It does not mark the first time the NLRB has ruled on the jointly employed issue. In 2000, in the case of M.B. Sturgis, Inc., the NLRB ruled that employer consent was not necessary. In 2006, however, the NLRB took the opposite approach in Oakwood Care Center, 348 N.L.R.B. No. 37, and held that Sturgis was incorrect.

The ruling in Miller & Anderson is a return to the Sturgis standard. It holds that jointly employed workers in this situation can bargain collectively, regardless of whether their employers approve.

A Return to the Old Standard

This issue involves Section 9(b) of the National Labor Relations Act. Section 9(b) refers to different types of bargaining units, such as “employer units,” “craft units,” and “plant units.” The NLRB has long held that when employer units contain employees who work for multiple employers, these “multi-employer” units can only bargain collectively with the consent of all parties – meaning all of the employers involved have to give their permission.

But what happens when some of the employees are employed by a “supplier” employer (such as a temp agency) and perform work for a “user” employer? (The NLRB refers to these types of units as “Sturgis” units.) Does a Sturgis unit constitute a multi-employer unit?

In Oakwood, the NLRB ruled that Sturgis units are multi-employer units. However, Miller & Anderson reverses this holding. It states that multi-employer units are created “without regard for any preexisting community of interest among the employees of the various separate employers.” According to the ruling, a traditional multi-employer unit contains employees whose employers have nothing to do with one another, aside from being in the same industry.

A Sturgis unit, on the other hand, contains employees who are all employed by the same employer (even though some of the employees are joint employees, who also work for a different employer). The Miller & Anderson ruling states that because workers in Sturgis units share an employer, Sturgis units are not multi-employer units, and that they meet Section 9(b)’s definition of an employer unit – which does not require employer consent to bargain collectively. [Read more…]

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

The Public Policy Exception for At-Will Employment

August 14, 2015 by

at will employmentIf you ask an employer what “at-will employment” means, there’s a good chance they’ll tell you that it means an employer can fire the employee for any reason they want – or for no reason at all.

This is a very common definition of at-will employment, but it isn’t quite accurate. An employer can fire an at-will employee for almost any reason – but there are exceptions.

The best known of these exceptions is that certain forms of discrimination can be illegal grounds for firing an employee. (In California, these forms include discrimination based on race, national origin, gender, religion, age, sexual orientation, pregnancy status, marital status, genetic information, and disability).

There are other reasons for firing an employee that are prohibited by statute. These reasons include firing an employee for filing a claim for workers’ compensation, or for taking leave that is guaranteed to them under federal or state law, or for engaging in protected union activity.

Another exception is that it is illegal to fire an employee for a reason that is in opposition to public policy. This means that an employee cannot be fired for:

  • refusing to violate a statute;
  • performing a statutory obligation;
  • exercising a statutory right or privilege;
  • reporting a violation of a statute of public importance.

If an employee files a claim against an employer for wrongful termination in violation of public policy, he or she will have to demonstrate that:

  • He or she was an employee of the employer;
  • That he or she was discharged by his or her employer;
  • That the alleged violation of public policy was a motivating reason for the discharge;
  • That the discharged caused the employee harm.

Yau vs. Santa Margarita Ford

A good example of these circumstances can be found in the case of Yau vs. Santa Margarita Ford, Inc. It involved an employee of an auto dealership, who became aware that some of his coworkers were submitting fictitious warranty repair claims. He chose to notify the owner of the dealership about what was happening, and his coworkers responded to the accusation by falsely accusing him of being the mastermind of the scheme. He was later told that he was being fired for alleged warranty fraud, and then was promptly led out of his office by sheriff’s deputies.

The employee filed a complaint against his employer for wrongful termination. He argued that the motivation for his firing contravened public policy set forth in several different laws (such as laws prohibiting criminal conspiracy, theft, fraud and deceit). A California Court of Appeal held that these statutes were statutes of public importance, and that his allegations were properly tethered to the statutes.

Have Your Rights Been Violated?

If you’ve been fired from a job in Sonoma County, Mendocino County or Lake County California and believe that the reason for your firing was in opposition to public policy, don’t let anyone tell you that your employer had the right to fire you “for any reason they wanted.” You may very well have a case against your employer, even if you were an at-will employee.

It may be well worth your time to contact an attorney. Our experienced Beck Law P.C. labor and employment law attorneys in Santa Rosa can evaluate your individual situation, and help you decide how to proceed. Contact our office today for a consultation.

