California Employment Attorney Blog

OSHA Form 300a Annual Summary Must be Posted by February 1, 2012

2012-01-23T20:36:17Z

Employers should take note that their OSHA 300a Annual Summary Report must be posted in the workplace by February 1, 2012 and remain posted until April 30, 2012. Pursuant to OSHA's requirements for recordkeeping, the 300a Annual Summary Report must contain the appropriate information from the employers's OSHA 300 Logs for workplace injuries and illnesses during 2011.

The 300a Annual Summary Report and an overview for completing it and the 300 Log is included in the attached OSHA'S Work-Related Injuries and Illnesses Booklet.

For more information regarding your obligations under OSHA's recordkeeping requirements, or for assistance in completeting your 300a Annual Summary Report, please contact the attorneys of Michelman & Robinson, LLP's Labor & Employement Department.

California Employment Law Update: What's New for 2012

2012-01-13T18:07:43Z

2011 was an active year in California employment law. The following is a summary of important new laws that California employers must now comply with.

The Wage Theft Prevention Act of 2011 (AB 469): This act requires employers to provide all newly-hired, non-exempt employees with a written notice of the following wage information at the time of hiring:

The rate or rates of pay and the basis for the pay;

Allowances, if any, claimed as part of the minimum wage, including meal or lodging;

The regular payday;

The name of the employer, including any "doing business as" names;

The physical address of the employer's main office or principal place of business, and a mailing address, if different;

The employer's telephone number;

The name, address, and telephone number of the employer's workers' compensation insurance carrier; and

Any other information the California Labor Commissioner deems necessary.

Employees must be notified of changes to this information within seven days of the change. The California Labor Commissioner has published a model notice and answers to Frequently Asked Questions about the law.

In addition, the law increases penalties for wage violations, provides for employer restitution of certain wages, and extends from one years to three years the statute of limitations on collection actions by the California Department of Labor Standards Enforcement.

New Fines for Willful Misclassification of Independent Contractors (SB 459): Imposes a civil penalty of between $5,000 and $15,000 for each violation on a person or employer that willfully misclassifies an employee as an independent contractor. The penalty increases to between $10,000 and $25,000 for each violation if there is a "pattern or practice" of willful misclassification. The law also subjects paid, non-attorney advisors to joint and several liability if they knowingly and incorrectly advise the employer to treat an individual as in independent contractor. Employers must post notice of any violations for one year on their website. In addition, employers may not charge a fee or make any deduction from an individual's compensation where the fee or deduction would have been illegal if the individual were not an independent contractor.

Restrictions on Use of Consumer Credit Reports (AB 22): Prohibits employers from obtaining a consumer credit report in connection with an employee or applicant background check except for the following positions:

A managerial position which qualifies for the executive exemption from overtime pay under the California Wage Orders;

A position that affords regular access to all of the following information of any one person: bank or credit card information, Social Security numbers and dates of birth (as long as the access to this information does not merely involve routine solicitation and processing of credit card applications in a retail establishment);

A position for which the employer is required by law to consider credit history information;

A position for which the information contained in the report is required by law to be disclosed or obtained;

A position requiring the employee to be named a signatory on the bank or credit card account of the employer, transfer money on the employer's behalf, or be authorized to enter into financial contracts on the employer's behalf;

A position that affords access to confidential, proprietary and/or trade secret information;

A position that affords regular access during the workday to the employer's, a customer's or a client's cash totaling at least $10,000; and

A position in the State Department of Justice or a sworn peace officer or law enforcement position.

If an applicant or employee falls within one of these exceptions, the employer must give advance notice of the specific exception that applies.

In addition, employers that order background reports other than credit reports, such as criminal background reports or motor vehicle reports, must provide the subjects of the report with the website address of the consumer reporting agency. If there is no website address, the employer must provide the telephone number of the agency.

Commission Contract Requirements (AB 1396): Effective January 1, 2013, employers that enter into an employment contract involving commission payments for services to be rendered within California must put the contract in writing and specify the method by which commissions are to be computed and paid. The employer must give a signed copy of the contract to every employee who is a signed party to the agreement and must obtain a signed receipt for the contract from each new employee.

