Brett T. Abbott

Round and Round We Go: Rounding Policies in California

A California court recently held that employers may lawfully use rounding policies, i.e. policies that round an employee's time worked to the nearest tenth of an hour worked (or other similar increment) for purposes of calculating pay. 

In the case of Silva v. See's Candy, See's employees were required to use a timekeeping system to record their start and end times of work.  See's incorporated a rounding policy in which times would be rounded to the nearest tenth of an hour (up or down) for payroll purposes.  A former See's employee filed a lawsuit claiming the rounding policy resulted in underpayment of wages. 

The court held that "the rule in California is that an employer is entitled to use the nearest-tenth rounding policy if the rounding policy is fair and neutral on its face and it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked."  Thus, the legality of a rounding policy depends on (1) whether it operates over time to pay employees for all time worked and (2) whether it does not to short employees.  In the See's case, there was an expert’s report filed with the court that concluded that the See’s rounding policy actually had a net effect of slightly overpaying employees. 

The See’s case is the first published California decision to uphold the use of rounding policies.  However, not all rounding policies would be found legal in the eyes of the law.  The key requirement is that the policy, over time, properly compensates employees for hours worked and that it does not result in underpayment.  Absent these requirements, a rounding policy can create substantial liability for employers. 

Social media and privacy rights

Virtually everyone – yes, probably even your parents – is on Facebook.  Facebook’s hundreds of millions of users share untold photos, stories, random thoughts and personal information all day, every day.  And unlike a phone call or in-person conversation, Facebook, and other social media sites, keeps a permanent record of every user’s online life.  As such, social media can create new and unique challenges for employees and employers alike.    

Potential employees may have online identities employers consider useful when choosing whether to hire a job applicant.  However, privacy settings on many social media sites allow an applicant to hide his/her online information from potential employers. As a result, a new trend in applicant background investigation has emerged: asking an applicant for his/her username and password to social media sites during the interview process.

In light of this trend, some states have drafted legislation seeking to outlaw what some consider an invasion of a job applicant’s privacy. Lawmakers in California, as well Illinois and Maryland, have proposed legislation that would prohibit employers from requiring that current or prospective employees provide or disclose any user names, passwords, or other ways of accessing personal online accounts. State lawmakers from Connecticut and New Jersey are considering drafting similar legislation, as is the United States Senate.

Social media isn’t going anywhere.  If anything, Facebook, Twitter and others are becoming ever more entrenched in virtually every aspect of online life.  Similarly, employers are not going to stop screening and investigating job applicants, and social media can often give employers an unfiltered glimpse as to who an applicant really is.  So for the time being, employers are free to mine social media sites for information on potential applicants, but California law has made it very clear that employers cannot demand that applicants or employees hand over user names and passwords. 

Preserving the at-will relationship

California is an at-will employment state.  A landmark California case put it thusly: “An employment, having no specified term, may be terminated at the will of either party on notice to the other." Dore v Arnold Worldwide, Inc. (2006) 39 C4th 384, 391, 46 CR3d 668.  It is in every employer’s best interest to keep the at-will relationship intact.  Failure to do so can create situations where the employment relationship may be only be terminated upon a showing of good cause.  There are several ways in which the at-will status of an employee can be modified.  This article will explore some of these.

Certain employer communications or actions can give rise to an enforceable expectation by the employee that he or she may only be terminated for good cause.  Some examples include verbal assurances of job security, regular promotions, salary increases, and bonuses.  Some creative employee-rights attorneys will even use birthday cards with innocuous statements from supervisors – like “Keep up the good work!” or “What would we do without you?” – as evidence that an employee expected that termination could only be for good cause. 

However, oral assurances, or regular promotions and salary increases, do not automatically establish an implied contract, i.e. that termination can only be for good cause. Several courts have concluded that without more, "promotions and salary increases are natural occurrences of an employee who remains with an employer for a substantial length of time... and should not change the status of an 'at-will' employee to one dischargeable only for just cause." Miller v Pepsi-Cola Bottling Co. (1989) 210 CA3d 1554, 1559.

Courts will often consider other documents prepared by the employer to determine the existence of an implied contract to terminate only for cause.  These writings include employment applications, letters, stock option agreements, bylaws, and other writings bearing on the employment relationship.  

