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.
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.
If you have a morale problem with your workforce, you better do something about it… fast.
When you have a disgruntled worker, it always leads to problems.
As a business owner, here are the problems I see when a person turns bad apple:
They “poison the well” and create negativity amongst your other staff
People lose their drive and initiative, so work quality suffers
People start scrutinizing the employer or developing “grievances”
The bad person (or several) have to be replaced, costing money
In addition to the practical aspect of having to spend more money replacing employees (not a small consideration in itself), leaving employees always carry risk. People tend to treat a break in an employment relationship with the same emotions as leaving a personal relationship.
In other words, unhappy ex-employees sue. Even when you are squeaky clean, unhappy ex-employees will threaten it.
Sometimes they will sue frivolously, and you end up with a problem, regardless. There will always be a percentage of litigious ex-employees, which means that if more employees are leaving, then there will be a proportionate increase in the number of lawsuits.
Here’s another legal issue: demoralized employees take more stress-related medical leaves. This actually happens a lot and is the leading cause for medical leaves. It’s really easy to violate the leave and disability laws (thus inviting lawsuits). It’s also disruptive to your workforce. And an unhappy, stressed employee doesn’t always recover and return to employment smoothly.
Finally, whenever employees leave, employers must immediately pay all earned compensation (including vacation pay, non-discretionary bonuses and earned commissions). If you do not have a bunch of cash on hand to deal with terminating and replacing employees, you may find yourself in the middle of a wage and labor crisis.
What can an employer do to avoid employee morale problems bankrupting them? Here are four strategies that could save you thousands of dollars.
Focus on improving employee morale and retaining skilled workers. Take some time to improve relationships with those employees and foster loyalty and contentedness. This is not just a hippie-dippy people idea. Research shows that people work based on “purpose” (which includes a strong sense of community, being valued, loyalty and other social factors), not based on money. Yes, people need money. But an employer who fosters the right social conditions can get away with lower pay or other hardships without loss of morale. And definitely get rid of the bad apples because their drama is unfair to the rest of your team.
Clean up your HR act by reviewing employees. Employees actually want to be reviewed if they care about their jobs (see point above regarding purpose). You can use reviews to praise (important) and address frustrations and failures that cause low morale. You should also use this as an opportunity to document issues with problem employees so that you can defend yourself later.
Audit your wage and pay practices with the help of your employment lawyer. Wage and pay class actions are the most common type of class action litigation filed in California, constituting roughly two-thirds of all new class actions being filed and hundreds of new cases each year. You are vulnerable to these types of lawsuits if your pay practices aren’t pretty close to perfect (and there are many laws out there that are traps for the unwary employer, so do not trust an HR service or a do-it-yourself). Not only do audits give you an opportunity to find and fix liabilities before they become lawsuits, but you can use it as an opportunity to show your workforce positive change and encourage their loyalty.
Encourage — or even require — your employees to take their accumulated vacation during slow times. This is a good way to get vacation time off the books of an employee who has thousands of dollars worth stocked up, which will have to be paid in total at the time of quitting. Plus, employees who take regular vacations are less stressed and happier.
If you have any business or workforce concerns, spend 30 minutes with us on a free Business and Employment Planning Session or schedule a consultation with one of our business law attorneys or our real estate attorneys at (800) 449-8992.
The California Legislature must watch too much of The Walking Dead.
They are really worried about disease.
In the first part of July 2015, they passed two bills aimed at controlling Californians’ health.
There was a bill limiting parents’ ability to decline vaccinations for their school aged children.
And there was a bill requiring employers to give all their employees a minimum amount of sick time every year.
Sadly, due to scarcity, California is unable to mandate that all schoolchildren and employees take the vaccine to prevent Zombism. But if you get bitten, you will definitely have some paid time off to go through the change.
I’m writing to talk about the California sick time law. (It must be about Zombism because it is an answer to a problem that nobody had.)
If you are neither an employer or employee in California, you may still find it interesting. California is trying to lead the country towards more “European” employment policies.
I have had my fair share of bad hires over the years; let me tell you. It has cost my law firm well into the six figures in wasted payrolls, management problems, lost opportunities, correction of problems, etc. I do not spend a lot of time dwelling on it because I do not want to waste time thinking about lost investments on people.
For most businesses, the largest investment you make is in people. The biggest line item on your expenses is payroll. And your best chance at growing and making more money is through leveraging the time and labor of others.
So who you hire matters, and you should probably ask yourself a few questions before hiring a new employee and truly figure out if a potential employee can do the job you need them to do.
