San Francisco Employment Attorneys Blog

What to Know About Whistleblowing

whistleblowing

Whistleblowers are in charge of revealing 43 percent of all corporate and government misrepresentation, as indicated by a Price Waterhouse. This is more than the greater part of the extortion revealed by law authorization, and outside evaluators joined. Along these lines, whistleblowing assumes a vital part in keeping companies legitimate.

At the point when would it be a good idea for you to see yourself as a conceivable informant? The appropriate response is “when you can.” The sooner you recognize that you may have a whistleblowing circumstance, the better you can deal with your circumstance. If you are not on your toes, and you don’t secure yourself, you can wind up out of a vocation with no plan of action and no case.

Things being what they are, what would it be a good idea for you to do on the off chance that you trust your boss is damaging the law? The appropriate response is perplexing and relies on upon the reality of each case. In any case, a couple of general tenets may apply.

Stay alerted. Keep your eyes and ears open. If you get a correspondence that you accept is suggestive of unlawful action, make a composed note of it in a classified journal. On the off chance that you get messages that you accept reflect something illicit, make printed versions of the messages and place them in a protected place. You may require them later.

Consult with a lawyer. Consider reaching a lawyer promptly to decide whether the lead is unlawful, and, provided that this is true, how to report it adequately.

Consider making an informal complaint to your supervisor. Numerous directors are reputable and legit individuals. Numerous circumstances can be overseen by making a direct objection to your prompt manager. If you do make a verbal objection, made some record of it.

Use the Internal Hotline. Numerous companies have inward hotlines that you can use to make a complaint and for whistleblowing. These hotlines should be classified, however many are most certainly not. Numerous representatives make unknown protestations on the hotline and later discover that their directors or others in the administration know about the objection and who made it. Much of the time, the objection made on the hotline does not bring about any significant reaction by the business. Numerous hotlines are kept an eye on by outside contractual workers, or low-level HR staff.

Consider making a complaint to HR. On the off chance that the organization has a staff handbook, survey it to decide the methods you should use to make objections. On the off chance that the handbook teaches you to make your dissension to HR, consider placing it into composing Let’s face it-most HR offices exist to ensure the interests of the business, not to authorize your rights. Along these lines, you ought to view HR as “one and the same” as your boss. On the off chance that you set the objection in motion, be as particular as possible.

Do not tape record. Numerous workers trust that copying their bosses or chiefs amid private discussions is an awesome approach to “catch them.” However, by and large, it is illicit in California under Penal Code Section 632 to copy a private discussion. Truth be told, it’s a crime. So leave your recording device at home.

 

Layoff Protection for Layoff Employees

layoff protection

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There are many factors that make employers to cut down on their employees. In most cases, employers usually conduct layoff if the company is making huge losses. In most states, employment is usually at will. This means that you can decide to quit your job or the company can fire you even without a cause. Although the employer is not prohibited to lay off workers if they are not able to sustain them, there are some cases where employer usually conduct illegal layoff of employees. All employees have the right to be notified in advance by the employer in case the company plans to lay them off. If the employer fails to give proper notice, then employees have the right to sue the company and seek compensation for damages. It is a right that has been given to employees by the Federal Workers Adjustment and Retraining Notification (WARN).

WARN law is implemented in many states including California. However, employers in California are not required to continue giving employees health benefits or pay small severance. It only requires them to give advance notice prior to a layoff.

Discrimination laws

Have you been laid off because of discrimination? The biggest challenge that employees have is being to prove that their layoff was discriminatory. For instance, it is not good enough to say that your layoff was discriminatory if the evidence that you provide is that you were laid off because the company could not afford your high salary. However if you can prove beyond reasonable doubt that you were discriminated, you can file a lawsuit and sue the employer. This is because the federal law prohibits discrimination against employees based on age, sex, race or religion.

Required notice

If a company is planning to conduct massive layoff or if it is planning to close, the employees who will be affected are required to be notified 60 days in advance. If employees are in union, then the employer can communicate to their officials to inform them about the matter. Their representatives will then pass the information to the affected employees. The notice given must comply with both federal and Californian law. This include providing detailed information of the specifics of the layoff. For instance, the employer is supposed specify whether the layoff will be permanent or temporary, the expected date of layoff, whether the employee will have bumping right as well as when they will receive letter of termination.

