New California Employer Workplace Poster and Pamphlet

Effective October 8, 2010, two new regulations impacting California employers go into effect:

1. All employers must post the new Notice to Employees, Injuries Caused by Work

2. Each new employee who begins work must be provided with the new Worker's Compensation Pamphlet, available here.

For more on employer workplace posters or to retain an employment attorney to advise and counsel you on California or Nevada business law issues, please click here.

Employment Law in a Social Networking, New Media World

I am quoted in a FOXBusiness small business article on how employers can protect their intellectual property rights in a Facebook/Twitter social networking world:

In an age of way-too-much information and widespread social-networking addiction, businesses are finding it increasingly difficult to protect trade secrets and practices. It’s important to know your rights as an employer and/or as an employee.

If you are neither of the above at the moment, and are instead on the job hunt, you should keep in mind that potential employers have the right to (and will) research your online living activities. In one quick Google search, what might a recruiter learn about you? It’s important to always keep your professional goals in mind when posting personal details on sites that are publicly accessible.

If you pass the test and find yourself employed, you’ll then have to follow company policy regarding Internet activities. Because privacy is often a top concern for employer and employee, companies are adjusting to the new online environment and adopting rules and regulations accordingly to ensure protection.

Anita Campbell, founder and CEO of Smallbiztrends.com, said there’s a major difference between large corporations and small businesses when it comes to social media sites. Large corporations are more likely to block all social media sites, such as Facebook and Twitter, from being accessed on the company network.

However, she said most small businesses do not block these sites at work and, in some cases, require employees to participate in them for company benefits. Jonas M. Grant, a business attorney and expert, said some employers rightfully worry about the disclosure of confidential company information by employees who are either posting on Web sites under their own names or anonymously. But he said employers do have the right to legally prohibit certain social-networking activities involving the business to avoid a slip of an idea or secret.

According to Campbell, small businesses using social media networks can have advantages and disadvantages. Recommending your employees take full advantage of the power of social media for “free” marketing is a definite plus. But allowing employees to have access to social media all day can deter them from actually working, decreasing productivity.

“But the stickier issue is one of inappropriate communications by employees,” Campbell said.

Grant recommends companies have an employee manual and training program in place specifying acceptable workplace use of the Internet in general. He said employers should expressly tell their employees what they can and cannot talk about, especially in an age with constant Internet communication.
“Employers are also wise to have employees sign employee loyalty and confidentiality agreements at the time of hire,” Grant said.

Experts agree that prevention is key for small businesses, and preparing for “what-ifs” is the best protection. Grant said communicating concerns with employees, outlining company rules and restrictions, while implementing appropriate policies and agreements in conjunction with employment law counsel, is the best method of prevention.

What Rights Do Employers, Employees Have in Internet Age? by Hope Holland, FOXBusiness.com, October 22, 2009

California Secretary of State and FTB To Introduce LLC Suspension Program in 2009

Happy new year. And with the new year comes changes to various state and federal laws. Among others:

The new cell phone law prohibits text messaging or reading or writing emails while driving.

Covered employers will be affected by changes to the federal Family and Medical Leave Act (FMLA) and should have their employee manuals reviewed and revised accordingly. A new workplace poster is available here: 2009 FMLA poster

The definition of a disability under the Americans with Disability Act (ADA) has been broadened.

The time limits for filing a discrimination claim under the Civil Rights Act of 1964 and the Age Discrimination in Employment Act were extended.

In 2009, the California Franchise Tax Board (FTB) and Secretary of State (SOS) will be allowed to suspend limited liability companies (LLCs) that do not comply with various FTB and SOS filing and tax payment requirements. The FTB and SOS already do this for corporations, but up until now, the law had prohibited them from doing so with LLCs. This changes makes proper business entity maintenance, already crucial for ensuring maximum tax and limited liability advantages, all the more important. LLCs that are not being used should be dissolved while still in active status.

See also: 2009, Time To Incorporate?

2009 California Employer Payroll Tax Rates

The base payroll tax rates for 2009 for California employers have been announced by the Employment Development Department (EDD), and are as follows:

Unemployment Insurance (UI): 3.4% of the first $7,000 of wages per employee, per year (however, an emergency surcharge is also in effect);

Employment Training Fund (ETT): 0.1% of the first $7,000 of wages per employee, per year;

State Disability Insurance (SDI): 1.1% of the first $90,669 of wages per employee, per year (up from $86,698, and up from 0.8% in 2008 and 0.6% in 2007)

Established employers may have a higher or lower UI rate, based on various factors. An emergency UI fund surcharge is in effect for the year.

If you are an employer or prospective employer unsure whether your current or prospective worker is properly classified as an employee or an independent contractor, you should hire an employment law attorney to advise you (I offer these services). Improper classification can lead to costly penalties and interest, as well as the assessment of back taxes.

Additionally, there are a host of legal hoops to jump through - which usually aren't, exposing employers to liability - when hiring a California employee (or an independent contractor). In either case, the relationship should generally be documented in a custom-drafted written employment or independent contractor agreement.

