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.
If you’ve ever watched reality TV, you know the producers go for a big shock factor on each show. Nothing shocks someone more than hearing those two dreaded words:
There’s one show in particular, on which the “boss” actually utters those words and makes a cobra-like gesture when he let’s a contestant know they been fired.
Queue the dramatic music. Cut to the scowl on the face of the “boss.” Pull the camera back to catch the look of shock on the face of the “employee.”
It’s good television for sure.
But in real life that is a dangerous scene.
In real life, in real business, that scene should never happen. Any time an employee is separated from his position, there should be an orderly process void of snap judgments and surprises.
There are four main reason people lose their jobs:
Reason 1: A Reduction in Force
Reason 2: Elimination of a Position
Reason 3: Poor Performance
Reason 4: Misconduct
Just about every job termination can be fit into one of these categories so let’s look at the business implications of each of them.
Quick reminder: This is not legal advice. You pay for legal advice. These workplace observations are free. Always consult an attorney (preferably me) before making a decision on terminating the employment of any employee.
1. Reduction in Force
Sometimes you have more employees than you need. Maybe sales have slowed. Maybe you have a seasonal shift in demand. Maybe you just hired too many people and you cannot pay all of them.
Regardless of the reason, if you have more employees than you can afford, it may be time to reduce the size of your workforce.
In this case, you can and should prepare written notification for each employee whose position is eliminated. The documents should be personalized and they should contain the specific dates when employment will be discontinued. They should also detail what, if any, severance pay and benefit packages are available.
You want to take great care to be fair and consistent in the methodology you use to calculate any severance or continuing benefits.
You also want to have your attorney review any documents the employee will need to sign as he departs. This is particularly the case for large workforce reductions, but certain Federal laws may apply, requiring notice and severance revocation periods.
If there will be some positions eliminated and some positions retained within one job classification, you definitely want to make sure you review each employee being retained and each employee whose position is eliminated, with your attorney. This should be done for a number of reasons (cough avoiding a discrimination lawsuit cough) not the least of which is fairness.
2. Elimination of a Position
Similar to a reduction in force, eliminating a position requires a legal review to test for fairness and objectivity.
You may need to prepare similar paperwork detailing the date the work period ends and what, if any, severance pay and benefits are available.
One of the things you want to focus on when you eliminate a position is how you will redistribute the workload from that position. Many employers expose themselves to liability when they simply change the title of the job but all the responsibilities remain the same.
Eliminating a position is not a shortcut to terminating a problem employee. It should only be done when a position is no longer required or when a job has drastically changed. Using that excuse for firing a poor performing employee can result in a wrongful termination lawsuit in which your defense (poor performance) looks like pretext or retaliation. It’s also cowardly.
3. Poor Performance
When an employee is not performing up to standard, his employment can be discontinued.
While it may not be required, it is always a good idea to have a documented discussion with the employee about his performance prior to job termination. This provides an opportunity for the employee to improve and it helps show your desire to correct the situation without additional disciplinary action.
Documentation should be carefully worded and you should always have your attorney review it before you present it to the employee.
In the event the employee’s performance does not improve, you have a record of the previous conversations and it should come as no surprise to the employee.
The key in addressing poor performance with an employee is to have a process in place and make the employee aware of the process at the outset of his employment. But that being said, you have to simultaneously make clear that the process is ideal, but not required, before a termination can occur. It’s a tricky line to walk, so a good handbook and training for you HR staff is key.
Rarely, you may need to address an incident of misconduct that warrants job termination. Incidents such as theft, harassment, dishonesty, violence and discrimination require immediate action. In fact, ignoring such conduct and not terminating right away can create serious liability issues for you as the employer. So take these things seriously and act swiftly.
These incidents almost always require the involvement of or guidance from an attorney. Other people’s rights may be implicated. Or you may get an excuse from the employee for his behavior (such as a disability) that make things tricky. You want to connect with your lawyer to review what to say, how to say it and what documentation to prepare and deliver to the employee.
In some cases, you may need to gather facts and investigate before making a final determination. Again, it is best to have an attorney involved in the matter to advise you on how to conduct and document this investigation.
The law, as it relates to employees, is complex and it varies from state to state. The best time to review these laws and address them with your attorney is before you hire your first employee. The second best time is right now.
Nobody likes surprises when it comes to employee issues. Let’s leave the drama to reality television.
