Archive for the ‘Employment Law’ Category

(Or, what are the limits on terminating an employee for what they say on their own time?)

On November 8, 2010, the New York Times reported that the National Labor Relations Board filed suit against an ambulance services company for firing an EMT who complained about, and mocked, a supervisor on the employee’s Facebook page (on her own time and on her own computer).   If you’re a private employer in Humboldt County, you should know that there are limits for when you can lawfully terminate an employee for something they’ve said—or published—while off-the-clock.

(more…)

Humboldt County employers should be aware that California law provides that every employer, including state and any political subdivisions, provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child, assuming that such breaks do not seriously disrupt the operations of the employer.  If possible, the breaks should run concurrently with any break periods already provided to the employee. Breaks that do not run concurrently with the employee’s authorized rest time need not be paid.

(more…)

California Labor Code section 226 requires that California employers furnish employees with wage statements that contain specific information. Generally, wages statements must include:
(1) gross wages earned;
(2) total hours worked by the employee, except for any employee whose compensation is solely based on a salary and who is exempt from payment of overtime;
(3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis;
(4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item;
(5) net wages earned;
(6) the inclusive dates of the period for which the employee is paid;
(7) the name of the employee and (only the) last four digits of his or her social security number or an employee identification number other than a social security number;
(8) the name and address of the legal entity that is the employer; and
(9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

(more…)

In Humboldt County, as throughout California, the law requires that all employers “engage in a timely,  good faith,  interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.”  (California Government Code section 12940, subdivision (n).)   An employer who fails to engage in the interactive process will be liable under the Fair Employment and Housing Act (“FEHA”).

The statute’s phrasing, “in response to a request[,]” makes one think that there must be some formal request by the employee, but that’s just not true.   California courts have decided that there are “no magic words necessary” to be used by the employee, and furthermore, the employer’s “obligation arises once the employer becomes aware of the need to consider an accommodation.”  In other words, employers must be extremely careful to hear “requests” by employees that the employer engage in the interactive process.

(more…)

Recently, the U.S. Court of Appeals for the Ninth Circuit published a decision regarding the misidentification of employees as independent contractors.  Such a decision by a court could have serious consequences for Humboldt County employers.  In short, having your employees acknowledge that they’re independent contractors doesn’t make it so.

In Narayan, et al. v. EGL, INC., et al., No. 07-16487, the employer, “a global transportation, supply chain management and information services company[,]” was a Texas company with driving operations in California.  Three of the employer’s California drivers signed agreements for “Leased Equipment and Independent Contractor Services,” which provided that the parties’ intentions were to enter into an independent contractor relationship.  Subsequently, the California drivers filed a lawsuit seeking unpaid overtime, expense reimbursement, meal compensation, and reimbursement for unlawful wage deductions—all owed to employees under California law.

(more…)

The U.S. Department of Labor recently updated its Employment Law Guide, as useful starting point for answering basic employment questions for employers. The updated Guide can be found here.

Remember that many federal laws are not as broad as California employment laws, and employers in Humboldt County must comply with both federal and state laws.

By far, the majority of questions we receive from Humboldt County employers concern meal and rest period requirements. If you haven’t heard, California employers and employees alike (as well as the Division of Labor Standards Enforcement (“DLSE”) await a decision by the California Supreme Court in the Brinker Restaurant Corporation v. Superior Court case.   Until then, in California, the Industrial Welfare Commission (“IWC”) Wage Orders require that employers authorize and permit nonexempt employees to take a rest period that should be taken in the middle of each work period.  You should always check the Wage Orders for your employees’ industries because more than one Wage Order may apply to a single employer,  particularly those who employ in different job functions.

(more…)

On September 18, 2008, the U.S. Equal Employment Opportunity Commission (“EEOC”) filed a race harassment lawsuit against Big Lots, Inc. (EEOC v. Big Lots, Inc., CV-08-06355-GW(CTx).)  The EEOC alleged that Big Lots violated Title VII of the Civil Rights Act of 1964 when it subjected a black maintenance mechanic and other black employees to race harassment and discrimination at the Big Lots Rancho Cucamonga, Calif., distribution center.  According to allegations by the EEOC, an immediate supervisor and co-workers,  all Hispanic, made racially derogatory jokes, comments, slurs and epithets. The EEOC further alleged that Big Lots learned of the harassment but took no steps to either prevent or correct it.

(more…)

If you follow the news, you are familiar with Goldman Sachs’ current spotlight in the hot seat.   And you may know that the Securities and Exchange Commission used a Goldman Sachs’ employee’s e-mail to draft its historic complaint against the company for fraud, which also brought Congressional hearings in which Goldman Sachs’ executives have to testify, as well as intense media scrutiny.   Local employers should use this financial giant as a cautionary tale.

(more…)

Identifying which employment laws affect which employers is sometimes a difficult exercise, despite all of the available information. Sometimes, it takes a careful read of the applicable statutes and regulations to determine a law’s applicability.   For small Humboldt County employers, the first question in a discrimination complaint or lawsuit is whether a state or federal law even applies to the employer.   Many laws that apply to California employers require a minimum number of employees before the law is applicable.   As a general rule of thumb,  California state discrimination laws (concerning protected classes such as race, gender, national origin, religious affiliation, etc.) apply to employers with five or more employees.   Additionally, employers with five or more employees must comply with laws prohibiting pregnancy discrimination.

(more…)