Employer Helpcast

HUGE VICTORY FOR EMPLOYERS

2008-07-22T11:27:00.000-07:00

Hello everyone!

Well, everyone waiting for news on the status of meal and rest breaks in California - that wait has ended (at least for now.) The California Court of Appeal in the Brinker decision just held:

"With these principles in mind, we conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment. Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment. Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock. Accordingly, we grant the petition and order the superior court to vacate its order granting class certification and enter a new order denying certification of plaintiffs' proposed class."

This is HUGE!!! According to this decision, employers only need to provide employees with the opportunity to take meal breaks - they do not need to ACTUALLY ENSURE THEY ARE TAKEN.

Stay tuned for an upcoming podcast on this at www.employerhelpcast.blip.tv.

Or, if you would like to discuss this decision, and the impact it could have on your operations (or any lawsuit or claim that is pending or possibly pending), feel free to give me, Helene Wasserman, a call, at 310-772-7288.

Take care

Helene

The Reason Why People Hate Lawyers

2008-02-29T15:34:00.000-08:00

Yes, I am a lawyer. And every so often I read a case that explains to me why it is that people hate lawyers so much. Today I read just such a case.

The plaintiff in Harrington v. Payroll Entertainment Services, Inc. had a $44.63 claim against his former employer for unpaid overtime. Yes, you read that right, $44.63. And, of course, he found an attorney to file a lawsuit in order to get that money. In fact, he believed there were others who also were owed overtime, and he filed a class action alleging various violations of California's Labor Code. There were a total of 16 people affected by the violations. Calculations done by the employer revealed that the total amount of overtime owed was $714.08. Because of various penalties, etc. that had accrued, the case ultimately settled for $10,500. As part of the settlement, the parties agreed that Harrington would be considered the "prevailing party" for purposes of an attorney fee award. So far, so good.

Harrington's attorney then submitted a motion for fees, seeking $46, 277, more than 1000 times the amount of the value of Harrington's claim, and more than four times the amount of the settlement. The documentation supporting the award noted that there were five lawyers and one paralegal working on the case, with one lawyer billing 55.6 hours at $525 per hour! On a case that arose from a $44.63 claim. The trial court judge denied the motion outright, and the Court of Appeal reversed, awarding $500. Maybe that wasn't enough, maybe it was. But it certainly sent a message.

Yes, labor code violations can be costly, both in terms of liability and the attorneys fees that must be paid if an employer is found to violate the labor code. For some useful information about how to avoid violating the labor code, check out my podcasts at http://employerhelpcast.blip.tv/file/224221/ and http://employerhelpcast.blip.tv/file/224199/.

But the fact that the lawyers spent so much time (and money) and thought it was reasonable to recover that amount of money (which was so many times the amount of recovery their clients received), is what gives many people a bad feeling about lawyers.

Happy Valentine's Day!

2008-02-14T08:57:00.001-08:00

A word for all employers on Valentine's Day:

Does Cupid have Your Employees in his Sights?

It is that time of year again. Flowers and hearts, chocolates and cards. But, what is an employer to do if the objects of his or her employees’ affections are their co-workers, supervisors, or the people they supervise? What’s more, what happens if the affections are not reciprocated? Or, what if they are?

Valentines’ Day seems to give many employees a “free pass” to be playful and romantic at work. Heart-shaped candies that say “Be Mine” are left on people’s desks. Chocolate roses are presented. Jovial cards reminiscent of grade school days are given. E-cards are sent (using office computers, of course.) Harmless, right?

Maybe yes, maybe no. Not to criticize harmless fun, but where is the line to be drawn at the workplace? While most people don’t view cupid as being a sexual being, there is no mistaking the message of many of the provocative gifts, cards and e-cards sent at work on Valentine’s Day. People often consider Valentine’s Day as being exempt from company rules and regulations about inappropriate workplace conduct. It is Valentine’s Day, remember romance?