The term “whistleblower” is defined as a person who reports illegal activity, fraud against the government, or other wrongdoing within a company, state agency, or organization. A federal law, called the False Claims Act, allows employees and other whistleblowers to bring a qui tam suit in the name of all taxpayers against companies who have overbilled or defrauded the federal government.
A state-level law, called the California False Claims Act, also encourages state employees and other whistleblowers to combat fraud and illegal activity by bringing claims against companies engaged in wrongdoing. If the whistleblower’s accusations are found to have merit by the government, and the company is subsequently charged, the whistleblower will receive statutory rewards for their courage in combating fraud against the government.
At Bellatrix PC, our experienced business lawyers are committed to defending entities accused of engaging in fraud, overbilling, and other wrongful financial and legal acts. Our legal team balances aggressive client advocacy with strict compliance with all pertinent state and federal laws, and is dedicated to assisting businesses of all structures and sizes. We will walk you through the nuances of the allegations against your entity, devise comprehensive defense strategies, and help your business explore its legal options for resolving the situation as rapidly, efficiently, and cost-effectively as possible.
To start discussing your goals in a completely confidential legal consultation, call Bellatrix PC today at (800) 449-8992.
Whistleblower Confidentiality Under California Law
The plaintiffs in whistleblower lawsuits, or qui tam lawsuits, are often referred to as “relators.” The California Whistleblower Protection Act, which protects the identity of relators, also authorizes the California State Auditor to accept complaints from both California employees and members of the general public who wish to confidentially report unlawful and unethical conduct.
Like the identity of the original relator, the confidentiality of these supplemental complaints is closely guarded. With a few special exceptions for law enforcement agencies conducting criminal investigations, complainants’ identities may not be revealed unless the complainant him- or herself grants permission for disclosure.
What Does the False Claims Act Prohibit?
The False Claims Act prohibits numerous types of fraudulent conduct, with some of the more common examples of prohibited acts including but not limited to:
A small business supplying false “minority-owned” certification, with the intention of securing additional government contracts, when the purportedly “minority-owned” business is in fact neither owned nor operated by a minority.
A healthcare professional billing Medicaid and/or Medicare for medical procedures, such as surgeries or examinations, which were never actually conducted. Medicare fraud is a widespread problem throughout the United States, with the Office of Management and Budget estimating nearly $48 billion in improper Medicare payments in 2010.
A government contractor falsely claiming compliance with federal safety regulations, such as those imposed by the Occupational Safety and Health Administratin (OSHA), when the pertinent regulations were in fact disregarded by the contractor.
A pharmaceutical company which encourages doctors and other healthcare professionals to prescribe patients drugs for uses which have not been approved by the Food and Drug Administration. This tactic is commonly referred to as “off-label” marketing.
Furthermore, California Labor Code Section 1102.5 provides several additional protections for individual employees. Pursuant to Section 1102.5:
(a) Employers are prohibited from creating, adopting, or enforcing any rules, regulations, or policies which would prevent an employees from whistleblowing, provided the employee in question has “reasonable cause” to believe that the information he or she is providing relates to a violation of state or federal laws or regulations.
(b) Employers are prohibited from retaliating against whistleblower employees. Once again, this provision is contingent upon the employee’s “reasonable cause” in believing that a violation or act of noncompliance has occurred or is occurring.
(c) Similarly to the provision of subdivision (b), employers are also prohibited from retaliating against employees who refuse to participate in illegal, unlawful, and unethical acts which violate state or federal laws or regulations.
(d) Employers may not retaliate against an employee for having exercised his or her rights under subdivision (a), (b), or (c) in any former employment.
(e) A report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency pursuant to subdivisions (a) and (b).
Section 1102.5 is designed to protect California whistleblowers’ legal rights. Employers who violate this statute may be subject to civil penalties, as well as additional damages stemming from lawsuits, couched as retaliation, in violation of public policy or wrongful termination in violation of public policy claims.
Contact Our Business Attorneys
If your company has been charged with committing fraud or other violations of the False Claims Act, the California Whistleblowers Protection Act, or Section 1102.5 of the California Labor Code, it is a serious matter which demands immediate attention from an experienced legal professional.
The employment law attorneys of Bellatrix PC represent entities of all structures and sizes, ranging from small start-ups to large and firmly established corporations, and are prepared to handle even highly complex multi-party litigation cases. Don’t wait until it’s already too late to address your legal issue: call the law offices of Bellatrix PC today at (800) 449-8992.
