Articles Posted in Employment Law

photo-Space-X-300x231A “whistleblower” is an employee who complains of something illegal or unethical internally, to the press or to a government agency and because of that suffers as a result. A lawsuit filed by such an employee, especially when it involves a business doing business with a government entity, can be highly damaging not only in legal costs and potential damages but because the negative light it casts on a company can disrupt relationships with current customers and make it more difficult to get new ones.

Space Exploration Technologies Corp. was cleared by a jury in state court in Los Angeles earlier this month, dismissing a claim by a former technician, Jason Blasdell, he was fired because he told his supervisors (and even company founder Elon Musk) technicians were being pressured by management to falsify test results for rocket and spacecraft parts, reports Bloomberg.

The company stated the plaintiff was fired for poor job performance and he didn’t actually complain of anything illegal or unethical. The company’s attorney argued that Blasdell never saw, performed or complained of unlawful testing and never communicated his concerns to federal authorities. The plaintiff allegedly lost his job because his job performance was unacceptable and fellow employees were worried about their safety because of him.

photo-PAGA-nondisclosure-lawsuit-300x212Though there’s only one Attorney General for the State of California under certain circumstances a state law allows a party to step into the Attorney General’s shoes and file a lawsuit. Current and former Google employees have filed suit under the statute to claim the company’s employee nondisclosure agreement is illegal.

The reason for the lawsuit is that another employee agreement forbids the use of class action lawsuits against Google, so plaintiffs turned to Plan B, the Private Attorneys General Act (PAGA), according to the Los Angeles Daily Journal. The law allows aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees and the State of California for Labor Code violations.

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Do you currently have a hiring policy for your company?

If you don’t, it’s always a good idea to have one for a couple of reasons. First, you can have that policy reviewed by your attorney and make sure that it fits within the legal framework of your state. Second, it will serve as a protocol for the personnel department to follow and to make sure that. during the hiring process, they all follow the same guidelines even if different staff are involved in the hiring.

If you currently have one, you should be prepared to redraft the policy once the Assembly Bill 168 passes. I talked about this before. Assembly Bill 168, if it passes, would prohibit employers from asking the salary history of job applicants, directly or indirectly, even when the information is asked to serve other legitimate purposes. I gave my opinion in the last video. I think the intention of this proposed law is good; I’m just not so sure about the viability of this bill. Regardless, whether or not this is a good bill we won’t know until it’s implemented for about a year or two, but you need to be prepared. Once this bill is passed and implemented, you need to comply and incorporate it into your hiring process.

So, again, you cannot ask for a salary history- directly or indirectly. However, if a job applicants provide the information voluntarily then you are not in violation of the law. So, what do you do need to do? Well if job applicants offer that information, I would recommend that you document the process so that you can show, in the event that there is a dispute, that the information was not requested by you, and that it was provided by the job applicants voluntarily. So, document the process.

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The American civil legal system normally doesn’t allow for a successful party to recoup its legal costs, unless that’s spelled out by statute. Though in other countries a plaintiff brining a lawsuit runs the risk of paying the defendant’s lawyers’ bills, normally unless a claim is particularly groundless and “frivolous” the plaintiff need only cover his or her own costs. A recent Los Angeles County Court case is an exception to that rule, according to the Daily Journal.
Nancy Arambula Corona, a former on-site building manager, sued her ex-employer, Weiss Family Properties, LLC, (which owns apartment buildings in Los Angeles County) under the state’s Fair Employment and Housing Act and its Labor Code. According to the filings in the case,

• Corona suffered an injury on the job.
• Defendant states it reasonably accommodated her by having another employee clean her building.
• Weiss eventually fired Corona because she couldn’t perform her job and plaintiff’s physician stated her condition wouldn’t improve.
• Corona also claimed she was owed unpaid overtime pay while Weiss claimed they paid her for the hours she submitted on her time sheets.

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Good morning!  I was reading this article written by Gina Rikonova in the L.A. Daily Journal, and she talks about Assembly Bill 168 that was introduced earlier this year which will prohibit California employers from requesting information about a job applicant’s salary history or benefits  The spirit of the bill, according to her, is really to combat the gender disparity of pay between men and women. She also talks about how a lot of states that are moving toward this trend. Then she circles back and introduces what’s pretty much a federal court ruling for this year in April that seems to go opposite direction. That particular ruling in federal court “that federal equal pay act salary history may be considered a qualified factor other than sex so long as it effectuated some business policy and was used reasonably in light of the stated purpose as well as its other policy or practices, and the court further states that on the salary history standing alone may constitute a qualified reason for pay disparity other than sex so long as it serves a legitimate business purpose”.
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photo-CA-bathroom-bill-199x300This year the culture wars burst into public bathrooms across the country with repercussions in California. If you have a single stall bathroom at your place of business a state law passed this year mandates that it doesn’t matter your sex, that bathroom has to be a place of equal opportunity. It can’t be a men’s or a women’s room. Gender can’t matter when using single-stall public bathrooms in California, reports the San Jose Mercury News. Your bathroom is just a bathroom.

