Employee rights in the United States include receiving legal and agreed-upon wages, working in physically safe conditions, and being free from harassment.
To Outline Policies and Expectations An employee handbook sets forth the company’s expectations and rules for its employees. It also details what consequences to expect when those expectations are not met or violated. A few items to include in this section are: Timeliness Who to call when you are late or not coming in Timeline for requesting leave Expectations for professionalism Statements of At-Will Employment Equal Employment Opportunity policies Harassment & discrimination reporting Digital and social media policies Leave policies, including but not limited to FMLA, PTO, sick leave, and maternity/paternity leave To Foster a Consistent & Fair Environment Your handbook should deliver a clear, concise message to ensure company-wide fair treatment for all. Your handbook is a rulebook that everyone is bound to and no one is exempt from. It is one of the strongest tools you can use to combat claims of discrimination or unfairness in the workplace. To Defend Against Unemployment Claims & Lawsuits A well-written handbook goes a long way in defending against unemployment claims and other potential legal actions. Many employers have regrettably found themselves in hot water after neglecting important handbook provisions for items such as: Discrimination Retaliation Harassment On-the-job injuries Many times, simply having a signed acknowledgment of the company handbook has released employers from damning legal action. It is a step you don’t want to risk skipping. To Outline Benefits and Compensation Aside from being made aware of what your company expects of them, it is important that your employees know what they can expect from you too. The benefits and compensation sections of your handbook will likely be the “most loved” section of the book, and should detail items important to your employees such as: Benefits available and enrollment processes Probation periods Performance review policies Pay schedule Review and/or raise schedules These are just a few items that you should always include in your company’s employee handbook. And remember, this isn’t just a document outlining expectations, it is a part of your business that reflects your culture and who you are as a company. Make sure that your handbook reflects your values and mission—it will define you to everyone who decides to come on board.
Over a day-long session in mid-January and again in February, labor and employment law specialist Tim Bowles will cover the structure and span of current workplace law from a management perspective, including the significant changes for 2020 in California. He will include: • Workplace discrimination, harassment and retaliation protections • Independent contractor vs employee status (including the effects of “Assembly Bill 5”) • Whistleblower protections and policies • Why HR communication and documentation are vital • Hiring applications, interviews and testing • Minimum wage, overtime and overtime exemptions • Staff training, with sample policies and how to implement them • Workplace drug use and testing (including the effect of marijuana decriminalization) • Worker privacy and free speech issues • Sick leave polices • Discipline and termination basics The seminar is a must for all business owners, executives and personnel management staff, setting the foundation for confident hiring and stable business expansion in the new year and beyond. Emphasis is on practical application. Attendees are encouraged to ask questions on their particular legal challenges or concerns throughout the session. Our updated model employee handbook policy and forms will be available in conjunction with this seminar. These sessions are always well-attended, informative and, according to some, fun: “So helpful and thorough. Very entertaining and educational. I’m not sure how Timothy managed to make legal fun, but he did!” “Really great seminar. Mr. Bowles really breaks down these labor laws simply making it easy for the average employer to confidently grasp the main understanding of basic labor regulations. I found this very informative. I very much appreciated my experience and highly recommend.” “The seminar was very informative. I was able to get all of my employment law questions answered and even learned new things I didn’t know I needed to know. Tim is a great speaker and I look forward to hearing him again.” Where: TBD When: Friday, January 24 or Friday, February 28, 2020, 9:30 a.m. – 4:30 p.m. Pricing: $200 first company attendee; $175 for each additional person attending. Lunch and snacks will be served. To reserve your spot, please contact us at (626) 583-6600 or [email protected] Seating is limited.
Parker v. Reema Consulting Services: Facts of the Case A male colleague employed at Reema Consulting Services Inc. started a rumor that the plaintiff, Evangeline Parker, received six promotions in a little over a year due to sleeping with her boss. The male colleague did not receive comparable promotions at Reema Consulting Services, Inc. The rumor was well-known throughout the Company and was even spread further by the highest-ranking manager at the warehouse who asked the man accused of sleeping with the plaintiff “hey, you sure your wife ain’t divorcing you because you are f--ing [Parker]?” Id. at 300. As the rumor spread, the plaintiff "was treated with open resentment and disrespect" from many coworkers, and her "work environment became increasingly hostile." Id. The plaintiff complained to the manager of the warehouse about his comments and the manager informed her that “he could no longer recommend her for promotions or higher-level tasks because of the rumor.” Id. When the plaintiff filed a sexual harassment complaint with human resources at Reema Consulting Services, Inc., she was told to stay away from the employee who started the rumor against her. Eventually, the plaintiff was given two written warnings and was terminated from the Company. Thereafter, the plaintiff filed a claim for sex discrimination. Court Holding While the District Court dismissed the plaintiff’s claim because it found that the allegation was based on alleged conduct, not the plaintiff’s sex, the Fourth Circuit of Appeals reversed the lower court’s decision. The court stated that “the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally woman, not men, use sex to achieve success.” Id. at 303. Altogether, the court found that the plaintiff plausibly alleged that she suffered harassment because she was a woman. The Fourth Circuit Court of Appeals includes the federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. Based on this case, employers may be held liable for sex discrimination when management encourages the spread of rumors in the workplace and the rumors cause an adverse employment action to the employee. Employers should be vigilant in quashing rumors when they begin and appropriately responding to complaints of rumors and sex harassment. This case shows how Courts have increasingly been taking a broad view of sex discrimination and harassment in this #MeToo era.