This article, written by a former director of EDD, is a few years old, but provides some general advice for employers on keeping their UI rates as low as possible.

Holiday Parties: How Businesses Can Avoid Sexual Harassment Lawsuits

Guest Post by Jessica Hawthorne

As holiday decorations start to go up around the office and everyone is full of seasonal cheer, many businesses may find that work parties, along with a more relaxed environment, can lead to sexual harassment claims.

Much too often – especially if the event is off-site and the alcohol flows freely – the office holiday party becomes a breeding ground for this sort of behavior. It seems that some employees can get the impression that professional behavior isn’t necessary at the festivities.

But that’s not the case. If it’s a work-sponsored event, workplace etiquette applies. And unfortunately for employers, liability can be the unexpected Christmas delivery if things aren’t handled properly.

Every year, claims and lawsuits over sexual harassment problems cost companies millions of dollars. In 2007, for example, the Equal Employment Opportunity Commission received nearly 25,000 sex-discrimination complaints and fined businesses more than $135 million for violating these workplace protections, the highest level since 2002.

But businesses can protect employees against legal turmoil by taking simple steps to prevent harassment from occurring at the office holiday party – or anywhere else:

• Advise employees of all relevant policies, such as harassment, dress code and appropriate workplace behavior.
• Make sure all supervisors have received sexual harassment training.
• Make sure everyone knows how to report unwanted or unwelcome behavior.
• Remind all employees that the company's sexual harassment policies will be in full force and effect during the event.

Despite training and preparation, sexual harassment claims could arise, so employers should also be aware of how to mitigate the situation. It’s important to act swiftly if there are any complaints to determine what happened and how best to deal with the claim. That way, you will have done your harassment prevention due diligence if any legal situation arises later.

The best way to accomplish this – and follow California law – is to conduct proactive employee training and awareness against all forms of harassment.

All organizations, and that includes businesses, government agencies and non-profits, with 50 or more employees are required to train all supervisory personnel in sexual harassment prevention. Employers must prove that all of these employees take an interactive, two-hour harassment prevention course within six months of hire and every two years thereafter.

So keep in mind that while sexual harassment prevention is relevant all year round, now is a good time to give your office a refresher course. Your business should enjoy this festive time of year by keeping employees aware and preventing sexual harassment before it starts.

Jessica Hawthorne is an employment attorney the California Chamber of Commerce. More information on sexual harassment prevention training and many other workplace issues can be found at www.CalBizCentral.com.

Layoffs Can Lead to Unlawful Termination Claims

Down Economy: Layoffs Can Lead to Unlawful Termination Claims
What Businesses Need to Know to Protect Against These Lawsuits

By Jessica Hawthorne, Special to California Business Law Blog

By any measure, it’s a pretty rough economy out there and inevitably, there have been and will continue to be layoffs – a process that’s an emotional and complicated procedure, and no less so than during tough economic times.

So what do employers need to know to protect themselves from wrongful termination lawsuits before they are forced to lay off members of their workforce?

The truth is that no one procedure guarantees businesses freedom from exposure to wrongful discharge liability or, even in the absence of liability, prevention of the filing of a wrongful termination action by an employee. But there are a number of things that can be done to mitigate potential issues:

• Businesses should have all new employees sign agreements at the very beginning of employment that protects their status as an at-will employee.
• Standardize termination procedures in a way that maximizes company protection from wrongful termination suits, and ensures that the procedures are consistently applied.
• Train supervisors thoroughly in the area of protecting the at-will nature of employment and to follow all company policies especially related to terminations and layoffs.
• If your company is considering a layoff, be sure to establish objective, nondiscriminatory criteria for selecting the employees to layoff.
• If termination of an employee becomes necessary: do not make the employee's situation so miserable that he or she resigns just to get away.

If an employee feels singled out during a layoff or was unaware of performance issues before being terminated, they may also file a suit for wrongful discharge in violation of an express state or federal government public policy.

Further, be careful and consult with legal counsel before laying off employees with actual or perceived disabilities, those who have just returned from a protective leave of absence, and even those who have reported inappropriate activity such as harassment or safety violations. These employees may have or believe they have more rights than other employees. And angry employees or ones who feel wronged are more likely to sue.

In addition, the federal Worker Adjustment and Retraining Notification (WARN) Act and comparable state law require businesses to provide written notice to employees before laying off a significant portion of their workforce.

Unfortunately, there are literally layers of laws that deal with layoffs and terminations, which can make navigating this area of employment law a potential minefield. But if employers act in good faith, make their policies clear and offer ample notification of pending action, the likelihood of a wrongful termination lawsuit succeeding is minimal.

Jessica Hawthorne is an employment attorney the California Chamber of Commerce. More information on terminating employment and many other workplace issues can be found at www.HRCalifornia.com.

Federal Minimum Wage Increase

The federal minimum wage increases from $5.85 to $6.55 per hour, effective today, July 24, 2008. The minimum wage will increase to $7.25 next year.

Note that the California minimum wage applicable to California employers and employees is already higher than the current or future federal increases.