Employers who conduct illegal layoffs or fail to comply with WARN and federal law may be ordered by the court to compensated affected workers for the damage that they have caused. Employers will also be ordered to pay all court costs and attorney fee that employees incurred when suing the company. Employees who don’t give proper notice to the government can also be fined.

Independent Contractor Determination

independent contractor

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When an organization hires workers, they are either classified as independent contractors or employees. It’s important that you make the correct determination, since employers can label their workers as independent contractors when they are actual employees. In such a case, the employer does not have to pay the minimum wage and payroll taxes. In addition, he or she may not reimburse the worker any funds spent when performing duties. Today, the State of California has imposed strict fines and penalties to any employer who misclassify his or her employees. Before you classify your worker as an independent contractor, it’s recommended that you familiarize yourself with factors that government agencies use when classifying a worker as an independent contractor.

Who is an independent contractor?

They perform duties using specialized skills and are not part of the company’s regular business. Further, they determine the time they spend to perform their duties. The less control an employer has on how an individual performs his or her work, the higher the probability that he or she is an independent contractor.

Independent contractor determination

There are different government agencies that use their own test to identify if someone is an independent contractor. They use the same basic concept although they can differ slightly. First, they analyze the control the worker has. If the employer controls why, when and how the worker completes his tasks, then he is an employee. However, if the employer has limited control on how the worker performs his duties, then he is an independent contractor. Secondly, if an employer supervises the worker strictly, then he’s an employee. If the employer has limited control over the worker, then he’s an independent contractor. Thirdly, if a worker does not form an integral part of the employer’s business, he’s an independent contractor.

What you should do if you have been misclassified

If you are an employee and your employer has been treating you as an independent contractor, you should file your case with an agency. You will be assisted in collecting unemployment insurance and wages. On the other hand, the employee can seek legal advice from United Employees Law Group attorneys to enforce his or her rights.

What should employers do to mitigate potential misclassification?

Determination requires exercising sound judgment. The business should come up with a written agreement which describes the scope of work, timing, compensation, and tax obligations of the worker. In addition, the employer should ensure if a worker is an independent contractor, he or she has a pertinent license that is up to date.

Background Checks for Job Applicants

background check

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Most employers look into employees’ background before deciding whether to hire them or not as well as when deciding whether they should keep their job or not. The law permit employers to perform background checks before hiring but there are some instances that require an employee’s consent before their information can be gathered. Also, the law limits how employees use the results obtained from a background check.

Questions about background check

Employers can ask all sorts of questions about your background during hiring. He or she may ask about your education, employment history, financial history and even your criminal record.

However, employers are not allowed to ask for your medical information until you get the job as well as your genetic information.

Also, when an employer asks about your background on genetics, disability, age, religion, sex, color, national origin and race, he or she must treat you the same as all the other applicants. Example, an employer is not allowed to ask for extra background information because you are of a different ethnicity or race.

Employees are also protected from retaliation. This means that an employer should not fail to employ you because you accused a previous employer of harassment or discrimination.

 

When is an employee’s consent required?

An employer needs your consent to obtain certain types of information such as credit report, military records and school transcripts.

Also, if an employer does not gather the records on his own but hires an outside investigator or agency to, it must get a written consent from you first. You do not have to give permission but when applying for a job and you fail to, the employer has the right to reject your application.

Secondly, if an employer fails to hire you, retain or promote you because of something in your background report, it should send you a copy of the report and a note indicating how to contact the company that made the report. This is because background reports often contain errors. If there is a mistake in your report, you can request the reporting company to fix it and then send a copy of the error free report to the employer. You should also inform the employer of the mistake.

 

The law protects applicants from being denied a job for the following additional reasons

  • Credit reports

Due to the economic downturn in 2008, some states have laws that prohibit employers from discriminating employees based on his or her credit history.

  • Unemployed status

Some states including Oregon and New Jersey prohibit employers from failing to hire applicants because they are unemployed when applying for the position.