Yet the safest bet is to include express language in an employee handbook which makes the at-will relationship explicit, and states that such relationship can only be modified in writing by the president/owner of the company.  It’s also imperative to have the employee sign-off on his or her copy of the employee handbook, showing that he or she has read, understands, and agrees to be bound by the at-will relationship. 

It’s vacation time!

Summer time is vacation time.  Like many employers, you probably offer some sort of vacation benefits to your employees.  While such benefits are universally appreciated by employees, employers can run into trouble if the rules regarding vacation pay are not properly followed.  This article will explore the ins and outs of vacation pay in California.

Vacation pay is a form of wages

There is no requirement that employers provide vacation pay, but if this benefit is offered, it must comply with numerous rules. Vacation pay is contract between the employee and the employer; it is a form of wages.  Employers can set the amount of vacation that an employee earns.  However, employers must be clear about how much vacation is offered, how it accrues, and when it starts to accrue.  It is legal to require that a certain period of time pass before an employee starts to accrue vacation. 

Because vacation is a form of wages, the right to vacation accrues on a daily basis.  Employers are free to require that employees take vacation only when they have already accrued or earned it.  

Avoid use-it-or-lose it vacation policies

Once an employee has earned vacation, an employer cannot take it away.  California law strictly prohibits Use-It-Or-Lose-It vacation policies, i.e.  where an employee loses accrued vacation that has not been used by a specific time.  However, as shown below, reasonable caps on vacation and cash-out policies are allowed.

A reasonable cap on vacation is legal

Employers can establish a reasonable cap plan, meaning that once a certain level of accrued vacation is earned but not taken by the employee, no new vacation will accrue until some of the accrued vacation is taken.  Once some vacation is taken by employee, vacation must continue to accrue again at the regular rate. 

The cap on vacation must be reasonable.  The most common caps used by employers are one-and-one-half or two times the annual accrual rate.  For example, if an employee earns 40 hours of vacation per year, a reasonable cap would be 60 hours or 80.

Cash-out policies are also legal

Employers are also free to offer employees the option to cash-out their accrued vacation benefits.  Cash-out policies can be on an “as needed” basis or allowed only once a month or once a year.  Many employers require employees to accept pay at the end of each year for vacation time that

employees accrued but did not take. 

Vacation must be paid at termination

Because accrued vacation is a form of wages, an employer must pay out all accrued, unused vacation at the termination of the employment relationship.  This pay-out must be at the employee’s final rate of pay, regardless of the rate of pay at which the vacation time was earned.

Working in a post-Brinker world

One of the most widely-followed labor and employment cases of the last decade finally reached a conclusion a few weeks ago.  In the case of Brinker Restaurant Corporation v. Superior Court of San Diego, the California Supreme Court handed down a landmark decision concerning meal and rest breaks.  Below is a summary of the key points from the Brinker decision. 

Rest Periods

The Court held that employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, 20 minutes of rest for shifts of more than six hours up to 10 hours, and 30 minutes for shifts of more than 10 to 14 hours. 

Regarding the timing of the rest breaks, the Court rejected the suggestion that employers have a “legal duty” under “to permit their employees a rest period before any meal period.”  Instead, the Court found that employers are “subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations make it infeasible.” 

Meal Periods

Regarding the timing of meal breaks, the Court looked to the language of Labor Code section 512(a), holding that, absent a waiver by the employee, “employees are entitled to a first meal period no later than the end of an employee’s fifth hour of work and a second meal period no later than the end of an employee’s 10th hour of work.” 

There is NO requirement that an employer ensure work is not being performed

The plaintiff in the Brinker case argued that employers were required to “ensure” that work ceases for the 30 minute meal period.  The Court did not agree.  Using Wage Order No. 5 and Labor Code section 512(a) as a guide, the Court held that an employer must “relieve” the employee of work, “but need not ensure that the employee does no work.”  The Court used the following analysis:

“An employer’s duty with respect to meal breaks…is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry…

On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed…[R]elief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not…place the employer in violation of its obligations…”

Employers have waited years for this decision.  The Brinker case provides much-needed clarification on an issue relevant to virtually all employers in California.  Employers state-wide can now breathe a small sigh of relief, knowing that they are not required to police meal breaks.  Instead, employers must (1) relieve employees of their duties, (2) relinquish control over employees’ activities, (3) permit employees a reasonable opportunity to take an uninterrupted 30-minute break, and (4) not discourage employees from doing so.

