Michael Webster
Labor Workplace laws are complex and can change frequently
By Michael Webster
The way best to handle legal and labor rules in the workplace is to prevent them in the first place. Before or during these problems, you want a firm with the management focus and workplace experience to guide you through to a good resolution.
I often have ended up helping companies in employment matters because they have inadvertently failed to comply or have lacked representation from a company like CN&Z. As I tell my prospective clients it is best to be represented before you unknowingly violet complex California Labor and Government codes.
Employee lawyers, looking for clients, feed on employer oversights and will seek huge sums in attorney fees and other unreasonable financial damages often so great the company is forced out of business.
Here are some workplace issues that need to be dealt with and if dealt with professionally may protect you from costly lawsuits:
• When is it proper to do a background check, or to obtain consumer credit reports on applicants or employees for most non-managerial jobs, except those with access to confidential information or signatory authority on bank accounts?
• Should you ask an applicant or employee for a user ID or password in order to access personal social media (Facebook, Twitter, Linkedin, Yik-Yak, etc.) or discipline or fire an individual who refuses to give that information?
• Is it true when hiring any new employee, an employer must provide written notice of the rate and basis of pay, the regular payday, the location and phone number of the employer's office, the paid sick leave policy, and the name of its workers 'compensation carrier, and notify employees if this information changes?.
• Is it Ok to ask an applicant about family planning.
• Should you have employees sign at-will agreements, agreements to arbitrate disputes, and class action waivers?
• Unless scheduled to work under six hours, allow employees a 30-minute (unpaid) meal period starting by the end of the fifth hour of work and a second after 10 hours. Always document time out for meals.
• Provide employees a 10-minute paid rest break for every 3.5 hours of work and distribute a written policy on this issue.
• Pay overtime to non-exempt employees, even those on a fixed weekly or monthly salary. Do not treat salaried employees as exempt from overtime just because they get a salary.
• Be certain that exempt employees consistently do exempt work more than 50% of their working time. Pay exempt employees minimum California monthly salary, higher than the federal standard.
• Pay out of state employees who come into California to work, even briefly, at the daily, weekly and double overtime wage rates.
• Pay statements accompanying paychecks must be accurate, listing all information for the pay period and year-to-date required by the Labor Code. Hundreds of class action complaints alleging non-compliance are pending.
• Have written agreements with commission based employees.
• In most cases, pay employees who spend substantial time before and after work stocking shelves or putting on and taking off uniforms and safety gear. Nordstrom settled litigation for $7.650 million after not paying commissioned employees who worked before and after stores opened.
• On the day of termination, pay final wages, including accrued and unused vacation pay or, if the employee quits without giving 72 hours' notice, within 72 hours.
• Do not offset an employee's debt (loans, advances) from a final paycheck without written authorization.
• Have written rules of conduct. Apply them consistently.
• Provide honest performance evaluations.
• Document the reasons for every employment separation.
• Keep pay records for three years and, if asked, give an employee a copy of his/her pay records within 21 days.
• If employing five or more, allow an employee from day one to take a pregnancy disability leave of up to 17.33 weeks and continue group health during that period.
• Do not retaliate against an eligible male or female employee who takes family or medical leave or is absent for other reasons allowed by the Labor or Government codes.
• Hold a job open for most employees on leave and do not decide to fire the employee because the temp performs better.
• Allow employees an unpaid leave for jury duty, to testify on issues of domestic violence, sexual assault, and stalking, and up to 40 hours a year to attend children's school activities.
• Comply with federal non-discrimination standards (race, color, gender, national origin, religion, age) and also with California laws prohibiting sexual orientation, marital status, and gender identity and expression discrimination.
• Prohibit sexual harassment in writing. Take any claim of harassment seriously, investigate and, if valid, correct it and, if employing 50 or more, train all supervisors on issues of harassment, discrimination, retaliation, and bullying for two hours every two years. Too often, employee complaints are not taken seriously, "whiners" are fired, and expensive litigation and potential damage to goodwill will follow.
• Prohibit employees from using the company's communications system to view or send communications with pornographic or harassing content and monitor emails and filter out offensive content.
• Provide a reasonable accommodation to a lactating mother, including space (other than a restroom) for privacy to express breast milk.
• Do not deny employees who have access to the company's electronic e-mail the right to use the e-mail to communicate with co-workers about wages, hours and other terms and conditions of employment and union organizing activity.
• Affirmatively engage in an interactive process with individuals who have or are believed to have a disability to determine reasonable accommodations that might enable the individual to perform the essential functions of a job. Complaints of disability discrimination have sharply increased.
• Begin paid sick leave compliance and accrual leave. starting July 1, 2015.
Crawford, Nolan and Zink (CN&Z) have been working with employers for more than 20 years. We help companies manage employment issues, avoid expensive claims, stay compliant, and devise strategies for all labor issues including workers compensation claims. We offer employee training, mergers, employee handbooks, affirmative action and union matters.
Call us today to see what CN&Z can do for your company 949 376-7632
Michael Webster, a financial, business consultant and employment and labor specialist with Crawford, Nolan & Zink.
Mr. Webster is also the Author of: Venture Capital" showing how to raise business capital for the 21st century
Entrepreneurs across American and around the world battle daily for start-up and/or expansion capital. Many are ignoring, or unaware of, vast untapped sources for capital. Written by America's leading authority on venture capital and equity funding. "Venture Capital": "Raising Business Capital for the 21st Century" is the definitive guide for finding capital. This cutting-edge work should be read by top executives: from the world's largest corporations to small business entrepreneurs. In addition to the "What" and the "Why" of business money needs, he also provides the "How."
