Terminating the employment relationship with an employee is never easy. Yet when the time has come to let an employee go, it is important to do it the right way. Oftentimes employers get into trouble for how a termination occurred, not why. Drafting a proper termination letter can help avoid such problems.
Employers may wish to include the following in a termination letter: (1) Notice that the action was a termination; (2) The date of the termination; (3) The reasons for the termination – avoid being too vague or too specific; (4) The dates and subject matter of prior warnings – this is especially useful when documentary evidence supports prior discipline; (5) Benefits to which the employee is entitled; (6) Circumstances under which the employee had access to a second review or appeal of the termination – here is where an employer may agree to characterize the employee's departure as a layoff, resignation, or retirement; (7) The employee's last day of work and what company property must be returned by that date; and (8) The date, time, and place for an "exit interview" – at the exit interview, the employer should notify the employee that a paycheck for final wages, including accrued unused vacation time, will be provided.
At the termination meeting, the employee should be given the original letter. Employers would be wise to also give a copy of the letter to the employee’s immediate supervisor and place an additional copy in the employee’s personnel file.
While there are no guarantees that a terminated employee will not seek redress after a termination, a properly drafted termination letter goes a long way to prevent problems down the road.
Wednesday, June 2, 2010
Thursday, April 29, 2010
Simple safeguards to prevent workplace violence
It goes without saying that workplace violence is a serious thing. Violence at work is often sudden. It strikes fear into the heart of employees and can create severe liability for employers.
Employers can be liable for workplace violence under the following legal theories: (1) negligent hiring or retention of an employee with violent tendencies; (2) when the violence occurs within the course and scope of employment, or when the employer could reasonably have foreseen the violence; (3) an employer's failure to warn, when the employer has actual knowledge of a known danger; and (4) premises liability, as the owner of the property on which the violent act occurred.
There are, however, safeguards that employers can implement to reduce the likelihood of workplace violence. Some preventative measures include: (1) good lighting; (2) adequate security in parking and common areas; (3) limiting access to work areas; (4) alarms and surveillance cameras, where appropriate; (5) discouraging visits from former employees; (6) educating supervisors about characteristics associated with potentially violent employees; (7) training supervisors in conflict resolution; (8) Periodically surveying employee perceptions about working conditions and problems with the work environment; (9) implementing policies concerning violence and harassment that encourage reporting of incidents; (10) after investigating an incident, taking appropriate action to promptly counsel, discipline, or terminate the violent employee.
While these measures cannot eliminate the risk of workplace violence, they can go a long way in preventing it. To learn more about how to prevent workplace violence, attend the Workplace Violence Seminar, at the International Agri Center in Tulare on May 11, 2010, call (559) 622-8889 for more information.
Employers can be liable for workplace violence under the following legal theories: (1) negligent hiring or retention of an employee with violent tendencies; (2) when the violence occurs within the course and scope of employment, or when the employer could reasonably have foreseen the violence; (3) an employer's failure to warn, when the employer has actual knowledge of a known danger; and (4) premises liability, as the owner of the property on which the violent act occurred.
There are, however, safeguards that employers can implement to reduce the likelihood of workplace violence. Some preventative measures include: (1) good lighting; (2) adequate security in parking and common areas; (3) limiting access to work areas; (4) alarms and surveillance cameras, where appropriate; (5) discouraging visits from former employees; (6) educating supervisors about characteristics associated with potentially violent employees; (7) training supervisors in conflict resolution; (8) Periodically surveying employee perceptions about working conditions and problems with the work environment; (9) implementing policies concerning violence and harassment that encourage reporting of incidents; (10) after investigating an incident, taking appropriate action to promptly counsel, discipline, or terminate the violent employee.
While these measures cannot eliminate the risk of workplace violence, they can go a long way in preventing it. To learn more about how to prevent workplace violence, attend the Workplace Violence Seminar, at the International Agri Center in Tulare on May 11, 2010, call (559) 622-8889 for more information.
The Dangers of the Daily Commute
California courts have long recognized the “coming and going rule,” which is that employees are outside the scope of their employment during their daily commute. However, a recent case is re-examining the rule. In Lobo v. Tamco, an employee collided with a police officer on the employee’s commute home. The officer died, and the officer’s family brought a wrongful death suit against the employer, arguing that the employee was acting in the course and scope of his employment when the accident occurred. At the trial court level, the employer successfully argued the “coming and going rule.”
However, on appeal the family argued that the employer was liable under the “required vehicle” exception – which is that a personally-owned vehicle is a condition of employment. The family argued that the employee, a Quality Control Manager, was required to visit customer sites, and thus having a vehicle was a condition of his employment.
The appellate court sided with the family, finding that the employee’s commute was within the course and scope of his employment because the employer “relies upon the employee to make his personal vehicle available…for the employer’s benefit and the employer derives a benefit from the…vehicle.” The Court noted that, “the fact that the employer only rarely makes use of the employee’s personal vehicle should not…defeat the plaintiff’s case.”