Will being unemployed soon be a protected class?

California, as well as the nation as a whole, in is the midst of very trying times.  Unemployment is high; qualified and experienced men and women everywhere are finding it hard to find work.  Some have been out of the workforce for so long, they are finding it difficult to get back in. 

State and federal legislators are taking action to combat this problem.  There is a movement by both California and the federal government to make being unemployed a new protected class.  And with a higher-than-normal percentage of potential voters out of work, politicians seeking re-election this year will surely attempt drum up support for this proposed legislation.

In California, legislation has been introduced to protect unemployed workers, and thus prohibit an employer from using a person’s unemployed status at the time of applying for a job as a negative criteria in the hiring process.  This bill, AB 1450, was introduced a few months ago in January.  Similar to the California bill, Congress has introduced HR 2501 in the House and S 1471; these two bills would provide similar protections to workers on a nationwide level.

Currently, most protected status complaints and lawsuits deal with harassment and termination of the employment relationship; lawsuits based on failure to hire are generally rare.  Yet if either of these bills are passed, employers can expect an uptick in litigation by unemployed applicants who apply for positions and are not hired, especially if those applicants appear to be otherwise qualified.  Employers would be wise to consider altering their hiring practices, and provide some additional training to those making the decision to hire new employees in order to avoid problems down the road.  And while these proposed bills are not yet the law, given the state of California and the country’s economic woes, and the fact that this is an election year, employers could very soon have another thing to worry about.  

Shades of Gray in Discrimination Law

Everyone knows discrimination in the workplace is illegal.  The prohibition of discrimination based on age, race, national origin, religion, sex, and disability are well known in California.  But not all discrimination is cut and dry – gray areas abound in this arena.  This article will explore four such situations.

Dress Standards
An employer is not discriminating when it requires reasonable dress and grooming standards of employees.  Of course appropriate business attire may generally be different for men and women when there is a clear, nondiscriminatory rationale.  For example, men may be required to cut their hair short, while women may be allowed to wear their hair longer.  However, it is illegal to prohibit women from wearing pants in the workplace (Government Code section 12947.5).  Employers must also accommodate an employee’s religious beliefs that affect his or her dress standards, physical appearance or grooming.

Tattoos and Piercings
California’s discrimination laws do not protect employees because of their tattoos and body piercings.  Employers are free to create policies prohibiting visible tattoos and piercings.  Moreover, these policies may differ as applied to men and women – i.e. employers can prohibit men from wearing earrings, while allowing women to do so.

Height and Weight Standards
Employers cannot establish height or weight standards which, in effect, discriminate against protected classes.  If an employer can show that  a weight or height restriction both relates directly to, and is an essential function of, the job, then selection of employees according to justifiable height and weight standards is not discriminatory.

English-only Policies
Employers are limited in their ability to adopt an “English-only policy.” If an employer has five or more employees (unless the employer is a non-profit religious association or religious corporation), an employer may not adopt or enforce a policy limiting or prohibiting the use of any language in the workplace unless (1) The language restriction is justified by a “business necessity”; and (2) The employer notifies the employees of the circumstances and time when the language restriction must be observed and of the consequences for violating it. 
What constitutes a business necessity?  A business necessity is a legitimate business purpose such that: (1) The language restriction is necessary for the safe and efficient operation of the business; (2) The language restriction effectively fulfills the business purpose it is supposed to serve; and (3) There is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact.

Conclusion
These are of course not the only gray areas in California discrimination law.  It is sometimes difficult to keep up with all the changing facets of discrimination law, and each fact pattern creates new challenges.  Yet these examples are instructive, and the basic tenets of each can applied across the broad spectrum of discrimination law issues.

Governor Brown sets a deadline for written commissions agreements

There are a myriad of ways in which employers can their employees.  Some employees earn their wages on an hourly basis; some receive a regular salary, while other are paid via commissions.  Oftentimes an employee’s pay is a hybrid of the above.  This article focuses on a new law dealing with employees who are paid via commissions. 

On October 7, 2011, Governor Brown signed AB 1396. This bill requires all California employers to draft written contracts for any agreements with employees that involve commissions as a method of payment for services. Commission wages are defined as compensation paid to any person for services rendered in the sale of an employer’s property or services and based proportionately upon the amount or value thereof.