Filed Under: California Labor Law, Employee Rights Tagged With: , , , , , ,

Pregnancy Leave in California

August 3, 2015 by

pregnancy leave, pregnancy leave in california, labor lawLooking for information on pregnancy leave in California? Pregnant employees are protected by the Family and Medical Leave Act (FMLA), a federal law that guarantees medical leave for eligible workers. (The FMLA also guarantees medical leave for workers in other situations, such as when an employee’s spouse, child or parent has a serious health condition).

Most employers are familiar with the provisions of the FMLA, particularly the requirement that eligible employees must be permitted to take up to 12 workweeks of leave in a 12-month period for the birth of a child, and for caring for the child during its first year of life. (The requirement also applies to employees who adopt children or become foster parents, who are eligible for the work leave within one year of the placement of a child.)

Unfortunately, some California employers are unaware that pregnant employees also have protections on the state level. The California Family Rights Act (CFRA), which provides many of the same protections as the FMLA, is just one of the state laws that provides benefits for workers who are pregnant, and/or have new additions to their families.

California Pregnancy Disability Leave Act

Under California’s Pregnancy Disability Leave Act (PDLA), an employee can take up to four months off from work due to medical conditions related to pregnancy, with a guarantee that their job will be protected. This leave time can be taken intermittently – meaning that an employee does not have to take all of this leave time at once. Another important element of this legislation is that an employee who is taking pregnancy disability leave is entitled to continue receiving any health benefits that they typically get through their employer.

Workers are eligible for pregnancy disability leave if they work for employers with five or more employees. Many employees who are ineligible for the protections of the FMLA and the CFRA are covered by the PDLA.

Family Temporary Disability Insurance

California also has a program that provides temporary insurance benefits to workers who take leave for certain family-related reasons – including employees with new children. The provisions of the program, which is called Family Temporary Disability Insurance (FTDI), are laid out in Section 3301 of California’s Unemployment Insurance Code.

FTDI allows eligible workers to receive up to six weeks of wage replacement benefits if they take time off from work to care for a child who was born within the past year, or for a child who was placed with them via adoption or foster care. The amount received per week is based on the employee’s salary.

Responding to Pregnancy Leave Discrimination

If you are pregnant, or recently had a child, and your employer has denied you the rights to which you are entitled under federal or California law, it is important that you seek legal advice as soon as possible. The employment and labor law attorneys at Beck Law P.C. in Santa Rosa have handled many cases over the years dealing with the rights of employees with families. You can call or email our office today to schedule a consultation.

Filed Under: Employee Rights Tagged With: , , , ,

Employment Discrimination Based on Genetic Information

June 12, 2015 by

employment discrimination based on genetic informationEmployment discrimination based on genetic information. When you think of employment discrimination cases, you probably think about issues like race, gender and age discrimination. What you may not be aware of, though, is that employment discrimination based on genetics is illegal under both federal law, and California law.

In 2008, the Genetic Information Nondiscrimination Act (GINA), a federal statute, was signed into law. GINA makes it illegal for both employers and health insurance providers to discriminate on the basis of genetic information. Three years later, California Governor Jerry Brown signed into law the California Genetic Information Nondiscrimination Act (CalGINA), which amended the California Fair Employment and Housing Act. CalGINA is significantly broader than GINA, as it applies not only to employment and insurance coverage, but also to the realms of housing, public accommodations, and education.

Many California employers paid little attention to CalGINA, because they were aware that federal law already prohibited the use of genetic information as a factor in employment decisions. What many of these employers did not realize, however, is that CalGINA made a substantial change to the employment law landscape in California. Unlike GINA, CalGINA places no limits on the amount of damages that an employee can receive, if he or she has been the victim of genetic discrimination. This makes it significantly more important for employers to ensure that they are not using genetic information improperly.

What is Genetic Employment Discrimination?

If your employer (or a potential employer) obtains information about you, or a member of your family, that is related to genetic tests – and uses that information as a factor in any kind of an employment decision – then you have been the victim of genetic discrimination. The same applies if the employer obtains information about your family’s medical history, and uses it as a factor in an employment decision.

It is generally illegal under federal law for employers to even request genetic information. However, the EEOC acknowledges six exceptions to this rule:

  1. When an employer inadvertently acquires an employee’s genetic information.
  2. When an employer offers genetic services, and is offered the genetic information voluntarily (although this is only permissible in some situations).
  3. When an employee seeks FMLA leave in order to care for a family member.
  4. When an employer obtains genetic information through commercially and publicly available documents, such as newspapers. (However, it is impermissible for an employer to use these sources for the purpose of finding genetic information about employees. )
  5. When an employer obtains genetic information through certain voluntary genetic monitoring programs, if the programs are monitoring the effects of toxic workplace substances.
  6. When employers that conduct genetic testing for law enforcement purposes use employees’ DNA for quality control.

