If you are a regular reader of our blog you know that we talk about Wrongful Termination quite a bit. That’s because when you are defending California business owners against employees this is a very common claim.
This claim usually comes about when an employee feels that you terminated their employment unjustly and their is a claim filed to see if they can prove that. The keywords hear are “YOU terminated their employment”.
But did you know that in California an employee can file a wrongful termination claim against you even if they chose to QUIT and you did not actually FIRE them!
So the first thing to know is that this type of claim is known as a few different names. It is often called: Constructive Dismissal, Constructive Discharge or Constructive Termination.
Don’t let the different terms confuse you. Basically the word constructive followed by a word meaning the employee left is the way to confirm we are on the same page.
So, lets take a closer look at this law and what it means. In a Constructive termination (discharge) case the employee making the claim must prove that the employer intentionally made the working conditions for the individual so unbearable that they had no choice but to quit.
Even if it was not the employer who created the working conditions, if they knew about them and did nothing, the employee could still have a claim.
As mentioned previously, the employee must prove that their work conditions were made intolerable and any “reasonable person” who was in the same position would have quit as well. How hard it would be to prove of course, depends on the situation.
If the employee has a record of reporting their complaints to management they may have a better chance. After all you as the employer could very well not know that the employee felt they were being treated wrong and it would be hard to hold you responsible if there is no record that you were ever made aware of the issue.
Also the employee must prove that the treatment that “forced” them to quit was unbearable or intolerable. Usually one isolated workplace incident is not going to meet that requirement. If they can prove a ongoing cycle of inappropriate behavior or actions against them they will have a better case.
If they are claiming some type of harassment or discrimination against them, it will usually need to be pretty serious to have to meet the standard that any reasonable person would quit in the same situation.
Well we say it all the time. The most affordable insurance against any type of employee claim are labor attorney drafted Policies and Procedures.
It will not guarantee you wont see claims but they are the most affordable way to reduce the risk because a lawsuit can potentially cost you tens of thousands of dollars.
A properly crafted policies and procedures manual for your company will have the correct legal requirements in place so your managers will know not to act inappropriately towards employees and their subordinates. The employees themselves will be less likely to make a claim because they can refer to the procedures and find the relevant policy and its expectations of them and you.
They can then take that to their manager or you the business owner and get the situation resolved before it escalates.
Besides really good Employee Handbooks, you will want to make sure you document as much as possible. If you see that an employee is going to be a problem, record the dates of incidents, as well as what happened and any eye witness accounts if possible.
The more information you have when a claim goes to the courts the better off you will be.
Thirdly, make sure if you are having problems with an employee you DO NOT take a retaliatory action against them! It may give you some temporary satisfaction but it might come back to bite you later. California is an “at will employment” state so you have many options to fire a problem employee. You dont want to take any actions against them that could be seen as breaking the employment and labor laws to avoid future claims.
Lastly, if you have a constructive termination claim made against you or just have an employee issue you do not know how to deal with contact professional labor attorneys today. It will cost money in attorney fees but it may well save you a ton of money and possibly your business against an employee related claim.
We are professional labor attorneys who specialize in defending California business owners.
We offer a FREE 15 MINUTE CONSULTATION for California employers. Contact Us Today!
What is a Notice of Claim and Conference?
So you have owned a business in California for some time. There have been some ups and downs but for the most part you have beaten the odds and created a nice business that is striving.
But one day out of the blue, you get a notice in the mail from the Labor Commissioner of California.
A Notice of Claim and Conference is what you will receive when a current or former employee has made a claim (usually a wage claim) against your business.
It means that the decision has been made by the Deputy Commissioner to pursue further action on the claim made by the employee.
Basically within 30 days of the employee filing the complain the commissioner is going to decide on one of 3 things for the claim.
The notice you receive will include:
At some point in the life of your business, you will likely have to answer to a notice of claim and conference and whether you like it or not, you will need to respond to it. Because of this, it is very important for you to get ahead of the issue and prepare for the situation.
A good way to start preparing is to read this article and follow the steps provided!
Having knowledge on how to handle things gives you an edge compared to those employers who panic at the moment they have received a notice of claim and conference.