Health Benefit Contribution Requirements for Pregnancy Disability Leave (SB 299): Employers must provide up to four months of Pregnancy Disability Leave under existing California law. Now, they must provide up to four months of group health insurance coverage to employees on pregnancy leave on the same terms and conditions as if the employee continued actively reporting to work.

Organ and Bone Marrow Donor Leave (SB 272): Employers must provide 30 business days of leave in a one year period for employees who are organ donors, and 5 business days in a one year period for employees who are bone marrow donors. The leave is measured from the date the employee's leave begins and consists of 12 consecutive months. The law clarifies that the leave is not a break in service regarding the right to any paid time off, and contains further provisions regarding use of the leave in relation to paid time off, sick time and vacation leave.

Genetic Information (SB 559): Amends the California Fair Employment and Housing Act (FEHA) to prohibit discrimination on the basis of genetic information. Genetic information is defined as information about (1) the individual's genetic tests, (2) the genetic tests of family members of the individual, (3) the manifestation of a disease or disorder in family members of the individual, and (4) any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by any individual or family member of the individual.

Gender Expression (AB 887): Amends the FEHA to clarify that prohibited discrimination on the basis of sex or gender includes discrimination on the basis of a person's gender identity and gender expression. The law defines gender expression as gender-related appearance and behavior, whether or not stereotypically associated with the person's assigned sex at birth.

For more information about any of these new laws, contact the attorneys of Michelman & Robinson's Labor & Employment Department.

U.S. Supreme Court Rejects 1.5 Million Employee Class Action Sex Discrimination Lawsuit Against Wal-Mart

2011-06-24T23:43:54Z

This week, in Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court unanimously rejected a class action sexual discrimination suit brought by approximately 1.5 million former and current female Wal-Mart employees.

The plaintiffs claimed that even though Wal-Mart had a policy against discrimination, it gave its managers too much discretion, which allowed them to favor men. To support the largest class action in the history of employment law, they relied on (1) statistical evidence allegedly showing that Wal-Mart promoted fewer women than its nationwide competitors, (2) the testimony of a sociology expert, and (3) the declarations of a handful of female employees.

Wal-Mart's policy did, in fact, allow discretion by local supervisors over employment matters. But the Court found that this was a perfectly reasonable method of doing business, and did not, by itself, suggest discrimination.

The Court found that the statistical evidence did not hold up - in 90 percent of the stores, no evidence of discrimination existed - and more importantly, held that mere statistics are not enough. A particular discriminatory practice must also be identified. The expert - who claimed that Wal-Mart's corporate culture made it "vulnerable" to gender bias - admitted he could not say whether 0.5% or 95% of Wal-Mart's decisions were affected by gender discrimination. And the small sample of declarations submitted were miniscule compared to the 1.5 million member class.

The Wal-Mart decision is one of the most significant employment law rulings of the past twenty years, and is good news for employers. It also provides some practical lessons for employers:

Create and distribute a strong anti-discrimination policy, and train all employees - especially mangers -- on the policy;
Review pay, promotion, performance review, and other policies to ensure that they can be applied fairly to all employees, regardless of race, sex, religion, and other protected characteristics;
Ensure that managers are given discretion to evaluate performance on a case-by-case basis;
Keep performance evaluations objective, relying on specific, job-related factors only;
Use job descriptions to assist managers in evaluating performance; and
Provide procedures for employees to report discrimination, such as open door policies and internal grievance procedures.

California Court Throws Federal Military Leave Case Out

2011-05-20T19:02:57Z

Last month, a Federal Judge ruled in favor of the employer on a military leave discrimination case. The plaintiff, Jeong Ko, sued the City of La Habra, California under the Uniformed Services Employment and Reemployment Rights Act (USERRA). He claimed that the City discriminated against him, in violation of his military leave protected status, by refusing to grant him "step" wage increases that he would have obtained had he not taken leave. He also claimed that the City gave him fewer pension benefits as a result of his leave. The City argued that the employee was not entitled to automatic pay increases, and that the increases were discretionary and based on job evaluations. The City pointed out that it had denied Ko step evaluations twice before he took military leave. Regarding the pension, the City argued that Ko failed to submit required documentation of his leave to the pension administrator.