  • Criminal records

Also, some states limit the type of criminal records an employer can consider in making a hiring decision. For example employers are prohibited from failing to consider candidates with history of arrests that did not lead to conviction.

Religious Accommodation in the State of California

religious accommodation

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What is Religious Discrimination?

Religious discrimination simply involves treating an individual (an employee or applicant) unfavorably because of his/her beliefs. It can also involve treating a person differently because he or she is married to a person belonging to a particular culture or religion. This write- up will focus on briefing you on what you need to know about religious accommodation in California workplace.

What you Need to Know About Religious Accommodation in the State of California

Religious discrimination claims in most states are routinely filed under Federal law in Federal Court. However, in California, these claims are filed routinely in state court. Attorneys often prefer that since they believe that state law often offers stronger protection for employees when compared with Federal law. This is why you will find most lawyers in California preferring most cases that involve workers to be handled in state court.

Religious Discrimination and Harassment

It’s illegal to harass an individual because of his/her religion not only in work places but also in other places. Examples of harassment scenarios in work places can include a person coming with offensive remarks about another person’s religious practices and beliefs. Basically, despite the fact that the law of California State does not prohibit offhand comments, isolated incidents or simple teasing which are not very serious, harassment is illegal each time it’s so severe or frequent to an extent that it ends up creating an offensive or hostile environment.

Religious Discrimination & Segregation

Title VII of the law governing the state of California prohibits job or work place segregation based on matters pertaining religion (including religious garb as well as grooming practices), like assigning employees to non- customer contact positions due to feared consumer preference.

Religious Discrimination and Work Situations

The law strictly forbids also discrimination based on any aspect of employment such as firing, hiring, promotions, job assignments as well as other condition of term of employment using discrimination religious wise.

Do Employers Have to Give Employees Time off for Religious Holidays?

An employer has to offer a reasonable accommodation to his or her employee if he/she was unable to attend work on a certain day due to a religious observance or holiday. Therefore, it is ideal that you alert your employer on time about the holidays that your religion recognize so that you can make proper scheduling arrangements.

Last, but definitely not the least, in case you require legal assistance or more information about religious accommodation in California workplace, kindly don’t hesitate clicking the following site i.e. http://www.california-labor-law-attorney.com/. Thank you.

California Holiday Vacation Law

holiday vacation

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Most employers are not aware that they are not legally required to allow their employees take holiday off. However, in order to boost productivity and retain employees, California employers offer vacation as a benefit of employment.

Employers who choose to offer vacation must follow certain guidelines. In California, accrued vacation is considered as a form of wages that have been earned by an employee. This means that it cannot expire and should be paid to the employee upon termination of employment. The same rules applies to paid time off.

Generally, vacation accrues with time as the employee works. Therefore, if the vacation policy allows for ten days of vacation every year, he or she can accrue five vacation days in six months. But employers can designate a wait period at the beginning of the employment before vacation days begin to accrue. Usually, the wait period correlates to 90 days but it can be as long as the entire first year of employment.

Though California does not allow use it or lose it vacation policy where the accrued vacation should be used within a certain period or it is forfeited, employers can place a cap on the accrual of vacation days. This means once the vacation days reach a certain number, they stop accruing until they are used up. This helps employers to maintain control over accrual of vacation days and prevent employees from getting unreasonable amount of vacation time.

California law allows employers to give vacation days to a certain group of employees and not others as long as they do not discriminate against gender, race or religion. For example, vacation may be limited to the managers only or full time employees.

Sick leave is not subject to the same rules as paid time off and vacation days. As of July 2015, California employers should provide a reasonable number of paid sick days per year.

California also observes legal holidays at which time the government offices are closed. The official federal holidays are: every Sunday, New Year’s Day, Memorial Day, Independence Day, Labor Day, admission day, Columbus Day, Veterans Day, December 25, Good Friday, Lincoln day, President’s Day (Washington’s Birthday) and Dr. Martin Luther King, Jr. Day.

However, California employers are not legally required to pay employees when they close for business of legal holidays. If an employee works on official holidays, they are paid their usual rates unless stated otherwise in the employment policy or when the employer works in excess of 40 hours a week. Saturdays and Sundays are also paid the same rate as weekdays.