I admit, I do not always check references. Although I should. Probably half a dozen of my former employees had new employers call me on a reference check. Of those, more than half had lied to their prospective employers. This put me in an awkward position, because I am not willing to lie for people. But I wonder if there are other bosses who might do it just to be nice, to avoid conflict, because they want to get that ex-employee off of their unemployment account, or because the employer is afraid that telling the truth about their employees in a reference check will get them sued. It is awfully tempting with some employees to be nicer about them than they deserve when responding to a reference. (Of course, employers, be careful giving a positive reference about an employee whom you know is a serious liability just to get rid of them, because that could also come back to bite you.)
So that got me thinking. Can you really trust references? Probably not by themselves. So I am trying something new: background checks and skill testing.
Background checks are a good idea, and I should have been doing them all along. You need to know whether your new hire is lying about her college degree. California has some strict rules about background checks for potential hires, however. For example, the potential employee must be given notice of the background search (with what will be looked at, in writing) whenever a background search agency is used. Also, the potential employee must consent to such a search, and he or she must have an opportunity to get a copy of the public records the employer gathers. If the employer gathers public records itself by way of doing a cheap background search, it must allow new hires to decide whether they want a copy of the public records gathered, or whether they want to waive receiving a copy (this is usually an option found on employment applications as a small box or initial line).
Most potential employees, of course, will not have any criminal records. A bankruptcy may not indicate anything really bad, either. Our own government cannot keep itself out of debt; can you really blame John Smith the Office Assistant for buying too many TVs? I’ve had employees with bankruptcies, criminal histories, arrests, alcoholism and other personal problems in their past and all have turned out to be great employees.
My bad employees tend to fall into two categories: (1) drama queens/anti-social or (2) incapable of doing the job, no matter how hard they try, but also incapable of seeing that.
So I am experimenting with skill, aptitude and personality testing now. I have had several former employees straight-up lie to me about what they could do. After they were hired, they spent a lot of wasted time trying to figure out how to do things they stated that they could do already, or trying to hide their ineptitude. This not only wastes my time and money, it aggravates me because I cannot trust the person.
So far, every employee whom I have given a skills or aptitude test to has turned out well. I do not have a lot of advice regarding testing yet, because I am new at experimenting with it. But I am hopeful.
I will say this: make sure you use reputable testing agencies or batteries, especially if you are a big employer. You do not want to get sued for discrimination because only white males from Princeton pass your tests. I am very hopeful, however, that testing will help me identify the Dunning-Kruger Effect sooner.
By the way, I still advocate strict adherence to probationary periods, with formal reviews after 90 days! Some people are just not good fits and will slip through the preliminary hiring cracks, only to fail abjectly once they enter your organization. Weed them out! Remember, there are reasons why big businesses do some of the things that they do… and it isn’t because they are just evil, Kafkaesque machines with too much money. Sometimes they have things in place that small businesses should adopt for their own protection and success.
It shouldn’t surprise you that an employment lawyer will advise you to have an employee handbook.
But it may surprise you is that I would rather you have no handbook than one you write yourself.
Why would I say that?
Well, a handbook is an important legal document in lawsuits and labor audits. If you have non-compliant policies, it can create presumed liability automatically. In other words, non-compliant policies are like an admission of guilt.
In some cases, no written policies (for example, with respect to certain breaks, required notices, and pay policies) can also create a presumption of guilt. But non-compliant policies are a greater danger.
By far, my recommendation is that you have a lawyer-drafted, compliant employee handbook. Here is a short video on four good reasons why:
So now you know why you should have an employee handbook. Is downloading one off of an internet resource good enough?
NO! Employment laws are complex and numerous. Boilerplate employee handbooks often have provisions that sound reasonable to you as the employer, but are in fact illegal in some jurisdictions or may mislead you into doing something illegal.
I write several handbooks a year. I have never found a good template off a website (and I have tried several). I ended up creating my own template and checklist for management decisions. (You can choose different policies depending on how you want to run your business, and I advise on the financial, business and legal implications of those decisions as part of the drafting process.)
An employee handbook is a 50 page legal document that you should not attempt to DIY. Call a pro. And keep it updated!
Does it matter if I have an employee handbook?
“Does it matter if I have an employee handbook?” Yes! Here are four good reasons why. 1. A handbook teaches your managers and your employees the proper and legal way to do things. It’s not always commonsense. 2. A handbook empowers you to politely tell an employee “No” to a special request because it is against policy. This keeps everything fair. 3. A handbook can be used to defend you, should an employee lie about a situation to a court or governmental agency. 4. Employers are required to provide certain notices in writing to their employees, and a handbook is a good way to do it. Failure to provide these notices can result in lawsuits, fines and even criminal penalties. So yes, a handbook is essential and it should be reviewed by an employment lawyer annually. Does your business need employment law help? Visit us at bellatrixlaw.com to apply for our Employer Protection services.
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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.