The U.S. District Court granted the City's motion for summary judgment, effectively ending the case (although Ko may appeal). The court ruled that USERRA does not entitle an employee to automatic merit-based promotions or pay increases. In addition, the court distinguished seniority-based and merit-based job advancement.

The case provides lessons for employers. First, employers need to be aware of USERRA, which was enacted to ensure that employees are not discriminated against based on military service. If you have an employee that needs a leave of absence for military duty, make sure that your supervisors are familiar with USERRA's requirements. Second, employers need to make clear, in written policies, whether pay increases are automatic, merit based, or determined by other factors. Employers should also clarify how leaves affect pay and benefits. Third, employers must document any communications with employees about leave rights and responsibilities, and keep that documentation in employee personnel files. Documentation is critical if a dispute later arises over whether the employer acted lawfully regarding the employee's leave.

Rare Disability Leave Win for California Employers

2011-04-29T22:23:54Z

In Department of Fair Employment and Housing v. Lucent Technologies, Inc., the federal Ninth Circuit Court of Appeals upheld an employee termination after a one-year disability accommodation leave.

The plaintiff employee's job as an installer required frequent heavy lifting of up to fifty pounds. The employee injured his back and could no longer lift heavy weights. Lucent's policy provided that if an employee could not return to work within one year, the employee would be terminated, absent a doctor's opinion that the employee would be healed in six months. The employee took leave under the policy.

While the employee was on leave, his doctors constantly revised his status, but the employee was never fully cleared to return. Lucent kept in contact with the employee, consistently evaluated the new restrictions, and continued to accommodate the employee, providing him with the one year of leave. When the employee finally returned upon expiration of the leave, his doctor had cleared him to occasionally lift weights of twenty to fifty pounds. Lucent terminated him. Two months after the employee was terminated, his doctor finally cleared him to lift fifty pounds. The employee sued Lucent for disability discrimination and related claims. The District Court ruled in favor of Lucent, and the employee appealed to the Ninth Circuit.

The Ninth Circuit found that Lucent maintained contact with the employee, and the employee never brought up proposed accommodations other than continued leave. Thus, Lucent did not unlawfully "fail to interact" with the employee to determine reasonable accommodation. In addition, Lucent repeatedly considered, during the leave, whether the employee could perform given his restrictions, or be placed in another position. Lucent was not required to do more, such as modifying the installer position or extending leave indefinitely.

During the employee's leave, Lucent created a form showing that installers had to occasionally lift 100 pounds. But because the employee could not meet the lower fifty pound requirement, the 100 pound requirement was never an issue, so the Ninth Circuit considered the form irrelevant. In addition, because the employee was only cleared to occasionally lift fifty pounds, while his job required frequent lifting of such weight, Lucent had a lawful reason for termination. Finally, although Lucent had a "100% healed" policy, this policy alone did not render the termination unlawful, because Lucent made an individualized assessment of the employee's disability.

This is a rare victory for a California employer in a disability leave case. Some lessons to be learned:

Consider all options for accommodation. Employers, however, do not need to exempt an employee from performing essential functions of the position, or reallocate those functions to other employees.
Indefinite leaves of absence are not required under disability law. But California workers' compensation law has a different standard, so consult an attorney prior to terminating any disabled employee.
If an employee does not participate in discussions about accommodations, the employer can take the position that it has met its burden to engage in the interactive process.
Frequent communication with employees during a leave of absence is critical.
If an employee provides updated information about disability status, evaluate the information and let the employee know whether, and to what extent, such information impacts accommodation.
Document the entire accommodation process, including all communications, in case a legal challenge is brought.

Court Rules that Employer may Terminate Disabled Employee for Threatening Conduct Even if Caused by Mental Disability

2011-04-18T17:18:29Z

In the case of Wills v. The Superior Court of Orange County, published on April 13, 2011, the Fourth Appellate District, Division Three found that an employee's termination was non-discriminatory when it was predicated on the employee's threatening behavior, even though that conduct was indisputably caused by her mental disability.