The bill imposes a deadline of January 1, 2013 for employers to reduce all commission agreements to writing.   The bill also requires employers to provide a signed copy of the contract to every employee covered by the commission agreement and obtain a signed receipt for the contract from each employee. While the new law does not spell out any specific penalties for violation of the law, presumably an employee could bring a suit under California’s Unfair Competition Law in the event of a violation.

California already regulates the payment of commissions, the calculation of commissions and what happens with a commission upon termination/resignation.  There are also technical regulations on the books dealing with overtime compensation to commissions-based employees.  As such, not only must employers must draft written commission agreements by the January 1, 2013 deadline, they should also review the contents of these written agreements to ensure they are clear and comply with established California law.

The Only Constant is Change: New Workplace Regulations for 2012

California employment law is always changing.  And it looks like 2012 will be no exception.  Below are some proposed changes to the employment law landscape.  These new bills, signed by Governor Jerry Brown become effective January 1, 2012.  

Pregnancy Disability Leave (SB 299)

SB 299 prohibits employers from refusing to maintain and pay for group health insurance coverage for the duration of pregnancy disability leave, up to four months in a 12-month period.

The law also authorizes employers to recover insurance premiums from the employee if the employee fails to return from pregnancy disability leave, provided that the employee’s failure is not due to leave taken for a health condition, or other circumstances beyond the employee’s control.

Organ and Bone Marrow Donor Leave (SB 272)

Under existing law, an employer must grant a leave of absence of up to 30 days in a one-year period to an employee who is an organ donor and up to five days in a one-year period to an employee who is a bone marrow donor. SB 272 provides that the days of leave are business days, rather than calendar days, and that the one-year period is measured from the date the employee’s leave begins and consists of 12 consecutive months.

Credit Reports (AB 22)

AB 22 imposes significant restrictions on an employer’s ability to obtain a credit report for employment purposes. It generally permits employers that are seeking to fill only specific, identified exempt positions to obtain and use credit reports to screen applicants or current employees. The use of the credit reports in other occupations generally is prohibited.

Employer Contract Requirements (AB 1396)

AB 1396 requires an employer that enters into an employment contract involving commission payments for services to be rendered within California to put the contract in writing and specify the method by which the commissions are to be computed and paid. The employer must give a signed copy of the contract to every employee who is a party thereto and obtain a signed receipt for the contract from each employee. The law also repeals existing law making an employer that violates this requirement liable in a civil action for triple damages.

Genetic Information (SB 559)

SB 559 amends the California Fair Employment and Housing Act (FEHA) to prohibit discrimination on the basis of genetic information.

Gender Expression (AB 887)

AB 887 amends California FEHA to clarify that prohibited discrimination in employment and housing on the basis of sex or gender includes discrimination on the basis of a person’s gender identity and gender expression. The law defines gender expression as meaning a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth.

While many of these provisions may not apply to your particular business, all employers would be wise to review these new laws in greater detail and update employee handbooks and personnel policies to ensure compliance with these new regulations. 

The Perils of Polygraph Tests

Employers may be tempted from time to time to ask or even require employees to submit to polygraph tests, often called lie detector tests.  Are such tests legal?  This article will explore the legal ramifications of polygraph tests in the workplace.

Federal law

The Employee Polygraph Protection Act of 1988 (EPPA) generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment.  Employers generally may not require or request an employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take such a test.  Employers are required to display the EPPA poster in the workplace for their employees.  There are, however, certain exemptions that will be discussed below.

Ongoing investigation exemption

According to federal law, an employer is not prohibited from requesting an employee to submit to a polygraph test if: 1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business, such as theft, embezzlement, misappropriation, etc.; 2) the employee had access to the property that is the subject to the investigation; 3) the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and 4) the employer executes a statement, provided to the examinee before the test that a) sets for the with particularity the specific incident or activity being investigated and the basis for testing particular employees, b) is signed by a person, other than the polygraph examiner, authorized to legally bind the employer, c) is retained by the employer for at least three years, and d) contains an identification of this specific economic loss, etc.

