How to Prevent Sexual Harassment

You’ve probably heard the quote “prevention is cheaper than cure” and the same holds true for sexual harassment claims in the workplace.  If you’re looking ahead and wondering how to prevent sexual harassment, sexual harassment prevention training, is the way to go. If you are a California employer with 50 or more employees, you are subject to a law commonly known as AB1825.  This law mandates sexual harassment training for supervisory employees every two years.   The law was enacted in 2005, which makes 2015 a re-training year.  Even if you are a smaller employer, a modified training program will go a long way to preventing sexual harassment in the workplace. Basic Provisions of California’s AB1825 Two Hours of Sexual Harassment Training Every Two Years The deadline for the first round of AB 1825 training was December 31, 2005. Thereafter, employers must provide two hours of training to each supervisory employee every two years. 50 or More Employees AB1825’s sexual harassment training requirements apply to organizations that regularly employ 50 or more employees. (Independent contractors and temps are included in the … Continue reading

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Paying Employees for On-Call or Standby Time in California

Having employees on-call or on standby allows you to serve your customers 24 hours a day. A great business model if you are paying your employees correctly but could have expensive consequences if you don’t. Failure to properly pay employees could be considered “wage theft” in California. Are you paying employees correctly? In California, an employer is obligated to pay the wages of a non-exempt employee for all time that the employee is under the control of the employer. The predominant factor in determining whether employees are under an employer’s control is their ability to engage in personal activities. The information below applies to your non-exempt employees but whether you are classifying employees correctly is another matter. Let’s assume that you did. Are your employees under your control and entitled to pay? Employees are required to be on-call or on standby at the work site. Yes.  They are under your control and must be paid for that time even if they are just watching Office Space, taking a nap, or on Facebook, waiting for something to happen. Employees are on-call or on … Continue reading

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The Basics – Paying Employee Commissions Part II

Paying employees on a commission basis makes a lot of economic sense for employers and employees in many instances.  However, the fact that wages earned on commission are contingent upon numerous factors makes it fraught with labor law landmines and failure to properly pay employees’ commissions could constitute “wage theft” in California.  I previously discussed the basics of paying employees a commission.  In this part, we will examine a few more common issues with commission pay in California. 1.  What if a commission only employee earns no commission in a given pay period? California labor law requires that every employer pay each employee at least minimum wage for all hours worked in a payroll period.  If the employee is a non-exempt employee and works overtime, s/he is also entitled to overtime pay, even if she failed to “earn” any commissions in that period. 2.  Are all commission employees exempt from overtime? No.  The default rule in California is that employees are entitled to overtime pay and meal and rest breaks unless they fall under certain exemptions.  There is an exemption … Continue reading

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April Edition of the Employment Law Blog Carnival

I am delighted to host this month’s edition of the Employment Law Blog Carnival but was tearing my hair out trying to choose a theme.  I finally settled on a non-religious Easter traditions theme. Growing up in a Buddhist country like Thailand very few people celebrated Easter so I just didn’t get the whole Easter bunny that laid colorful eggs thing.  I am taking this opportunity to do some research on the non-religious Easter traditions here in the United States. According to the University of Florida’s Center for Children’s Literature and Culture, the origin of the celebration — and the origin of the Easter Bunny — can be traced back to 13th-century, pre-Christian Germany, when people worshiped several gods and goddesses.  The Teutonic deity Eostra was the goddess of spring and fertility, and feasts were held in her honor on the Vernal Equinox.  Her symbol was the rabbit because of the animal’s high reproduction rate.  Spring also symbolized new life and rebirth; eggs were an ancient symbol of fertility. Speaking of fertility and reproduction, Steve Peltin at Washington Workplace Law … Continue reading

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The Basics – Paying Employee Commissions

Happy New Year, and may 2012 be a year full of innovation, success, and happiness for you and your business.  With the new laws that went into effect this month, employers have been (or should be) busy reviewing and revising their employee handbooks, offer letters, and employment policies to ensure compliance with the new California laws.  Since you are knee deep in the process, I will spare you another post on the new laws that go into effect in 2012. Instead, we’ll do a Q&A on the basics of paying employees on commission.  Also, by January 2013, commission-based employment agreements for services provided in California must be in writing. 1.  Who could be paid on commission? Employees who are involved in selling a product or service; AND Commission earnings are a percentage of the price of the service or product sold; AND Employees’ sales duties must not include making the product or rendering the service. 2.  Is it o.k. for employers to deduct commissions paid from future commissions? It is permissible for an employer to have a commission policy that provides that … Continue reading