These employers may end up making the wrong decisions and appearing at the conference unprepared. As a result, they really increase their chances of having a negative outcome in the hearing.
You don’t want to be one of these employers right?
So the question left is,
First, since the notice of claim and conference describes the claim and provides the date of the conference, you can have an idea of what you should be facing and how long you can prepare for this.
These are just a few tips and a basic overview of the notice of claim and conference process. Situations vary greatly from employer to employer and each one will be slightly unique.
In order to be more confident and make sure you are doing the right thing, having a legal counsel at your side at the early stage can greatly expedite your preparations.
Lastly, if you have a notice of claim and conference that you need to answer to, contact a professional labor attorney to help you prepare and to represent you at the conference.
The key to success at the conferences is to try to get them dismissed then and there so it wont go any further and cost you more time and money.
With a professional labor attorney who specializes in defending business representing you, you will have your best chance for that to happen.
John Fagerholm is our managing partner. He is considered one of the top employer defense attorneys in California.
He is entrepreneur, business owner, lawyer, author and speaker who focuses on protecting and defending California employers against the states unfair labor laws.
If you are a California business owner having an employee issue we can offer you a FREE 15 Minute Consultation.
Contact Us Today!
Hello California Business Owner,
Today we are going to talk about something you hopefully never have to do, but you definitely want to be prepared for just in case!
That is…Defending Your Business Against an Employee Wage Claim.
If you are around long enough, your businesses will probably face various wage claims at some point, filed by previous or current employees.
Because of this, the best thing for you to do as an employer is to start to gather useful information about defending wage claims so you can be prepared if it happens. It’s a stressful thing to be involved in, so the more prepared you are the better you will feel if it does happen.
Preparation is Key! Why? Because if you are being accused of not paying someone for their hours worked, whoever has the most and credible evidence between you and the accuser is going to have a huge advantage.
Imagine you are asked to provide the employees timesheet and payroll records and you can’t. Either because you don’t have them anymore or you never kept them in the first place. Trust us when we say this. This does not look good for you.
How do you avoid this situation? Well you have heard a million times from us I know, but preparation before-hand is really the best way to reduce your risk. If you have an effective game-plan before a problem arises, the chances of a successful law suit against you is significantly reduced.
In short, defending wage claims starts by evaluating your overall processes and policies to check if they abide by current and updated federal or state laws. If you don’t have an existing policies you will want to start with a minor investment in an Employee Handbook.
You should perform regular audits of your policies as well as review employee job functions and payroll processing. You should also be aware for updates in California law or changes released or passed and see if all your policies are still applicable despite the new rules being present. If not, you may need to revise part, or even the whole policies followed in your company just to accommodate these changes.
The key is to have policies in the first place!
Below are some of the important things to remember about the documents or records you need to maintain:
1. Make Sure You Keep Accurate Employee Records –
When a lawsuit is filed by an employee, it is important to your defense to secure all records pertaining to that employee. Make sure you have the classification of each employee (full time, part time, independent contractor etc..). Tracking employees in this way can take up much of your time if your records are maintained in paper files. Electronic employment histories are much better since it is easy to record and retrieve information such as the date hired, date of leaves, promotions, as well as termination dates which is very important in defending wage claims. Even if you just keep it in spreadsheets we recommend you keep an electronic record of each employee. It’s important to keep these up to date and consistent.
2. Accurately Maintain Pay Records –
You should also maintain pay records for future reference. It is important to check weekly employee hours to see to it that applicable premiums are applied correctly. If an employee is filing a wage claim against you, believe me you will have a lot more credible defense if they see that you have made the effort to keep records of your pay records for employees. Many wage claims are based on not being paid for hours worked so its important to show when your employee was paid and how much.
3. Employee Data Should Be Secured –
You may outsource your timekeeping process in order to lighten the burden or cost on your company. If you choose to do that this is fine but be sure before entering into an agreement, you check how these third party companies store their data. Some companies store data in which you cannot quickly retrieve it when you need it. If you need this information as evidence you will want to be able to retrieve it quickly. You will also want to know if they are keeping this data safe and secure. The data could very well be more secure then if you were responsible for it but you still want to check and make sure they have data security policies in place.