In the Wills case, the plaintiff told a coworker that she added him and another coworker to her "'Kill Bill' list" after she was left out in the heat due to the coworkers' delay. The coworkers understood the 'Kill Bill' list comment to refer to a movie in which the main character made a list of people she intended to kill. A few days later, Wills' doctor placed her on leave due to her bi-polar disorder. While on leave, Wills forwarded a cell phone ringtone to a coworker with whom she had an uneasy relationship. The ringtone said "I'm going to blow this b--- up if you don't check your messages right now! . . . F--- you!" and the coworker took it as a threat. In addition, Wills sent a series of emails to coworkers at their company email addresses. One coworker reported the e-mails to the employer, complaining that Wills' angry and irrational tone, and Wills' references to violence, alarmed her.

Several weeks later, when Wills' doctor released her to work, she was placed on administrative leave while an investigation was conducted, and was eventually terminated. The Court held that Wills' misconduct provided a legitimate, nondiscriminatory reason for her termination, because an employer may reasonably distinguish between disability caused misconduct and the disability itself when the misconduct includes threats or violence against coworkers.

Employers need to be cautious, however, because the Ninth Circuit has reached a contrary result, most recently in Gambini v. Total Renal Care, Inc. (9th Cir. 2007) 486 F.3d 1087, 1093. In that case, a bi-polar woman threw her performance improvement plan back at her supervisor and explained her feelings about it with numerous profanities. The Ninth Circuit reversed, holding that the jury should have been instructed that conduct caused by a disability is part of the disability and not a separate basis for termination. (Id. at pp. 1093-1095.)

For employers looking to protect their workplace from a potentially violent employee, there are no easy options. The employee, if terminated, can simply file in federal court to avail him or herself of the more favorable Ninth Circuit authority. Meanwhile failing to remove the employee can put the employer at risk if violence does result. The Wills Court, however, has offered the Ninth Circuit a way to reconcile Gambini and Wills if it so desires, by focusing on whether an actual threat was made or violence occurred. Employers would be well served, when terminating employees under these circumstances, to focus on documenting the employee's behavior as threatening or violent, and not merely as frightening or unpleasant to coworkers.

Supreme Court Rules that Oral Complaints are Protected under the FLSA's Anti-Retaliation Provision

2011-03-23T17:07:12Z

On March 22, 2011, the United States Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp. The Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.

In a related lawsuit, Saint-Gobain had been held liable by a federal court for locating time clocks in a place that prevented workers from receiving credit for time spent donning and doffing their gear. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.

The FLSA provides minimum wage, maximum hour, and overtime pay rules. It also forbids employers from discharging "any employee because such employee has filed any complaint alleging a violation of the statute. The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including: (1) a narrow interpretation would undermine the FLSA's basic objective - prohibiting detrimental labor conditions; (2) the FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints; (3) a broad reading of "filed" would be consistent with the interpretation of the National Labor Relations Act's anti-retaliation provision; and (4) the Secretary of Labor and EEOC have both concluded that "filed" includes both oral and written complaints.

FLSA lawsuits in California are not as common as those brought under California's wage laws, and California's Labor Code has its own anti-retaliation provision. Nevertheless, the FLSA applies to California employers. Thus, California employees can now rely on Kasten to protect themselves from retaliation for oral complaints about FLSA-protected rights. Employers can draw additional lessons from Kasten, including:

-Treat all complaints seriously, regardless of the manner in which they are made. Verbal complaints, emails, text messages - all must receive a response.

-An employee grumbling in the background on a daily basis might be engaging in protected activity, but his manager may consider the complaints misconduct. Train managers on how to recognize, and respond to, complaints.

-If an employee complains orally, have the employee put the complaint in writing. This prevents employees from subsequently claiming that their complaint was not fully investigated.

-Institute an "open door" policy, as well as an internal grievance system. This funnels employee complaints through established channels and reduces the chances of failing to respond.

California Employers Exposed to Liability for Obscure Work Regulation Lawsuits

2010-12-30T01:08:34Z

In another blow to California employers, a California appellate court recently broadened the liability risk employers face for class action lawsuits.