Security services exemption

Another federal exemption is the exemption for security services.  Federal law does not prohibit the use of polygraph tests on perspective employees by any private employer whose primary business purpose consists of providing armored car personnel, personnel engaged in the design, installation, and maintenance of security alarm systems, or other uniformed or plained clothes security personnel. 

Other federal exemptions

In addition to the above exemptions, there are other exemptions for national defense, government security, FBI contractors, etc. 

California law

California Labor Code section 432.2 states that “no employer shall demand or require any applicant for employment or perspective employment or any employee to submit to or take a polygraph, lie detector or similar test or examination as a condition of employment or continued employment.”  In addition, Labor Code section 432.2 states that “no employer shall request any person to take such a test, or administer such a test, without first advising the person in writing at the time the test is to be administered of the rights guaranteed by this section.”

Government employee exemption

However, there is an exemption in Labor Code section 432.2 which states that the prohibition of this section does not apply to the Federal Government or any agency thereof or the State Government or any agency or any local subdivision thereof, including, but not limited to, counties, cities, districts, etc.  Employers need to be sure that these perspective employees would be hired by the actual government entity and not simply contracting with the city/county, or employed by someone else and simply doing work for the city/county. 

Conclusion

While there are some exemptions to the federal and state law prohibitions of polygraph tests in the workplace, the safest thing to do is avoid them.  The accuracy of polygraph tests has been questioned for years, and the risk employers run in requiring their employees to submit to such tests will almost always outweigh the benefit.

Sexual Harassment Training 101

All employers know that sexual harassment is among the most serious of workplace problems. California has passed legislation showing the importance of preventing workplace sexual harassment.  California Government Code section 12950.1 requires that employers comply with certain sexual harassment training rules and procedures.

Which employers must provide training?

This law applies to employers with 50 or more employees.  It is not required that all 50 employees be in California. 

Who must be trained?

Training must be given to all employees who are employed as supervisors as of July 1, 2005.  All employees who become supervisors after July 1, 2005 must receive training within six months of assuming a supervisory position. 

Who is a supervisor?

The new law does not define the word “supervisor.” Yet, the Fair Employment and Housing Act defines a “supervisor” as, among other things, one who has the authority to hire or fire, reward or discipline other employees, direct other employees, or exercise independent judgment.  This is a broad definition, and whether an employee is exempt or non-exempt for purposes of wages is not controlling. 

Employers should construe “supervisors” broadly - if there is doubt as to whether your employee is a “supervisor,” train them just to be safe. 

What type of training is sufficient?

The law requires that the training be of the “classroom” variety or other “interactive training.”  California’s Department of Fair Employment and Housing has strongly suggested that web-based training is sufficient as “interactive” training.  However, if a trainer is not actually present, one should be available to answer questions within two business days after the question is asked.   Furthermore, the training must include practical examples dealing with prevention of harassment, discrimination and retaliation.                    

Who can train?                                                                      

Three categories of people are qualified to train: (1) attorneys, (2) professors or instructors, and (3) Human Resource professionals or Harassment Prevention Consultants.  For each category, the trainers must have two years of experience.

How often must employees be trained?

Employees covered by the law must be trained every two years. 

How much training is needed?

If the training is conducted as “classroom training,” the actual time instructors spend teaching must total two hours, excluding breaks.  If the training is web-based, it must take at least two hours to complete the course.

What records need to be kept?

The biennial training can be tracked by the individual employee, or by using a “training year” method in which the employer chooses training years for all supervisors.  Employers must remember, however, that new supervisory employees must be trained within six months of hire or promotion.  A record of who received the training, when it took place and what type, and who gave the training must be kept for two years. 

Final Points

Proper training does not completely safeguard employers from sexual harassment lawsuits.  Also, failure to provide training does not, in and of itself, make an employer liable for sexual harassment.  However, the Fair Employment and Housing Commission can order an employer to give proper training.  Yet if employers fail to properly train supervisory employees, a court could find that such violates the state’s public policy, creating even more liability if an employer is sued for sexual harassment.  Ensuring that employees are properly trained requires some effort and planning - yet in this regard, it is certainly worth it. 

Overtime and the occasional California employee

California overtime laws are among the most complex laws in the labor and employment law sphere. Employers are required to juggle various complicated overtime exemptions, as well as keep track of employee hours to make sure they don’t run afoul of any overtime laws. A recent case has added a new wrinkle to California’s overtime laws.

