San Francisco Employment Attorneys Blog

California Laws on Drug Testing

drug testing

Drug testing employees in California may constitute a breach of the right to privacy as stipulated in the state Constitution. So, while the Federal law does not expressly advocate or prohibit drug tests, save for certain safety-sensitive professions, the state has specific laws that protect the employees from certain intrusive tests. Interestingly, the protection covers all employees both in private sector and in the government.

It is, nonetheless, important to note that drug testing is not entirely illegal; California courts, while determining such cases consider the concerns of both parties. Below is a detailed description of the various laws on Drug Testing in California.

 

Drug Tests on Job Applicants

The state law permits employers to conduct drug tests on job applicants with the view of hiring those who pass the test. However, such an employee is under obligation to test all candidates for a particular employment position as opposed to identifying only a few because of their protected characteristic.

So, testing an applicant merely because of their disability is illegal. Surprisingly, in as much as the state accords residents the right to use marijuana for medical purposes, an employer has the right to decline to employ an applicant who tests positive for the same, even when the person has the doctor’s written authorization.

 

Reasonable-Suspicion Testing

Generally, employers have the right to conduct reasonable suspicion drug testing as long as the cause is based on understandable objective facts. He or she will nonetheless be in violation of the law if the test is random unless the position is safety-sensitive.

The fact the statues do not lay down certain drug testing procedures implies provided employers put in place measures to ensure worker’s privacy expectations are catered for they stand a better chance of prevailing should a lawsuit come up. So, an employer is best advised not to seek legal redress in situations where their bosses provide a written policy that details the time drug testing will be conducted.

 

Possible Dangers Drug Testing to an Employer

Other possible legal claims include:

Discrimination against a disability – disqualifying a job applicant who tests positive for drugs prescribed for a disability constitutes disability discrimination. There are drugs that are illegal for normal persons but prescribed for persons with disability and an employer may mistakenly use the test as a basis for turning down a prospective employee leading to serious legal issues. Statutes such as Americans with Disability Act exist to champion for the right of such individuals.

Privacy violation – the procedure for conducting a drug test may in itself constitute a violation of a worker’s privacy. For instance, asking employees to provide certain samples in the presence of members of the opposite sex, may constitute invasion of privacy

Discrimination claim – an employer who conducts drug tests on a specific group of employees, for examples from one race, age group or gender only from the entire workforce, risks facing a discrimination claim.

Defamation – an employer who hurriedly publicizes positive test to a particular drug test when the employee suspects the tests might be inaccurate could face a defamation claim.

How Employers Can Streamline the Hiring Process in California

hiring

Hiring is an essential part of any firm’s expansion efforts. However, there are a couple of legal considerations when it comes to the selection process. Job postings, structuring the interview questions, verifying references, and making recruitment decisions must be made transparently to avoid exposing the company to risks.

 

Employers may put their businesses at risk by asking illegitimate or discriminatory questions. California employment laws protect employees from any form of discrimination, ranging from religion, race, gender, family status, to even sexual orientation. This excerpt will guide you in the lawful recruitment process of California and assist you in avoiding liability during the recruitment process.

 

How Employers in California Can Improve Their Hiring Process 

California has the greatest hiring difficulties of any other state in the U.S. It has a unique set of regulations that employers must strictly adhere to during the hiring process. To avoid a company’s risk of prospective discrimination claims in the recruitment process, it is imperative for California employers to gain an in-depth mastery of the numerous state and federal laws that safeguard the rights of the applicants.

 

Additionally, they should come up with innovative hiring procedures and policies to address issues such as job advertisement, job descriptions, interview questions, background checks, and employment offers.

 

Sourcing and Hiring Applicants 

Recruiting new talent is crucial for a company to attain its goals and flourish in the ever-growing market. During the recruitment process, hiring managers should guarantee equal employment opportunity to all applicants.

 

They should come up with nondiscriminatory conditions for job descriptions and put in place nondiscriminatory measures for attracting talent. Ensuring each candidate has filled out an application form is a demonstration of adherence to California Equal Employment Opportunities (EEO) laws.

 

Selection Process 

Businesses should update screening and assessment processes to reduce the selection time and to leverage the new technology and advanced screening techniques. During the interviewing process, the hiring managers must focus on picking the right candidate for the job without bringing out issues that are protected under California EEO laws.

