QUESTION
I run a small business and I can't afford to offer much of a severance package to an employee that I need to get rid of, but I'm not sure what else I can do to get a release.
ANSWER
I get this one all the time. If you believe you have a "high risk" termination, you're wise to try and get a release. It can't cover everything, but it will sure help. If you're running a smaller business, it's probably going to hit you hard in the wallet to issue a chunk of severance (which allays the first concern of the departing employee: how do I pay my bills and get my next meal). Here are a few ideas you can use that are low cost.
(1) Allow the employee to resign, but agree not to contest unemployment.
(2) If you are covered by it, offer to pay a month of COBRA instead of salary.
(3) Offer a letter of recommendation (beware this one if they cause damage at the next place)
(4) Offer to expunge their file of some bad things.
That should give you enough chips in your exit interview to get a release out of many people.
5/23/2005
Restatement of Employment Law?
The ALI is gearing up to draft an employment law restatement. It sounds like it could be somewhat interesting at first glance, but once you see what's in it, it sounds silly.
The right way to do something like that would be an exhaustive 50 state project, and could be a useful tool. I know in my practice, I compare federal and state law often, but I just don't have much reason to see what they're doing in, say, Kentucky on overtime (if anything). After a while, I think you'd start to find that a few positions would evolve and could be great arguments to use, especially if you're in appellate practice.
But, what's coming doesn't sound very good. Maybe as a resource for a law school textbook, but not much else.
See this critique, via Law Memo.
The right way to do something like that would be an exhaustive 50 state project, and could be a useful tool. I know in my practice, I compare federal and state law often, but I just don't have much reason to see what they're doing in, say, Kentucky on overtime (if anything). After a while, I think you'd start to find that a few positions would evolve and could be great arguments to use, especially if you're in appellate practice.
But, what's coming doesn't sound very good. Maybe as a resource for a law school textbook, but not much else.
See this critique, via Law Memo.
5/19/2005
UPDATE: Labor Code 226.7 Decision
Apparently, the case in question has been mooted and it seems unlikely that a decision will be published in the case.
Labor Code 98, 98.2 and "Procedural Due Process"
I've started to wonder: at what level, if any, does a wage claim heard with the informal procedural rules of a DLSE hearing start to touch on due process? The legislature has decided that at $25,000 civil cases require more deliberation, discovery, and so forth. Congress has determined that cases above $75,000 between citizens of different states require the protection of a theoretically less biased federal judge.
If you've practiced in the DLSE, you know that either side can get a lot of questionable evidence into the record, and it's all left to the discretion of a hearing officer. Does the availabilty of de novo review eliminate this concern? (And if so, what effect would AB 382 have on that?)
It seems to me that if these sections are open to review right now, two possibilities should be considered: (1) cases over a certain amount ($100,000?) are kicked directly to the Superior Court, or (2) cases over that amount are given much broader discovery and tighter evidence rules at the DLSE hearing.
If you've practiced in the DLSE, you know that either side can get a lot of questionable evidence into the record, and it's all left to the discretion of a hearing officer. Does the availabilty of de novo review eliminate this concern? (And if so, what effect would AB 382 have on that?)
It seems to me that if these sections are open to review right now, two possibilities should be considered: (1) cases over a certain amount ($100,000?) are kicked directly to the Superior Court, or (2) cases over that amount are given much broader discovery and tighter evidence rules at the DLSE hearing.
5/18/2005
Free Advice Wednesday (late)
QUESTION
Under the Equal Pay Act, does someone hired on the same day, with the same responsibilities as me have to be paid the same amount?
ANSWER
Only if the reason for paying you differently is done on the basis of your gender. For purposes of other laws, any illegal discriminatory basis may apply. In general, however, there is no blanket rule.
Disclaimer: These questions are derived from questions I sometimes get, with different facts, laws, and so forth. Every situation is different, so talk to a lawyer if you have questions.
Under the Equal Pay Act, does someone hired on the same day, with the same responsibilities as me have to be paid the same amount?
ANSWER
Only if the reason for paying you differently is done on the basis of your gender. For purposes of other laws, any illegal discriminatory basis may apply. In general, however, there is no blanket rule.
Disclaimer: These questions are derived from questions I sometimes get, with different facts, laws, and so forth. Every situation is different, so talk to a lawyer if you have questions.
Welcome and Thank You.
There has been an unprecedented level of activity on this page this week. For those of you that are new, welcome! I thought now would be a good time to revisit my "mission statement" for this page. I started this "blawg" on July 1, 2004.
Here's what I initially set out to do:
I think I have mostly lived up to that over the last 11 months. I'd like to add some new parameters. I have not covered "traditional labor" issues, because I think those are well documented elsewhere. I had planned to cover the NHL lockout more closely than I have because it has some interesting dimensions (first and foremost, the union has a lot of wealthy members) and interesting implications. I haven't found much to add to the narrative there, though.