The California Industrial Welfare Commission's Wage Orders regulate standard working conditions such as overtime, breaks, and minimum wage. Employee lawsuits have historically focused on these run-of the-mill provisions. But, in a November 2010 ruling, the California Court of Appeal for the Second District dealt a body blow to employers by ruling that an obscure regulation, "suitable seating," constituted a valid claim under California law.

In Bright v. 99 Cents Only Stores, the plaintiff brought a class action suit on behalf of hundreds of current and former employees under the California Private Attorneys General Act of 2004 ("PAGA"). She alleged that the employer failed to provide cashiers with suitable seats, in violation of IWC Wage Order 7, § 14. After a Los Angeles Superior Court judge held that the plaintiff could not sue under PAGA for the seating violation, the plaintiff appealed. The Court of Appeal determined that suitable seating is a "standard condition of labor" under Wage Order 7, and that consequently, the employee could use PAGA to enforce compliance. Under PAGA, an employee can collect penalties on behalf of current and former employees.

Last week, the California Court of Appeal reviewed another lawsuit filed by the Bright plaintiff attorneys. In Home Depot v. Superior Court, the plaintiff again alleged, on behalf of a class, that a retail employer had failed to provide its employees with suitable seating. As in Bright, the Court ruled that retail store employees denied suitable seating may seek penalties against their employers pursuant to California's Private Attorneys General Act.

Until Bright, no appellate court had allowed a PAGA claim based on "suitable seating." While the penalties are of minor concern when one employee complains, if an employee sues on a class-wide basis, as the plaintiff did in Bright, massive liability could result. The case also illustrates the lengths to which plaintiff-side attorneys will search California law -- leaving no obscure regulation unexamined -- in order to find grounds to bring a class action lawsuit. Employers, therefore, must heed the warning of Bright, and comply with all aspects of the wage hour laws, even obscure regulations such as "suitable seating." For example, other wage order provisions address temperature, change rooms, and elevators. At minimum, employers must comprehensively review their policies and procedures, rectify any outstanding issues, and train their managers to report potential wage hour violations.

Groundbreaking Lawsuit: Company Accused of Illegally Firing Employee over Facebook Post

2010-11-11T19:25:44Z

As social media usage continues to grow unfettered, so do legal issues related to the use of social media by employees. In a complaint filed on October 27, 2010, the National Labor Relations Board (NLRB) accused an ambulance service, American Medical Response of Connecticut, of illegally firing an employee. In a Facebook post, the employee claimed that her supervisor had prevented her from having a union representative present while she responded to a customer's complaint. Her co-workers made supportive comments about her post. The post, however, contained vulgarities and the remark, "Looks like I'm getting some time off. Love how the company allows a 17 to be a supervisor." A 17 is the code the company uses for a psychiatric patient.

Under the National Labor Relations Act, employers cannot enforce policies that chill employees' rights to discuss wages, working conditions, and unionization. In this case, the NLRB is arguing that criticism of a supervisor, as part of a discussion with co-workers, is protected activity under the Act, even when that communication takes place in a social media setting, such as Facebook.

Regardless of how this case turns out, it stakes out a new area of potential liablity for employers. Because the National Labor Relations Act is a federal law, the case is relevant to employers nationwide. Thus, employers should take this opportunity to reexamine their social media policies. Broad policies, such as those that preclude employees from discussing compensation, working conditions, or supervisors, may be subject to legal challenge. In addition, before taking action against employees for activity on social media sites, employers should consider whether the employee was potentially engaging in protected activity, such as discussing workplace grievances.

Ninth Circuit Rules on Female-on-Male Sexual Harassment Suit

2010-10-01T22:32:24Z

Does female-on-male sexual harassment exist or is it simply a Hollywood plot line or locker-room joke? According to the U.S. Equal Employment Opportunity Commission (EEOC), while the number of sexual harassment cases overall have consistently declined since 1995, sexual harassment filings by men have doubled during that time span. In 2009, men filed 16% of the EEOC's total sexual harassment claims, and many labor experts believe that this number would be even higher if men did not fear being mocked by their peers should they report the harassing conduct.