 

The interview questions should concentrate on getting information about the qualifications of the candidate as well as his or her capability to carry out the important job functions. Asking a candidate concerning an arrest, which did not proceed to pretrial or conviction stage is against California law.

Sourcing and hiring employees in California comes with a number of challenges for companies. Claims of discrimination and other types of violations can impede the success of a company. Therefore, California employers should have a clear understanding of all employment laws and observe them strictly.

Lawful Firing Process In California

firing

Most of the contracts in California are considered voluntarily, which implies that the boss can fire a worker for any lawful reason. In any case, while the employers have reason to terminate workers, there are some justifications for firing a representative that can prompt a wrongful end claim.

 

 

What Is The Firing Illegal Reason?

 

Bosses can terminate workers for any reason aside from:

 

Segregation: Employers can’t fire a representative in light of race, nationality, shading, religion, sex, age, or handicap. Businesses can legally fire workers for different reasons, as long as it is fair and applicable to all employees.

 

Striking Back: A business can’t fire workers for answering to government or state organizations about business law infringement.

 

Unlawful Acts: A business can’t terminate a worker if the representative declines to play out an illicit demonstration.

 

Family or Medical Leave: Employers can’t terminate a worker who requires some time off for reasons recorded in the Family and Medical Leave Act.

 

Likewise, bosses are bound by the terms of their own worker termination arrangements and the terms of any business assertion between a worker and the boss. Breaking the terms of these arrangements or assertions may likewise prompt a wrongful termination claim and long lawsuit.

 

 

What Should An Employer Consider Before Firing An Employee?

 

An employer ought to make certain that the worker’s termination is confirmed by the top-level administration before moving forward and after that follow through with the termination process. Looking for legitimate counsel if there are any inquiries with respect to the methodology and purposes for firing is always a good idea if you are coming up on a future termination.

 

Unless a worker has particularly done something that prompts firing, the worker ought to, as a rule, be told the purpose of their termination.

 

In the event that a representative is being laid off or having their work region shut down, it is a smart thought to give notice of their termination ahead of time so the worker can look for a substitute business or get ready for unemployment.

 

As a security safeguard, make certain to change any codes and passwords to deny access to the worker once their employment has been ended. This is particularly vital for representatives with access to classified data, such as secret pharmaceutical formulas or government clearance.

 

 

Would It Be Advisable For Me To Get An Attorney If I’m Thinking About Firing An Employee?

 

Terminating workers without a formal written business contract or end strategy can prompt wrongful termination suits. An employment lawyer can help you with your termination rehearsal and help you with the entire process tactfully.

A Quick Guide to California’s New Smoking Restrictions

smoking restrictions

Recent changes to California’s smoking laws have fundamentally shifted the role which smoking can play in and around public spaces and workplaces. Ignoring or misunderstanding these laws can result in a criminal conviction. To help avoid this issue we’ll go over the need to know facts of these recent changes to smoking restrictions, and what this could mean for any business or smoker.

 

The Technical

The new laws which we will be looking at are labeled the following: ABX2-7ABX2-9ABX2-11SBX2-5and SBX2-7. Those readers who are fluent in legal language can follow those links to the official California Legal Information website.

 

What These Changes Mean

Technical language can be difficult, so to avoid confusion we’ve simplified it down to just what you need to know:

  • The minimum smoking age has been raised from 18 to 21.

This means that any current smokers between those two ages are no longer going to legally be able to purchase tobacco and tobacco products until they again reach the legal age. Buying these products is also not possible until the user is at least 21 years of age.

 

  • These laws apply to traditional tobacco products such as cigarettes, chew and cigars, in addition to vaporizers and e-cigarettes.

These modern devices had slightly outpaced the laws regarding tobacco use, so changes had to be made for these laws to catch up. This means that if you were wanting or intending to use the devices to circumvent the law, this is not possible.

 

  • These smoking restrictions apply to all employers. This includes businesses which are owner-operated and without other employees, provided said businesses allow any clients or non-employees into the workplace.

The idea here is that if a workplace can be accessed by a client, an employee, or any other individual, then smoking is not allowed. This does not apply if a business owner operates out of an area which no other individual can access. There are also other exceptions when it comes to a few specific situations, such as private smoking lounges in tobacco stores, or the cabins of large trucks when no non-smoking employees are present.

