San Francisco Employment Attorneys Blog

Facts for Employers Regarding Jury Duty Leave in California 

jury duty

Jury duty is often dreaded by employees due to the frequent negative interaction it can cause employers that are not familiar with the law. The desire for employers to operate in a normal fashion can leave the employee at odds with the jurisdiction that has legally summoned their presence. Below is a look at jury duty leave laws and how to avoid confusion in what is required of employers.

Requirements of Jury Duty Leave Law in California

Employers are legally responsible to provide the time needed for employees to answer to a summons for jury duty and partake in this civic duty without encumbrance, harassment or threat of being fired. Any breach of this can bring about misdemeanor charges and fines. Employers are not required to reimburse an employee for lost time resulting from jury duty unless they are paid a set salary. The employer will be required to pay the employee the same weekly amount regardless under the Fair Labor Standards Act.

Benefits of Encouraging Civic Duty Participation 

Every business should have a policy in place to handle jury duty. It is better to be upfront and clear with employees as to what your expectations are and what you are willing to reimburse. It will also serve to put an employee on notice that they need to let you know as early as possible so that you can make arrangements for their absence.

Will I Be Reimbursed For Compensating Employees For Jury Duty? 

Many employers opt to compensate employees for serving on a jury, even though it is not required. This is something that any employee can appreciate and will help cultivate company loyalty, but there is rarely an instance when you will receive reimbursement. The employee is required to reimburse you for any funds they have received for jury duty if you compensate their pay, but the courts will not offer any reimbursement to employers.

Can Employees Postpone Jury Duty For A Better Time? 

There are seasonal industries that the courts will help accommodate by allowing an employee to postpone jury duty for as long as six months. The employee will have the option of choosing the new, more agreeable date.

What If My Company Cannot Afford To Be Without The Employee? 

The courts do understand that it is difficult to run operations with missing critical employees, but they expect that arrangements can be made to be without them for one to seven days, or the duration of their jury duty deployment.

Can I Contact An Employee During Jury Duty? 

There is no reason that an employee and employer cannot remain in communication during the jury duty process. The only requirements are that the employee cannot discuss the trial with an employer.

What If My Employee Is Released After A Half-Day? 

If the employee contacts you and they have not spent the entire day in jury service, you can request that they finish the day at the job site. As long as it is practical for the employer to make it to the business in a reasonable time you can ask them to work the remainder of the day.

You can feel good about helping serve your community by allowing all employees to take jury duty leave when needed. This is an easy way to help ensure the court system is operating smoothly and that everyone has the opportunity to have their voice heard by a jury of their peers.

 

What You Need To Know About Employee Dress Codes

dress code

A private employer has rights when it comes to imposing a dress code in his or her place of work. The dress codes can only be imposed based on law. The labor law allows the employer to impose the dress codes as a way of enhancing the safety of employers in his work place.

Some of the regulations which the employers can come up with include grooming and jewelry. For the case of hair, the employer can ask employees to tie their hair a certain way to keep them safe or to maintain high levels of quality service in the workplace.

As an employer, you should always apply restrictive measures in your dress code regulation.

Have A Clear Policy

You should come up with a clear policy in writing and circulate it so that all employees in your workplace can know about the regulations. The policy should be based on the company’s culture and image. The business reasons for the dress code should be clearly indicated.

Base your dress code regulations on health and safety reasons. If you have staff who work in a food production plant, you can ask them to tie and cover their hair. If they work in a production company with fast running machines, you can ask them to tie their hair backward to avoid accidents.

Different people have various considerations of casual attire. Always state what your organization considers appropriate and the dress codes which you consider casual.

The policy should apply to all employees uniformly. It is necessary to apply the policy in a transparent manner so that you can avoid cases where the employees will consider it discriminative.

Give special consideration to people with disabilities. There are employees in your workplace that cannot adhere to the dress codes due to their health conditions; you
should put them into consideration in your policy.

 

What You Should Avoid In Your Employee Dress Codes And Clothing Policy

Avoid harassment 

The policy should not show any form of harassment which can lead to court cases.

 

Gender discrimination should not be encouraged in your policy. If employees will require uniforms, the cost of the uniforms should be met by the employer.