Since law suits are inevitable, prevention is always the best cure. Defending wage claims means being ready for them before they even come to your door.
If you are in the unfortunate position of defending against a wage claim and not having been prepared with the records and information described in this article you need not panic. You will probably have a more difficult case but a good firm will give you a good chance at a favorable outcome. Contact attorneys who specialize in defending California Employers.
Contact us today if you need an attorney who specializes in Defending California Business Owners against Wage Claims!
admin@californiaemployerattorney.com
(323) 289-2260 ext:103
If you own a business or are an employer in the city of Los Angeles, CA and a current or former employee has filed a claim against you, its very likely that you will receive a Notice of Claim and Conference from this office.
An Employee can file a claim against your business with the California Labor Commissioner. After they file the claim you will receive a Notice of Claim and Conference asking you to appear at a meeting to review the complaint.
You will then appear before a Deputy Labor Commissioner who will hear about your case.
The Los Angeles Labor Commissioner is one of the busiest offices in California and you can expect the commissioners here to have many, many cases on their plates. During the initial conference you may have your case dismissed outright or they may schedule it for a hearing if they feel it has merit and you have not come to a settlement.
The Los Angeles Labor Commissioner’s office is located at:
320 W. Fourth Street, Suite 450
Los Angeles, CA 90013
The telephone number of the Los Angeles Labor Board’s office is (213) 620-6330.
It is best to get attorney representation from the start of your case so you can maximize your chances of success defending your business.
If you receive a Notice of Claim and Conference from the Los Angeles Labor Commissioner contact us right away so we can assist you!
We represents California employers and business owners in all claims. Contact Us for a 15 minute consultation to discuss your case.
EMAIL: admin@californiaemployerattorney.com
PHONE: 323-289-2260, Ext.103
If you own a business or are an employer in any of the areas served by the Van Nuys Labor Commissioner this will be the office that will contact you if an employee files a claim.
Here is a list of the cities served by this office:
The Labor Commissioner Office in Van Nuys is where employees in the covered areas will most likely file their complaint against your business. Their filing is the first step in the process. Soon you should receive a notice in the mail from this office with your options to respond.
There are many types claims against employers with the most common being the various types of Wage Claims. As an example here are some of the most common claims The Van Nuys Labor Commissioner accepts.
One of the following is most likely the type of claim you will see filed against your business:
Above, are the most common claims but there are a few more. If you are served notice and you do not see the specific claim above you can contact us for more information. We have defended California business against just about every claim their is!
After the employee makes the claim you will receive notice within 30 days from the deputy. The deputy will let you know how it will proceed, usually in one of 3 ways.
A conference is an informal meeting an neither you or the employee will be under oath. If you convince the deputy that it does not have merit then its possible to get it dismissed right there. The best way to do that is to bring all your supporting information and an attorney with you!
A hearing is the next step if its determined that it is needed after the conference. This is a bit more formal and you may need to testify under oath. Again the most important thing to do is bring all supporting evidence and an experienced labor attorney.
Obviously the dismissal of claim would be the best case scenario and what you would be going for.
While similar to court proceedings, these types of hearings are very unique. For example the hearing officer is not a judge but has a lot of power in the proceedings and has sole discretion on how it proceeds. That is why it is so important to have an attorney who is experienced in these matters with you and not try to tackle it yourself.
Below is more information about the Van Nuys office of the California Labor Commissioner.
The Van Nuy Labor Commissioner’s Address:
6150 Van Nuys Blvd., Room 206
Van Nuys, CA 91401
Van Nuys Labor Board’s office telephone number is (818) 901-5315.
Van Nuys Labor Board’s office fax number is (818) 901-5307.
It is best to get attorney representation from the start of your case so you can maximize your chances of success defending your business.
If you receive a Notice of Claim and Conference from the Deputy Labor Commissioner contact us right away so we can assist you!
We represent California employers and business owners in wage claims. Contact Us for a 15 minute consultation to discuss your case.
