Employment Law

Absolutely!! Harassment and discrimination claims in the workplace should not be taken lightly.   The Department of Fair Employment & Housing defines sexual harassment as harassment based on sex or of a sexual nature; gender harassment; and harassment based on pregnancy, childbirth, or related medical conditions.

Every company, even companies with one employee, are required to take actions against sexual harassment and to have a sexual harassment policy.  The guidelines employers must follow are clearly outlined in the “Facts about Sexual Harassment” DFEH – 185 pamphlet.

At the time a complaint occurs, the employer must:  quickly stop the harassment; investigate; properly discipline if harassment is proven; correct the effects of the harassment; put actions into place to ensure harassment does not recur.  At no time shall the employee be retaliated against for filing a complaint. continue

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.