Gov. Jerry Brown signed legislation in September that requires single user restrooms be designated all-gender, a small move to bolster transgender rights as other states passed restrictions as to who could use which bathroom.

State Assemblyman Phil Ting of San Francisco stated that restricting access to single-user restrooms by gender was a burden on LGBT community, parents and caretakers of dependents of the opposite sex. It’s also seen as a way to provide greater privacy and safety in public restrooms.

photo - tip sharingCalifornia restaurants and other businesses who employees receive tips may need to change how they are compensated. The decision by the U.S. Court of Appeals for the Ninth Circuit mostly applies to states where employees are paid the minimum wage to begin with located in California, Alaska, Minnesota, Montana, Nevada, Oregon and Washington, according to the Los Angeles Times.

The appeals court decision upheld a 2011 U.S. Department of Labor rule stating it was consistent with Congress’ intent that tips stay with the employees who get them. They don’t belong to the business owners to divide up. Business owners who provide services are facing multiple issues concerning compensation including tip issues, raising minimum wages and the added costs of the Affordable Care Act in addition to a mix of federal, state and municipal laws.

Restaurant owners are trying different options to address the issues they’re facing. Due to tipping staff working in the “front of the house” could make much more than staff in the “back of the house.” Some are eliminating tipping but raising prices to pay for increased wages for the entire staff. The downside to ending tipping is better wait staff may leave to join restaurants where they can still earns tips and overall higher pay.

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photo - Pimco caseBeing one of those who starts a business, even one worth billions of dollars, is no guarantee it will be a job for life. Bond manager Bill Gross found that out in September 2014 when he left Pimco after negative reports about his management style and weak returns at Pimco Total Return, which he had built into what was at the time the world’s largest bond fund.

Pacific Investment Management Company (or Pimco), part of German insurer Allianz SE, is a global investment management firm that manages investments for institutions, financial advisors and individuals. Gross will be able to continue his lawsuit to recoup at least $200 million dollars he claims he lost when he was forced out of his job, according to Fox Business.

Pimco accepted as final a tentative decision issued in March by California Superior Court Judge Martha Gooding in Santa Ana that Gross’ breach-of-contract lawsuit had sufficient legal claims to proceed. The lawsuit was filed in October claiming Pimco executives plotted to oust him and divide his bonus amongst themselves.

Pimco’s defense is that Gross had no employment guarantee and could have been fired at any time without cause. Gross, 71, manages the Janus Global Unconstrained Bond Fund for Janus Capital Group Inc. Of the $1.3 billion in assets Gross is managing much of it is his own. Forbes magazine estimates he’s worth about $2 billion. Gross claims he’ll donate proceeds from his lawsuit to charity.

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If your company has employees driving either company owned or employee owned vehicles in the course of their duties depending on the circumstances your firm may be held liable for their negligence. Given the potential damages of a catastrophic accident it’s important that your company has sufficient insurance to cover this situation. Without proper insurance your company could be responsible for paying for your legal defense, settlement amount or damages awarded at a trial.

If you have employees driving their own vehicles for company purposes you need to review your coverage. If such a company related errand or delivery is done in a vehicle not owned by your company and an accident occurs your insurance may not cover it. Most business owners have a general liability policy. It’s a common myth this policy will cover anything and everything that could result from business related negligence but most of these policies do not cover car accidents.

There are several potential causes of action that could be filed against you.

  • The legal doctrine of ‘respondeat superior’ means that an employer can be held responsible for the negligent acts of an employee if he or she is acting within the scope of his or her employment. The reasoning is the employer is exercising some control over the employee while the employee is doing his or her job. This can include actions taken by an employee driving his or her own vehicle or one owned by the company.
  • Another legal doctrine impacting such a situation is that an employer has an obligation to defend legal claims against an employee who is acting within the scope of his or her job. If the employer fails to do so the employer can be sued by the employee to get a court order mandating the defense or to pay the employee’s legal bills.

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photo - ex-employeesThis can happen in many ways but a recent Inc. magazine article brings up the fact that statements and opinions of former employees can damage your company’s reputation and make it more difficult to attract good job candidates. Just as online reviews of products and services (even lawyers) have multiplied across the internet, so have reviews of employers.

In the article J.T. O’Donnell describes a business owner having a hard time finding candidates for job openings, with three people backing out of interviews. With openings unfilled he was having a hard time meeting his clients’ needs. O’Donnell learned his company had restructured two years earlier resulting lay offs. Some of those let go used social media to blast the company and its management.

Just as you may do online research on people you’re considering hiring, those looking for work also may do online research of possible employers. These job seekers, especially ones whose skills are in high demand, may be very picky if they read things they don’t like. The job candidate may discount one or two truly negative reviews as being written by malcontents, but if multiple, consistent negative statements about your company or management are found they may be given some weight.