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.
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.
If you’re an employer in California, you know the difficulties associated with proving an employee meets an exemption from overtime. Last month, a California appellate court issued an opinion highlighting those difficulties. The case is entitled Pellegrino v. Robert Half International, Inc. (2010) 181 Cal.App.4th 713 (out of the Fourth Appellate District). In Pellegrino, six former employees of a temporary staffing agency, most of whom were “account executives” sued the agency for Labor Code violations, primarily failure to pay overtime and failure to provide meal periods. The agency defended the lawsuit by arguing that the employees fell under the Administrative Exemption from wage requirements. The appellate court decided in favor of the employees.
A Northern California carpenter’s union has filed a civil rights lawsuit against the city for allegedly violating their right to freedom of speech by citing a group of protesting carpenters and confiscating their protest banner under a city sign ordinance. According to the lawsuit, protesters had set up on a public curb in November in front of a Citation Homes Central sales office to protest unfair wages. Lawyers representing the union said that since the sign was political speech and not advertising, the citation is invalid and their rights to free speech were violated. “If we don’t stick up for our standards, it brings down everyone’s wages,” said Shaun Kinney, the veteran union carpenter named as a plaintiff in the suit. “You need to make as much as you can when you do work, to cover the times when you’re not working.” Tracey Kaplan, San Jose Mercury News 01/24/2010.
If you have questions regarding rights of Humboldt County employees regarding prevailing wages or free speech issues please contact the Janssen Law Firm to meet with a Humboldt County Employment Lawyer.
As of November 21, 2009, employers must post a supplement next to the 2009 Employment Poster. The new posting includes changes to the Equal Employment Opportunity Commission (“EEOC”) notice concerning the Genetic Information Nondiscrimination Act (“GINA”), signed into law by President Bush on May 21, 2008. The purpose of GINA is to prohibit any improper use of genetic information (for example, any genetic predisposition to developing a disease) in health insurance and employment. Employers may not use an employee’s genetic information when making hiring, firing, job placement or promotion decisions. Today, employers must begin complying with GINA. Nor may group health plans or health insurers deny coverage to healthy individuals—or charge higher premiums—on the basis of genetic information.
The posting also explains changes in the Americans with Disabilities Act of 1990, as well as revisions to laws pertaining to employers who hold federal contracts or subcontracts.
The 2009 Employment Post supplement is available to employers for free at the EEOC web site.
Consumer Attorneys of California (“CAOC”) have selected Janssen Law Firm Lawyer Patrik Griego as a finalist for 2009 Street Fighter of the Year.
The Janssen Firm is proud to announce that throughout the entire state of California, Patrik Griego has been selected as 1 of only 7 finalists for this prestigious award. The finalists will be honored, and the winner announced, during an award ceremony on November 14, 2009 in San Francisco at the Fairmont Hotel.
In California, the Division of Labor Standards Enforcement (“DLSE”) is the state agency responsible for adjudicating wage claims. Sometimes, the first an employer learns that an employee or former employee has a wage dispute is when the employer receives a complaint from the DLSE.
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If you’re an employer in Humboldt County, you should know that federal and state laws prohibit employment discrimination based on age.
A recent United States Supreme Court decision made prevailing on age discrimination claims under the federal Age Discrimination in Employment Act of 1967 (commonly referred to as the ADEA) more difficult for employees. Earlier this month, the Court decided the case of Gross v. FBL Financial Services, Inc. Prior to the Court’s decision, ADEA plaintiffs could win by proving age was a motivating factor in a discharge or demotion. At that point, it was the employer’s burden to prove that it had a legitimate reason for the action. In Gross, however, the Supreme Court rejected such burden-shifting in ADEA cases. Now, ADEA plaintiffs will have to prove that age was the cause of the employer’s action. In short, plaintiffs must prove that age was the deciding factor—which is often hard to do absent direct evidence.
According to statistics kept by the U.S. Equal Employment Opportunity Commission, total discrimination claims filed by employees against employers are on the rise. These claims include those alleging race, sex, national origin, age and disability discrimination, as well as claims of retaliation and pregnancy discrimination.
Employers here in Humboldt County, California are not immune. Defending discrimination claims takes time and money that could be better spent elsewhere. The most important thing employers can do to prevent discrimination claims is to have a legitimate, nondiscriminatory reasons for all employment decisions, and then document everything appropriately. Clear management policies and documentation are often the keys to successfully defending or settling discrimination lawsuits. From the outset of employment, make performance expectations clear. If you have written job descriptions, make sure they are kept current. If you have performance evaluation policies, they must be followed, and all employment decisions based on such evaluations should be documented. All employees in the chain of command should be clear about job-related expectations, as well as policies of non-discrimination.
If you have any questions about this or any other aspect of law affecting employers here in Humboldt County, please call our office and ask to speak with one of our attorneys.
This month a number of former Home Depot assistant managers filed a class-action lawsuit against Home Depot for failing to pay overtime wages at its Illinois stores. The lawsuit alleges that Home Depot wrongly classified the assistant managers as exempt employees in order to require them to work more hours. The lawsuit seeks compensation for unpaid wages in addition to punitive damages.
Simply classifying an employee as an assistant manager does not mean that the employee is exempt from overtime pay. If you have questions regarding the current law on overtime exemptions, please contact the Janssen Law Firm to consult with one of our employment law attorneys. The Janssen Law Firm has handled multiple class-action and wage and hour lawsuits in Humboldt County and throughout California for employers and employees and has been recognized by California Lawyer Magazine for its work in the employment law area.
Alexandria Sage, Reuters 07/21/2009
Read Article: Reuters