EMAIL: admin@californiaemployerattorney.com
PHONE: 323-289-2260, Ext.103
The Santa Barbara Labor Commissioner Office handles Labor Complaints
Santa Barbara Labor Commissioner Office:
If you own a business or are an employer in the areas of Santa Barbara, CA and a current or former employee has filed a claim against you it most likely that you will receive a Notice of Claim and Conference from this office.
Since this is the Labor office closest to you it is the one you would contact for more information on your notice.
This particular location basically serves the Tri-Counties area of Ventura, Santa Barbara and San Luis Obispo Counties.
There are many types claims against employers with the most common being wage claims. After an initial complaint a DLSE deputy (Division Labor Standards Enforcement) will schedule a somewhat informal conference between you and the employee with the complaint, to resolve the wage dispute.
If an agreement cannot be made at this first attempt a more formal meeting called an “administrative hearing” is scheduled for a later date. At this meeting a more formal decision will be made.
The Santa Barbara, CA Labor Commissioner accepts the following types of claims and one of the following is most likely the type of claim you will see:
Meal Break wage claims
Rest period wage claims
Doubletime wage claims
Unpaid vacation pay wage claims
Prevailing wage claims
Unpaid commissions wage claims
Unpaid travel time wage claims
Unreimbursed expenses wage claims
Unpaid mileage wage claims
The Santa Barbara Labor Commissioner’s office is located at:
411 E. Canon Perdido, Room 3
Santa Barbara, CA 93101
The telephone number of the Santa Barbara Labor Commissioner office is (805) 568-1222.
It is best to get attorney representation from the start of your case so you can maximize your chances of success defending your business. We can represent you even at your first “informal” meeting. With professional representation you have a much better change at resolving the matter more quickly.
Below is a video that helps explain the process.
If you receive a Notice of Claim and Conference from the California Deputy Labor Commissioner contact us right away so we can assist you!
We represent California employers and business owners in wage and other claims from the Santa Barbara Labor Commission office.
Contact Us for a 15 minute consultation to discuss your case.
EMAIL: admin@californiaemployerattorney.com
PHONE: 323-289-2260, Ext.103
If you are a business owner you will more than likely at some point have to deal with this question:
What should I do if I get sued by my employee?
Although you can take some precautions that will minimize your risk, like having comprehensive Employee Handbooks, if you are in business long enough, there is still a high likely hood one of your employees will file claim at some point.
You should be as prepared as possible if this day were to ever come so you can minimize the risk to your business. Ask yourself, If I were to get sued by an employee today, would I be as prepared as I need to be?
If the answer is no, then you better know three things you should do if you get sued by an employee.
1. Don’t Panic.
It is critical that you keep your wits about you and don’t assume the worst.
Do not take any retaliatory action against your employee! It may give you some temporary satisfaction but it could cost you dearly if your case ends up in litigation.
It is very important to stay calm and keep a positive attitude. Having a claim filed against you can be very scary but until you have had a professional Employer Attorney review your case there is no need to stress too much. We have had cases that seem very scary up front but turned out to be completely full of holes and we were able to have them dismissed.
2. Gather All Information.
Information is King! It is critical that you gather as much information as possible pertaining to this employee and his or her claims. All emails, written notes, eye witness accounts, time records, payment records, all written employment policies, anything you can think of. The more information you can provide your attorney the better tools they will have to defend you. Gather everything pertaining to this employee and let the attorney decide what’s irrelevant. Also gather all your employment policies. Remember more is better than less!
3. Contact An Attorney.
Yes an attorney will cost you money but an employee claim is a huge risk to your entire business.
It is critical you obtain the services of an attorney, especially one who concentrates on protecting employers and business owners in these types of matters. The earlier you bring an attorney into the matter the better. If you wait, sometimes you can unwittingly make matters worse for your case.
Remember: Bring an attorney who specializes in protecting business owners and bring them in as early as possible.
No company or business owner wants to deal with an employee claim or lawsuit. But when the time comes that you are in this situation, it is imperative that you do everything possible to minimize the risk to your business. Following the steps above should be a great start in minimizing this risk.