ELIMINATING ON-CALL SYSTEMS, AND PAYING TO THE PUNCH. Prudent employers may want to consider eliminating systems that require employees to be on-call before a shift, whether or not they actually get scheduled. The California Court of Appeals favors employees in its decision in Ward v. Tilly’s, Inc., requiring employers to compensate employees with reporting time pay for calling in. PRO TIP: Eliminate (or at minimum, revise) on-call systems to comport with this decision, and seek counsel to assess any potential liabilities. Payment systems that are rounded to the nearest dollar are increasingly becoming heavily litigated against. PRO TIP: Eliminate payment systems that round, and pay to the punch. EMPLOYEES CAN BE BOUND TO ARBITRATION PROVISION AGREEMENTS WITHOUT SIGNING. “At-will” employees can demonstrate consent to arbitration provisions delineated in employment agreements even if they do not sign the agreement. This consent is obtained from their continued employment after being properly notified of an agreement including a new dispute resolution program. PRO TIP: Keep a record of properly notifying employees, and ensure that all practices and agreements are fair. EMPLOYERS CAN REQUIRE NON-SLIP SHOES. Non-slip shoes are so common, especially in the food industry, that they are no longer considered a business expense eligible for reimbursement by the employer. PRO TIP: Ensure that other reimbursable expenses are being properly noted. Do you require your employees to buy steel-toed shoes in order to properly do their job? Don’t forget to reimburse them for that expense! HELLO EMPLOYEES, GOODBYE INDEPENDENT CONTRACTORS. Classifying individuals as employees or independent contractors is trickier under the newly implemented “ABC Test.” In sum, most workers must now be classified as employees. However, this is a very fact-sensitive analysis to be done by an attorney. PRO TIP: This is a very new and changing area, so it's probably best to consult with an attorney! #METOO. By January 1, 2020, every employer with more than five employees must provide sexual harassment training. Every employee must receive the training, regardless of their status at the company. PRO TIP: Do you employ more than five employees? If they have not received sexual harassment training yet, they must. EVERY EMPLOYER’S FAVORITE TOPIC: PRIVATE ATTORNEYS GENERAL ACT OF 2004 (PAGA). PAGA is like a modified class action lawsuit where a percentage of the proceeds go to the state. Claims for inaccurate payment of wages and other violations under PAGA are increasing every day. PRO TIP #1: Consult with your attorney and have them review your payment practices. They know what to look for, and can provide you with a solid foundation for calculating wages for your employees. pro tip #2: Consult with your attorney to ensure that your policies regarding rest breaks are in line with what the law requires. PRO TIP #3: Consult with your attorney to ensure you are calculating the correct rate of pay in every possible instance.
