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As Election Day approaches, politics inevitably seeps into the workplace. What if employees become disruptive, argumentative, annoying, or just plain unproductive on account of politics in the workplace? Does an employer have the right to limit political activities of employees in the workplace?

The answer is: “It depends.” In the private sector, in some jurisdictions, it is unlawful for employers to prevent employees from engaging in political activities or affiliations. But that does not mean employees are free to engage in any kind political activity on the clock, in the workplace.

In California, for example, Labor Code Section 1101 makes it unlawful for an employer to make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.  Labor Code Section 1102 makes it unlawful to coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity. continue

What happens when an employee with a mental disability misbehaves in the workplace? If the mental disability causes the employee to misbehave and violate workplace conduct rules, can the employer discipline the employee?

The EEOC has tackled this thorny ADA question, and many others, in a new publication titled: ”The Americans With Disabilities Act: Applying Performance And Conduct Standards To Employees With Disabilities.”

An EEOC press release acknowledges that employers struggle greatly with the ADA’s vague proscriptions and mandates. “The EEOC continues to receive numerous questions on these topics from employers and from individuals with disabilities, indicating that there is still a high level of uncertainty about how the ADA affects these fundamental personnel issues. This document will serve a critical need and enhance compliance with the ADA.” The press release can be found here

According to the new guide, the ADA permits employers to apply the same performance standards to all employees, including those with disabilities, and emphasizes that the ADA does not affect an employer’s right to hold all employees to basic conduct standards, notes the press release. “At the same time,” cautions the EEOC, “employers must make reasonable accommodations that enable individuals with disabilities to meet performance and conduct standards.”

For example, the EEOC provides the following hypothetical example: continue

On June 23rd the Internal Revenue Service announced an increase in the standard mileage rates for the final six months of 2008.

The rate will increase to 58.5 cents a mile for all business miles driven from July 1, 2008, through Dec. 31, 2008. This is an increase of eight (8) cents from the 50.5 cent rate in effect for the first six months of 2008.

The IRS announced the unusual mid-year increase in recognition of recent gasoline price increases. The IRS normally updates the mileage rates once a year in the fall for the next calendar year.

“Rising gas prices are having a major impact on individual Americans. Given the increase in prices, the IRS is adjusting the standard mileage rates to better reflect the real cost of operating an automobile,” said IRS Commissioner Doug Shulman. “We want the reimbursement rate to be fair to taxpayers.”

While gasoline is a significant factor in the mileage figure, other items enter into the calculation of mileage rates, such as depreciation and insurance and other fixed and variable costs.

The optional business standard mileage rate is used to compute the deductible costs of operating an automobile for business use in lieu of tracking actual costs. This rate is also used as a benchmark by the federal government and many businesses to reimburse their employees for mileage.

To view the IRS announcement: Click Here

Employers should consider increasing the reimbursement rates to match the new IRS rate. Generally, employers must reimburse employees for travel expenses incurred in the course of work. For example, in California, Labor Code section 2802, subdivision (a), requires an employer to indemnify its employees for expenses they necessarily incur in the discharge of their duties. Note that in California, paying the IRS rate does not guarantee that the employer has fully reimbursed the employee for actual travel expenses. The California Supreme Court recently addressed employee travel expense reimbursement in a case titled Gattuso v. Harte-Hanks Shopper, Inc.

The article presented herein is intended as a brief overview of the law and is not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney.

The U.S. Department of Labor recently issued an opinion letter on the topic of pro-rated salaries for exempt employees.

An employer inquired whether it is an acceptable practice to pro-rate the minimum allowable salary of an exempt employee to reflect his 20 hour per week part-time status, by paying the worker $15,000. In a letter dated February 14, 2008, the DOL responded that salary pro-ration is not allowed.

The rule applies to all exempt classifications subject to the salary test. The most common exempt classifications are executive, administrative, and professional. Properly classified exempt employees are not entitled to overtime and are exempt from various other wage and hour rules. To qualify, exempt workers must be paid a minimum salary set by law, and also perform certain defined duties.