This case puts employers on notice that if they require employees to use their personal vehicles to perform aspects of their job, an employer may be vicariously liable for conduct occurring outside of work hours. Thus, it may be wise to re-examine positions that require even infrequent use of an employee’s personal vehicle.
However, on appeal the family argued that the employer was liable under the “required vehicle” exception – which is that a personally-owned vehicle is a condition of employment. The family argued that the employee, a Quality Control Manager, was required to visit customer sites, and thus having a vehicle was a condition of his employment.
The appellate court sided with the family, finding that the employee’s commute was within the course and scope of his employment because the employer “relies upon the employee to make his personal vehicle available…for the employer’s benefit and the employer derives a benefit from the…vehicle.” The Court noted that, “the fact that the employer only rarely makes use of the employee’s personal vehicle should not…defeat the plaintiff’s case.”
This case puts employers on notice that if they require employees to use their personal vehicles to perform aspects of their job, an employer may be vicariously liable for conduct occurring outside of work hours. Thus, it may be wise to re-examine positions that require even infrequent use of an employee’s personal vehicle.
Monday, March 15, 2010
Workplace Violence Seminar - May 11
Have your business or employees ever been threatened with a violent situation at work? Are you aware of your rights and responsibilities as an employer when such situations arise? Do you have the tools to prevent workplace violence? These are challenging times for employers, and knowledge is power.
Our firm, along with several other local businesses, is sponsoring a comprehensive seminar on Workplace Violence on May 11 at the International Agri-Center in Tulare. There will be multiple speakers including representatives from local law enforcement, nationally recognized security experts, and attorneys to answer your questions and provide information that will prepare you for difficult employment situations.
Come join us for an insightful and informative discussion of how you as an employer can prevent violence in the workplace. The seminar will help your business remain a safe place for your employees, customers and clients. The conference begins at 9:00 am on May 11 at the International Agri-Center in Tulare.
For more information, or to sign-up for the seminar, contact Pipkin Detective Agency at (877) 730-3532.
Our firm, along with several other local businesses, is sponsoring a comprehensive seminar on Workplace Violence on May 11 at the International Agri-Center in Tulare. There will be multiple speakers including representatives from local law enforcement, nationally recognized security experts, and attorneys to answer your questions and provide information that will prepare you for difficult employment situations.
Come join us for an insightful and informative discussion of how you as an employer can prevent violence in the workplace. The seminar will help your business remain a safe place for your employees, customers and clients. The conference begins at 9:00 am on May 11 at the International Agri-Center in Tulare.
For more information, or to sign-up for the seminar, contact Pipkin Detective Agency at (877) 730-3532.
Tuesday, February 23, 2010
Determining an employee’s regular rate of pay
It is common knowledge throughout California workplaces that non-exempt employees are entitled to overtime if they work more than eight hours in a day or over forty hours in a week, and that employees earn “time and a half” or “double time” for overtime hours worked. However, some employers run into problems in determining the rate of pay which is ultimately multiplied by 1.5 or doubled. The rule in California is that the regular rate of pay must include all remuneration from the employer.
A common example is the restaurant employee. Suppose a restaurant employee receives a free meal during her shift. If her regular rate of pay is $15 per hour, then she would be paid $120 for an eight hour shift. However, her regular rate of pay must include the cost of the free meal (the lesser of the actual cost to the employer or the fair market value). If each meal costs the employer $10, then the employee’s total daily compensation is actually $130, or $16.25 per hour. This employee’s overtime rate would be $24.38, not the $22.50 that might be expected for a $15 per hour employee.
In this example, failure to properly calculate the employee’s regular rate of pay would result in the employee being short-changed $1.88 for each overtime hour worked. Such a shortfall could result in liability for unpaid wages, penalties under Labor Code section 203, interest and attorney’s fees.
These shortfalls are common in situations dealing with bonuses, incentives, mandatory gratuities at restaurants, free or subsidized lodging, or free trips or prizes for hitting sales targets. If any of these incentives are offered, or if anything of value is offered to an hourly employee beyond base wages, be sure to include that value when calculating the employee’s regular rate of pay.
A common example is the restaurant employee. Suppose a restaurant employee receives a free meal during her shift. If her regular rate of pay is $15 per hour, then she would be paid $120 for an eight hour shift. However, her regular rate of pay must include the cost of the free meal (the lesser of the actual cost to the employer or the fair market value). If each meal costs the employer $10, then the employee’s total daily compensation is actually $130, or $16.25 per hour. This employee’s overtime rate would be $24.38, not the $22.50 that might be expected for a $15 per hour employee.
In this example, failure to properly calculate the employee’s regular rate of pay would result in the employee being short-changed $1.88 for each overtime hour worked. Such a shortfall could result in liability for unpaid wages, penalties under Labor Code section 203, interest and attorney’s fees.
