I recently opened up a new mobile phone account for my business. The wireless company gave me the ability to buy an insane number of phone lines (like 50) without a deposit, for very little per month.
I’m thinking about whether I should provide cell phones to my staff to sidestep a common issue: does the business owner have to pay for an employee’s cell phone when she uses it for business purposes.
You may be surprised to learn that the employer may be required to pay for it, even if the use of the personal cell phone for business is not expressly at the employer’s request.
As always, the law is most restrictive in California, where reimbursements for gas, mileage, phones and other expenses is required and hard for employers to control.
For me, if I decide to get cell phones for my employees, I am going to tell them it is a benefit. Employees like benefits and they don’t need to know that I am hedging against other legal risks at the same time.
Watch this video to learn a little more about cell phone reimbursement requirements for employers.
Say your employee is “out in the field” a lot and uses her cell phone.
Do you have to pay her cell phone bill?
If she is using her cell phone for business, then you likely have to pay a portion of it.
You can give her a business cell phone to use and make a policy that prohibits the use of personal cell phones for business.
Or you can determine a monthly reimbursement amount up front.
Coming up with a flat amount that approximates the split of business versus personal use of a cell phone is a good way to go.
However, incidental or minimal use of a personal cell phone for work does not have to be reimbursed by the employer.
Many good and generous employers want to share with their employees.
The idea behind giving employees stock is a sound one. Employees who are owners may be more invested in the business’s success. They may feel more appreciated. It could give them a sense of pride, ownership or purpose beyond anything that they would feel from a simple salary.
These are the main reasons I hear from employers who wish to create an employee stock plan.
For a myriad of business reasons, I prefer not to share stocks with employees. I prefer an employee profit-sharing plan that does not involve equity.
But I understand that many business owners may feel like a stock plan is right for their employees.
So you may be wondering, if I tell my employees that they are entitled to stock options in a letter, memo or at a meeting, is that legal? No. Watch to learn more.
I offered stock options to my employees in a memo. Is that OK?
That is not a good idea. Employee stock plans and stock option grants are complicated. First of all, stock grants may create taxable events that impact you as the employer.
Second, stocks and options create duties by the majority stockholders to the minority stockholders under state laws that you may not anticipate.
Third, such a memo may create earned wages and must comply with wage laws.
Fourth, federal securities regulate promises and statements regarding stocks.
In short, employee stock plans create a variety of legal issues that you must understand before you start handing out shares and options.
There are better alternatives if you wish to give your employees a profit-incentive.
For example, you can have a 401(k) set up to include profit sharing or you can set up a bonus program.
When I first started practicing law, I was asked by a fitness-conscious employer whether he could require his employees to quit smoking.
After some research into the Americans with Disabilities Act, I concluded, “no.” Basically, I concluded that smoking interferes with a major life activity — namely, breathing.
The senior lawyers whom I worked with disagreed.
They had some good points at least politically. Being a smoker is not a sympathetic status in California.
But a decade has passed and the ADA has broadened. And I’ve become more experienced as an employment lawyer, so I have thoughts on other laws that inform this situation.
So this video has my thoughts on whether you can make your employees be non-smoking.
Sometimes employers ask, “Can I require my employees to be nonsmokers?” Some employment lawyers will say it’s acceptable because it’s not illegal to discriminate against smokers.
But you could be risking a disability discrimination claim because smoking is a physical addiction that may impair a major life activity, such as in situations when the person develops lung or throat disease.
In addition, employers do not have the right to inquire about an employee’s health and medical history, including at a hiring interview.
In requiring your employees to be nonsmokers, you may run the risk of violating these laws.
Employers do have the right to designate the workplace as smoke free.
However, employers do not have the right to dictate how employees spend their breaks, such as unpaid lunch breaks, when employees are free to leave the premises.
If you are worried about your employees’ health, try offering access to a smoking cessation program.
If you offer employee health insurance, many such programs are offered as part of the insurance plans and can be promoted by human resources.
All employers recognize the importance of taking steps to avoid inviting a wrongful terminationlawsuit. However, layoffs and firing are not the only aspects of employment law with which business owners must concern themselves. It is just as crucial to comply with state and federal hiring laws, violations of which can result in civil penalties, litigation, and disruptions to productivity.
If your business is preparing to hire new employees, or if you simply wish to review your current hiring policies to ensure compliance with state and federal law, the experienced employment attorneys of Bellatrix PC can assist. We dedicate our practice to providing cost-efficient hiring solutions to corporations, limited liability companies, and partnerships at all stages of the business life cycle.
To arrange for private consultation, call Bellatrix PC today at (800) 889-8376.
How to Avoid Discriminatory Hiring Practices
California is an at-will employment state, which means – at least in theory – that employers are legally permitted to hire or terminate employees at any time, for any reason. In practice, employers must avoid terminating (or selectively failing to hire) employees on a basis which constitutes discrimination.
