Thanks For Your Support Regarding The Book Signing!

With the book signing fast approaching (this saturday) I would like to say “Thanks” for all of the support. We are still receiving RSVP’s and if you are planning on coming, please let us know asap. We need a head count for the number of books, drinks, food, etc. Barnes & Noble will physically be there  to accommodate purchases.  If you have never seen me nervous, be there, and bring your cameras!!

Please RSVP to pottshr@pacbell.net

Employees Must Tell The Employer They Have A Disability…

CALIFORNIA COURT OF APPEAL-The Court ruled on behalf of the employer on the disability claim but watch using company forms that suggest the employee is applying for an authorized leave of absence. Here is a recap of the decision.
 

“Where plaintiff, who was discharged from employment for excessive absenteeism, claimed to have been discriminated on the basis of disability in violation of the Fair Employment and Housing Act, plaintiff’s evidence that he informed defendant that some of his absences were due to illness failed to raise a triable issue where there was no evidence that–prior to the date he was notified of his termination–he informed the superiors responsible for the firing that he suffered from a disability and not merely an illness. Plaintiff raised a triable issue on his claims that he was terminated in retaliation for taking qualifying medical leave, and thus in violation of the California Family Rights Act and public policy, by presenting evidence from which a reasonable trier of fact might conclude that plaintiff provided defendant with preprinted forms showing that he had been hospitalized on days that employer treated as unexcused absences and that the presentation of the forms constituted a request for CFRA leave although not designated as such.”

“CFRA” is the abbreviated form of the “California Family Rights Act” which is the California version of the FMLA (Family Medical Leave Act-Federal). Remember, if they are only going to be out for a few days, especially unexcused days, DO NOT GIVE THEM FORMS THAT REQUEST A LEAVE OF ABSENCE. When in doubt, call us. 

 

Identity Theft-Protect Yourself!

We have received a number of calls whereby individuals are contacting our clients regarding possible identity theft. It’s a problem that is getting out of control. Everytime I work patrol, I take at least one report because someone has had their identity stolen. Here are some warning signs:

1. Your credit card statement has charges you did not make (carefully check your statements).

2. You get bills for accounts you never opened (duh!).

3. You are denied credit for no apparent reason.

4. Money is missing from you bank account ( and your spouse denies it! Just kidding!!!).

PROTECT YOURSELF!

1. Review your credit report and check for accounts that you did not open.

2. Ony carry the credit cards and identification cards that you need and keep them in a safe place.

3. DO NOT respond to e-mail messages or telephone calls asking for personal information.

4. Get a shredder for your home. People will go through your trash!

If your identity is stolen:

1. Get a copy of your credit report and check it for accounts you did not open and balances that are suspiciously high.

2. Contact the major credit reporting agencies and have them put a fraud alert on your report.

3. File a police report and get a copy (usually takes a week).

4. Contact the companies that you did not open an account with and send them a copy of the police report.

5. Keep a record of your calls and records.

The Federal Trade Commission reported that there were 9 million cases of identity theft last year with losses to consumers of more than $5 billion. The simplest kind is credit card fraud, which accounts for over 60% of identity theft.

I would suggest that you pass this information on to your employees. When they end up with an issue, it creates a problem for the employer as well. Taking time off, changing records, and emotional instability all impact the workplace.

My Book Is Out!!!!! Book Signing, August 23rd, 2008!!

Whew! After many months of waiting I am proud to announce that my book is finally out!! I appreciate all of the inquiries and best wishes that I have received. On August 23rd, 2008, we will host the official book signing at the Altadena Town & Country Club. Some have asked should they buy the book beforehand, (www.jameswilliampotts.com) or wait until the event. If you are planning to attend the book signing I would suggest that you get it at that time. Some are purchasing it before hand, and bringing it to be signed. It’s good for me either way. We are going to be sending out official invitations within the next week and asking for RSVP’s to be able to accurately determine the number of copies that we will need for the event.

Thanks again for your support! I hope you enjoy reading it as much as I enjoyed writing it!

Wage & Hour Update-Rest Period Case Favorable to Employers!

The following case summary was taken from the Daily Briefs that I receive. This is ONE source that I keep up with to keep on top of current cases changes and changes in the law. I wanted you to get the whole picture. This case is favorable to employers regarding rest breaks.