 

Religious practices and body piercing which are inconsistent with the companies branding can be prohibited in the organization. The managers can as well go further to prohibit slogans and logos which can be provocative to other employees such as
confederate flags.

 

Discrimination Against Felons in California 

discrimination against felons

Discrimination against felons in California: The new California law which took effect on 1st January 2014 now provides significant protection to ex-offenders (including felons) when it comes to job searching. According to this new law, the employers are prohibited in asking or seeking details on those criminal convictions which have been either judicially set aside or ordered sealed. Thus, this newly-implemented law provides protection to job seekers with past criminal records.

Note, this legislation adds protection for those criminal convictions which have been judicially dismissed, statutorily eradicated, or expunged. However, employers may utilize a case if it is not resolved yet, on-hold, or currently pending.

This new legislation arguably extends relief to the felonies that can’t ever be reduced to the form of a misdemeanor (by law). Plus, the law may impact felonies who are typically known as “wobblers” (a wobbler can be either a felony or a misdemeanor), where the Court doesn’t grant a motion in order to reduce the felony offense into a misdemeanor prior granting the final expungement (under Penal Code Section of 17b).

 

This legislation adds protections to “discrimination against felons in California” on the basis of three related yet separate sections of California law including 1203.45, 1210.1, and 1203.4a of the Penal Code. As a result, the employers can’t ask/seek/utilize any prohibited information. The employers in California are expected to pay due attention to this law since an intentional violation of this legislation may result in a punishment by a fine.

Discrimination Against Felons in California: FAQs

1. Why Has This New California Law Been Implemented? 

This law has been implemented to encourage and maintain hiring practices which protect all job applicants’ state, federal, civil, and privacy rights. This law further promotes the hiring process of people having criminal records and eliminate discrimination against felons that are traditionally underemployed, though they’re motivated.

2. As a California employer, can I ask an applicant about criminal records? 

Well, it depends. You are not allowed to ask about everything of an applicant’s background and history.

3. As a California employer, what can I ask about an applicant’s criminal record?

You are allowed to ask only direct questions about certain criminal convictions. For instance, you may ask a job applicant if he/she has ever been convicted of a crime.

4. As a California employer, what can’t I ask about an applicant’s criminal record?

Under the new California law, you can’t ask about an applicant’s criminal record in the following cases.

I) Convictions which have been dismissed, expunged, sealed, or statutorily eradicated.

II) Convictions related to minor marijuana related offenses.

III) Arrests which didn’t lead to a conviction.

IV) Arrests which lead to the completion of a rehabilitation or diversion program.

Disability Rights In California 

disability rights

Disability rights in California define disability as a condition that can hinder major life activities.
The California Fair Employment and Housing Act, the Disabled Persons Act, and the Unruh Civil Rights Act are state laws that protect the individual from and form of discrimination based on disability.

The Act further covers disabilities laws that individuals encounter now, had in the past, and may have in the future.

What is Disability Discrimination at The Workplace?
This occurs when an employer treats a qualified individual un-favorably because of disability. The discrimination can also occur from the perception the employer has about your ability to handle simple instructions at the office.

The employer may also not want to offer certain assistance to the people with disability such as special spaces for parking as required.

What Can Be Done To Avoid Disability Discrimination at the Workplace?
All employers should place the necessary rules and regulations to prevent disability discrimination in the workplaces. These rules may be applied during recruitment, salary determinations, training, promotion, termination from the workplace of people with disabilities.

The adjustments can also include providing physical office equipment such as special chairs. They, employers, can also adjust their duties to suit them but also not changing the functions essential to the specific role.

Equal Services and Housing for People With Disabilities
When it comes to housing the people with disabilities are also protected. The law prohibits any discrimination by landlords, sellers or agents towards people of disabilities. The housing policies must allow individuals with a disability to access their homes with eases.

The terms and conditions also should allow persons with a disability enjoy the recreation facilities offered in their dwellings. They must also be allowed to have any modification done in their home, when necessary, to enable them to move around with ease.