In other words, employers may not exclude from consideration job applicants based purely on their sex, sexual orientation, race, nationality, religion, age, or pregnancy. If an employer discounts an otherwise qualified applicant based purely on his or her membership in a class which is protected by state or federal law, the employer may become vulnerable to a lawsuit based on sex discrimination, race discrimination, religious discrimination, or other forms of workplace discrimination.
Fortunately, by taking a few simple steps, employers can dramatically reduce the likelihood of accidentally engaging in hiring discrimination. Regardless of the company’s size, nature, or legal structure, all employers should be sure to take the following precautions:
Make sure the job posting is as clear and detailed as possible. List the skills, tasks, duties, experience levels, and education levels which will be expected of qualified hires.
Consider speaking to other business owners in your industry about their standards and expectations for prospective employees. This will help you gauge the sorts of criteria and salary requirements which are reasonable for the position you are trying to fill.
When writing your job posting, exclude any explicit physical requirements which would automatically discount a group of people. For example, while it is fine to note that applicants “must be able to lift at least 30 pounds” for a warehouse position, it is not acceptable to include statements like “seeking men only” or “applicants must be at least six feet tall.”
Take detailed notes during and immediately after the applicant’s interview. This will facilitate an objective comparison of applicants after all interviews are complete.
Do not make any statements referring to protected classes. For example, do not bring up your company’s leave policy for pregnant employees. If an applicant asks any questions related to a protected class, inform them it will not be a factor during the consideration of new hires.
Background Checks and Employee Screening Laws
The vast majority of employers screen prospective hires with some form of background check. While background checks are increasingly common, employers are still required to comply with certain laws when screening job applicants.
In October of 2013, SB 530 amended California’s labor laws to expand the legal protections afforded job applicants with criminal records. SB 530, which took effect on January 1, 2014, prohibits both private and public employers from requiring job applicants to disclose arrests which did not lead to a criminal conviction. Employers are also prohibited from:
“Utilizing [information concerning an arrest or detention that did not result in a conviction] as a factor in determining any condition of employment.”
Asking job applicants to disclose information pertaining to records which have been sealed, dismissed, or expunged.
This further extends to questions about an applicant’s participation in any pre-trial or post-trial diversion programs, such as the “Back on Track” drug diversion program.
Updates to California’s Minimum Wage Requirements
In the past, California’s minimum wage was set at $8.00 per hour. However, California recently increased its minimum wage. Effective July 1, 2014, California minimum wage is $9.00, $1.75 higher than the federal minimum wage of $7.25, which is established by the Fair Labor Standards Act or FLSA. Employers should also be advised that California has already scheduled another minimum wage increase for January 1, 2016, at which point the current $9.00 rate will increase to $10.00.
Exempt employees are typically paid on salary instead of receiving an hourly wage. However, exempt employees – and in turn, their employers – are still affected by current and scheduled minimum wage increases. Because exempt employees must be paid monthly compensation equivalent to at least twice the minimum wage, minimum wage increases also lead to increased monthly salary requirements for exempt employees.
Don’t expand your workforce until you consult with an experienced attorney. Call the law offices of Bellatrix PC at (800) 449-8992 today to schedule a private consultation. Ask about our Employer Protection.
Allegations of wrongful termination, workplace discrimination, or wage and hour violations can lead to civil penalties, investigations by regulatory agencies, and demoralizing legal battles against your company. If a job applicant, former employee, or current employee has filed a claim against your business, it is imperative that you take swift legal action before the dispute grows even more disruptive to your daily operations.
The employment lawyers of Bellatrix PC represent corporations, partnerships, limited liability companies, and non-profit organizations in a wide variety of employment law matters. We take a versatile and responsive approach to each case we handle on behalf of San Diego businesses, which has allowed to us to obtain favorable results for numerous clients across a diverse spectrum of industries. Whether you are starting a business in San Diego and have questions about how to comply with California or federal laws, or your established company has already been served with a lawsuit, our attorneys have the business acumen and legal skill to help you seek a beneficial resolution.
The longer you wait to seek legal assistance, the more vulnerable your business becomes. Don’t let a dispute bring your business to a halt: call the law offices of Bellatrix PC at (800) 889-8376 to start discussing your matter in a private consultation.
Representing San Diego Businesses in Legal Disputes
Employment law can involve numerous issues, and no two entities will have identical legal needs. At Bellatrix PC, our results-oriented legal team brings together a wide range of practice areas and skill sets to assist our clients in whatever capacity is required by the circumstances at hand. We have years of experience counseling and representing California employers and entrepreneurs with regard to matters such as:
Employee Background Checks
Employee Free Speech
Family and Medical Leave Act (FMLA) Leave
Handicap Accessibility Laws
Layoffs and Reductions in Force (RIF)
OSHA and Cal/OSHA Investigations
Personal Injury Liability
Social Media Policies
Workplace Posters and Notices
Drafting and Negotiating Employee Contracts
By taking measures to ensure that your company’s employee contracts and policies comply with the law at the outset of the process, you can greatly reduce your risk of litigation further down the road. If you’re opening a business in San Diego, or if you have any concerns about your existing company’s current practices, it is critical to review your documentation with assistance from an experienced business lawyer who knows which problems to look for – and how to address them. Preventing problems before they arise is always the most cost-efficient option.