Businesses often employ a staff that practices half a dozen different religions. Some employees are more religious and worship daily, while others seldom participate or do not participate at all. Regardless of the frequency of their employees’ worship, employers must ensure that their rules, regulations, and business practices align with both state and federal regulations prohibiting discrimination based upon religion. Both the law and morality dictate that employers not discriminate against employees who have religious practices and cultural customs different than their own.
When a job applicant or former employee alleges religious discrimination, the legal and financial consequences for your business can be devastating. It is critical that you approach the matter with knowledgeable professional support. At Bellatrix PC, our experienced employment attorneys are dedicated to creating comprehensive, effective, and personalized defense strategies, and are proud to serve entities of all sizes, structures, and industries.
To arrange for a confidential case evaluation, call Bellatrix PC today at (800) 449-8992.
FEHA and Title VII of the Civil Rights of 1964
There are two significant laws which all employers must be mindful of with regard to employees who practice a religion: Title VII of the Civil Rights Act of 1964 at the federal level, and the California Fair Employment and Housing Act, commonly referred to as “FEHA,” at the state level. Together, these two laws encompass numerous anti-discrimination provisions.
As many employers are already aware, Title VII of the Civil Rights Act of 1964 famously prohibits discrimination upon the basis of race, sex, color, national origin, or religion. More specifically, Title VII prohibits treating employees differently due to either religious practices or religious beliefs, including the lack thereof. This applies to both your personal conduct as an employer, and to all aspects of employees’ job duties and employment. This could include, but is not limited to, matters of:
Promotions and Demotions
Title VII applies to all businesses with a workforce of at least 15 employees, in addition to unions and employment agencies.
FEHA, or the Fair Employment and Housing Act, mandates similar requirements for employers in the state of California. With several rare exceptions, FEHA is even more expansive in scope than Title VII, extending to small businesses employing as few as six employees.
Compliance with Employment Law: Avoiding Litigation
In addition to delineating prohibited acts of harassment, intolerance, and discrimination, Title VII also prohibits denying an employee’s request for religious accommodation, provided such a request is “reasonable” and does not burden the employer with undue hardships. Therefore, in order to better avoid religious discrimination lawsuits under Title VII and/or the FEHA, covered employers must attempt to make reasonable accommodations for an employee’s religious beliefs or practices in the workplace.
However, demonstrating undue hardship can be a very difficult for employers. Most of the time, at least some form of accommodation that is discussed will not be found by courts to create an undue hardship and employers should generally offer some type of accommodation where possible. Employers should also be careful to remember not to ask employees about the specifics of their religious beliefs, their availability for future holidays based on religion, or to require a dress code that violates an employee’s religious beliefs or practices.
On a final note, it is critical to remember that Title VII also prohibits acts of retaliation against job applicants, current employees, or former employees in response to allegations of discrimination.
Contact Our Business Attorneys
Sometimes a former employee will claim in their lawsuit both religious discrimination and national origin or racial discrimination occurred, as many cultures have a national religion or a practice that is not reflected in mainstream American culture. But no matter what the former employee is claiming, Bellatrix PC has years of experience aggressively defending employers in a variety of discrimination cases, including religious discrimination in employment.
Our attorneys will meticulously analyze the strengths and weaknesses of the case, focusing on the most efficient and cost-effective resolutions for your business. In addition, Bellatrix PC can also provide proactive advice on how to prevent potentially costly employment discrimination claims in the future.
To start discussing your business objectives in a private legal consultation, contact the employment law attorneys of Bellatrix PC right away at (800) 449-8992.
The seemingly simple decision to terminate an employee is often fraught with peril for employers. Business owners must be extremely careful to approach the situation sensitively, acting in a way that minimizes the company’s risk of exposing itself to a wrongful termination lawsuit in the future. Not only is wrongful termination litigation damaging to your company’s reputation and highly disruptive to efficient daily operations, it can also result in the imposition of enormously expensive fines. Offering severance packages to your employees can be a simple but effective method of protecting your business from legal and financial harm.
The skilled and knowledgeable employment attorneys of Bellatrix PC have extensive experience working with all types of businesses. We will help your organization calculate and prepare cost-effective offers, advise you of your legal rights and responsibilities as an employer, and aggressively defend your interests should litigation become necessary. Our goal as a law firm is to empower your company with the tools it needs to avoid or minimize financial damage, while maximizing your productivity and guarding your bottom line.
To start discussing your situation in a private legal consultation, call our business attorneys at (800) 449-8992 today.