Types of Disability Discrimination

a.Direct Discrimination 

The direct discrimination involves treating an individual with a disability differently from other people. For instance, in an organization, an employer may choose not to employ a disabled person due to her disability. Another example may occur if a person is prohibited to access certain public facilities such as a restaurant due to a blindness disability and uses a guide dog.

b.Indirect Discrimination 

This discrimination occurs where the rules and policies of a company apply to all employees but are different or have an unfair effect on the disabled individuals. For instance, if a public building has only one way to enter by use of stairs only favors the people who can walk, while those who use wheelchairs would not be able to access the building.

What Next?
Discrimination of any kind in not only unacceptable but also punishable by law depending on where you are in the world. Disability rights are an essential tool to counter the disabled persons who might not be treated right due to their disability.

If is important to consult the relevant authority when you encounter any form of disability discrimination for the necessary action to be taken.

How to File a Public Works Complaint

public works complaint

If there is any public work violation, a public works complaint can be filed. Some of the violations which can make you file for the complaints include failure to pay prevailing wages as well as the use of apprentices.

If you work in a public works project, you should complete the worker complaint form. When filling the form, you should try and do it as best as you can and remember to indicate the date of signing the form.

You should also include copies which support your complaint.

Can you file public works complaint if you don’t work in public works?

Yes, you can file a workers complaint if you don’t work in public works. The labor commission allows unions, corporations, labor management, public agencies, competitors and other interested parties to file the complaints.

If you like to file a complaint in California, then you should address your complaint to the labor and wages office. Always ensure you have indicated the right address or else your complaint will not reach the final destination.

What happens after a complaint has been filed?

There are several stages which follow after you have filed the complaint. The department of labor will work on your case and ascertain whether it is worth the compensation. Some of the steps followed include the following:

  • The case is assigned investigation to the public works unit

The public works unit of labor is the one responsible for investigating your case. If you had not provided enough information, an investigator could contact you for additional information. If you provide any information to the government agency, you are protected against actions such as demotion, firing, disciplinary action or even suspension.

You should always provide the right information if you like to access justice.

  • The investigator interviews witnesses

After you have provided enough information to the investigator, he will then proceed to access more information from the employer as well as other witnesses who may know more about the incidences. If the investigator identifies violations, he will give citations to the affected contractor.

The awarding body will be then instructed to withhold any payment till the matter is fully resolved. All the contractors have the right to appeal to any citation.

It is a transparent procedure which is aimed at making you receive the justice you deserve.

If you face any challenge when filing for public works complaint, you should get in touch with a qualified lawyer who can help you in the process.

The Process of Filing a Wage Claim

wage claim

Any employee working in the US, including those in the state of California, might find themselves in the situation where they desire to file a wage claim. If this does occur, it is important to understand all the legal and technical information relevant to this process.

 

Here is the breakdown of the key facts about filing a wage claim.

 

What does a Wage Claim Represent?

 

A current employee or an employee that is no longer in the employment of a particular individual or organization might file a claim on an individual basis for a range of reasons. These include wages that have not been played out, including, bonuses, overtime or commissions.

 

A wage claim can also relate to wages that have been played by checks that were proven to have insufficient funds, lack of final paycheck before the employment ended, unused hours of vacation that have not been paid once the employment was terminated, and deduction from paychecks that have not been authorized.

 

A wage claim can also focus on business expenses that have not been reimbursed, failure of the employer to provide rest periods or meals or even waiting time penalties that have accumulated because of unpaid wages.

 

In these and other similar eventualities, an employee has the legal means of getting the funds that belong to them through a wage claim.

 

How to File a Wage Claim?

 

For the process of the filing of the claim to begin, an employee first needs the DLSE Form 1 of the Initial Report or Claim. This form is also accompanied by additional information sheets that are designed to assist the same claimant.

 

Along with these forms, an employee can also assess a special set of instructions which explains in detail which forms and documents need to be submitted so that the wage claim can be processed.

 

All of the said forms and instructional documents can be found on official government websites and from there, they can be downloaded, completed and then printed out before being sent.

 

Where Should a Wage Claim Be Filed?

 

The wage claim, once it is completed and accompanied by all necessary documents, should be sent by mail or delivered in person to the office of the Labor Commissioner for the particular region, city or community. A listing of all the offices can be found on the same government websites and from there the closest one can be chosen.