Title VII of the 1964 Civil Rights Act protects both men and women from workplace sexual harassment by prohibiting discrimination on the basis of sex, including hostile work environment harassment based on sex. In a recent Ninth Circuit opinion dealing with female-on-male sexual harassment, the Court found in favor of the EEOC and reversed a District Court's decision that the work environment was insufficiently hostile.

In EEOC v. Prospect Airport Services, Inc., a McCarran Airport employee, Rudolph Lamas, accused his co-worker, Sylvia Munoz, of sexual harassment. Lamas claimed that Munoz repeatedly solicited him for sex and a relationship. He further claimed that although he steadfastly rebuffed Munoz's advances, she pursued him for over six months. According to Lamas, Munoz sent him love notes propositioning him for sex, performed gestures imitating fellatio, made sexual innuendos in front of airport passengers and privately towards Lamas, and gave him a risqué photograph of herself. Lamas further claimed that after Munoz recruited coworkers to pressure Lamas, they mocked him by suggesting that he was a homosexual. Following the company's sexual harassment policy, Lamas repeatedly reported the harassing conduct to management officials, who either ignored his complaints or did not take them seriously.

Lamas alleged that as the harassment continued, he became increasingly upset, and as a result, his job performance suffered. Though he had recently been promoted, his employer demoted him and ultimately fired him. In the wake of his termination, Lamas filed a claim with the EEOC. The EEOC determined that Lamas was subjected to a hostile work environment and he filed the lawsuit against his employer. Prospect Airport Services filed a motion for summary judgment, which the District Court granted.

In reviewing the suit, the Ninth Circuit ruled that the EEOC had presented enough evidence to establish a jury question on whether Lamas had been a victim of a hostile work environment. Citing a number of examples, the Court found that he had been subjected to unwelcome verbal and physical conduct that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive environment.

This opinion demonstrates the danger associated with applying double standards to harassment claims. The law recognizes all forms of sexual harassment based on sex, and employers must take non-traditional harassment claims seriously.

Massive California Harassment Verdict Gives Employee Two-Thirds of Employer's Net Worth

2010-08-17T18:26:45Z

In a recent sexual harassment verdict from Sonoma County, California, a jury awarded more than two million dollars to a former card dealer at The 101 Casino. The jury determined that the plaintiff's supervisor had sexually harassed her, and then retaliated against her when she reported the abuse. In making its award, which included $516,000 in past and future damages, as well as $1.5 million in punitive damages, the jury was persuaded by evidence of a pattern of sexual harassment at the casino.

The plaintiff chronicled several incidents of offensive behavior, including sexual double entendres and inappropriate gifts, which went unaddressed despite being reported to management. For example, the plaintiff's supervisor brought in a promotional pen for the erectile dysfunction drug Levitra, and showed female employees how the pen grew lengthwise. In a separate incident, the same supervisor gave the plaintiff a candle as a gift and told her to think of him while she took a candlelit bath. After the plaintiff complained about her supervisor's unwelcome advances to the casino's human resources staff, her supervisor began disciplining her for minor or fabricated problems, and ultimately fired her.

At trial, the plaintiff introduced the testimony of four female employees who said they too had been sexually harassed at the casino, including testimony from the casino's human resources manager. The jury's total award of nearly two million dollars constituted two-thirds of the casino's net worth.

Some conclusions that can be drawn from this case:

If evidence of harassment includes testimony from other employees, the plaintiff will look better in the eyes of the jury.

Failure to respond to claims of harassment can generate juror anger.

Cases in which harassment is simply verbal, and in which no egregious forms of physical harassment occur, can still result in substantial liability

Juries will not necessarily factor in overall net worth when awarding damages.

A strong possibility exists that this verdict will be reduced on appeal. Nevertheless, the case serves as a potent reminder to employers of the importance of enforcing zero-tolerance anti-harassment policies, and consistently training all levels of management, and all employees, on anti-harassment policies.

Workplace Violence Always a Cause for Employer Concern

2010-08-11T22:01:50Z

In the latest tragic outburst of workplace violence, Omar Thornton, a driver for a Connecticut beer distributor, murdered eight of his co-workers and wounded two others before killing himself. Thornton brought two 9 mm handguns to work on the morning he was scheduled to attend a disciplinary hearing to review claims that he had stolen company beer. After being confronted with surveillance footage showing him stealing the beer, Thornton agreed to resign. Moments later, he retrieved the guns, murdered the two men who had attended his hearing, and went on a killing spree throughout the facility.