Employee versus Independent Contractor

California's Employment Development Department (EDD), in conjunction with the Internal Revenue Service (IRS), is offering a seminar on employment status issues; that is, whether a worker is an employee or independent contractor. The seminar is available live from time to time, but also online as a webinar or on CD, free. The seminar offers an overview of California law in this area, as well as debunking some common employer misconceptions.

CA EDD Payroll Tax Seminars

What to Know About Hiring New Employees… And What to Avoid

What to Know About Hiring New Employees…And What to Avoid

By Jessica Hawthorne, Guest Poster

Due to the complexities of California employment laws, when the time arises to hire a new employee it’s a good idea to eliminate the guesswork.

Many large companies with skilled human resource personnel typically understand where the pitfalls lie in the hiring process. Smaller business owners may also have a solid grasp of the necessary hiring techniques, but grey areas still remain for both.

The hiring process involves three key areas – recruiting, interviewing, hiring.

Recruiting: Creating a job description is sometimes an overlooked facet of the hiring process. It will not only help supervisors more readily define what they are seeking in a new employee, but can later be used to show that person their areas of responsibility.

A thorough description can also be the basis for creating a job advertisement for newspapers, industry publications, professional journals, and online sites such as Craigslist. Don’t overlook an internal job posting as well.

Be careful to avoid any inappropriate terms or discriminating language when posting a job advertisement. The rule is don’t include references to race, sex, religion, age, medical condition, marital status, sexual orientation, and disability or any other protected class.

Below is an example of an unsuitable ad.

Gal Friday Needed: Community newspaper is seeking a woman to answer phones, greet visitors to the office with a smile, and handle faxes and incoming mail. Must possesses lady-like appearance and speak clear English.

This ad is sexist and ethnocentric and should not be used.

Interviewing: It’s always a good practice to conduct a preliminary interview by phone, providing one gives the applicant some advance notice. The phone interview serves as a screening process and will narrow the field of applicants.

Creating a test for applicants is a suitable action that will help provide an accurate measuring stick for a person’s job skills and aptitude. Beware that a reasonable accommodation must be given to a disabled person when they take the same test.

Preparing a core set of questions that will be used for all applicants is another suggested step to follow. Ideally, many of the questions are derived from the job description. Be sure to ask questions that elicit lengthy responses.

Below is an example of an inappropriate question.

"I see your last name is Gonzalez. Does that mean you speak Spanish and are comfortable interacting with Hispanic people?"

The question is discriminatory because its function is to determine the applicant’s national origin and ancestry.

Hiring: On the first day of work, have the new employee review and fill out all the legally required and company-related forms. Be prepared to explain.

To get a new employee properly acclimated, an orientation program is recommended so the person understands the job responsibilities and any safety procedures that accompany the position. Introduce them to the company handbook and review all important policies.

Neglect during the new employee training can lead to various problems, like this one below.

Inadequate training: An employee for a road repair company shows up for his first day of work and is immediately assigned to a crew that morning. No safety instructions are provided and the worker spills hot tar on his uncovered forearm, causing a severe burn that requires medical care.

If an employee suffers an injury that could have been avoided through proper safety training, the company may be liable.

Jessica Hawthorne is an employment attorney with CalBizCentral, a division of the California Chamber of Commerce. This column was excerpted from a series of five booklets called "What Every Manager Needs to Know About", now available from www.calbizcentral.com.

Interview Questions Employers Shouldn't Ask Job Applicants

SAN FRANCISCO (MarketWatch) -- "Why aren't you married yet?" "Would you join a church to get a job?" Those are just two examples of questions job seekers said hiring managers asked them in a job interview, according to a new survey of more than 3,000 job seekers and 1,000 hiring managers worldwide by Development Dimensions International and Monster, the career-resource arm of Monster Worldwide.
Others included "Are you happy in your relationship?" "Who is your favorite Beatle?" and "What is your perception of the painting in our lobby?"

The survey findings are "a wake-up call for organizations that this is happening behind closed doors when the applicant is face to face with their potential boss," said Scott Erker, DDI's senior vice president of selection solutions. DDI is a human-resource consulting company in Pittsburgh.

Questions pertaining to family status or religion can easily venture into illegal territory under antidiscrimination laws. That means potentially exposing the company to litigation -- and hindering the firm's efforts to find talented workers....

Don't ask, don't tell: Questions employers shouldn't ask -- and job seekers should avoid answering, Andrea Coombes, CBS Marketwatch, January 28, 2008

California Minimum Wage for 2008 Increases to $8.00 Per Hour

As mentioned here last year, California's minimum wage increased to $8.00 per hour, effective January 1st, 2008. The 2008 rate represents a 6.7% increase over the old (2007) minimum wage, which was $7.50 per hour.

Some employees are exempt from the minimum wage law.

Others are covered by a higher wage law: San Francisco increased its minimum wage to $9.36, also effective January 1, 2008.

The federal minimum wage for those employees not covered by state or local minimum wage laws, remains at $5.85, until July 24, 2008, at which time it will increase to $6.55, and then $7.24 a year later.

Updated California work place posters for employers can be found here: http://www.dir.ca.gov/wpnodb.html