Contact us today if you need an attorney who specializes in protecting California Business Owners!
admin@californiaemployerattorney.com
(323) 289-2260 ext:103
What Every California Employer Needs To Know About Meal Break Violations
Meal Break Violations are one of the most commonly misunderstood California laws for Employers. Knowing what the law says about California Meal Breaks and preparing your business ahead of time, can go a really long way to protecting you from this common Employee legal complaint.
California labor law requires employees take periodic meal breaks.
A common labor complaint filed by employees in California, are meal break claims. You really need to understand what your rights and responsibilities are as an employer, regarding meal breaks so you can limit your liability in this area.
So in plain English here is the minimum you are supposed to do when it comes to employee meal periods.
And when they say BREAK they mean BREAK! The employee could complain if they are expected to work during their meal break or are constantly being interrupted. It is expected they are to have their meal period without having to stop and jump back into work as needed.
This means the employee is not expected to answer the phone, email or have a meeting while they are on their meal break. You should definitely not be seen or heard even giving the impression that you expect the worker to skip their break. Make sure that your not making any comments that could be interpreted by employees that you are pressuring them to skip their legal right to their break.
It does not matter how busy it is at your workplace or if this is just a “once in a while” thing. If you start discouraging your employee from taking their meal break you could be opening yourself up to some problems.
Even though you must “provide” the ability or opportunity for your employees to take their breaks you DO NOT have to police it. In other words its not your responsibility or obligation to keep track and ensure that all your employees are taking their breaks at their designated times.
You also DO NOT have to make sure they are not working during their break. All of this is up to the employee and your responsibility is just to make it clear that they are allowed this opportunity. (this was decided upon and clarified by the California Supreme Court in 2012 -> http://www.courts.ca.gov/17489.htm)
We actually encourage our clients to put their meal and rest periods policy in their Employee Handbooks and not only make sure that all employees are aware of it but encourage them to follow it!
Even if that is going a little farther then the law requires it could possibly save you money if their is ever an employee claim, as you can provide evidence that you did everything you could to encourage employees to take their mandatory breaks.
So is there any way around this mandatory meal break for employees? If you have a certain type of business like maybe a restaurant it can sometimes be difficult to follow this law. You may have limited staff, extremely busy periods or unpredictable work hours whatever the case may be, there are certain situations that can make it very difficult to follow this law.
If this is the case for you there is an option.
There is something called “on duty” meal period. On Duty meal period basically means that because of the circumstances of your business you cannot follow the meal break period law exactly, so you and your employee have come to an agreement that they will work through their meal break and be paid for it.
On Duty meal periods have some very specific criteria that has to be met before it can be used.
A Rest break is a different then a meal break. Here are the rules for Rest Periods.
So here we come to the tough part. What penalties can you expect if you are found to be in violation of meal and rest breaks for your employees?
The standard minimum penalty you can expect is a payment to your employee of an additional hour for each day they missed their break.
So for example if you pay your employee $15 dollars an hour and they work 5 days a week and missed their breaks for a year it may look like this.
5 days a week x 4 weeks = 20 days/20 days x 12 months = 240 days/$15hr x 240 = 3600
Note that this is the minimum to expect. You could be hit with a separate penalty for both missed meal breaks and missed meal periods.
There is also the possibility of being charged an interest rate which is typically 10% a year.
You could possibly be charged extra penalties if they prove that you willfully refused to provide meal periods. This is typically 30 days of pay for EACH employee who you have lost the complaint against.
These claims against you can go back 3 years (possibly 4). As you can see there is a huge window of the amount of liability depending on your specific situation. It would be impossible to assess your risk without knowing the exact particulars of your situation so you can use the information here to assess your situation. Of course you can always contact us for a one on one consultation where we can give you accurate information about your specific case.
So there are many laws when it comes to California meal breaks BUT they are not difficult to understand if you read this article carefully.
The most important things that you and your business can do:
Is know the laws and document them.
Make sure your company and all the managers and employees are aware of the policies with professional, labor attorney drafted, Employee Handbooks.
If you find yourself with a meal claim made against you contact an attorney right away! In the long run it will save you money to have professionals handling your case and in some situations they may even be able to get the whole thing dismissed.
Remember….
If you are knowledgeable of and careful to implement employee meal break policies that are compliant with California law than your business should mostly be protected from this liability.