Consider Deadlines, and Act Promptly When you are given a severance agreement, check it for a deadline. For workers 40 years old or older, federal law requires employers give at least a 21-day period to review the severance agreement. If the employer has not given you a reasonable amount of time, or rushes your decision, that is a red flag. If you are being rushed, consider asking for more time. Make any such requests in writing. If you are over 40 and the employer is asking you for a decision in fewer than 21 days, consider telling the employer (politely, and in writing) that the law requires you be provided at least 21 days. Review the agreement promptly. If you decide you want an attorney to review the agreement, make all such arrangements sooner rather than later. The later an attorney is contacted, the harder it is for him or her to effectively help with severance matters. Know That Signing a Severance Agreement Involves Waiver of Legal Claims and Other Key Obligations The main benefit to you in signing a severance agreement is to receive payment or other beneficial terms provided in the agreement. The main benefit to the employer is that, in exchange for your receipt of payment, you will be signing away your right to bring legal claims against the employer. A severance agreement may also have the worker give up other things, e.g. rights to work for competitors, etc., but usually the waiver of potential legal claims is the biggest concession/value given up by the worker. Know there could be substantial value in the potential legal claims you are giving up. The most reliable way to learn the value is to have an employee rights attorney assess your potential legal claims and assess their value as compared to the offered severance payment. When I review a severance agreement and evaluate that given employee’s potential legal claims, sometimes I feel the proposed severance payment is worth far less than the value of potential legal claims. In those instances, the employee (with an attorney’s assistance) has significant leverage in negotiating to increase the severance, or may have the option to forego the severance and pursue a legal action instead. Because of this, it is probably worth your while to have an employee rights attorney assess potential claims, and their potential value. That attorney should be able to tell you why the severance offer (as compared to potential legal claims) is a fair offer, or why it is too low. Closely Review Terms About Your Obligations (e.g. Confidentiality) and Make Sure to Comply It is important you review the severance terms that provide obligations for you, and that you comply with those obligations if you sign the agreement. One particularly important obligation that's often in severance agreements involves confidentiality. Employers are understandably very concerned that the parties keep confidential the severance terms, especially the amount of money paid. Pay special attention to the wording of any confidentiality provision in your severance agreement. Make sure you read all confidentiality language in full, understand it, and do not violate it. A breach of confidentiality- perhaps more than any other type of breach- is likeliest to trigger strict penalty provisions and to motivate litigation. You should start keeping things confidential well before you sign the severance agreement and before the confidentiality provision officially applies. If you start discussing severance numbers with others, that could create problems in the employer’s perception and have a negative effect on you even if you feel you did not violate the agreement. (Note, however, that confidentiality terms usually allow certain exceptions where an employee can talk to an attorney and other specified types of persons). You may have former coworkers ask you “Did you settle? How much did you get?” The best answer is no answer. Sometimes, the severance itself will supply you with an answer phrase to respond with, such as “The matter has been resolved.” In any event, do not discuss the severance agreement or any of its terms as to dollar values etc. Know Severance Terms Can Sometimes Be Negotiated and Favorably Changed or Increased Many employees will accept a severance agreement as is, or will assume there is no room for negotiation. Do not assume this. Many employers will negotiate and favorably change severance terms. I have found this to be the case even with employers that originally said at termination (prior to my involvement in negotiations) that they would not negotiate with my client-employee. If a lawyer gets involved in severance negotiations and helps the worker identify potential legal rights, often an employer will respond by negotiating with the lawyer (rather than risk litigation if the severance falls through for them). There are instances where some employees must ask for changes to a proposed severance agreement. For example, a proposed severance agreement may need to be changed (or not signed at all) if it has terms problematic to one's career, such as restrictive non-compete terms that block future employment. These too are issues a lawyer can often effectively assist with. Consider Having an Attorney Review the Severance Agreement and/or Assist in Negotiations An employee rights attorney could provide value by reviewing the severance terms, by evaluating your potential legal claims and severance-negotiation leverage, and/or by assisting in severance negotiations. Such assistance can often be done for an affordable charge or on a contingency basis where no out-of-pocket fees are paid. Many attorneys (including myself) offer a free initial evaluation of an employee’s potential legal claims and severance leverage. Also, many attorneys (including myself) assist workers in severance negotiations and/or in litigation on a contingency basis where we are not paid fees unless our clients' financial situation is improved upon. If you contact an attorney about potentially assisting with your severance matters, he or she should be able to describe for you-- before you are charged anything-- the potential fee options (e.g. contingency or out of pocket fee value etc.) as well as the value you could possibly gain from legal services, .
Server Krista Townley sued on behalf of herself and other similarly-affected hourly co-workers alleging BJ’s Restaurants (BJ’s) required them to wear black, slip-resistant, close-toed shoes for safety reasons without supplying or reimbursing the footwear. Townley alleged BJ’s actions violated California Labor Code section 2802 requiring employers to reimburse workers for all necessary expenses incurred as part of the job. BJ’s argued that although all hourly restaurant employees had to wear such footwear to avoid slip and fall accidents, the company did not instruct its workers to purchase a specific brand, style, or design of shoes, and did not prohibit wearing these shoes outside of work. The California Court of Appeal sided with BJ’s, concluding that the cost of the slip-resistant shoes does not qualify as a “necessary expenditure” because they were basic, non-uniform wardrobe items. Moral: employers should implement policies and practices to properly address all work-related expense reimbursements. See also: • Dress to Impress (November, 2016). • Wages Deductions (August, 2016). • Ain’t No Such Thing as a “Free Call” (August, 2014) For more information, contact one of our attorneys, Timothy Bowles, Cindy Bamforth or Helena Kobrin. Cindy Bamforth August 6, 2019