 

  • Businesses which have allowed smoking up until this point are legally required to change.

There are a few common places in which smoking has long been long accepted. The most popular of these include bars, taverns, warehouses and hotel lobbies. With these new laws in play, any of these businesses which have previously allowed smoking are still required to change.

 

  • Smokers are also party to these rules.

Any tobacco users out there are also required to follow these new smoking restrictions. Any business in which smoking is not allowed by the staff also has these rules extend to the customer.

Rights to Domestic Violence Leave

domestic violence

In the recent past, domestic violence has become an issue of concern in California and many other states throughout the US. Although the law gives a provision for protected time off to domestic violence victims, it has come out clear that only a small number of people are aware of these provisions.

 

For this reason, a large number of employees are denied their rights. However, some important measures have been put in place, in order to ensure that all employees are aware of their rights with regard to domestic violence leave.

 

 

New Bills

 

One of the crucial steps that have been taken is the signing of the AB 2337 bill by the governor. The bill is primarily formulated to be used in companies with 25 or more employees. This bill is intended to compel the employers to provide information about protected time off for domestic violence victims to all their employees.

 

All employers are required to avail this information to their employees upon hire and/or any other time that the employee would request. The bill was published and made effective on July 1, 2017, The following provisions are included in the employers’ handbooks with regard to the existing rights of their employees.

 

 

New Provisions

To start with, victims of domestic violence are allowed to take time off to obtain medical attention, seek psychological counseling, as well as any other services that are provided in the domestic violence programs. Secondly, employers are required to take any necessary action related to the safety of the employees.

 

For example, offering temporally shelter or allowing them to relocate. Lastly, all employers should ensure that the managers have a clear understanding of the employees’ rights, have the know-how on how to transmit this information to the human resource officers, as well as ability to handle such serious personal matters.

 

 

Personal Leave
Additionally, the bill allows employees to use their personal leave or vacation to seek assistance or plan for their safety. Employees should be given time off to obtain court or restraining order, which is intended to protect them and their families from domestic violence, stalking and sexual abuse. Most importantly, the law states that employees should be allowed to take time off to seek intervention for any domestic violence-related issues even if it means going on unpaid leave.

According to the Labor Commissioner’s office, this notice should be made available in Spanish and English languages. Moreover, employees should file a claim with the California Private Attorney General Act if they fail to receive a timely notice. In case of retaliation, discrimination or denial of domestic violence leave, employees are required to file a complaint against their employers with the Labor Commissioner’s Office.

California’s Minimum Wage Increase

drug testing

Starting January 2017, California implemented a minimum wage increase for companies who employ 26 staff members or more. For companies who employ 25 people or less, this increase was held back for a year and scheduled to start in 2018.

 

The minimum wage is currently set at $10.50 for companies who employ 26 people or more. In 2018, it will rise to $11, and increase each year by $1. This means minimum wage will be $12 in 2019, $13 in 2020 and $14 in 2012 until it reaches $15 in 2022.

Can an employee agree to work for less money?

No, the minimum wage law is there to protect employees. Any agreement which is formed between an employer and an employee, even those created via collective bargaining, cannot replace state law. Therefore, the minimum wage will remain the same, even if an employee is willing to work for less.

After the minimum wage reaches $15, will there be further increases?

After 2022, wage increases will occur according to inflation and increased cost of living. However, the minimum wage cannot be reduced, even if there is negative inflation.

Does the minimum wage apply to people of all ages?

Yes. This means that adults and children are covered by base pay.

If an employer’s workforce decreases to below 26 people, will the pay rate change?

If an employer decreases the number of staff to 25 or below, they will have to give employees notice before decreasing the pay rate. This can only happen at the next pay period. However, if the employer takes on new staff, and brings the number back up to 26 staff or more, staff would need to be paid the higher rate.

 

Companies who employ seasonal workers need to inform employees in advance of wage changes. During pay periods when employee numbers reach 26 or higher, all employees need to be paid the higher rate.

What about waiters, who earn tips? Do the tips contribute to minimum wage?

No. An employer cannot use tips to bring an hourly rate up to minimum wage. The employer would be responsible for the base pay, regardless of staff tips earned.

If an employer pays less than the law states they should, what will happen?

Employers who do not pay minimum wage can be held liable for back pay and penalties. Employees can file a wage claim against the employer for non-compliance. If this happens, a Deputy Labor Commissioner will review the claim.