Reasons to Offer Severance Agreements
Many people are surprised to learn that there are currently no state or federal laws explicitly stating that an employer must present an employee with a severance offer upon termination. The only exception would be if the employer and employee negotiated such an agreement as part of the employee’s offer package. This occurs most often with high-level executives, and in those circumstances tends to deserve the “golden parachute” appellation.
Where rank and file employees are concerned, a severance package is typically offered because employers realize that no termination is guaranteed to be resolved without incident. That is to say, even in situations where the employer is completely justified in terminating an employee, failure to “dot i’s and cross t’s” can lead to lawsuits the employer has little chance of successfully defending.
Consider the following questions: did you document every instance of the employee’s misconduct? Did you promptly bring your concerns to the employee’s attention? Did you give him or her an opportunity to rectify his behavior? Even minor omissions and missteps on the part of the employer, such as failure to document individual instances of employee misconduct, can expose any business to a dramatically increased risk of costly, damaging, and disruptive litigation. Our comprehensive business risk review service will help your organization target and improve vulnerable areas in its employment contracts and workplace policies.
In addition to minimizing the chance of a lawsuit, other common reasons businesses make severance offers include:
Avoiding Disruptions — For the comparatively small price of making an offer to a terminated employee, an employer will almost always recover their losses in significantly reduced stress and a more tranquil, efficient workplace and workforce.
Fairness and Goodwill — An employer may make an offer so that the affected employee retains a positive association with the business. This will help counteract the “bad taste” left by being terminated, and when others ask what it was like to work for the employer, they will more likely respond positively. It is often more advantageous for business owners to preserve bridges than burn them unnecessarily.
Years of Service — Some employers believe that rewarding a long-term employee for loyalty is a good way to invest in the productivity of the current workforce. In the past, it was customary to award one week of severance per year of service. Our attorneys will help you make financially sound calculations.
Executive-Level Employees — High-level executives will usually negotiate a deal with an employer up front during the offer stage. Since these employees typically handle the most stress and have access to the business’ trade secrets, they often receive some of the largest offers.
Release of Claims — The single most important legal benefit for employers is arguably the release of claims. In simple terms, this release protects the business from the employee filing any lawsuits in the future, including wrongful termination lawsuits and discrimination claims. Discrimination claims may stem from allegations of racial discrimination, sex or gender discrimination, religious discrimination, or other allegedly discriminatory practices.
Remember, well-crafted offers not only provide businesses with “peace of mind” — they are also legally binding.
Put Our Employment Lawyers to Work for Your Business
Bellatrix PC is here to assist if your business needs severance agreements drafted or reviewed, or requires legal representation during negotiations with an employee. Our experienced severance agreement lawyers will meet with you to create a personalized action plan that meets your objectives — and your bottom line.
In addition to assisting with severance package matters, Bellatrix PC can also handle your business’ daily legal needs. By establishing an ongoing relationship with our firm, we can act as an outsourced general counsel for all of your company’s legal questions and regulatory concerns. Establishing a relationship with experienced counsel can ensure that when a question or lawsuit arises, your company will know where to turn for dependable legal advice.
To set up a confidential consultation, call our law offices at (800) 449-8992. We serve organizations and individuals nationwide, with offices located in St. Louis, San Diego, and Riverside, CA.
Reducing your workforce is never an easy decision. Many employers will do everything they can to cut costs, increase sales, secure loans, etc., in order to keep their workforce fully intact. However, sometimes these adjustments are simply not enough and a reduction in workforce, otherwise known as a layoff, becomes necessary.
Before notifying the affected employees of the reduction in force, it is very important to make sure that your business is legally protected. There are a number of laws and acts that protect employees, not employers, in reduction-in-force or layoff situations. It is critically important to keep these regulations in mind when determining how you execute a reduction in force, which employees to include in the reduction, and how to structure severance agreements if you choose to offer them.
Don’t rush your business into a legally and financially disadvantageous situation. Before you commit to a potentially disastrous restructuring of your workforce, contact the experienced employment law attorneys of Bellatrix PC for assistance. We will help your company safeguard its interests, advise you through each stage of the legal process, and most importantly, keep you compliant with state and federal laws. To arrange for a private consultation, call our law offices today at (800) 449-8992.
Does the WARN Act Apply to Your Business?
The main objective of the WARN Act, or the Worker Adjustment and Retraining Notification Act, is to ensure that employees have sufficient time to prepare for the transition between jobs. The WARN Act generally applies to private for-profit businesses and private non-profit organizations, as well as quasi-public entities separate from the government, which employ:
A minimum of 100 full-time employees, excluding employees with fewer than six months on the job, as well as employees who work under 20 hours per week.