Legal Counsel for Employers and Employees

Now that California employers can face substantial damages in genetic discrimination lawsuits, it is well worth their effort to ensure that they have policies on the use of genetic information that are in compliance with both GINA and CalGINA. A skilled employment lawyer can help determine if a company’s policies need revision.

Employees, too, are advised to look into their employers’ practices regarding genetic information. If you believe your rights have been violated, you may wish to speak to an attorney.

Whether you are an employer or an employee, you can schedule a consultation today with the Sonoma County employment and labor law attorneys at Beck Law P.C., in Santa Rosa.

Filed Under: Genetic Discrimination Tagged With: , , ,

California Job Retaliation and Wrongful Termination Laws

April 1, 2015 by

job retaliation, wrongful terminationCalifornia job retaliation and wrongful termination laws. Under California state law, it is illegal for an employer to retaliate against any employee who has provided information to law enforcement or government agencies, or engages in other protected activities. Employment retaliation can take a variety of forms including an employer’s decision to demote, terminate, fire or conduct some other negative act against an employee because that employee has exercised an activity protected by federal or state law. Most often employment retaliation occurs when an employee becomes a whistleblower by reporting an employer’s activities that are in violation or public policy or law, or is otherwise considered illegal. Under the California Labor Code, an employer is prohibited from taking any adverse, negative action, or any other form of discrimination in response to an employee:

  • Reporting discriminatory acts and other illegal activity that have occurred in a workplace controlled by the employer;
  • Participating in a labor union and other activities related to collective bargaining and/or an employee’s right to freedom of association and expression;
  • Complaining about the state of the workplace facilities and/or working conditions;
  • Participating in investigations and/or filing suit against an employer;
  • Filing a complaint against an employer with California’s Division of Labor Standards and Enforcement (DLSE).

CA Law Regarding Job Retaliation and Wrongful Termination

The most common form of employer retaliation is the wrongful termination of an employee who has engaged in activities protected by the federal and state government. Here in California, employment relationships are presumed to be at will, which means that the employment relationship can be terminated by both the employer and employee at any time without the consent of the other party. However, there does exist an exception to the at-will employment presumption, which provides that employers can be found guilty of wrongfully terminating an employee when that employee has been discharged for “performing an act that public policy would encourage or for refusing to do something that public policy would condemn.” Under this exception, a California employee who is discharged because of these reasons can bring suit against the employer in order to receive damages and compensation for the wrongful discharge. However, this exception does not apply when the parties have a pre-existing employment contract that allows employment termination based on cause or because of specific reasons previously outlined in the employment contract.

An employee can bring a wrongful termination claim by asserting that the employment discharge violated federal law, public policy or California state law. Typically, wrongful termination suits are brought under the California Fair Employment and Housing Act (FEHA), which allows employees to bring suits against employers. However, the FEHA cannot be used to bring suit against an organization’s managers, supervisors and other employees. A complaint alleging discrimination or retaliation in the workplace must be filed within six months following the occurrence of the alleged activities. However, complaints filed under California Labor Code section 230.1 and 230 (c) can be filed within one year following the alleged retaliation or discrimination. Complaints of employment retaliation and discrimination are filed with the DLSE.

If you believe you have been the victim of employment retaliation or discrimination you should contact one of the labor and employment attorneys here at Beck Law P.C. here in Santa Rosa, California today.

Filed Under: Employee Retaliation, wrongful termination Tagged With: , , , , ,

Can An Employer Fire An Employee For Discussing A Raise?

February 24, 2015 by

fire an employee, california labor lawCan an employer fire an employee for discussing a raise? You have a great Office Supervisor that deserves additional compensation for her dependable work. You decide to reward her with a fantastic performance review and an excellent raise. But, because not all of your your employees are exceptional and you have only so much money to go around, you would prefer that the Office Supervisor keep her raise to herself and not share this information with her co-workers. As she leaves your office, you tell her: By the way, I would prefer you not tell anyone about your raise. If you do, it may cause a lot of disruption in the office, and hurt other employee’s feelings. Actually, I need to trust that you will not tell anyone in this office or you may lose your job over it.

From an employer’s point of view, this statement may seem like a good reminder, given what you think about the other employees, how fairly you want to compensate the other employees, and how much you appreciate the hard work and dedication of this particular employee over the others, given that cash flow is tight. You know your business and what your limits are, and you just don’t want to deal with all the other employees’ complaints. The bottom line is you want the raise to go to the person who earned it, you believe it is reasonable to ask that some things remain private, and frankly, you don’t want to have to explain yourself.