 

If the claim seems valid, a conference will be arranged, in order to try to settle the dispute. If the dispute is not settled, it will go to a hearing.

Changes To California’s Fair Pay Act

fair pay act

A number of changes have been made to California’s Fair Pay Act with an objective of making these laws serve the people in a better manner. One of the changes that were made by the Governor is approving SB 1063 so that this act can now protect against race-based disparities in pay.

The specific details of these changes state that the employees who perform substantially same similar work under the same working conditions must be paid equally. This makes sure that all employees who perform the same duties need to be compensated in the same manner.

 

This is unless the employer can clearly show the differences in wage is based on either:

  • A merit system
  • A seniority system
  • A particular system the usually measures quantity or quality of production
  • A bona fide factor which is not based on ethnicity, race or sex but is based on factors such as training, experience or education

 

Fair Pay Act is AB 1676

Another change that has been made on the California’s Fair Pay Act is AB 1676 which clarifies that the prior salary will not by itself justify any disparities in compensation. The main objective of this particular change is to ensure that the initial differentials of wage in hiring become compounded over the years in case every subsequent employer to rely on the previous wage rate.

The applicant for different positions will have to be paid what their positions are worth. This means that the applicants will not be paid just what he or she takes based on the previous salary level.

 

Implementation

Even though these changes sound fair they require a lot of work when it comes to implementation. The employers will have a hard time trying to justify why a particular applicant cannot be paid premium without affecting other employees who are almost in similar positions.

The laws clearly state that it is entirely the employer’s duty to demonstrate fairness where logic does not apply in any way when it comes to this demonstration of fairness. The employer is required by the new changes to confirm that he or she is treating his or her employees in a fair manner provided they are at the same level.

 

The Objective

The main objective of these changes is to change the hiring practices for human resource professionals in California. This also seeks to eliminate the trend of managements exercising discretion to negotiate salaries based on the negotiation skills of the applicants or the prior salary histories of the applicants.

These changes will have a lot of effects, especially to businesses in this area. But time will tell whether the changes on the California’s Fair Pay Act will produce positive or negative effects especially on businesses in this area.

New Arbitration Protections for California Employees

arbitration protection

The US state of California has recently passed new legislation that includes two additional statutes including a strengthening of the arbitration processes. These were created with the purpose of increasing the protection granted to the employees during arbitrating processes that settle workplace disputes. Historically, throughout the country, the arbitration procedures were often lengthy and complex ventures that impacted the employer and the employee.

 

Now, the California law designed to provide additional arbitration protection seems to be slightly tipping the scales in the advantage of the employees. Here are the key facts about the changes and the way they can impact both sides in any such dispute.

 

 

SB 1007 and SB 1241

 

The statutes, both of which were passed in September 2016, impact the arbitration proceedings. The first, SB 1007 covers the right to have a shorthand reporter fully transcribe any proceedings, hearings or depositions and transform them this way into an official record.

 

The second new statute, SB 1241 says that any arbitration provisions cannot require any employee in California to arbitrate their individual claims in other US states. It also forbids the arbitrators from applying laws that are present in some other states.

 

 

Implications of the Statutes

 

The implication of the first statute, the SB 1007 is clear – an arbitration proceeding will have a certified shorthand reporter with the task of transcribing any exchange between the employee, employer and their legal representatives. The second statute, the SB 1241 is more significant because it essentially states that an arbitration proceeding cannot include the possibility of processing the claim in another state and under the laws of that state.

 

This mainly impacts bigger business organizations like corporations that could, in theory, move the arbitration proceedings into a state which laws are friendlier to their legal goals.

 

 

The Level of Arbitration Protection

 

The provided level of protection in the case of arbitration procedures in California does help the employees, but this legal avenue is still preferable for a company than official court proceedings. Firstly, they avoid jury verdicts that are often emotionally driven and less impacted by rational facts.

 

Then, they also provide a more streamlined process that demands less time and effort from the participants and includes a lower level of public exposition, especially from the attention of the media. For a range of business organizations, this alone could be reason enough to choose arbitration.

 

Finally, the arbitration proceedings are generally less expensive than a court procedure and the fees of the lawyers included are most of the time lower than that of a court appearance.

