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
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
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
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
California Minimum Wage Increase 2017
The new year brings many things and one of those is a new minimum wage. Effective January 1, 2017, new minimum wage requirements go into effect at the local and state level. The minimum wage is the lowest rate per hour that an employer may pay a non-exempt employee. However, since the salary test for exempt employees requires that they make at least twice the minimum wage for full-time employment, changes in the minimum wage will affect the minimum salary that you pay your exempt employees as well. Determining what you need to pay workers depends on: How many employees you have; and Where they work. If there is a conflict between the state, county, and/or local minimum wage rate, follow the stricter standard (i.e. the one that is most beneficial to employees). Below is a non-exhaustive chart of the effective minimum wage rates effective as of the date of this post. Location Employers with 26 or More Employees Employers with 25 or Less Employees State of California $10.50 $10.00 City of Los Angeles $10.50 (until July 1, 2017) $10.00 … Continue reading
Arbitration Agreement: Do I Want It?
You probably signed an arbitration agreement at your last doctor’s visit, when you signed up for your gym or yoga studio membership, or when you signed a listing agreement with your realtor. The ubiquity of these agreements makes it especially important for us to understand them as consumers, business owners, employers, and employees. What is an arbitration agreement? Arbitration is one of the alternative means of resolving disputes (alternative to filing a lawsuit that is). Thus, an arbitration agreement is an agreement to take disputes out of the court system to be decided by a private arbitrator (or a panel of arbitrators) usually following a different set of procedural rules than the court. People and companies choose to arbitrate for various reasons. The process is generally more streamlined and allows for a quicker resolution of disputes. It is often times cheaper than litigating in court, and the proceedings are typically not part of the public record. Lastly, the conventional wisdom is that you reduce the risk of a run-away-jury. Do you want to arbitrate? Whether agreeing to arbitrate potential disputes … Continue reading
Support Animal as a Reasonable Accommodation
New regulations related to the Fair Employment and Housing Act (FEHA) went into effect on April 1, 2016. Among the various additions, which touch on a broad range of discrimination issues in employment, is a discussion about support animals as a reasonable accommodation in the workplace. As a servant to my 3 dogs and lawyer who has worked on dog bite cases, this was of particular interest to me. The new regulations specifically discuss assistive and support animals in the area of disability accommodation and provides that an assistive animal, including support animals, may constitute a reasonable accommodation in certain circumstances. What is an “Assistive Animal”? According to the new regulations, an “assistive animal” is defined as an animal that is necessary as a reasonable accommodation. These include: guide dogs for the visually impaired, signal dogs for the hearing impaired, and trained service dogs that meet the requirements of the Civil Code related to training and licensing. Additionally, a “support dog” or other animal that provides emotional, cognitive, or other similar support to a person with a disability, including, but … Continue reading
Disability Accommodation
Here’s a common situation, an employee calls in sick and a couple of days later you receive a doctor’s note taking the employee off work for 2 weeks. If you are an employer with 5 or more employees in California, you are subject to the anti-discrimination provisions of the California Fair Employment and Housing Act (“FEHA”). If you have 15 or more employees, you are also subject to the Americans with Disabilities Act (“ADA”). Both laws require employers to find a reasonable accommodation for an employee who suffers a physical or mental disability so that the employee could return to work. California employers have the added duty to engage in the interactive process in good faith. The interactive process is simply engaging the employee in a dialogue to understand their restrictions and available accommodations. Why does it matter? From a management perspective, truly engaging in the interactive process and making the appropriate efforts to accommodate a disabled employee shows all your workers that they are valued beyond being merely disposable workers. From a legal/monetary standpoint, doing it right will prevent … Continue reading
New Overtime Rules Under FLSA Approved – What You Need to Know
The Department of Labor recently approved changes to the overtime rules under the Fair Labor Standards Act (FLSA) that will have a significant impact on California employers and workers. According to the Department of Labor, the new rules will affect over 300,000 California workers who will either be entitled to overtime pay or receive raises to maintain their exempt employee status. Here are some answers to commonly asked questions about the new rules. Who is affected by the new rules? Employees who are exempt from minimum wage and overtime pay protections under the executive, administrative, and professional (EAP) exemption and the highly-compensated employee (HCE) exemption of the FLSA. (Learn about exempt vs non-exempt employees.) The FLSA covers a majority of workers. Details on who is covered by the FLSA are available from the Department of Labor. What are the changes made by the final rule? In addition to meeting the duties test, in order to meet the EAP exemption requirement, the employee must receive a salary of at least $913 per week or $47,476 annually. HCEs must receive $134,004 annually … Continue reading
New Proposed Overtime Rules – Potential Effects on California Employers
There has been much discussion about the Department of Labor (DOL)’s proposed changes to federal overtime rules under the Fair Labor Standards Act (FLSA). California employers may have mostly ignored the federal overtime rules because California’s rules are more protective of employees and have a higher threshold for overtime exemptions. However, if these rules go into effect, California employers will have to make some adjustments. Failure to properly classify employees as exempt vs non-exempt and follow overtime rules could be costly for employers. What Are the Proposed Changes to Federal Overtime Rules? Under FLSA regulations, an employee is exempt from the right to overtime pay if s/he meets the following 3 requirements: Paid on a salary basis regardless of the number of hours worked; Receives a salary of at lease $455/week or $23,660/year; and Satisfies the duties tests for exempt employees (executive, administration, professional, computer, and outside sales regulations). The DOL proposed increasing the salary threshold from $455 per week to $970 per week ($50,440) annually. The salary threshold for the highly-compensated employee exemption would increase from $100,000 to $122,148 per … Continue reading