What is Wrongful Termination?

Employment is At-Will with Exceptions The vast majority of employers and workers in California have heard the term “at-will” employment.  Employers often interpret at-will employment to mean that employees could be terminated at the employer’s will.  Workers often interpret it to mean it that employers may not terminate an employee without a reason or notice or for unfair reasons. The legal standards are somewhere in the middle. In California, “at-will” employment means that an employer may terminate the employment relationship for any reason or for no reason at all.  On the flip side, employees may also quit for any reason or for no reason at all with or without notice.  However, on the employer side, there are certain restrictions or exceptions to the “for any reason or for no reason at all.”  That is, employers may not terminate (or make conditions such that an employee has no other choice but to quit) for a wrongful reason.  In other words, employers may terminate the relationship so long as the reason for the termination is not discriminatory, in breach of a contractual … Continue reading

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What is PAGA?

“Paga” means “pay” in Spanish, which is an apt acronym for the California Labor Code Private Attorneys General Act (“PAGA”). In California, PAGA authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for an employer’s Labor Code violations.  The aggrieved employees generally retain 25% of any civil penalty recovered and the remaining 75% goes to the California Labor and Workforce Development Agency (LWDA).  Additionally, the aggrieved employee may bring separate claims for penalties the are directly recoverable by the employee.  In short, a PAGA claim allows an employee to step into the state’s shoes to enforce certain labor code violations as it applies to the employee and other employees.  Since employees who prevail on PAGA claims could recover attorney’s fees and costs in addition to the penalties as they apply to each employee, an employer’s potential exposure on PAGA claims are quite significant. Sending a written notice of a PAGA claim by certified mail to an employer (and online to the State of California) is the first step … Continue reading

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What is Sexual Harassment?

Taylor Swift’s testimony in her countersuit against former radio host David Mueller for alleged assault and battery has been making the rounds on social media. Taylor Swift won her counter-claim, which sought a symbolic $1 to make a point. The lawsuit argued that the trial would “serve as an example to other women who may resist publicly reliving similar outrageous and humiliating acts.” Now that Taylor Swift has spoken publicly about being groped, more women (and men) may be emboldened and find the courage to speak up. The issue of sexual harassment is now in the spotlight and on people’s minds, which means that inappropriate conduct in the workplace that may have previously been swept under the rug may start seeing the light of day in the form of complaints in the workplace. Below are some basic answers to frequently asked questions about sexual harassment in the workplace. What is sexual harassment in the workplace? Sexual harassment is harassment that is based on a person’s sex. In California, “harassment” in the employment context is defined as: — verbal harassment, such … Continue reading

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Emoji and Deciphering Intent in the Digital Age

[Originally published as Emoji and Deciphering Intent in the Digitial Age, by Tanya Kiatkulpiboone and Andrea W. Paris, in Orange County Lawyer Magazine, June 2017, Vol. 59 No.6 on page 42.] An emoji known as “Face with Tears of Joy” was named the Oxford Dictionaries’ 2015 Word of the Year. See Figure 1. Caspar Grathwohl, President of Oxford Dictionaries, explained that “Emoji are becoming an increasingly rich form of communication, one that transcends linguistic borders[.]” Katie Steinmetz, Oxford’s 2015 Word of the Year Is This Emoji, Time (Nov. 16, 2015, 2:08 PM), http://time.com/4114886/oxford-word-of-the-year-2015-emoji/. Nevertheless, Oxford Dictionaries have yet to add any emoji to the dictionary, not even their Word of the Year, thereby acknowledging their expressive abilities without defining them. What Are Emoji? Emoji are small images or icons used to express emotion, ideas, or things in electronic communications. They were created in Japan in the 1990s by Shigetaka Kurita, who worked for one of Japan’s largest mobile phone operators. The name originates from the Japanese terms for picture (“e”) and written character (“moji”).  Frequently Asked Questions: Emoji and Pictographs, … Continue reading

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Biometrics and the Fingerprinting Time Clocks

Employees sued a national supermarket chain alleging that the employer violated the Illinois Biometric Information Privacy Act (BIPA) when it failed to satisfy the notice requirements for obtaining and keeping employee fingerprints used for timekeeping purposes.  The potential damages are significant, especially for bigger employers.  Under BIPA, a prevailing party may recover the greater of actual damages or $1,000 for negligent violations or $5,000 for reckless or intentional violations, plus attorney’s fees and costs. As the use of biometric data like fingerprints and thumbprints for clocking in and out grows in popularity so does the potential for liability.  Employers who use biometrics for timekeeping should be aware of the laws regulating the use of biometrics in each and every state where you operate.  For example, Texas has a similar law to BIPA and other states like Alaska, Montana, New Hampshire and Washington are considering bills similar to BIPA. What about California? California employers will be pleased to learn that California does not have the same notice requirement as BIPA.  However, California employers who require the submission of fingerprints and/or photographs … Continue reading