An astounding number of labor law disputes stem from misunderstandings and miscommunications arising from poorly-worded or completely unenforceable contracts. For instance, many San Diego employers are dismayed to learn that non-compete agreements (covenants not to compete) are typically unenforceable against employees in the state of California.
We will help your business to prepare clear, efficient, and enforceable documents which protect your vital interests while complying fully with state and federal labor laws. The attorneys of Bellatrix PC assist companies and employers with the drafting, negotiation, implementation, and enforcement of various documents and contracts, including but not limited to:
Non-Disclosure Agreements (NDAs)
Has Your Company Been Sued for Discrimination or Wrongful Termination?
As many San Diego employers are already aware, employees in the state of California are protected by some of the nation’s most rigorous and expansive labor laws. Despite the at-will employment system, it is not uncommon for disgruntled job applicants or former employees to claim they are victims of wrongful termination or discriminatory hiring practices because they do not agree with an employer’s legitimate business decisions.
Because California’s laws are so heavily favorable to employees, aggressive representation is absolutely essential for business owners who are being sued or investigated. We are well-versed in federal and California worker protection acts and the limitations to which they are subject, and are fully prepared to handle complex claims related to:
Americans with Disabilities Act (ADA) / Disability Discrimination
Age Discrimination in Employment Act (ADEA) / Age Discrimination
California Family Rights Act (CFRA)
Equal Pay Act / Sex Discrimination
Genetic Information Non-Discrimination Act / Genetic Discrimination
Immigration Reform and Control Act / Immigration Status Discrimination
Sexual Orientation Discrimination
Title VII of the Civil Rights Act of 1964
If a worker or former worker feels discriminated against, he or she may file a complaint by contacting the San Diego Local Office for the Equal Employment Opportunity Commission (EEOC), located at 555 West Beech Street. A screening will be conducted to determine whether the EEOC has jurisdiction to investigate the charge.
Employees must file a complaint within 180 days from the date of the alleged discriminatory act, or within 300 days if such discrimination is also prohibited by the laws of California in addition to federal laws. In light of these generous statutes of limitation, employers must not make the mistake of assuming that complaints will simply dissipate with the passage of mere weeks or months.
Employers should also be advised of the following caps on compensatory damages and punitive damages, which may be ordered in cases where the wrongdoing was exceptionally egregious:
Companies with 15 to 100 employees – $50,000
Companies with 101 to 200 employees – $100,000
Companies with 201 to 500 employees – $200,000
Companies with over 500 employees – $300,000
If your company needs assistance with any of these matters, no matter how small your question might seem, we encourage you to contact our law offices to schedule a confidential consultation. To get started, call Bellatrix PC at (800) 889-8376 today.
You can’t always fire an employee who badmouths you online.
It’s a common reaction. An employee bad-mouths you and your business on Facebook. So you fire her.
Before the time of social media (and the internet), I was in college. I also worked a job after school where I had a boss who was a strange, quirky person.
I did a good job, but he was not exactly someone I enjoyed being around. I wasn’t the only one: my co-workers and I would laugh about some of his idiosyncrasies on our commute home on the ferry.
I’m pretty sure he overheard one day (or someone else who mutually knew us heard) because when we returned to work the next day, he was pretty upset with us. My co-worker was fired. I wasn’t, but it was clear that I was going to hit a dead-end soon.
So I moved on a little while later. But I always felt bad about it. I am not gossipy by nature, and I upset someone unintentionally. He was weird, but I didn’t mean to hurt his feelings.
Anyway, now I’m a boss and a business owner, and I try to hire people whom I enjoy working with. I would probably see a couple of teenagers making fun of me as annoying. I certainly wouldn’t feel like paying them my hard-earned profits in wages if they were ungrateful for it.
But if an employee is critical of your business online, you have to be careful. You cannot just fire them in certain circumstances. As always, it is situation-dependent. So watch the video below to get an idea of when you have to call a lawyer before sacking a snickering ingrate.
My employee posted on Facebook criticizing my business. Can I fire her?
Not unless you want to be on the losing side of a wrongful termination suit.
Many states, like California, have laws that prevent wrongful termination in violation of public policies.
Free speech and free association online are protected activities by public policy.
Also, the National Labor Relations Act prohibits employers from retaliating against employees for communicating with each other about the terms and conditions of their employment.
These protections extend to online communications as well.
Getting sued over something so petty is expensive.
Instead, why not use those words as constructive criticism to improve your business?
Then advertise it to social media and your workforce. Voila! Good PR and good will with your employees.
Maybe We Can Help. Request Your Consultation Today.
Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.
The articles published by Bellatrix PC are for informational purposes only and do not constitute legal advice. If you have a legal issue, please get competent advice from a licensed attorney in your jurisdiction. Use of Bellatrix PC's site is subject to our Attorney Advertising Disclaimers.