Although heartbreaking incidents like this are shocking, murder by disgruntled employees is the least common form of workplace homicide, claiming fewer than 100 victims a year. For every murder, however, there are countless incidents of less severe forms of violence that employers must attempt to prevent. Employers face potential liability for failing to terminate employees that show signs of potential violence. Employers of all sizes must maintain a safe work environment, and should implement a violence protection plan.

The following basic safety steps are among those that could make the difference in preventing tragedy:

Clearly define prohibited conduct in the workplace, including physical violence, intimidation, harassment, or other inappropriate or disruptive behavior. Examples include expressing grudges, belligerent speech, refusal to follow policies and procedures, aggressive arguing, sabotage, and damage to company property. Train supervisors on how to recognize such behavior in its early stages.

Limit access to company premises to persons with a legitimate reason to visit.

Require employees to immediately report violations of the safety policy, including incidents involving actual or threatened violence, to management.

Install video cameras to ensure that company safety policies are strictly observed.

Give careful consideration to the time and place for employee discipline and termination; minimize the potential for others to be put in harm's way.

Install security guards when necessary to confront escalated threats.

Consider obtaining temporary restraining orders against employees who present an acute risk of imminent harm.

Retain a security expert to review your workplace and point out areas for improvement.

Omar Thornton's supervisors stated that nothing in his work history or behavior suggested that he would act violently, and experts believe that incidents of workplace violence rarely come with a warning. This makes preventative steps critical for employers seeking to reduce the threat of workplace violence.

Ninth Circuit Addresses Misclassification of Employees as Independent Contractors

2010-07-28T16:33:03Z

Many businesses utilize independent contractors as part of their daily operations. Contractors are often favored by businesses over full time employees, because they allow for flexibility in retention and scheduling, are not entitled to government-mandated benefits such as workers' compensation, and are typically not offered costly benefits such as health insurance. A problem often arises, however, when the business seeks to take advantage of these positive aspects of the relationship, yet also wants to control how the contractor performs his duties.

Recently, the federal Ninth Circuit Court of Appeals addressed alleged misclassification of employees as independent contractors. In Narayan v. EGL Inc., No. 07-16487 (July 13, 2010), the plaintiffs were California-based drivers for a freight delivery service, Eagle Freight Systems, Inc. (EGL). They had signed an agreement that indicated they were independent contractors. The agreement designated Texas law as the law to be applied in any dispute over the agreement's terms. The drivers subsequently sued EGL, alleging that they were in fact employees, and sought damages under California law for overtime, expenses, and meal break compensation, among other things. Ruling that the matter was governed by Texas law, the district court granted EGL's motion for summary judgment. On appeal, the Ninth Circuit reversed.

The Ninth Circuit first determined that California law applied, because the dispute involved benefits provided under the California Labor Code, not the agreement. The Court then reviewed the relationship between the drivers and EGL. In California, a worker can establish a prima facie case of employment by demonstrating that the worker provided services for the employer. The burden then shifts to the employer to prove that the worker was in fact an independent contractor by overcoming the multi-factor test adopted by the California Supreme Court in S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48 Cal.3d 341.

Applying the "Borello" test, the Ninth Circuit determined that EGL exercised considerable control over the drivers, and thus, that an employer-employee relationship existed. The factors the court considered included the following: the drivers were subject to disciplinary action; EGL regulated their appearance; they drove exclusively for EGL and affixed its logo to their trucks; they communicated directly with EGL dispatchers; and they used EGL equipment. Most significantly, the drivers worked at EGL for several years, and their agreements were automatically renewed. Their relationship with EGL continued automatically, and could be terminated by either party upon thirty days notice.

California businesses that retain independent contractors should carefully review their contractor relationships. Among other things, they should examine the extent to which they seek to direct the work of contractors; the degree of permanence of the relationship; which party provides office space, business cards, marketing materials, tools, and equipment; whether training is provided by the business; whether performance reviews and discipline are issued; whether the contractor is engaged in a distinct occupation or business; the amount of skill required for the work; how the worker is paid (e.g., by the job or hourly); and the intent of the parties. The recent Narayan decision is a reminder of the pitfalls that await unwary employers regarding independent contractors.