If you have a complaint regarding employee meal breaks filed against you in California CONTACT our California employer attorneys who specialize in these cases.
A California severance agreement is also known as California termination and separation pay. This is paid by YOU the California employer to your employees in the event of separation. However, if an employment contract exists, you are NOT required to provide employee benefits including the severance pay.
California employees are often offered severance pay in exchange for a general release of all claims, as well as an arrangement not to litigate in the future against the employer. Since you need the employee to agree to your terms regarding your California severance agreement, it is crucial to be guided by attorneys who specialized in assisting California Employers.
For a California severance agreement to be binding there should be an offer, acceptance, and consideration or compensation. During this process, it is common for employees to release their employers from known and unknown claims against their employer. Also, employees should have no outstanding loans to their employers. Furthermore, the employees should keep the California severance agreement confidential and they can also agree to other things as long as it is not against California Labor Law.
Employers can agree to allow employees to work up to a certain date and have a lump sum of compensation in exchange for some conditions fulfilled by the employees. Issues between the employers and employees can also be solved at once using the California severance agreement to settle their claims and providing agree upon compensation.
The California severance agreement is not grounds for disqualification of unemployment benefits. This is a common concern of California employees facing layoff. Under the California Law, your employee accepting a California severance agreement package from you, does not prevent employees from claiming their unemployment insurance benefits. But, there is a potential exemption. A willful acceptance of misconduct can impact the employees’ claim for unemployment benefits and California severance agreement package. California Employers should be aware of this since, it can be a basis of you not having to provide the benefits to your former employee.
In a California severance agreement, employees are expected to release their employers including but not limited to sexual or other harassment, claims of discrimination, wrongful termination, breach of agreement and other allegations.
A California severance agreement can be very complicated in some cases but it may be the best tool in some scenarios for dealing with a California employee. It is highly recommended to seek a California Employer Attorneys advice during this process.
Contact us today if you need an attorney who specializes in protecting California Severance Agreements!
admin@californiaemployerattorney.com
(323) 289-2260 ext:103
Of course I hate to sound like a broken record… but I have to say again that an ounce of prevention really is worth a pound of cure for California Employers. The best, most inexpensive way to reduce your risk from employee discrimination claims is to have professional, attorney drafted Employee Handbooks. Studies consistently show that employees are much, much less likely to sue an employer over any issue that is covered in their employee handbook. Ok stepping of my soap box now. : ) You can get an inexpensive, professional employee handbook here that you can easily customize for your business.
There are both Federal and California state laws that prohibit discrimination against employees by employers. California discrimination law is known to be more pro-employee then the Federal law and CAN be VERY TOUGH on California employers! Discrimination Law is based on “protected characteristics” and California’s includes, race, religion, disability, medical condition, sex and age among many others.
You need to be familiar with the California discrimination laws because it can help you set your expectations and can guide you in formulating company policies that would help avoid costly litigation in the future. We are going to talk about two types of common discriminations, disparate treatment and disparate impact.
California discrimination laws states that, disparate treatments involve employer actions such as promotions and terminations which are based on the employees’ race, color, age, sex, or disability to name a few. Treating a person differently because of a protected class or saying offensive jokes or comments are in the disparate treatments category.
Unlike disparate treatments, a disparate impact involves employer policies in which greatly impact a certain group of people. For example, if you were to require all employees to be a certain religion before promoting them, then you would be open for lawsuits based on disparate impact because your actions are affecting employees based on group preferences.
California discrimination laws are created in order to protect the employees’ rights against abuse and violations. Therefore, including the rules for whistle blowing helps employees defend their rights. Whistle blowing happens when your employees inform the government or the law enforcement agency about your violations. Because of this, you cannot terminate, demote, or perform any action against your employees who file any lawsuit regarding employer violations.
Understanding California discrimination laws is critical to decreasing the associated risks of employee lawsuits against your business. If you do find yourself in the unfortunate position of facing a discrimination lawsuit against your business you will want to retain an experienced law firm that specializes in protecting employers!
admin@californiaemployerattorney.com
(323) 289-2260 ext:103
https://www.californiaemployerattorney.com/
Scroll