© Michael Webster
February 9, 2015
The way best to handle legal and labor rules in the workplace is to prevent them in the first place. Before or during these problems, you want a firm with the management focus and workplace experience to guide you through to a good resolution.
I often have ended up helping companies in employment matters because they have inadvertently failed to comply or have lacked representation from a company like CN&Z. As I tell my prospective clients it is best to be represented before you unknowingly violet complex California Labor and Government codes.
Employee lawyers, looking for clients, feed on employer oversights and will seek huge sums in attorney fees and other unreasonable financial damages often so great the company is forced out of business.
Here are some workplace issues that need to be dealt with and if dealt with professionally may protect you from costly lawsuits:
• When is it proper to do a background check, or to obtain consumer credit reports on applicants or employees for most non-managerial jobs, except those with access to confidential information or signatory authority on bank accounts?
• Should you ask an applicant or employee for a user ID or password in order to access personal social media (Facebook, Twitter, Linkedin, Yik-Yak, etc.) or discipline or fire an individual who refuses to give that information?
• Is it true when hiring any new employee, an employer must provide written notice of the rate and basis of pay, the regular payday, the location and phone number of the employer's office, the paid sick leave policy, and the name of its workers 'compensation carrier, and notify employees if this information changes?.
• Is it Ok to ask an applicant about family planning.
• Should you have employees sign at-will agreements, agreements to arbitrate disputes, and class action waivers?
• Unless scheduled to work under six hours, allow employees a 30-minute (unpaid) meal period starting by the end of the fifth hour of work and a second after 10 hours. Always document time out for meals.
• Provide employees a 10-minute paid rest break for every 3.5 hours of work and distribute a written policy on this issue.
• Pay overtime to non-exempt employees, even those on a fixed weekly or monthly salary. Do not treat salaried employees as exempt from overtime just because they get a salary.
• Be certain that exempt employees consistently do exempt work more than 50% of their working time. Pay exempt employees minimum California monthly salary, higher than the federal standard.
• Pay out of state employees who come into California to work, even briefly, at the daily, weekly and double overtime wage rates.
• Pay statements accompanying paychecks must be accurate, listing all information for the pay period and year-to-date required by the Labor Code. Hundreds of class action complaints alleging non-compliance are pending.
• Have written agreements with commission based employees.
• In most cases, pay employees who spend substantial time before and after work stocking shelves or putting on and taking off uniforms and safety gear. Nordstrom settled litigation for $7.650 million after not paying commissioned employees who worked before and after stores opened.
• On the day of termination, pay final wages, including accrued and unused vacation pay or, if the employee quits without giving 72 hours' notice, within 72 hours.
• Do not offset an employee's debt (loans, advances) from a final paycheck without written authorization.
• Have written rules of conduct. Apply them consistently.
• Provide honest performance evaluations.
• Document the reasons for every employment separation.
• Keep pay records for three years and, if asked, give an employee a copy of his/her pay records within 21 days.
• If employing five or more, allow an employee from day one to take a pregnancy disability leave of up to 17.33 weeks and continue group health during that period.
• Do not retaliate against an eligible male or female employee who takes family or medical leave or is absent for other reasons allowed by the Labor or Government codes.
• Hold a job open for most employees on leave and do not decide to fire the employee because the temp performs better.
• Allow employees an unpaid leave for jury duty, to testify on issues of domestic violence, sexual assault, and stalking, and up to 40 hours a year to attend children's school activities.
• Comply with federal non-discrimination standards (race, color, gender, national origin, religion, age) and also with California laws prohibiting sexual orientation, marital status, and gender identity and expression discrimination.
• Prohibit sexual harassment in writing. Take any claim of harassment seriously, investigate and, if valid, correct it and, if employing 50 or more, train all supervisors on issues of harassment, discrimination, retaliation, and bullying for two hours every two years. Too often, employee complaints are not taken seriously, "whiners" are fired, and expensive litigation and potential damage to goodwill will follow.
• Prohibit employees from using the company's communications system to view or send communications with pornographic or harassing content and monitor emails and filter out offensive content.
• Provide a reasonable accommodation to a lactating mother, including space (other than a restroom) for privacy to express breast milk.
• Do not deny employees who have access to the company's electronic e-mail the right to use the e-mail to communicate with co-workers about wages, hours and other terms and conditions of employment and union organizing activity.
• Affirmatively engage in an interactive process with individuals who have or are believed to have a disability to determine reasonable accommodations that might enable the individual to perform the essential functions of a job. Complaints of disability discrimination have sharply increased.
• Begin paid sick leave compliance and accrual leave. starting July 1, 2015.
Crawford, Nolan and Zink (CN&Z) have been working with employers for more than 20 years. We help companies manage employment issues, avoid expensive claims, stay compliant, and devise strategies for all labor issues including workers compensation claims. We offer employee training, mergers, employee handbooks, affirmative action and union matters.
Call us today to see what CN&Z can do for your company 949 376-7632
Michael Webster, a financial, business consultant and employment and labor specialist with Crawford, Nolan & Zink.
Mr. Webster is also the Author of: Venture Capital" showing how to raise business capital for the 21st century
Entrepreneurs across American and around the world battle daily for start-up and/or expansion capital. Many are ignoring, or unaware of, vast untapped sources for capital. Written by America's leading authority on venture capital and equity funding. "Venture Capital": "Raising Business Capital for the 21st Century" is the definitive guide for finding capital. This cutting-edge work should be read by top executives: from the world's largest corporations to small business entrepreneurs. In addition to the "What" and the "Why" of business money needs, he also provides the "How."
© Michael Webster
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