A minimum of 100 employees who collectively work a combined minimum of 4,000 hours per week.
Under the WARN Act, employers are generally required to provide the affected employees with 60 days’ advance notice, which must contain specific information, of the following:
The temporary or permanent closing of an employment site where a business intends to lay off 50+ full-time employees.
A mass layoff, where there will be at least 50-499 employees laid off at a single employment site and that number of laid off employees will be a 33% reduction in workforce at that employment site.
Any reduction in workforce of 500+ employees at a single employment site.
If adequate notice is not given, the employer could be liable for back pay and benefits for the time period of the violation, up to 60 days, which can be reduced by any wages the employer pays over the notice period. Employers can also be subject to civil penalties and paying an opposing party’s attorneys’ fees for WARN Act violations.
There are certain exceptions to providing WARN Act notice, including if a natural disaster is behind the plant closing or layoff, if the business could not have reasonably foreseen within 60 days the events leading to the layoff or closing, and when a business is actively seeking capital to try to avoid layoffs.
Avoiding Employment Discrimination Lawsuits
In California, employers are not permitted to layoff an employee solely based on sex, gender, age, national origin, religion, or sexual orientation. When a reduction in force impacts or targets employees in one of these protected classes, it can lead to claims of discrimination. The most common of these claims are made for age discrimination, when an employee states that he or she was eliminated because of the expense of their continued employment to their employer.
When planning for a reduction in force, employers should analyze their workforce to determine what it looked like before and what it will look like after making the reduction decisions. For example, if the employer statistically had 40% minorities before the reduction and 5% after, the employer needs to have a legitimate business rationale for this result that will withstand a charge of discrimination, if one is made. The employer may want to rethink their method of restructuring in a situation such as this one.
The Older Workers Benefit Protection Act (OWBPA)
The Older Workers Benefit Protection Act (OWBPA) is an amendment to the Age Discrimination in Employment Act (ADEA) directed at protecting the benefits of workers over the age of 40. Generally, whenever employers seek a release from federal age discrimination claims, such as in severance packages or settlement agreements, employers must comply with the OWBPA.
The requirements of the OWBPA are generally triggered in the four following release scenarios:
An employee is involuntarily terminated, but does not bring a lawsuit or file a complaint with the Equal Employment Opportunity Commission (EEOC).
A release by an employee who was involuntarily terminated in a mass layoff or group workforce reduction, but does not file a lawsuit or complaint alleging age discrimination.
A release in the settlement of a disputed claim, including lawsuits and EEOC claims.
A release by an employee who voluntarily quit the job as part of an incentive program.
Regardless of the originating scenario, when the OWBPA is triggered, the Act requires that releases be drafted in plain language contain certain provisions, including a written advisory for the worker to consult with an attorney prior to signing the release, state a specified period for the worker to review the release (21 or 45 days, depending on the circumstances), and provide for a seven-day period to revoke the release after signing. If a release is not in compliance with the OWBPA, it can be invalidated, so it is important to ensure that you comply with this Act.
Union Contracts and ERISA Compliance
Employers planning to lay off union workers should review the collective bargaining agreement (“CBA”), as it defines employee rights and ensures that they are not violating provisions of the CBA. Certain parts of the agreement may need to be renegotiated with the union, or you may have to adjust your method of laying off union workers.
Employers should also be aware that some severance and voluntary incentive pay plans may be plans covered by the Employee Retirement Income Security Act, commonly known as ERISA. This act generally establishes minimum standards for pension plans in private industry and gives extensive rules in the area of employee benefit plans.
All members of your management team that are given the responsibility of notifying employees of the reduction in force should be educated to ensure consistency. Your management team should know exactly what procedures to follow in conducting exit interviews, what statements should or should not be made, and how to answer employee questions.
Your team should also conduct the process as quickly as business conditions permit to maintain acceptable productivity levels and employee morale. Human resource administration should continue as normally as possible, administering performance reviews and counseling notices. Do not use selection for layoff as a substitute for incomplete performance management.
If your business is considering a reduction in force, or layoff, receiving advice from an employment attorney is recommended. Bellatrix PC can help ensure that your reduction in force is executed in compliance with all of state and federal laws. We can also help draft or review severance agreements for affected employees.
To arrange for a confidential legal consultation with the experienced business attorneys of Bellatrix PC, call us today at (800) 449-8992. We have offices in San Diego, St. Louis, and Riverside, CA.
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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.