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Could UPS Have Saved $96,000 with a Well-Written Job Description? Maybe

The end of the year is fast approaching, which means that it is time for California employers to evaluate their policies and procedures to ensure compliance with new California laws that go into effect in January 2012.  While you’re cleaning house, don’t forget to review each job description at your company. Here’s why. Last month, United Parcel Service (UPS) was ordered to pay more than $96,000 in damages after the company fired an employee because of her disability.  The Fair Employment and Housing Commission (Commission) determined that UPS unlawfully terminated the employee who was able to perform the essential functions of her job. UPS hired the employee in question in 1997 primarily as an Operations Management Specialist.  Her essential duties were to handle customer calls and complaints on shipments.  Although she occasionally located packages in a warehouse, handling packages was not part of her job.  In 2007, the employee had knee surgery and took a leave of absence to recover.  She continued to carry out the essential customer service functions of her job.  She had some restrictions, such as limited standing, … Continue reading

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California Pregnancy and Parental Leave Laws

A few weeks ago I discussed a new California law requiring employers to continue providing benefits to employees on pregnancy leave.  Since then, I have received questions on parental rights in California.  In response, today’s post will discuss 3 bodies of law that affect California employees’ parental leave rights. California’s Pregnancy Disability Leave (PDL) California Family Rights Act (CFRA) Contractual Rights California’s Pregnancy Disability Leave (PDL) California Government Code section 12945 makes it unlawful for an employer to deny reasonable leave, up to four months, to a female employee who is disabled by pregnancy, childbirth or related medical conditions. The leave may be intermittent (e.g., for doctor’s appointments or sporadic episodes of pregnancy related disability) up to a total of four months. The employee shall be entitled to utilize any accrued vacation leave during this period of time. The employee has a right to reinstatement to the same or substantially similar position.  If the employee requests that the guarantee to reinstatement be in writing, the employer must do so. (Cal. Code, Regs., tit. 2, § 7291.9, subd. (a).)  However, an … Continue reading

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Do Interns Have to be Paid in California?

Anyone who has dipped their foot into the job market in the last few years will attest to the fact that it is an employer’s market. New graduates, current students who want to get a leg up, and even not so new graduates are increasingly willing to work for free in hopes of getting their foot in the door and landing a full-time job or just to have something to fill a growing gap in their resume.  Many employers are more than happy to take advantage of the free labor. But should you? California and federal law requires payment of minimum wages and other protections to employees.  These protections are not extended to independent contractors or trainees and interns.  However, misclassification of independent contractors and interns could be extremely costly to employers. Do interns have to be paid?   It depends on whether the person working for you constitutes an intern exempt from minimum wage laws. An opinion letter issues by the California Division of Labor Standards Enforcement (DLSE) outlines 6 criteria used to analyze whether a worker is an … Continue reading

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Commission Agreement Law in California

Governor Brown signed AB 1396, which requires that as of January 1, 2013, a commission agreement for services to be provided in California must be in writing. The writing must set forth the method by which the commissions are to be computed and paid.  An employer is required to give a signed copy of the contract to the employee and obtain a signed receipt for the contract from the employee. TIP:  Although the AB 1396 does not go into effect until 2013, it is a good practice for employers to enter into a commission-based agreement in writing to ensure that each party clearly understands how commissions will be computed and paid. If you have any questions regarding this or any of the new California laws that were recently passed, feel free to contact us or call 949.529.0007.

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New California Law: Continued Health Benefits While on Maternity Leave

We continue on our review of the new California laws that go into effect on January 1, 2011.  The bill of the day is SB 299. As of January 1, 2012, employers will be required to continue group health coverage for up to 4 months for female employees who take pregnancy disability leave (maternity leave).  Currently, employers are only required to provide group coverage for up to 12 weeks while employees are on pregnancy leave. The federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”) require employers to allow female employees to take up to 4 months of unpaid maternity leave for a “pregnancy-related condition.”  The pregnancy disability leave is in addition to the 12 weeks of “maternity leave” which is allowed for parental bonding. With the new law, employers must continue the healthcare benefits of an employee on leave for pregnancy disability for up to 4 months on the same terms and conditions as before the pregnancy leave.  For example, if the arrangement was for a 50/50 split on the premium, that arrangement must continue … Continue reading

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