In a nutshell, California overtime laws apply to all non-exempt employees. Generally speaking, non-exempt employees working more than 8 hours in a day or 40 hours in a week are entitled to receive overtime pay. But what about employees who only occasionally work in California? In the case of Sullivan v. Oracle Corporation, the California Supreme Court tackled just this issue. The plaintiffs in the Sullivan case were employees that periodically worked in California. They wanted California overtime law to apply during any full day in which they worked in California.

The California Supreme Court sided with the plaintiffs, holding that when employees visit from other states, California overtime law applies: “To exclude nonresidents from the overtime laws’ protection would tend to defeat their purpose by encouraging employers to import unprotected workers from other states. Nothing in the language or history of the relevant statutes suggests the Legislature ever contemplated such a result.”

Yet the court was also careful to note that its holding was limited to just overtime, not necessarily to other wage and hour laws:

While we conclude [our] analysis does require us to apply California’s overtime law to…work performed here by nonresidents, one cannot necessarily assume the same result…for any other aspect of wage law. California…has expressed a strong interest in governing overtime compensation for work performed in California. In contrast, California’s interest in the content of an out-of-state business’s pay stubs, or the treatment of its employees’ vacation time, for example, may or may not be sufficient to justify choosing California law over the conflicting law of the employer’s home state. No such question is before us.”

In essence, the court punted on the non-overtime issues. Because the issue of whether to apply all California wage and hour law to visiting employees was not before the court, the court chose to simply wait until that specific issue was before them.

So listen up companies that employ workers that work periodically in California – California overtime law applies whenever these employees work in California. Stay tuned for whether all California wage and hour laws apply as well.

The difference between a “hostile work environment” and a work environment that is hostile

Employees often throw around the term “hostile work environment.” What exactly constitutes a hostile work environment can be difficult to define. In the realm of California employment law, there is a difference between a “hostile work environment” and a work environment that is occasionally hostile.

Dealing with rude or obnoxious people does not constitute a hostile work environment. A true hostile work environment, in a legal sense, occurs when an employee is subjected to abuse in the workplace because of the employee’s gender, race, age, religion, or other protected category. In California, unlawful harassment, i.e. a hostile work environment, is a form of discrimination.

Recently, a California appellate court illustrated this distinction. In the case of Kelley v. The Conco Companies, Kelley, a male apprentice iron worker was repeatedly subjected to sexually demeaning comments and gestures, as well as physical threats from a male supervisor and male co-workers. Kelly was frequently called a b*tch, was told he had a “nice a**, and was called numerous other sexually graphic names. His co-workers also barraged him with the f-word on a routine basis.

In its ruling, the court reiterated that the laws against discrimination were not intended to become a “general civility code for the American workplace.” While acknowledging that the words directed at Kelley were “graphic, vulgar, and sexually explicit” and “crude, offensive and demeaning,” the court held that the statements were neither an expression of sexual interest, nor a comment on Kelley’s actual or perceived sexual orientation. More bluntly, the court noted that when a supervisor refers to a male employee as a “b*tch” it is not kind, but it is not harassment in the absence of sexual interest or animus.

So what can employers and employees take away from this case? Unlawful harassment and rudeness are two different things. There is a difference between a “hostile work environment” and a work environment that is occasionally hostile. Legally speaking, a hostile work environment must have some element of discrimination to be actionable harassment. Yet the line is not always clear, so employers must still be wary of these situations and take steps to remedy the situation before lines are crossed.

Social Networking and the Workplace

It seems like everyone is on Facebook, or some other social networking site. Chances are virtually every one of your employees has a Facebook profile. According to a 2009 Harris Interactive survey of over 2,600 Human Resources professionals, 45% of them said that they go to social networking sites to research job applicants. The same study also found that 35% of employers made the decision not to hire an applicant based on what they found on the applicant’s social network (Facebook) page. The Human Resources professionals found the following to the biggest no-no’s in connection with social networking sites:

· Posting indiscreet photos and information

· Posting activity involving alcohol and/or drugs

· Badmouthing former employees

Despite the permanent nature of posting information and pictures in a digital space, many Facebook users feel like “no one is watching” when they post a picture from a wild party or leave comments blasting a former boss. Yet, employers in increasing numbers are watching what job applicants post to social networking sites. These sites can give employers valuable insight as to what job applicants are “really” like, as opposed to the polished that can be found in a resume or job interview.