When affections are directed at someone who does not share the feeling, the object of the affection could feel put upon, uncomfortable, or even worse, sexually harassed! And if the person presenting the “friendly valentine” is a supervisor, then the unwilling recipient could feel obligated to reciprocate in order not to offend the person who evaluates her work and determines her raises.

What about the co-workers of the person who receives that special box of chocolates or roses? Those people see their supervisor showing valentine’s favoritism towards their co-worker, may suddenly believe he is treating her better than he is treating them. She will get the better assignments, the “plum” positions, and a higher raise. She is the manager’s “love interest,” his paramour, which makes the other employees feel uncomfortable and mistreated. Claims can be filed by both the unreceptive “love interest,” as well as the uncomfortable co-workers. It is a “lose-lose” situation for the employer and the Romeo supervisor.

What can be equally as uncomfortable is a situation where there is reciprocity of affection. Whether amongst co-workers or managers, outward displays of affection in the workplace, on Valentines Day or not, can make others in the workforce feel uncomfortable. Employees may not like watching people hugging at work, awkward that they may be next to be hugged (or that they need to allow themselves to be hugged to be accepted.) Employees may draw the conclusion that the way one “gets ahead” in the company is by becoming romantically involved with a supervisor. Employees may get nauseous hearing too many “honey, baby, sweetie” remarks at work.

Then, what happens if the once-consensual relationship sours? What was once welcome behavior by both people suddenly becomes unwelcome by one of them. The affectionate remarks, cards, gifts, and “love taps” suddenly is offensive, and considered to be harassing by the former love interest. Many companies have even sought legal counsel to create “love contracts,” where the participants in the consensual relationship acknowledge that the relationship exists, that it is consensual, and that nothing that happens between the two love birds can be considered harassment. That is, of course, until one of the love birds flies from the relationship and lets their employer know that the “love contract” is no longer in effect. Not only can this disrupt the relationship between the individuals involved, it can also disrupt operations. From office gossip to arranging for quickie job transfers, the “break up” can dominate a once-productive workplace.

The best way for employers to protect themselves and their employees from uncomfortable and unwelcome activity, both on Valentine’s Day and throughout the year, is by making sure that all employees are trained about sexual harassment, how to respond, and how to complain. In some places (like California), this training is mandated by law for many employers. Even though employers cannot control how their employees interact, training ensures that they have done what they can to educate their employees.

Maybe employers should pick Valentine’s Day to do sexual harassment training? Long-stemmed chocolate roses for everyone!

If you would like to find out more about sexual harassment issues, check out my podcast at http://employerhelpcast.blip.tv/file/270431/. Also, all employers should (and all employers with 50 or more employees MUST) conduct sexual harassment training. To find out more about employers' sexual harassment training obligations, check out http://employerhelpcast.blip.tv/file/337812/

Happy Valentine's Day

Helene

New California Employer Case Regarding Compassionate Use of Marijuana in the Workplace

2008-01-24T11:49:00.000-08:00

Hello Everyone!

Well, the California Supreme Court just today ruled that an employer is not obligated to accommodate an employee engaged in the compassionate use of marijuana. At issue in Ross v. RagingWire was whether an employer must retain as an employee an individual who fails a properly-administered drug test due to the compassionate use of medical marijuana.

On January 24, 2008, the California Supreme Court affirmed the decisions of the lower courts that dismissed Ross’s claim, and affirmed judgment in favor of RagingWire. Ross v. RagingWire Telecommunications, Inc. (Cal. Supreme Court 1/24/08).

Ross applied for work as an information technology professional with RagingWire. As part of the hiring process, RagingWire requires all employees to undergo a pre-employment drug test. Ross agreed to accept an employment offer with RagingWire, which was contingent upon him passing the mandatory drug test. He did so even though he was using marijuana under California’s Compassionate Use Act of 1996 to alleviate chronic back pain. When his drug test came back positive for marijuana metabolites, Ross’ employment was terminated after eight days on the job.

