The following was written by my friend, Art Silbergeld. He has practiced employment law for almost 37 years. These thirty (30) tips should be printed and kept as a reminder. It reinforces many of the issues I have pointed out over the last few years.
I often end up defending companies in employment litigation in federal, state bench or jury trials because they have inadvertently failed to comply with provisions found in the California Labor or Government codes. Plaintiffs’ attorneys, hunting for clients and claims, feed on such employer oversights and seek huge sums in attorneys’ fees, back pay, and other damages, filing costly individual and class actions and claims under California’s Private Attorneys General Act. Here are some guidelines which an employer must follow (or cannot or should not do) that may help protect it from costly lawsuits:
- When hiring any new employee, an employer
must provide written notice of the rate and basis
of pay, the regular payday, the location and
phone number of the employer’s office, the paid
sick leave policy, and the name of its workers’
compensation carrier, and notify employees if this
- Do not, in a background check, obtain
consumer credit reports on applicants or
employees for most non-managerial jobs, except
those with access to confidential information or
signatory authority on bank accounts.
- Do not ask an applicant or employee for a
user ID or password in order to access personal
social media (Facebook, Yik-Yak, etc.) or discipline
or fire an individual who refuses to give that
- Do not ask an applicant about family
- Have employees sign at-will agreements,
agreements to arbitrate disputes, and class action
- Unless scheduled to work under six hours,
allow employees a 30-minute (unpaid) meal period
starting by the end of the fifth hour of work and a
second after 10 hours. Always document time out
- Provide employees a 10-minute paid rest
break for every 3.5 hours of work and distribute a
written policy on this issue.
- Pay overtime to non-exempt employees, even
those on a fixed weekly or monthly salary. Do not
treat salaried employees as exempt from overtime
just because they get a salary.
- Be certain that exempt employees consistently
do exempt work more than 50% of their working
time. Pay exempt employees minimum California
monthly salary, higher than the federal standard.
- Pay out of state employees who come into
California to work, even briefly, at the daily,
weekly and double overtime wage rates.
- Pay statements accompanying paychecks
must be accurate, listing all information for the
pay period and year-to-date required by the Labor
Code. Hundreds of class action complaints alleging
non-compliance are pending.
- Have written agreements with commission based
- In most cases, pay employees who spend
substantial time before and after work stocking
shelves or putting on and taking off uniforms and
safety gear. Nordstrom settled litigation for $7.650
million after not paying commissioned employees
who worked before and after stores opened.
- On the day of termination, pay final wages,
including accrued and unused vacation pay or,
if the employee quits without giving 72 hours’
notice, within 72 hours.
- Do not offset an employee’s debt (loans,
advances) from a final paycheck without written
- Have written rules of conduct. Apply them
- Provide honest performance evaluations.
- Document the reasons for every employment
- Keep pay records for three years and, if asked,
give an employee a copy of his/her pay records
within 21 days.
- If employing five or more, allow an employee
from day one to take a pregnancy disability leave
of up to 17.33 weeks and continue group health
during that period.
- Do not retaliate against an eligible male or
female employee who takes family or medical
leave or is absent for other reasons allowed by the
Labor or Government codes.
- Hold a job open for most employees on leave
and do not decide to fire the employee because the
temp performs better.
- Allow employees an unpaid leave for jury
duty, to testify on issues of domestic violence,
sexual assault, and stalking, and up to 40 hours a
year to attend children’s school activities.
- Comply with federal non-discrimination
standards (race, color, gender, national origin,
religion, age) and also with California laws
prohibiting sexual orientation, marital status, and
gender identity and expression discrimination.
- Prohibit sexual harassment in writing. Take
any claim of harassment seriously, investigate
and, if valid, correct it and, if employing 50 or
more, train all supervisors on issues of harassment,
discrimination, retaliation, and bullying for
two hours every two years. Too often, employee
complaints are not taken seriously, “whiners”
are fired, and expensive litigation and potential
damage to goodwill follow.
- Prohibit employees from using the company’s
communications system to view or send
communications with pornographic or harassing
content and monitor emails and filter out
- Affirmatively engage in an interactive
process with individuals who have or are believed
to have a disability to determine reasonable
accommodations that might enable the individual
to perform the essential functions of a job.
Complaints of disability discrimination have
- Provide a reasonable accommodation to a
lactating mother, including space (other than a
restroom) for privacy to express breast milk.
- Do not deny employees who have access to
the company’s electronic e-mail the right to use
the e-mail to communicate with co-workers about
wages, hours and other terms and conditions of
employment and union organizing activity.
- Begin paid sick leave compliance and accrual
starting July 1, 2015.
Arthur F. Silbergeld, an employment and labor partner with Norton Rose Fulbright, is the author of Doing
Business in California: An Employment Law Handbook (3rd ed.) from which these guidelines are taken.
For more information, contact (213) 892-9235 or firstname.lastname@example.org
NOTE: The podcast this week discusses “Breaks for Smokers!” Go to http://www.pottsandassociates.com or iTunes (look for Listen Up with Jim Potts).