And for employees who use Facebook or other social networking sites, here are five tips that can help you avoid problems:

1. Don’t reveal too much information. Don’t reveal more on Facebook than you would in real life; err on the side of discretion.

2. Think twice before hitting the “submit” button. The second you click “submit,” your picture or post is “out there.” And while you can always delete it later, you never know who has seen the information in the meantime.

3. Imagine how the information you are posting would look to a prospective employer.

4. Review your privacy settings. Sites like Facebook permit users to decide what pictures and information are shared with whom – narrow your settings so only accepted friends can see your information.

5. Google yourself periodically. Every few months run a quick google search of your name to see what comes up. If something negative surfaces, there may be time to change it.

Facebook and other social networking sites are not going away. Facebook has over 600 million users, and it’s growing every day. Employers can use these sites as a powerful tool in selecting job applicants. And employees should take simple steps to ensure that their social networking endeavors do not cause problems down the road.

Emergency Action Plans

Emergency situations can happen anywhere, without warning. Virtually every day we see footage on the news of devastating natural disasters or emergency situations all over the world. What are an employer’s duties with respect to emergencies?

California law requires that every employer have an Emergency Action Plan. Such a plan must include steps for evacuating employees, providing emergency medical attention, and reporting emergencies to employees and local agencies. While every employer must have a program, not all employers are required to “keep records” of such a plan. The record keeping requirements do not apply if the employer (1) has 10 or fewer employees, (2) has 20 or fewer employees and is in a designated low-hazard industry, or (3) is a local government entity, seasonal employer or licensed contractor.

Where a written plan is required, the plan must specify the following: (1) person(s) responsible for implementing the plan or portions of the plan; (2) how to communicate emergencies to employees; (3) fire and emergency evacuation policies; and (4) personnel assigned to provide first aid and emergency medical attention.

California also requires that employers train employees when a plan is established or modified. Newly hired employees also must be trained. The best way to accomplish this training is by conducting emergency training and emergency drills periodically. Formal inspections are generally not required by California law. More information regarding Emergency Action Plans can be found at http://www.dir.ca.gov/title8/3220.html.

We all know it is impossible to predict or completely safeguard employees from all emergencies or disasters. Yet the law does require employers to take steps to protect their employees, and a big part of that is the Emergency Action Plan. If your company does not have such a plan in place, take the time to create one. If your company hasn’t reviewed its plan in several years, take the time to review it. You owe it to your employees, and it’s the law.

What does insubordination mean, anyway?

A frequent reason given by employers for terminating an employee is “insubordination.” Employers sometimes treat this word as a catch-all – if the employment relationship is not working out, employers will often simply allege that an employee has been “insubordinate”. California is an at-will state, meaning that absent an employment contract, employees can be fired with or without cause at any time. Yet terminating an employee usually makes him or her eligible for unemployment benefits. Are employees terminated for “insubordination” eligible for unemployment?

It depends.

The Employment Development Department of California (EDD) holds that insubordination generally falls into four categories: (1) disobeying an employer’s order or instruction; (2) disputing or ridiculing authority; (3) exceeding authority; or (4) using vulgar or profane language towards a supervisor. A brief discussion of each factor follows below.

In relation to the first factor, according to the California Labor Code: “An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.” The following conditions must be established for a discharge for disobeying an employer's order or instruction to constitute misconduct under the EDD: (1) the employer's order was reasonable and lawful; (2) the claimant's refusal was intentional; and (3) the claimant's refusal was unjustified.

As to the second factor, an employee is insubordinate under California law if he or she "makes a statement or remark, which is not the result of an error in judgment, under the circumstances which damage or tend to damage the employer's interest." Of course, not all disputes between an employer and an employee result in discharge of the employee for misconduct. According to the EDD, differences of opinion, disagreements, and misunderstandings arise, and participation in such discussions is not misconduct. Moreover, an isolated instance of an error in judgment is not misconduct.

As to the third factor, when termination results from an employee exceeding authority, there are multiple elements to consider. First, the job’s inherent authority must be taken into account - if the parameters of authority are outlined clearly and are violated knowingly by the claimant, the discharge would be for misconduct. Second, authority to take action may also be created by the failure of the employer to limit or to object to unauthorized or undesirable conduct. Third, emergency situations may arise which require the employee to take immediate action for the employer's protection or best interests.