Can you say this to your employee? The answer is: NO. In fact, it is illegal.

Under the National Labor Relations Act, employers cannot prevent employees from discussing wages, salaries, raises, evaluations, cuts in pay, bonuses, benefits, or anything related to their employment among themselves. Employees may discuss ALL WORKING conditions among themselves and they are free to organize, share information and band together as a group. As taken from the NLRB website:

“The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court”

More specifically, Section 7 of the National Labor Relations Act clearly states:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

You may then wonder, can I as an employer discuss one employee’s raise with another employee? The answer is again: NO.

Whereas employees can discuss all work related information with each other, you as an employer must protect the privacy of every employee, and you are not allowed to discuss information regarding one employee with another employee, unless that employee is a supervisor; and even then, information can only be shared that is relevant/necessary for the supervisor to do the job, and nothing more. For example: An employer and a supervisor may discuss an employee’s bonus only if that employee is working directly under that supervisor. An employer may not “tell” an employee anything about another employee’s bonus. [Read more…]

Filed Under: Blog, California Labor Law, Employee Rights Tagged With: , , , , ,

Workplace Harassment or Just Playful Conversation?

August 29, 2013 by

Workplace Harassment

Q: I’m an employer of a local business, and recently there’s been a problem between several employees. One of the employees claims the others are sexually harassing her. I’m not sure the conduct qualifies as harassment, and it seems like just playful conversation. What should I do?

A: A claim of harassment by an employee should be taken very seriously by the employer, as harassment of any type, sexual, discriminatory or otherwise, continues to be a common problem in the workplace in California. The California Code of Regulations is helpful in identifying several different layers of sexual harassment, but these principles may also be applied to other types of harassment as well:

  1. Where submission to harassment is a condition of employment;
  2. Where the choice to submit or not affects employment decisions;
  3. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance;
  4. When the purpose or effect of the conduct alleged as harassment unreasonably interferes with the employee’s work performance; or
  5. When the conduct alleged to be harassment creates an intimidating, hostile or offensive work environment.

Fair Employment and Housing Act

2 Cal Code Regs §§7287.6(b), 7291.1(f)(1). These categories set the prohibitions on the variety of conduct by employers and co-employees. Under the Fair Employment and Housing Act (FEHA), California law defines two types of methods to prove sexual harassment in the workplace: conduct which establishes a quid pro quo, and conduct creating a hostile work environment. Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 42 Cal.Rptr.3d 2, 11.

Sexual Favoritism

Does your employee contend that the harassment is a result of some quid pro quo arrangement with another employee or manager? The California Supreme Court defined such quid pro quo harassment as conduct that leads to “sexual favoritism”, including the award of job benefits or bonuses if the employee submits to sexual advances. Miller v. Department of Corrections (2005) 36 Cal.4th 446, 461-462. However, this also incorporates the converse, such as a manager threatening to demote or take punitive action against an employee should they not submit to sexual advances or conduct requested, expressly or impliedly.

Your employee may also be referencing a claim of a hostile work environment. The California Supreme Court has also set forth the standards in Lyle in relation to what constitutes a hostile work environment sufficient to create harassment:

Under Title VII, a hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome (see Meritor, supra, 477 U.S. at p. 68, 106 S.Ct. 2399); (2) because of sex (Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 80-81, 118 S.Ct. 998, 140 L.Ed.2d 201 (Oncale)); and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment (id. at p. 81, 118 S.Ct. 998; Meritor, supra, 477 U.S. at p. 67, 106 S.Ct. 2399). In addition, she must establish the offending conduct was imputable to her employer. (Meritor, supra, 477 U.S. at pp. 69-73, 106 S.Ct. 2399.)

Lyle, 42 Cal.Rptr.3d at 12. Whenever an employee performs any type of investigation prompted by a claim of harassment, these three elements are necessary and essential questions to ask and conclusions to determine before taking any action. It may very well be that such “harassment” is in fact nothing more than workplace conversation which the employee has taken out of context, for the mere discussion of sex or vulgar, sexual language is generally insufficient to show the harassment was “because of sex”; the conduct must involve some treatment to the employee on the basis of sex itself.

In either sense, every employer should take a claim of harassment seriously. [Read more…]

Filed Under: Blog, California Employment Law, California Labor Law, Employment Law, Labor Law, News, Workplace Harassment 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.

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