 

Once the claim is filed, an employee can check their status by calling the office, or by sending an email with the same inquiry. Once the claim is fully processed the same matter of wages can be finally settled.

 

With this information on how to file a claim, any employee in California should be able to make sure that their wages are paid out in full.

The Waiting Time Penalty Law in California

waiting time penalty

The public policy in the US works in favor of the employees and helps them claim their waiting time penalty. The rules in the US, especially in California is very strict. A single day of delay in paying the wage of an employee may result in a serious waiting time penalty.

Claims
The legislation has enacted some serious statement regarding the waiting time penalty. If the employee claims any blame against his employer about delaying or withholding payment of their wage after the conclusion of their career, then the waiting time penalty might be applied on the blamed employer after proper verification of the incident.

Before taking any action against the employer it has to be properly verified that the employer and employee had a true working relationship between them. Then the authorities must check if the employer willfully missed paying the wage or if it was accidental. If the employer has a valid reason behind missing payment of wages to the employee, then the employer might be exempt from the penalty.

 

If it is found out that employer willfully failed to pay wages to his employees, then the waiting time penalty will be applicable to the employer.

Why the Penalty Exists
The waiting time penalty has been a useful policy for the employees who don’t receive their wage at right time. It’s an effective policy for employees to get their justified wages back just on time or get the penalty he deserves. There is a certain rule of fixing the penalty.

 

The daily wage rate of the employee is taken to account before setting up the entire penalty rate. And then the one day wage of that employee multiplied by the number of days of delay. And the maximum number of delay is 30 days. After 30 days of delay, no further number of days will be taken into account.

 

So, it means each day delay in paying the wage will result in the employee to pay double, then triple, then four times, five times and after 30 days the figure will be 30 times more than the actual daily wage rate. The more delay the employer makes, the more penalty fees the employee will be rewarded.

In last few years, a few remarkable events have taken place in California where the employees have claimed to receive their payment late from their employer. After further verification, the allegation against the employer has proven to be true and those employers were charged to pay the full penalty to those respective employees.

FAQ’S About Deductions in California

deductions

The California labor laws give an employer the permission to withhold deductions from wages of an employee only if:

  1. When empowered or required by the federal or state law to do so
  2. When the employee has authorized the deductions in writing to cover various charges which are not amounting to a rebate on the employee’s wages

III. When the deduction is to cover health, pension contributions, health and is authorized by a wage or collective bargaining agreement labor code sections 221 and 224.

Besides the three reasons, there are various laws in California that prohibit employers from deducting or withholding amounts from the wages of the employees. Some of the common deductions that are illegal including, gratuities, photographs, bond, uniforms, business expenses and medical or physical examinations.

Which deductions are lawful?

  1. Those required by the state or federal laws such as income tax
  2. The ones that the employee has authorized through writing

III. Those authorized by a wage or collective agreement bargaining

Can an employer deduct the cost of something damaged or money lost while in duty?

The employer should not deduct the expenses which come in the line of duty if the losses come from accidents or simple negligence. But the employer can deduct the cost of the loss is proved to have happened because of gross negligence or dishonesty on the part of the employee.

What happens if money is lost in the counter of the employee?

The employer has the right to discipline the employee up to termination or bring legal action against the particular employee.

What about loans from the employer to the employee?

The employer and the employee need to have an agreement on the amount to be deducted in every paycheck. In case the employment ends before the full amount is paid the employer can only deduct amounts for a single installment in the final paycheck according to the California laws.

What about coming to work late?

The employer can deduct the amounts equaling the wages which would have been paid if the employee had come to work on time.

What to do after an illegal deduction by the employer?

One can file a legal lawsuit or file a complaint with the Division of Labor Standards Enforcement (DLSE).

What is the procedure followed after filing a complaint?

The complaint is assigned to a Deputy Labor Commission who determines how to proceed depending on the nature of the complaint. In case the decision is to hold claim both the parties are invited and a decision will be made. Both the parties can file an appeal in a civil court after a decision is made.

What if the employer does not pay or appeal?

The DLSE will enter the matter as an ordinary money judgment against the employer.

What if the employer retaliates against an employee because of objecting to a deduction?

The employee can file a relationship/discrimination complaint with the office of Labor Commissioner or file a lawsuit against the employer.