The trial court dismissed Ross’ complaint, and the California Court of Appeal affirmed that dismissal.

Ross set forth two arguments. First, he argued that RagingWire’s refusal to accommodate his compassionate use of marijuana was tantamount to disability discrimination under the California Fair Employment and Housing Act. In rejecting this argument, the Court held that the FEHA does not require employers to accommodate the use of illegal drugs, and that marijuana is an illegal drug under federal law. The California Supreme Court noted that “Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug.” However, the Court noted that it does not do so. Instead, the Court explained that what happened when the Compassionate Use Act was enacted was that it exempted medical users of marijuana and their primary care givers from criminal liability under two specifically designated state statutes. Indeed, the Court explained “[N]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”

Second, Ross asserted, based upon RagingWire’s refusal to accommodate his use of marijuana, and that the termination of his employment was wrongful, in violation of public policy. The Court disagreed, again asserting that the Compassionate Use Act does not speak to employment law, and therefore does not articulate a public policy concerning marijuana use in the employment context.

Drug testing of employment applicants has become commonplace. While California law does permit such testing, there are certain requirements that employers must meet in order to comply with the law. Indeed, California’s Constitution contains an express right to privacy, which often comes into play when evaluating drug testing policies and procedures in the employment setting.

If you are interested in learning more about drug testing in the workplace, check out my podcast on this topic, which you can find at http://employerhelpcast.blip.tv/file/286718/

What do you think of this case? Let me know!

Happy Holidays, Let's Catch Up

2007-12-10T15:04:00.000-08:00

Yes, it has been a while since I have blogged. One of my New Year's Resolutions is to blog much more often. In fact, I am starting NOW!

'Tis the Season, which means many employers are planning their annual Holiday Party. I frequently get calls about whether to have a party or not, serve alcohol or not, after hours or not, etc. Without meaning to sound like a current-day Scrooge, if asked my opinion, I will typically recommend against serving alcohol at a company Holiday Party. And, when that suggestion is met with negative reactions, I offer several suggestions as to what employers can do to minimize their risks of "holiday cheer" becoming "holiday jeer." I recently recorded a podcast on this topic, which can be downloaded via iTunes, or which can be found at http://employerhelpcast.blip.tv/file/523311/. You can also find this podcast, as well as other podcasts I have recorded, at www.employerhelpcast.com., and then click on "podcasts."

One of the things I do recommend is that employees need to be reminded that, even though the party is voluntary (since it really needs to be to have any chance of limiting liability), and off of work premises, and not during working hours, work rules apply. One way that I suggest employers reinforce that behavior is by reissuing their sexual harassment and drug/alcohol policies right before the party. If you would like to see what I recommend these policies look like, you can download my sample policies by going to http://www.employerhelpcast.com/Downloads.html.

While we are on the subject of interesting downloads, I also have posted a new download on my website, all about the "Top 10 Mistakes Good and Honest Employers Make." You can get it, free of charge, by visiting http://www.employerhelpcast.com/Downloads.html

And, since we are talking about drug use policies, I wanted to follow up on one of my earlier blog entries, about "sex, drugs, and rock 'n' roll." At least I would like to revisit the "sex" and "drugs" parts.

As you likely know by now, California finally passed final regulations regarding the sexual harassment training requirements that went into effect. The regulations did a great job of clarifying some of the questions employers had about who needs to be trained, who can conduct the training, what must be included in the training, and how often the training must be conducted. My podcast on this can be downloaded either via iTunes, or can be found at http://employerhelpcast.blip.tv/file/337812/ or at www.employerhelpcast.com.

When talking about "drugs," I am referring to drug use in the workplace. One of the most controversial issues in California relates to the interaction between the compassionate use of medical marijuana and the workplace. On November 6, 2007, the California Supreme Court heard oral argument in the highly-controversial case of Ross v. RagingWire. At issue in Ross is whether an employer must retain as an employee an individual who fails a properly-administered drug test due to the compassionate use of medical marijuana. The oral argument was fascinating. Check out my comments about the oral argument at http://www.employerhelpcast.com/Compassionate_Use_of_Marijuana.html.