Additionally, California law does not require employers to close their businesses during official holidays or give their employees day off on such days. Weekend or holiday days are paid at the discretion of the employee and according to the employment policy.

Your Right to A Timely Paycheck in California

timely paycheck

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California is a state with many laws that are in favor of the rights of employees. The Federal government has a few laws that are helpful in terms of getting a paycheck in a timely manner, but generally, each individual state is responsible for ensuring that employees are paid in a timely manner. California is generally very employee oriented.

 

General Employee Rights

Many states have similar laws regarding the timely payment of employees, and California is no different. Aside from Alabama and South Carolina, all states require that payments to employees are made on either a weekly, biweekly, or monthly schedule. Most states also require that employers openly provide notice of their payday scheduling to employees. Different industries are often subject to different requirements; in Hawaii, for example, employees in the private sector must be paid once a month, while those in the public-sector must be paid on a semimonthly basis.

 

Defining A Pay Period

In California law, a pay period is defined as an amount of time that has been predetermined by you and your employer that counts towards a given paycheck. The important part here is that a pay period is predetermined and cannot be changed at the whim of your employer.

 

Frequency

In California, an employee must be paid at least two times per month. Administrative, executive, and professional employees can be paid once a month, but payment must be rendered by the 26th day of the month that they are working, including days off that they may have. Employers must always make sure that their employees are informed of the pay schedule in California, and are not allowed to operate outside of this schedule.

 

Resolving A Late Paycheck Problem

If you feel that your employer hasn’t been paying you in a timely fashion, there are steps you can take to resolve the issue. This process will not give you instant money; if you are short on cash it is important that you try to seek immediate restitution directly through your employer. If you have the time and resources to take a legal course of action, though, here are the steps that you’ll need to go through to resolve the problem:

  1. Get in touch with your employer. It is possible that your delayed paycheck was simply an oversight. While this doesn’t necessarily make things right, it does make the problem easier to rectify.
  2. File a claim with the labor agency in California.
  3. File a lawsuit in small claims court.
  4. Consider hiring an attorney who specializes in labor to assist you.

Employee vs. Independent Contractor

independent contractor

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Employees and independent contractors are two types of workers who are usually controlled by a company or a businessman. These statuses indicate a type of employees the business relationship that exists between employer and employee.

The main difference between a contractor and an employee is a degree of control and independence that an employer renders. To determine the degree, there are three parameters: behavioral control, financial control, and type of relationship.

A status of an employee is a constant presence of an employer. An employee has a constant income and other benefits, such as compensation. An employee has a certain set of skills and specific duties in a company that is important for doing business. Employees have a fixed salary for a certain period of time (month, week, hour) and a possibility of promotion. In the case of an accident during work, the employer provides compensation for a worker.

In exchange for these advantages, an employee refuses certain benefits and independence. It manifests in a schedule or a kind of work. An employee is regarded as an integral part of a company.

Another difference is that an employee works in a presence of an employer in office. In addition, an employer provides tools and methods for work, including training and further training. Most enterprises prohibit their employees to have “part-time” jobs.

On the other hand, contractors provide specific services for other enterprises. An independent contractor may be an individual or a legal entity. Unlike an employee, a contractor has less control and more independence.

An independent contractor may at the same time have a lot of customers. He has his own tools and methods of work. They set their own time and work rules. They are considered to be the third party. They aren’t actually a part of a company. Contractors in California, as a rule, self-pay all the taxes.

What Is the Verification for Determining Who Is an Independent Contractor?

In California, there are many state agencies that possess their own tests for defining whether someone is an independent contractor. Though each test differs somehow, most follow the same main concept: The more monitoring that the employer has over how the worker performs the project, the more likely he or she is an employee.

The same test that is used depends on what agency is concerned in the classification. For instance, the United Employee Law Group(UELG) has its own test if it considers your employer should have restrained payroll taxes from your wages or if it is determining whether you’re suitable for unemployment benefits.