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3 Strategies to Increase Your Business Profits

Many businesses recently reviewed their profit and loss statements and took a closer look at the business’s profitability. This analysis usually prompts the question “how to increase my business profits?” Although this question could only be answered after becoming familiar with your particular business, below are 3 areas where small changes, if done right, could increase your profitability. Decreasing Bad Debt If your business model does not require customers to pay for products or services in advance, collecting on unpaid invoices is likely something you are all too familiar with. However, collection itself comes at a cost to your business. Not being able to recoup that collection cost limits most businesses’ incentive to pursue collection, rightfully seeing it as throwing good money after bad. You can tip the collection scale in your favor. The default rule that each party bears their own attorney’s fees may be modified by statute or by contract. That means that where the law does not provide for recovery of attorney’s fees, you and your customers could mutually agree that if you and your customer find … Continue reading

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Equal Pay Day

April 4, 2017, is “Equal Pay Day,” which is an apt time to remind employers of the risks that lurk beneath unexamined practices, subconscious biases, and general human fallibility. By the numbers: 20% = average wage gap between men and women in the United States. (Institute for Women’s Policy Research) 58% = companies that track salaries in comparable roles by gender. (LeanIn.Org and McKinsey & Company) I’m surprised the number is that high because I have yet to come across a company that conducted a pay audit by gender before coming to me. 1,075 = charges filed with the EEOC under the federal Equal Pay Act in 2016. (EEOC) $8.1 Million = benefits paid out as a result of charges for Equal Pay Act violations with the EEOC in 2016. (EEOC) Why are we still talking about pay gaps in 2017? Fortune.com provides a short outline of why the gender pay gap still exists, citing the “motherhood penalty;” deficits in negotiation; and employer bias. Our company doesn’t engage in pay discrimination. If you have done a pay audit and can … Continue reading

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Age Discrimination in Hiring

I previously wrote about the age discrimination verdict against Staples. Last week, NPR published a story about a study by David Neumark and two other professors of economics at UC Irvine showing that the call-back rate for applicants drop as applicants’ ages increase. Older women witnessed lower call-back rates than older-men and “dropped by around a quarter when you go from the young group to the middle-aged group . . . . And they drop by another quarter when you go from the middle-age group to . . . around age 65.” Section 12940 of California’s Fair Employment and Housing Act prohibits age discrimination in hiring, selection for training programs leading to employment, and in other terms, conditions, or privileges of employment. Additionally, employers must “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” Although discriminatory hiring practices are not always blatant, and many job applicants fail to get hired without knowing the true reason why, employers found in violation of the anti-discrimination laws wind up entangled in expensive lawsuits. One such lawsuit was a federal class-action lawsuit against … Continue reading

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What to Do: Employee Leaves With Trade Secrets

Losing an employee, especially a key employee, is difficult for any business. You’ve invested time, know-how, and resources in your employees and they in turn are the lifeblood of your business. Unfortunately, people leave and when they leave, it is usually to work for a competitor or even to start a competing business. If that employee had access to your company’s confidential information such as customer lists, customer preferences, pricing formulas, and any other information that gives you a competitive edge, you want to make sure that the employee can’t take that valuable information to a competitor. How do you protect trade secrets from a competitor when an employee leaves? I have good news and bad news for you. The bad news: If the first time you think about protecting your company’s confidential information is after a key employee leaves, it may be too late. One of the fundamental requirements under California and Federal laws that protect trade secrets is the requirement that you made reasonable efforts to keep that information a secret. Thus, if you haven’t thought about how … Continue reading

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Beware of Paying Employees a Fixed Daily Rate

The restaurant industry is often the target of wage and hour lawsuits, particularly, ethnic restaurants, which find themselves on the defense side of a wage claim or lawsuit filed by a server or cook who was recently terminated.  For ease of administration, many smaller restaurant owners and their staff agree on wages in the form of a fixed daily rate that is paid regardless of the number of hours the employee works. Unfortunately, many of these restaurant owners believe that because there’s an agreement between them and the employee and because a close personal relationship that this type of arrangement is fine.  However, this mistaken understanding will cost many hard-working small business owners tens of thousands of dollars if not ultimately force them to close down the business.  Here is information that could keep you and your restaurant business out of trouble. Can I pay employees a flat daily rate instead of hourly? Technically, yes because neither federal nor California law requires that you pay employees on an hourly or any other basis.  BUT paying employees a flat daily rate regardless … Continue reading

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