My niche has become the evolution and development of the labor laws of the state of California, and I hope to continue to follow that path.
Any input is appreciated and welcome!
Here's what I initially set out to do:
I plan to include more than case law summaries and analysis. Law and lawsuits don't exist in a bubble. There are political and economic forces at work that shape them. To the extent I believe there is a causal nexus, those things will be covered as well. This will include at a minimum, tracking and discussions of pending bills in the legislature (and, sometimes, in Congress), and discussions of economic indicators that are relevant.
I am going to do my best to give objective, neutral commentary on these issues. This means I won't be championing issues on the side of the plaintiff's bar or the industry side. * * *
This is also not a blawg of record. Not every issue will be documented, largely because they are already so well documented.
My niche has become the evolution and development of the labor laws of the state of California, and I hope to continue to follow that path.
Any input is appreciated and welcome!
5/17/2005
Court of Appeal Holds 226.7 Imposes Penalties
I hear that a California Court of Appeal has certified an opinion for publication (possibly today) holding that Labor Code 226.7 imposes penalties not wages. This also means recovery under the UCL will not be possible. It also either confirms or bolsters the claims in the new regulations.
I'll post more when it shows up on the docket.
I'll post more when it shows up on the docket.
5/16/2005
My AB 879 Article; AB 879 Update
Members of the State Bar of California's Labor & Employment law section can read my article on AB 879 in the California Labor & Employment Law Review here. (p.18)
The Assembly Floor and Committee analyses of the bill are now available.
Support for the Bill has increased a great deal:
On May 9, the bill passed out of Committee 6-2 (along party lines).
The Assembly Floor and Committee analyses of the bill are now available.
Support for the Bill has increased a great deal:
- California Conference Board of the Amalgamated Transit Union
- California Conference of Machinists
- California Labor Federation, AFL-CIO
- California Rural Legal Assistance Foundation
- California Teamsters Public Affairs Council
- Engineers and Scientists of California, IFPTE Local 20
- Legal Aid Society - Employment Law Center
- Professional and Technical Engineers, IFPTE Local 21
- Terra Law, LLP
- UNITE HERE! AFL-CIO
- United Food & Commercial Workers Region 8 States Council
On May 9, the bill passed out of Committee 6-2 (along party lines).
DLSE Revises Meal Period Regs Again.
The 15-day comment window on these revisions closes on May 25. The changes are not merely ministerial. (Is the DLSE opening itself up to a Cal-APA challenge?). Here are some of the changes.
There is more here from the Orrick firm.
- Removes language requiring on-premises meal period to have a place provided to eat.
- Removes requirement that employer make available meal period, only that workers be informed.
- Removes the poster requirement
There is more here from the Orrick firm.
5/11/2005
Free Advice Wednesday: Changing Compensation Levels
QUESTION
Can my employer simply notify me one day that he has changed my salary?
ANSWER
If your employment contract is "at-will" California courts have held that employers may change the compensation level, because it is tantamount to ending one agreement and starting a new one. If you have a contract that guarantees a certain income for a period of time, then this probably can't happen. If your the member of a union, you should certainly talk to your rep to see what's up.
However, it should be noted that if you feel this has happened for an illegal reason (race, gender, etc.) it is also a no-no even if you are an at-will employee.
If you're an employer, you should review the circumstances carefully to make sure that your actions aren't having an illegal discriminatory effect or somehow violate a contract.
Can my employer simply notify me one day that he has changed my salary?
ANSWER
If your employment contract is "at-will" California courts have held that employers may change the compensation level, because it is tantamount to ending one agreement and starting a new one. If you have a contract that guarantees a certain income for a period of time, then this probably can't happen. If your the member of a union, you should certainly talk to your rep to see what's up.
However, it should be noted that if you feel this has happened for an illegal reason (race, gender, etc.) it is also a no-no even if you are an at-will employee.
If you're an employer, you should review the circumstances carefully to make sure that your actions aren't having an illegal discriminatory effect or somehow violate a contract.
5/04/2005
Free Advice Wednesday: Written Termination Notices
QUESTION
When I fire someone, do I have to give written notice?
ANSWER
Technically, under the Unemployment Insurance Code, you have to give a notice that includes the employee's social security number as well as a pamphlet called "For Your Benefit" to the employee.
Much of the employment law literature focuses on preventing wrongful termination suits, and that, of course is important. While they are more common than many people expect, they certainly don't happen every time. Almost every time, however, you'll have to go through the unemployment insurance process, and making mistakes there can lead to your account getting charged. It won't cost you as much as a wrongful term case, but it can add up. What's more, there's a minimal cost in complying with that regulation.
Sometimes it's the little things.
When I fire someone, do I have to give written notice?
ANSWER
Technically, under the Unemployment Insurance Code, you have to give a notice that includes the employee's social security number as well as a pamphlet called "For Your Benefit" to the employee.