Finally, according to California law, an employee is insubordinate if he or she addresses vulgar, profane, insulting, obscene, derogatory, or offensive language of a vile nature toward the employer when such remarks are unjustified under the circumstances, and not within the normal exchange and customary good-natured banter between the employer or the employer's representative and the employee. According to the EDD’s website, “In determining if vulgar or profane language constitutes misconduct, one must examine the normal practices in the establishment where the employee is employed and the circumstances under which the remarks were made. Language used in a machine shop or a warehouse may not be appropriate language in a bank, department store, or government office…Generally, a single remark or outburst uttered in a situation of stress or provocation does not constitute misconduct.”

These examples are by no means exhaustive. The determination of whether an employee terminated for “insubordination” rises to the level of “misconduct” for purposes of unemployment benefits really is a case-by-case determination. But the above factors are instructive nonetheless. So next time you consider terminating an employee for “insubordination,” take a minute and apply these factors to your particular situation.

Do’s and Don’t of Final Paychecks

Terminating an employee is never fun. No one likes to do it. Yet, for any number of reasons, there are times when it is necessary end the employment relationship. Employers need to be careful that they don’t set traps for themselves in dealing with final paychecks. This article will explain some important rules on this topic.

The first key issue is whether the employee has been terminated or has simply resigned. In the case of a termination, or lay-off with no specific return date within the normal pay period, all wages and accrued vacation earned but unpaid are due and payable immediately (see Labor Code section 201). An employer may not ask or require the employee to wait until the next regular payday for the final wages. Moreover, it is illegal to withhold a paycheck for any reason, including inducing a former employee to return tools or uniforms, pay back money that might be owed to the employer, or turn in expense reimbursement forms. The key word in dealing with terminations and final paychecks is that they must be given to the employee immediately.

The standard is different for resignations. If an employee voluntarily quits and gives more than 72 hours notice, all wages and accrued vacation are due and payable on the last day of work. Yet if the employee quits without giving 72 hours notice, all wages and accrued vacation are due and payable not later than 72 hours after notice is given. In these situations, the employee is entitled to receive his or her final wages by mail if he or she so requests and provides the employer with a mailing address. The date of mailing is considered the date of payment for purposes of the 72 hour requirement.

As for the place of final payment, quitting employees are normally required to return to the place of employment to pick up their final check. Again, employers are not required to mail the final paycheck unless the employee requests payment by mail and provides an address. Unless an employee specifically requests that their final paycheck be mailed, the safer practice is to simply hold the paycheck until the employee picks it up.

Applicant interview no-no’s

California is not an easy place to be an employer. Even an employment interview can be fraught with danger given California’s often pro-employee laws. What types of questions are fair game during an employment interview? What questions should be avoided? This article will explore certain questions that should not be posed while interviewing job applicants.

First, questions about martial status or children are never a good idea. Employers cannot ask whether an applicant is pregnant, has children, or is planning to have children. If you know that an applicant has children, you are prohibited from asking if the applicant has made provisions for child care.

Tread carefully when asking about hobbies or social activities. It is discriminatory to ask about clubs, societies, or organizations to which the applicant belongs that might indicate race, religion, sex, age, etc.

In addition, do not ask what languages an applicant knows unless the job requires the applicant to speak and/or write a particular language fluently. In any event, applicants who can speak more than one language will usually volunteer that information in their resume or cover letter.

In some cases it is proper to ask an applicant’s age. If required for the job, an employer may ask whether the applicant is over a particular age (e.g. a bartending job). Otherwise, do not ask an applicant’s age.

Finally, questions regarding an applicant’s education, while important, can create risky situations. Some questions about an applicant’s education may be interpreted as seeking information about their age. While it is of course permissible to ask where an applicant went to school and what degrees he or she has attained, questions such as “What year did you graduate?” and “Are you a recent graduate?” may be deemed discriminatory.

Job applicant interviews are a necessary part of the hiring process, and employers need to gather pertinent information from applicants before deciding whether to hire them. Yet, certain questions do pose risks. Employers can save themselves serious headaches by avoiding these pitfalls.