That, sort of, brings us up-to-date on some of the new legal issues and developments. Please check out my www.employerhelpcast.com, for all sorts of information about new legal developments in the area of employment law. And, if you would like to hear a podcast on a particular topic or see a blog entry or article, please let me know.

Until I blog again, have a safe, healthy, peaceful and prosperous holiday season.

Sex, Drugs and Rock 'n Roll

2007-06-17T13:55:00.000-07:00

Welcome! You don't need to be a child of the sixty's to have heard the term "sex, drugs and rock 'n roll." Just the saying conjures up memories. Or, maybe, it doesn't. That could be the symptom of too much "sex, drugs and rock 'n roll!"

Most people don't think of their workplace when they think of "sex, drugs, and rock 'n roll." Well, my plan is to change all of that. My newest series of Employer HelpCasts is all about how knowing about those three topics is vital to your operations. If you haven't visited them yet, you can listen to and download my Employer HelpCasts at http://employerhelpcast.blip.tv.

In the first of this three part series, "sex," I address the topic of sexual harassment in the workplace. All employers are required to provide all employees with a harassment-free workplace. It only makes sense. Employees that aren't being harassed are happier and more productive. Happier and more productived employees are better for your business. But, while most people have an idea of what sexual harassment is, there is a lot of stuff that happens at the workplace that could be sexual harassment, that people don't necessarily think is sexual harassment. What about repeating a joke you heard on Leno? Listening to Howard Stern on the radio? Having rap music on the radio in a lunchroom? How about sharing a friendly hug or easing the tension in someone's shoulders with a brief massage? While there are no "hard and fast" rules as to what conduct is sexual harassment, knowing that any conduct that can be perceived as sexual harassment may create a sexually hostile work environment is vital to every employer's operations. In this HelpCast, I go into some examples, and explain how employers can provide their employees with a harassment-free workplace, and at the same time shield themselves from liability for any such claims.

In the second of this series, "drugs," I will address issues of drug and alcohol use and testing in the workplace. California, where my office is, has strict rules regarding when applicants for employment and employees can be tested for drug and alcohol use. California's Constitution provides all individuals with an express "right to privacy," which prevents employers from conducting drug and alcohol testing except under certain circumstances. Other states, where my firm, Ford & Harrison LLP (www.fordharrison.com), has offices, have other legal requirements. In this HelpCast, I will address drug and alcohol workplace issues and laws, testing, and various requirements to accommodate employees with drug and alcohol problems. Additionally, I will discuss the current state of the law in California regarding the medical use of marijuana, and how that impacts your rights as an employer.

In the third HelpCast of this series, "rock 'n roll," I discuss a topic near and dear to most Californian's hearts - earthquakes! More to the point, this HelpCast will address disaster preparedness in the workplace, and what employers should do to make sure that their employees are prepared in the event of a natural disaster while in the workplace, and how to protect business operations if there is such a disaster.

I hope you enjoy this blog and these HelpCasts. If you would like to discuss these or any other employment-related topics, or maybe suggest a topic for a future blog or HelpCast, please either leave a comment here, send me an email at hwasserman@fordharrison.com, or call me at (213) 237-2403. And, of course, if you want to find out more about who I am and what I do, please visit the interview produced by Peter Brusso at infocard.cc (www.infocard.cc) which can be found at the EmployerHelpCast at http://employerhelpcast.blip.tv.

Thanks!

Welcome and Introduction

2007-06-03T18:45:00.000-07:00

Hello Everyone. I am new to blogging and podcasting. So, I was thinking to myself "If I were going to find someone's blog to read or podcasts to listen to, what would I want to know about the person writing or podcasting before I spend my time?" That's what this first post is going to be about. Who I am and why I want to share my information with you.