Sexual Harassment Law in California

harassment

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There is a very important question that people do not think to ask but they should: what constitutes harassment? Harassment can be anything that has to do with making an individual feel uncomfortable. Once the individual has expressed their discomfort and request a change, if that request is ignored or causes the situation to get worse that is harassment. There are several different types that you have to be aware of. However we will majorly look at sexual harassment in California.

California state laws and Federal offer powerful protections against workplace sexual harassment and what would appear to be perfectly legal, when co-workers date, can give rise to liability under certain circumstances – and a situation where a sexual harassment lawyer may become necessary:

1. When that relationship is based on anything other than mutual consent.

2. Where the relationship spills over into the workplace creates a hostile work environment with inappropriate touching, sexual banter and sexually charged verbal comments.

3. When the relationship sours and there is retaliation. When a subordinate, for example, decides to end a relationship with his or her superior, a hostile environment may result from the disappointed individual. It becomes sexual harassment when retaliation occurs and the employer ratifies the retaliation by firing or harassing the victim.

4. When the relationship is a quid pro quo. This is a Latin term (translation: “this for that”) that can mean getting hired, or receiving a raise, a promotion or preferred assignments that are contingent on sexual favors or maintaining a relationship.

5. When a romantic advance is refused. If someone has refused the advances of a superior, then observes a co-worker who accepted similar advances from the same person who then receives a promotion or other benefits, it may be the basis of a sexual harassment claim. The law requires the employee to show substantial evidence of retaliatory intent following a termination.

In all instances where the services of a sexual harassment attorney may be warranted, it is beneficial to keep a diary of events and to report complaints with human resources departments when something occurs which feels wrong and appears to constitute inappropriate sexual conduct in the workplace.

Hire an experienced sexual harassment attorney

Your wages may be lost and your career damaged if you are subject to a hostile work environment relating to inter-company romantic relationships. With skilled and experienced http://www.california-labor-law-attorney.com/. legal counsel, those damages can be mitigated with recovery of lost wages and damages due to emotional distress.

Off-Duty Conduct Privacy

Off-Duty Conduct

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An employer can regulate employees’ behavior at work but may have limited say regarding employees’ off-duty conduct. Today, employers use advanced technology to monitor employees while off-duty. Although the employer may want to know what his or her employees are doing during their own time, there are laws that prevent employers from intruding to employees’ off-duty activities. For instance; in the state of California, an employer cannot take any job-related action against an employee when off-duty. This protects the workers’ off-duty conduct privacy rights. On the other hand, an employee may have questions regarding their off-duty conduct hence; it’s advisable to seek for legal assistance from United Employee Law group.

Employee’s off-duty privacy laws

There are limits for an employer to intrude some of the employee physical areas when off-duty. However; if an employee is doing some activities that are against the law and can affect the employer’s reputation, the employer reserves the right to fire or discipline him or her. Let’s look at some areas where employee off-duty conduct privacy rights are protected.

Marital status

Employers have no right to monitor if a worker is single, divorced or married unless they want the information to include the worker in health insurance plan. In fact, it’s against the law for an employer to discriminate employees based on their marital status. An employee should check if the state they are working with protects employees against discrimination on marital issues.

Union activities

An employer should not monitor any activities that involve the union. Therefore, employees should hold meetings or gatherings without any surveillance. Likewise, the employer should not send someone to eavesdrop on the meeting conversation. This can amount to serious violation of employee rights.

Political and religious beliefs

The state laws protect any employee from being discriminated on the basis of political and religious affiliations. In fact, an employer should not at any one time try to convert a worker to his or her political and religious beliefs.

Drugs

The employer reserves the right to identify if the employee is using drugs when off-duty. Today, employers have an obligation to ensure they provide a safe and healthy working environment. If the employer is suspicious that you may be engaging in drugs when off-duty, he or she has the right to intrude your privacy and take the right disciplinary action against you. However, this should be done professionally since some employees could be using drugs like marijuana for medical purposes.

Majority of employers may monitor employees when off-duty. However, most companies will state before hiring if they have such a system in place. If you have any questions regarding your off-duty conduct privacy rights, you should get in touch with United Employee Law group for further assistance.

 

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