Labor and Employment Law section:

While employers cannot impede, discourage, or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken. Employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period. Requirement that all persons working more than five hours in a day be given a meal period does not obligate employer to grant a meal period for every five consecutive hours worked. While employers cannot impede, discourage, or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken. While employers cannot coerce, require, or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. Certification of employee class was error with respect to subclasses claiming denial of rest periods or meal periods, or overtime compensation for work off the clock; since each employee would have to show that denial of rest or meal period was result of unlawful action of employer and not employee choice, and each employee claiming to have worked off the clock would have to show that employer knew or should have known of the off-the-clock work, individual issues necessarily predominated over classwide ones with respect to those subclasses.
     Brinker Restaurant Corporation v. Superior Court (Hohnbaum) - filed July 22, 2008, Fourth District, Div. One   Cite as 2008 SOS 4356

In closing, I want to add that we need to stay proactive with these break issues. Make sure that your employees know that they are permitted to take their proper breaks and lunch period. This was a good decision so let’s make sure we, as employers. don’t give the courts any second thoughts.

Non-Fraternization Policies. Are They A Waste Of Time?

We are constantly receiving calls regarding the validity of non-fraternization policies. Let me begin by saying that such policies are valid but have to be carefully written. There was a recent case where the high court determined that the defendant employer restricted the interaction of staff so closely that the policy impacted the rights of the employees to discuss protected workplace rights (such as being able to discuss salaries).

Another common issue that gets challenged is whether or not an employer can restrict the off duty conduct of employees. Managers and supervisors have to be careful because of the potential liability for sexual harassment claims. But what about employees? Privacy issues have surfaced but, an employer can have a policy about off duty conduct that potentially can impact the employer.

It is my personal belief that non-fraternization policies are a waste of time. If two employees want to get together they are going to sneak and “get the deed done” no matter what policies are in place. The work environment is already filled with gossip and rumors. Why add fuel to the fire and, usually, everyone but the boss knows anyway. If the relationship begins to impact the business the employer has a right to take action.

Have any of you found such policies to have value? Let’s hear from you!

Three Key Reasons Why Former Employees Sue!

Over my twenty-eight years in this business I have seen employees sue for every reason that you can imagine. Throughout that time frame, several key areas have emerged as the most consistent. I have specifically omitted claims of discrimination because those are too easy and include too many frivolous allegations therefore I focused my attention on wrongful termination issues.

The number three reason, in my humble opinion, is not giving a reason for the termination. When you fail to do so, the former employee begins to imagine all sorts of things and never imagining, even for a moment, that they had done anything wrong! The person conducting the termination may have wanted to avoid an uncomfortable encounter and becomes vague as to the reasons for the discharge (or calls it a layoff because it is easier). You have to “ante up” and get into the game. Employees deserve to know the reason why they are out of a job and, in fact, some states require that the reason for the termination be in writing.

The second most common reason is when a manager terminates for bad performance and there are excellent performance reviews on file. How inconsistent is that!! Don’t be lazy, conduct the performance reviews in a manner consistent with the performance of the individual. Again, there are times when a manager takes a less confrontational route. Ante up people and let’s do what has to be done! If you need some education on “Conducting Effective Performance Evaluations” let us know. We offer that training.

The number one reason (drum roll please) is when the manager fails to follow established company policies, practices and procedures! The attorneys will tear a manager apart if they failed to follow their own rules. Employers in general need to have an employee handbook that is up to date and distributed (and signed for) to every employee and new hire. An annual review needs to be conducted to ensure that there weren’t any recent legislative or internal policy changes. The sad part is the termination, on its face may, have been proper. You simply cannot prove it, or, the cost of litigation (now that the door had been open to doubt) is more costly than a nuisance value settlement. Know and follow your own policies and when in doubt call us!

Well, there they are. Let’s avoid the minefield of litigation with at least avoiding the three key areas mentioned above.

It’s Hot And The Clothes Are Coming Off!!

Don’t get excited!! I’m not talking about me! With the current heat wave employees are dressing with lighter clothing and in some cases, less clothing. During the summer, there is generally an increase in sexual harassment allegations (DUH!!). Employers must not get distracted with the weather and let their guard down regarding the dress code policy. Yes, short sleeves, as opposed to long sleeves, is ok. But shorter dresses, revealing midriffs, and low cut blouses (sorry guys), is not. Turn up the air, put on the fans, or do whatever you have to but “Let’s keep the clothes on.”

At-Will does mean “At-Will” but…

The reality is, employers need to understand that the “At-Will” provision will not protect them for violations of employee rights. Obviously terminating an employee for discriminatory or retaliatory reasons will not protect you from a wrongful termination lawsuit. We are constantly trying to get managers to understand that it is still important, in every scenario, to document poor performance or violations of company policy and if you do that, you really do not have to worry about the “At-Will” provision. Too many employers look at it as a safety net. Forget it and simply do your documentation and you will be covered. Let the “Legal Beagles” argue the “At-Will” provision if the need arises.

Does “At-Will” really mean…?

We are constantly receiving separation information that a former employee was let go because “…we are an at-will employer.” Under the California Labor Code the employment relationship is terminable at will by either the company or the employee with or without cause or advanced notice.

QUESTION: Can an employer let an employee go because of the “At-Will” provision? Let me hear from you!