Much of the employment law literature focuses on preventing wrongful termination suits, and that, of course is important. While they are more common than many people expect, they certainly don't happen every time. Almost every time, however, you'll have to go through the unemployment insurance process, and making mistakes there can lead to your account getting charged. It won't cost you as much as a wrongful term case, but it can add up. What's more, there's a minimal cost in complying with that regulation.
Sometimes it's the little things.
5/03/2005
Do You Have A Camera Phone Policy ? (No, Really)
Nexsen Pruet has this advisory on camera phones in the workplace. Apparently, larger employment law firms are successful at drumming up business by scaring the crap out of employers. Here's their lead-in.
Boo! Now, good grief! I'm even getting a tick from reading that. Now, I'm not necessarily saying that you shouldn't have a camera phone policy. But, I think that each of those threats would be covered by a well-drafted policy manual that doesn't list each and every possibility. You run the risk of listing so many things that the list looks exhaustive. And then when the next gizmo comes along, everyone thinks, hey, it's not on the list!
What if people don't know they're not supposed to do those things without explicit mention of the phone? Same problem. They won't make that connection with the next gizmo. Focus on the behavior that's the problem, not every instrumentality of it. Keep sensitive documents secure. Keep meetings confidential if they are sensitive, and make sure you strictly enforce your sexual harassment policies. After all, do you really want an employee to say, "but I didn't take that picture of her butt with my camera phone! It was my camera!"
Your company’s confidential documents are being copied. Your biggest competitor has learned your trade secrets. Photographs of one of your supervisors disciplining an employee are appearing on a union organizing website. And, to make matters worse, a sexual harassment charge has just been filed against your company.
Boo! Now, good grief! I'm even getting a tick from reading that. Now, I'm not necessarily saying that you shouldn't have a camera phone policy. But, I think that each of those threats would be covered by a well-drafted policy manual that doesn't list each and every possibility. You run the risk of listing so many things that the list looks exhaustive. And then when the next gizmo comes along, everyone thinks, hey, it's not on the list!
What if people don't know they're not supposed to do those things without explicit mention of the phone? Same problem. They won't make that connection with the next gizmo. Focus on the behavior that's the problem, not every instrumentality of it. Keep sensitive documents secure. Keep meetings confidential if they are sensitive, and make sure you strictly enforce your sexual harassment policies. After all, do you really want an employee to say, "but I didn't take that picture of her butt with my camera phone! It was my camera!"
5/02/2005
UFW Hopes For Win on Heat Bill
The Sacramento Bee, the best in my opinion on California politics, reports.
Since 1990, when California officials set up an advisory committee to reduce heat-related issues in the workplace, labor unions have waited anxiously for the state to adopt regulations.
Prodded by Valdivia's death, the United Farm Workers' top legislative priority this year is a bill that would require the state to establish standards to reduce heat illnesses and subject employers who flout the law to misdemeanor charges.
* * *
Last year, Schwarzenegger became what farmworker advocates say is the first Republican governor to sign a UFW-sponsored bill in California.
Bill Tracking Updates
AB 48 - Has been amended to index the minimum wage to inflation, in addition to a phased in hike to $7.75. It was voted out of its first committee 6-2 on April 20. Next up the appropriations (?) committee.
AB 640 (alternative workweeks) had a few slight changes last month, but failed passage in committee. Reconsideration may be granted, but until then, this one seems dead.
AB 875 has been amended to set up triggers to cause employer audits. It passed out of committee in an earlier form, but has been re-referred.
* AB 879 has been modified to streamline procedures with respect to garment workers.
SB 101 has received its floor and committee analyses, as well as support from the Chamber of Commerce.
* SB 174 has been changed from a shell to bill that will allow employees earning less than twice the minimum wage to bring a representative action any time they have to sue for wages. CLEL is upgrading its track of this bill.
SB 184 (talent agency bonds) passed out of committee.
SB 285 was apparently killed by its author, Senator Maldonado. Many expect him to run for Insurance Commissioner.
SB 862 - No action since last update.
SB 940 - Hearing postponed.
AB 640 (alternative workweeks) had a few slight changes last month, but failed passage in committee. Reconsideration may be granted, but until then, this one seems dead.
AB 875 has been amended to set up triggers to cause employer audits. It passed out of committee in an earlier form, but has been re-referred.
* AB 879 has been modified to streamline procedures with respect to garment workers.
SB 101 has received its floor and committee analyses, as well as support from the Chamber of Commerce.
* SB 174 has been changed from a shell to bill that will allow employees earning less than twice the minimum wage to bring a representative action any time they have to sue for wages. CLEL is upgrading its track of this bill.
SB 184 (talent agency bonds) passed out of committee.
SB 285 was apparently killed by its author, Senator Maldonado. Many expect him to run for Insurance Commissioner.
SB 862 - No action since last update.
SB 940 - Hearing postponed.