These shortfalls are common in situations dealing with bonuses, incentives, mandatory gratuities at restaurants, free or subsidized lodging, or free trips or prizes for hitting sales targets. If any of these incentives are offered, or if anything of value is offered to an hourly employee beyond base wages, be sure to include that value when calculating the employee’s regular rate of pay.
The proper policing of company computers
In virtually every line of work, computers are a necessity. It has become difficult to even imagine a workplace without a computer. Yet whether computers are a “necessity” or a “necessary evil” varies from business to business. Thus, many employers create policies governing the use of office computers and access to the Internet.
A California case offers some guidance. TBG Insurance fired an employee for accessing pornographic websites on his work computer. The company requested a court order requiring the employee to turn over a computer provided by the company for home use. The company wanted to see whether the employee used the home computer for similar purposes. The employee first wanted to delete personal information he had placed on the computer, claiming such information was subject to privacy laws.
The court rejected the employee’s claim, stating that the employee signed an agreement to be bound by the company’s computer policy, which provided that the computers were provided for business purposes and not for personal use. The policy also prohibited computer use for obscene purposes and allowed the company to monitor such use. The court said the employee had no reasonable expectation of privacy (TGB v. Superior Court of Los Angeles (2002) 96 Cal.App.4th 443).
A computer/Internet policy should make it clear that company computers are to be used for business purposes, and that employees have no expectation of privacy regarding communications sent and received via the company’s email system or access to the Internet. Many companies also block potential time-wasting websites such as Facebook or Myspace. These safeguards can ensure that computers increase efficiency rather than decrease it.
A California case offers some guidance. TBG Insurance fired an employee for accessing pornographic websites on his work computer. The company requested a court order requiring the employee to turn over a computer provided by the company for home use. The company wanted to see whether the employee used the home computer for similar purposes. The employee first wanted to delete personal information he had placed on the computer, claiming such information was subject to privacy laws.
The court rejected the employee’s claim, stating that the employee signed an agreement to be bound by the company’s computer policy, which provided that the computers were provided for business purposes and not for personal use. The policy also prohibited computer use for obscene purposes and allowed the company to monitor such use. The court said the employee had no reasonable expectation of privacy (TGB v. Superior Court of Los Angeles (2002) 96 Cal.App.4th 443).
A computer/Internet policy should make it clear that company computers are to be used for business purposes, and that employees have no expectation of privacy regarding communications sent and received via the company’s email system or access to the Internet. Many companies also block potential time-wasting websites such as Facebook or Myspace. These safeguards can ensure that computers increase efficiency rather than decrease it.
Regulation of employees’ off-duty activities
Employers of course have the power to restrict certain activities of their employees at the workplace. But what about restricting activities of employees after the work day has ended? An employer can surely mandate that an employee may not smoke at his or her desk. But what about prohibiting an employee from smoking anywhere? What if the employer is motivated by a desire to keep the employee healthy, or to reduce company health insurance costs?
According to California law, employers of any size cannot discriminate based on lawful off-duty conduct of employees. Employees cannot be fired, threatened with firing, or in any way disciplined against because of lawful off-duty activities (Labor Code sections 98(k) and 98.6). Common examples are employers that discriminate against employees who drink or smoke, date other employees, or “moonlight” with second jobs.
In order for an outside activity to be protected, it must be (1) lawful and (2) performed outside working hours. Many employer conflict-of-interest policies – i.e. policies that attempt to curb employee “moonlighting” – face problems with this rule. A conflict-of-interest policy is only valid if the employee’s second job would (1) actually and directly conflict with the employer’s essential business-related interests, and (2) cause a substantial disruption of business operations. Thus, it is imperative that employers have well-drafted conflict-of-interest and trade secret policies.
So under California law, even when motivated by proper reasons, employers must use extreme caution when attempting to regulate lawful, off-duty activities of their employees.
According to California law, employers of any size cannot discriminate based on lawful off-duty conduct of employees. Employees cannot be fired, threatened with firing, or in any way disciplined against because of lawful off-duty activities (Labor Code sections 98(k) and 98.6). Common examples are employers that discriminate against employees who drink or smoke, date other employees, or “moonlight” with second jobs.
In order for an outside activity to be protected, it must be (1) lawful and (2) performed outside working hours. Many employer conflict-of-interest policies – i.e. policies that attempt to curb employee “moonlighting” – face problems with this rule. A conflict-of-interest policy is only valid if the employee’s second job would (1) actually and directly conflict with the employer’s essential business-related interests, and (2) cause a substantial disruption of business operations. Thus, it is imperative that employers have well-drafted conflict-of-interest and trade secret policies.
So under California law, even when motivated by proper reasons, employers must use extreme caution when attempting to regulate lawful, off-duty activities of their employees.
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