Now, of course, those of you who want to actually see me while listening to me, you can check out the video interview done for me by Peter Brusso of Infocard.cc, by going to my helpcast at http://employerhelpcast.blip.tv. But, here is my story (at least as far as why I am doing this blog and podcasts.

Twenty years ago, in a galaxy far, far away (ok, not so far away, it was San Diego, California), I graduated law school. I had no idea what area of law I really wanted to practice in. To this day, I think the fact that I was interviewed by a labor and employment law firm was an accident, a mistake, since I never applied to work with any labor and employment law firms. Call it fate, but I was offered a position to work in a Firm whose practice was devoted exclusively to representing employers in labor and employment law matters. I had been an employee, had not been an employer, but I thought it would be interesting to learn more about the dynamics of the employment relationship. So I accepted the job. I never looked back, and have exclusively worked in this area of law since my first day out of law school.

I have worked with big companies and small ones, in probably every possible industry that exists. And, while every business operates differently, I think there are some "truths" that cross size and industry lines, and pretty much apply across the board. Despite cynics or "popular belief," most companies truly want to treat their employees well. Most employers recognize, as I have always and will always believe, that their employees are their greatest assets. Good employees are what a company needs to succeed, even survive. Bad employees, or employees who believe they are mistreated, can be an employer's worst nightmare. And employers know this. And most employers do their best to avoid having that nightmare.

Unfortunately, not all employers are as educated as they can be about the law of the state(s) where they have employees. Not all employers know the employment and labor laws as well as they should. This does not mean they are "bad" employers or that they are malicious, or somehow trying to treat their employees poorly. It just means that they may not have, or know where to get, the resources or assistance they need.

That's where I come in, and why I hope you find this blog and my helpcasts to be helpful. I have devoted a significant amount of my practice to helping employers answer those "day to day" questions that come up when dealing with employees. Currently, as a Partner with the national labor and employment law firm of Ford & Harrison LLP (www.fordharrison.com), many clients have my direct dial (213) 237-2403, on their speed dial, to call me with questions before they take actions involving their employees. I provide that guidance. I also conduct in-house training for clients, I work with human resources personnel in advising how policies should be created and implemented. I draft handbooks and procedures. I call it "preventive lawyering." I'd like to think it helps keep clients out of trouble.

Sometimes, though, all of the "preventive lawyering" in the world won't prevent a disgruntled former or current employee from suing. In those cases, I fight "tooth and nail" to represent my client's interests and obtain the result my client wants. I work with clients to define what a "win" is for them. Maybe a "win" is fighting "to the death," to prove a point. I am an accomplished trial attorney, and enjoy fighting for my client's rights. Maybe a "win" is a quick resolution, via mediation or arbitration, resolving the case, and moving forward. I do that as well. I always work with clients, upon resolution of a case, to take from it "lessons learned." What can the client learn from the experience? How could a similar situation be handled differently in the future?

In my blog and podcasts, I plan on providing information that could help companies become a bit more informed about labor and employment law. Some of them will be "nuts and bolts" information, and others will provide information about new developments, new cases, legislation, labor laws and employment laws, and the like.

My first series of five podcasts are of the "nuts and bolts" type. The first three discuss California wage and hour topics, like how to decide if someone is an employee or independent contractor, how to determine if your employee is exempt or non-exempt, and various other wage and hour landmines that can get unknowing employers in trouble. The next two deal with how to hire, and how to fire, an employee.

I hope you find this blog and my podcasts helpful. If you do, please let me know, so I will continue doing them. If they don't please let me know, and tell me what I can do to make them helpful.

Feel free to either post a comment here, at http://employerhelpcast.blip.tv, send me an email at hwasserman@fordharrison.com, or call me at (213) 237-2403.

Enjoy!

Helene

Welcome to Employer Help Cast

2007-06-03T09:22:00.000-07:00

Welcome everyone to my blog! While I am writing all my new blog material, please visit my podcast: http://employerhelpcast.blip.tv and enjoy!