Under federal law, exempt employees must be paid a minimum salary of $23,660 annually, or $455 per week. This minimum amount must be paid even if the employee works part time. An employer wishing to pay an employee less than the minimum would have to classify the worker as a regular hourly non-exempt employee.

The minimum may be higher in some states. For example, in California the minimum salary is higher: $33,280 or $640 per week. As under federal law, payment below the statutory minimum would cause the employee to lose exempt status.

Employers are reminded that paying the minimum salary does not necessarily qualify employees for exempt status. Under both state and federal law, the employee must also meet a “duties test” that focuses on the job duties of the employee.

For more details, here’s the link to the DOL opinion letter.

The article presented herein is intended as a brief overview of the law and is not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney.

In the fiscal year 2004-2005, 1,423,097 civil lawsuits were filed in California. Given those statistics, odds are that many businesses will end up in court sooner or later. For those of you who have not had this misfortune, here are six crucial basics you should know about what to do—and not do—within the first thirty days of being sued.

First, gracefully accept the packet of papers (called a “summons and complaint”) from the process server. Although the natural tendency is to try to avoid the process server, such sneaky tactics inevitably lead to greater headaches later on.

Second, you ought to notify your legal counsel immediately upon receipt of the lawsuit. You only have a short period of time—thirty days—in which to file responsive papers with the court. Failure to respond within the time limit can result in the court entering a default, and eventually, a judgment, against you. Moreover, an early consultation will give your attorney sufficient time to evaluate whether a demurrer—i.e. a motion to dismiss the lawsuit—should be filed. There may not be time to prepare such a motion if you don’t get around to notifying counsel until weeks after you first receive the lawsuit.

A natural tendency is to hold off notifying counsel as long as possible in the hope of avoiding legal fees. Often this turns out to be like avoiding going to the doctor until you get really sick. Early treatment is better. Likewise, competent counsel can cooperate in minimizing fees, while at the same time providing technical advice that can go a long way in cutting the case short—by far the best way to curtail fees.

Third, review your insurance policies for potential coverage for the claim. Don’t conclude the claim is not covered until you and your counsel have carefully reviewed the policy language. If the claim is potentially covered, it is important to notify the insurance company immediately. Insurance companies will often refuse to pay litigation fees and costs incurred before notice of suit is given.

Fourth, be prepared to take immediate steps to investigate the claims raised in the lawsuit and to secure evidence that will support your defense. Primarily, this relates to documents and witnesses. Oftentimes, this is simply a matter of gathering all relevant documents—contracts, invoices, letters, emails, etc. Do not, under any circumstances, destroy or alter documents. Invariably, such conduct is discovered and then viewed in court as the equivalent of guilt, even where the documents in question were marginally relevant. It is equally important to identify all witnesses to the matters raised in the lawsuit. Conducting early interviews, and perhaps obtaining written statements, will avoid the problems of fading memories or missing witnesses. Witness tampering in any form should of course be avoided. Many a defense has met disaster over trivial discrepancies in witness testimony that arose simply because the defendant thought he could be clever by “improving” his story.

Fifth, work with your attorney early on to evaluate your potential liability and formulate a litigation strategy that fits the nature of the case. Is the lawsuit frivolous or are you facing potential liability? Is the dollar amount at stake large or small? Is the evidence at hand helpful or harmful? Come up with a plan that fits the nature of the case. You won’t want to plan a vicious legal battle where the amount at stake is small. You won’t want to take a casual approach where a significant percentage of your company’s assets are at stake. Early evaluation and planning will assure that the most effective approach is used.

Finally, and perhaps most importantly, consider early resolution of the case. Often times, settlement within the first thirty days of a lawsuit is not possible due to time constraints, the amount at stake, or lack of information. Nevertheless, early exploration of settlement opportunities is the best way to control the outcome of the case and minimize legal costs.

The article presented herein is intended as a brief overview of the law and is not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney.