Date post: | 27-Dec-2015 |
Category: |
Documents |
Upload: | theresa-james |
View: | 214 times |
Download: | 0 times |
Employment Issues That Arise As Companies Grow:
A Litigator’s Perspective
Robyn McKibbin, Esq.Partner, Stone | Dean LLP
© Stone | Dean LLP 2015
Employment Documents
Benefits: Identifies duties of positions Helps evaluate and define
employee expectations and performance
Assists in identifying employee training needs
Helps with issues such as reasonable accommodation, light duty, workers’ compensation, and return to work
Job DescriptionsJob Descriptions
© Stone | Dean LLP 2015
Posting and Notice Requirements
State & Federal Minimum Wage
Equal Employment Opportunity is the Law
Family & Medical Leave (50+ employees)
Your Rights & Obligations as a Pregnant Employee
Safety & Health Protection on the Job
Whistleblower Protection
PostersPosters Pamphlets & NoticesPamphlets & Notices Nonexempt employees must receive
specific wage info upon hire
Paid Sick Leave
Sexual Harassment
Workers’ Comp
Unemployment & Disability Insurance
© Stone | Dean LLP 2015
Smart Hiring Practices
Hire slower, fire quicker
Start with job description
Research social media sites?
Comply with the law & company policy
Best PracticesBest Practices
Possible Exposure:
Negligent hiring
Negligent supervision & retention
© Stone | Dean LLP 2015
Interview Don’tsInterview Don’tsInterview DosInterview Dos
Don’t ask discriminatory questions
Avoid questions about personal life
Don’t allow superficial impressions influence you
Be aware of stereotypes
Keep conversation job-related
Ask only for the information you intend to use in making a hiring decision
Know how you will use the information to make that decision
© Stone | Dean LLP 2015
Use of Independent Contractors
No customary payroll contributions
No employee benefits
No obligation to pay for workers’ compensation coverage
Reduced exposure for potential liability:
No wage & hour claims
No vicarious liability for the intentional/negligent actions
AdvantagesAdvantages
© Stone | Dean LLP 2015
Independent Contractors (cont’d)
Labor Code Violations
EDD
Workers’ Comp
Potential Pitfalls if Company Improperly MisclassifiesPotential Pitfalls if Company Improperly Misclassifies
The TestThe Test
EDD
IRS
Federal Employment Laws
CA Laws
© Stone | Dean LLP 2015
Discrimination Laws
42 USC § 1981 Title VII of the Civil Rights Act of
1964 (“Title VII”) 15+ employees
Title I of the Americans with Disabilities Act of 1990 (ADA)
15+ employees
The Age Discrimination in Employment Act of 1967 (ADEA)
20+ employees
FederalFederal
The Equal Pay Act of 1963 (EPA) The Genetic Information
Nondiscrimination Act of 2008 (GINA)
15+ employees
© Stone | Dean LLP 2015
Discrimination Laws (cont’d)
Fair Employment & Housing Act (FEHA) 5+ employees
Only 1 employee required for harassment claim
Includes volunteers, interns and independent contractors
Race
Religious creed
Color
National origin & ancestry (driver’s license)
Physical or mental disability
Sex
StateStateMarital status
Medical condition, including genetic information and characteristics
Gender, gender identity, gender expression
Pregnancy, childbirth, breastfeeding and related medical conditions
Age (40+)
Sexual orientation
Military and veteran status
Union activity
© Stone | Dean LLP 2015
Discrimination Laws (cont’d)
Other State LawsOther State Laws California Constitution
Labor Code § 98.6
Political Activities
Whistleblowing
Labor Code §132(a)
Labor Code §1197.5
Obesity Cases
Beauty Bias Case
AdministrativeAdministrative
Leave Laws
Paid Sick Leave: CA’s Healthy Families Act of 2014
Pregnancy Disability Leave 5+ employees
Breastfeeding Leave Disability leave (FEHA)
5+ employees ADA
15+ employees
Illness/Injury-Based LeaveIllness/Injury-Based Leave
© Stone | Dean LLP 2015
CFRA FMLA Drug and/or Alcohol
Rehabilitation Leave25+ employees
Military Leaves of AbsenceMilitary Leaves of Absence
USERRA
All employers (regardless of size & all employees regardless of length of service or # of hours worked); up to 5 years for military service
Military Leave and/or Reserve Duty All employers (all private employers regardless of size) Up to 17 calendar days/year while engaged in military training
California National Guard Leave All employers; unlimited paid leave for military service under
certain circumstances, i.e., when Governor signed state of emergency
Civil Air Patrol Leave 15+ employees 10 days/year for volunteer member of the CA Civil Air Patrol
Military Spouse Leave 25+ employees Up to 10 days unpaid leave for employees with spouses/partners
on leave from active military service
© Stone | Dean LLP 2015
Civic Duty LeaveCivic Duty Leave
CA Court Time No specified time limit To serve as a juror, crime victim, appear as
a crime victim witness, obtain relief from domestic violence, sexual assault, stalking
Voting No more than 2 hours to vote at beginning
or end of shift if not sufficient time to vote outside of work
Organ/Bone Marrow Donation 15+ employees
School Visits and Activities Suspended Child School Activities
25+ employees; must allow employees time off to visit their child’s school or licensed daycare center; may take up to 40 hours each year (but not exceeding 8 hours/month)
Leaves for Volunteer Firefighters, Reserve Police Officers, and Emergency Rescue Personnel
50+ employees: up to 14 days/year for fire or law enforcement training
Literacy Leave 25+ employees Reasonable accommodation to
enroll in education program No specified time limits
Religious Leave Title VII FEHA
© Stone | Dean LLP 2015
Supervisor Training
Sexual discrimination, harassment and retaliation prevention training (AB1825) 50+ employees
Every 2 years
© Stone | Dean LLP 2015
Supervisor Training (cont’d)
Effective 1/1/15, training must include preventing abusive conduct in the workplace (such as bullying)
Up to 1/3 of employees may be subjected to workplace bullying
Bullying costs $200B annually
Protecting Trade Secrets
‘‘There are only two categories of companies affected by trade secret theft: those that know they’ve been
compromised — and those that don’t know it yet.”
© Stone | Dean LLP 2015
What is a trade secret? What is a trade secret? Information that derives independent
economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy
Famous Trade Famous Trade Secrets: Secrets: Coca ColaWD-40ListerineLena Blackburne’s Baseball Rubbing MudGoogle Algorithm
Protecting Trade Secrets (cont’d)
What a trade secret is:What a trade secret is: Customer’s requirements
from a temporary staffing agency
Plans and designs for a product
Customer “routes” Customer lists for a
salvage business Carrier’s policyholder
information
What a trade secret is What a trade secret is notnot:: Business forms and
procedures widely used in the industry
Specialized knowledge or skills utilized during employment but were techniques developed during prior employment
Salary information
Protecting Trade Secrets (cont’d)
What is “misappropriation”?What is “misappropriation”?Acquisition of a trade secret by somebody who knows or has reason to know that the information was acquired by improper means; orDisclosure or use of a trade secret of another without express or implied consent by a person who:
Used improper means to acquire knowledge of the trade secret;
Knew or had reason to know that it was misappropriated; Knew that it was a trade secret
Protecting Trade Secrets (cont’d)
What are reasonable steps to protect confidentiality?What are reasonable steps to protect confidentiality?Restricted access
Tracking disclosure
Confidentiality expressed in your practices
Admonish employees when not practiced
Label appropriately
Notify new employees and remind exiting employees of their obligations
Disciplining & Terminating At-Will Employees
What should employers document? Attendance (days absent and reasons)
Conversations with employees
Performance reviews & issues — good & bad
DOCUMENT, DOCUMENT, DOCUMENTDOCUMENT, DOCUMENT, DOCUMENT
© Stone | Dean LLP 2015
Disciplining & Terminating At-Will Employees (cont’d)
Writing Skills Matter … Be clean and concise
Avoid banter
The evils of e-mail
Ensure files are maintained Make Consistent and Reasonable Disciplinary Decisions When You Cannot Terminate an
Employee…
Post-Termination
Potential Liability for:Potential Liability for:DefamationInterference with Prospective Economic AdvantageStatutory LiabilityFraud & Negligent Misrepresentation