Overtime in California

overtime

Many employers are trying to cut costs on overtime by all means in our ever-changing economy. Some of these measures for minimizing costs are coming at the expense of the worker. It is common for attorneys specialized in labor law in California to witness abuse of work conditions and employee wages. Many employees who are seeking legal aid for an overtime issue have also on top of that a wrongful termination case of a discrimination case.
Incorrect Payment
When it comes to simple aspects such as minimum wage pay for all the worked hours, some employers, whether intentionally or not, fail routinely to properly pay their employees. Another common issue encountered by attorney firms is not paying employees for travel between job sites or other non-commuting mileage. If left unchecked by an attorney specialized in California labor law, these amounts may add up quickly.

State Vs. Federal
At the state level, there is a difference between federal overtime law and California overtime law. The main difference is the requirement for employers in California to pay 2 times the normal rate if an employee has worked for over 8 hours on their 7th consecutive day of work or over 12 hours in a workday. For employees who just work over 40 hours in a workweek or over 8 hours in a workday, they qualify to be paid at 1.5 times their normal rate.

How to Become Eligible
In order to become eligible to receive overtime payments in California, the employee should be more than 18 years old and to work in a non-professional, non-administrative, non-executive job. This means that the overtime law applies typically for employees that work directly in production and they cannot choose when and how they perform their job.

 

The California overtime does not cover several categories of employees:

Executives – anyone who manages an organization or a department, is making more than double the minimum wage and supervises more than two employees.

Administrative Employees – anyone whose job doesn’t involve manual labor, is making more than double the minimum wage and can decide when and how they do their work.

Professional Employees – anyone who works in the arts, optometry, dentistry, medicine, law, engineering, accounting, architecture, teaching, sciences, is making more than double the minimum wage and can decide where and how they do their work. Some others such as journalists, student nurses, actors, and drivers are also not covered by some or all aspects of the overtime law in California.

If employees in California should receive overtime payments under the state law, but they are not paid, they can sue their employer under the provision of legal protection against workplace discrimination.

Independent Contractor FAQ’s

independent contractor

Are there some benefits of hiring an independent contractor?

Contractors are relatively cheaper than hiring permanent employees. Apart from paying salaries and other compensations, employers parts with other expenses such as payroll taxes, insurance premium among other benefits. When hiring ICs, you don’t need all these expenses. Hiring an independent contractor also minimizes exposure to a law suit.

What are some of the risk of hiring an independent contractor?

Although independent contractors offer a lot of benefits, misclassifying workers as ICs can be economically devastating. Businesses are expected to pay the IRS owed taxes with interest with a penalty of about 20%. States audit is more common, and most occur when workers classified as ICs apply for unemployment compensation after their services are terminated.

How can a business determine whether a worker is an employee or independent contractor?

There is no clear way of classifying independent contractors and the actual employees. Some of the legal test used by government employees includes the Internal Revenue Services, State Tax Departments, State Unemployment Compensation Insurance Agencies, State Worker’s Compensation Insurance Agencies, and National Labor Relation Board. Each of these institutions has different rules of classifying independent contractors and employees, and each of the agencies makes its own decision without considering what the other agencies have done.

Is it important to ask consultants and freelancers to sign written independent contractor agreements?

Yes, it is critical. Asking them to sign a written agreement helps avoid future disputes. The written agreement indicates the services that the IC is expected to perform, when he/she should perform and how much the IC should be paid. Written agreements also help to establish that a worker is an independent contractor.

Is there a specific procedure I should follow to ensure that the worker I employ is really an independent contractor?

The best way to ensure that the worker you are hiring is an independent contractor is to ask the contractor to fill out a questionnaire designed to elicit information that shows that the IC is actually running an independent business. It is also important to ask the independent contractor to provide you with documents that help to prove that the IC is actually self-employed.

Are there some specific steps I should take to avoid classification problems with government agencies? 

Yes. You should treat an IC like an independent business entity. For instance, you should not supervise, trained or want to require an independent contractor to attend specific hours or companies’ functions. If an independent contractor has completed a specific job, which he was hired for, avoid giving him another work before writing a new agreement. Also, don’t give IC other benefits or business cards.

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