 

Next Steps

 

With all of these facts, it is clear that the changes in the California’s laws do provide a higher level of arbitration protection for the employees, but still make the actual legal mechanism more effective for the majority of employers than a court procedure.

How to Deal with Employees Who Are Always Absent

absent

If you have an employee who is always late to work or absent, then you must be really worried. You must be thinking how to discipline him or if it is possible to fire him. However, before taking any drastic step, you should be aware of the various rules and laws in this situation.

 

The FMLA

Otherwise, you may land up in legal trouble later on. The first thing which you should do is find out whether FMLA applies or not. As per this Act, you are supposed to give ” intermittent leave” to an employee is he is suffering from a serious medical condition. Some examples of serious medical conditions are cancer or diabetes.

 

In cases where FMLA is applicable, then the employee is allowed to 12 weeks of leave in a year. It will be illegal to fire him. However, the good thing about FMLA is that you don’t have to pay the employee during the leave period.

 

Providing Proof

You can require the employee to provide the necessary medical certificates and give a notice in advance if they know of an upcoming medical absence (such as a scheduled surgery.) In case the illness is affecting the ability to work, then you will have to transfer him to a position per his capabilities. However, the pay has to be the same.

 

The ADA

You also have to worry about the ADA. As per the ADA, you are expected to accommodate an employee if he is able to perform the basic functions even if there is a disability. However, the definition of ” Disability” given by ADA is very vague.

 

If your employee is neither protected by the FMLA or ADA, then you have every right to fire him provided there are no other state restrictions. One way to avoid such a situation from happening is to have a policy regarding this.

 

Employee Handbooks

When any new employee joins, you should provide him with an employee handbook which covers all the important topics like leave, FMLA, and ADA. You should also make the employee acknowledge the receipt of the handbook.

 

Another thing which you should do is provide a detailed job description for every position which you hire for. Also, make sure that you keep a track of the attendance records of all the employees so that you can protect yourself in case there is a case against you.

 

In order to reduce the risk further, you can also take an insurance regarding this. And in case you need legal assistance, you can contact a labor attorney. They will be able to help you out in these tough situations.

 

Reasons for Using Personal Injury Lawyer for Construction Workers

construction workers

Many construction workers in California use heavy machinery and potentially dangerous equipment, making them prone to various accidents. Even when the proper precautions are taken, accidents are a fact of life, and sometimes it is the manufacturer of a product that is to blame.

 

Victims or family members who suffer from injuries or wrongful death due to negligence should consider hiring an attorney to help them receive the financial compensation they deserve. The best personal injury attorney in California can investigate the injuries and properly represent the injured in a court of law.

 

Auto Injuries
There is no doubt that automobile accidents can be one of the scariest events in a person life. Those who experience this unfortunate occurrence rely on the restraint systems in their vehicles, like seat belts and airbags, to help save their lives. If construction workers get hurt while driving for work by the vehicle failing, it is still considered a workers comp case.

 

What happens when these devices fail to function the way they are intended? Manufacturers are to blame when they are installed or perform incorrectly. In this case, unsuspecting consumers may incur the consequences of the auto maker’s mistakes.

 

They have the right to file a case against the company for monetary compensation.

 

Family Burden
Good construction workers often get paid a good amount of money, which is why damage to the brain and spinal cord are serious bodily injuries that can be a huge burden to the sufferer, their family, and the financial well-being of everyone involved. When medical plans and healthcare groups give up on a person who is ill then they find themselves in a predicament. Hiring an attorney to stand by them and give them the help and attention they deserve can make all the difference.

 

Work Equipment Injuries
Work equipment and certain household items that are designed or manufactured incorrectly have the potential to cause serious injury or death to the consumer. Product defects are not the customer’s fault, but they are stuck with the consequences of their poor construction or malfunction. And you can imagine just how serious an injury caused by faulty equipment can be for construction workers.

Lawyers who are hired to represent people who have experienced such an event will start by launching an investigation to find the source of the defect. Ultimately, they will establish the liability of the maker of the product.

 

Making Sense Of It
Any accident that results in injury is a scary and difficult thing to handle. Fortunately, these people do not have to go through their pain alone. The help of an experienced personal injury attorney in California to seek justice and protect clients creates a sense of relief during this hard time.

 

Their investigative skills and knowledge of the court system will ensure that their clients and families are fairly compensated for their traumatic experience.

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