Does "At Will" Status Cover Demotions, Salary Decreases and Bonus Determinations?

2010-07-12T21:42:46Z

"At will" employment benefits both an employer and an employee by allowing either party to terminate the relationship at any time. Although it is long established that "at will" employment covers termination, does it also envelope demotions, salary decreases and bonus determinations? In a recent decision, a California court ruled that at will employment applies to lesser forms of discipline and to unilateral changes in terms of employment.

In Singh v. Southland Stone, No. B208620 (July 1, 2010), the plaintiff was hired as a manager for internet sales at a rate of $10,000 per month. In order to take the job, he relocated with his family from India. The company informed him that he was hired as an at will employee with no contract rights to ongoing employment. After nine months, the defendant reduced Singh's salary from $10,000 to $5,000 because of its displeasure with Singh's performance. Eight months later, the plaintiff resigned and filed a lawsuit asserting, among other claims, that Southland Stone had breached its employment contract. The trial found in favor of the plaintiff but on appeal, the court reversed.

In its opinion, the Court held that the at will statute, California Labor Code § 2922, creates a presumption that employment is at will unless it can be overcome by an express or implied contract. Since the statute presumes that an employee may be discharged at will, it also extends to other forms of discipline and unilateral changes in the terms of employment.

Singh is a positive development for California employers, and reiterates the need for employers to include at will language in offer letters, employment agreements, handbooks, and any other documents. The at will agreement should indicate that it sets forth the entire agreement between the parties, and that it cannot be contradicted except in a written agreement signed by the President or CEO of the employer. With such language in place, employers can feel more comfortable when adjusting terms and conditions of employment, such as compensation. Even with at will language in place, however, employers should strive to give employees as much advance notice as possible of any changes to compensation and benefits. In addition, employers should review applicable documents, such as summary benefit plan descriptions, collective bargaining agreements, or employment contracts, that might place limitations on the ability to change terms.

Employers Face Stringent Penalties for Knowingly Hiring Illegal Immigrants

2010-06-10T17:27:18Z

In the past month, the immigration debate has reached a fevered pitch, polarizing individuals into those who support measures such as Arizona's controversial immigration law and those who condemn it as illegal. The Arizona governor and members of its legislature have long stated that they had to act because the federal government has failed to pass a comprehensive immigration law and help Arizona close its porous border. While that issue garners attention, employers may be surprised to learn that the Obama administration has quietly begun implementing a new immigration strategy that targets employers who hire illegal immigrants.

Recently, Michel Malecot, a high-profile restaurant owner in San Diego, was indicted on 12 felony counts of knowingly hiring illegal immigrants when federal authorities raided his eatery and discovered a staff of illegal immigrant workers. If convicted, he could face a maximum of five years in prison, a fine of $250,000 per count, and the federal seizure of any property that was used in the perpetration of his alleged crimes.

Obama's strategy stands in contrast to that of the Bush administration, which conducted work-site raids that targeted employees rather than employers. Although thousands of illegal workers were prosecuted, few employers were held accountable for their hiring practices and new illegal immigrants replaced those who were deported.

The Immigration and Customs Enforcement Agency believes that targeting individual cases in every state throughout the nation will send a clear message to employers. In the past nine months, 65 employers have been arrested and 109 companies have been fined a total of about $3 million. The government has also notified more than 1,600 companies nationwide of plans to audit their records, and has already begun hundreds of inspections.

Although experts say that it is too early to determine whether Obama's strategy will work any better than the one employed under President Bush, targeting high profile businesses like Malecot's may have been a wake up call to many employers. Approximately 1,400 new businesses each week join E-Verify, a voluntary electronic program that checks whether new hires are authorized to work in the United States. Currently, about 17,000 employers in California and 204,000 nationwide are enrolled.

Employers should take heed of the Malecot case. With the stricter enforcement of immigration laws that target hiring practices, employers face criminal and financial liability.