We Defend Employers

“OUR DREAMS DEFINE WHO WE ARE AND WHO WE Strive TO BECOME”

Owning a business is often an essential part of our dreams. The freedom it provides. The thrilling adventure that we crave and endure. Whether its a restaurant, an auto shop, a trendy boutique, or the next revolutionary invention, we dream about it and some even jump in.

But sadly, California is not business friendly. In truth, California is just the opposite. California hates businesses and their owners. Never in our history has “doing business” been so risky and so overwhelmingly embattled with red-tape. Over the years, the state of California has made it progressively more difficult and more costly to conduct business, whether you are a start-up, a small “mom and pop”, or even a large corporation.

The hard truth is that California is out to take what you have and what you build, to give it to someone else. They didn’t earn it. They didn’t risk for it. But, You get to keep putting in hard work and the long hours. You get to keep skipping vacations and working holidays. You get to keep the risk of failure and financial collapse.

California’s rules and regulations are staggeringly extensive, increasing yearly, and continue to progressively steal from the coffers of hard working business owners in order to give your money to others. Each year, more laws are added to the books which progressively transfer your rights as an owner to operate your business the way you want and transferring your profits from your investment and hard work to others. The result is that it has become increasingly difficult for businesses to thrive or even survive in California. This is not common sense regulation. Our laws are purposefully complex to reduce competition from the little guy in favor of the corporate conglomerate (the group that can hire more help whether lawyers, accountants, staff). It is a game of “Gotcha” or “Whack-a-Mole” designed to strip you bare.

If you are a business owner, officer of a corporation, or even worked closely with management of any business, you know first hand that businesses are dealing with a ton of different issues everyday from suppliers, vendors, staff, equipment, customers, etc. Attacks on you and your business come in many forms: from exploitative garbage claims of wrongful termination, retaliation, discrimination, or harassment to the increasingly difficult maze that is wage and hour claims which is full of penalties and fines at every wrong turn.

Regardless of the avenue, the goal of the plaintiff is always the same: to get something for nothing. There is an old proverb that says “the enemy of my enemy is my friend.” We feel bad telling you this, but you need to know: You are the enemy; Your employees and the State of California are the best of friends.

At the Bailey Law Corporation, we can help businesses stay in compliance with all employment laws and protect their interests when dealing with employees, customers and/or clients, in contracts or in competition with other businesses, and governmental agencies. We help businesses avoid costly mistakes or oversight and protect businesses from liability.

Worker’s Status and Wrongful Termination

Independent Contractor versus Employee

One of the main problems with business is the ability to hire good people and keep them happy. Many growing or brand-new businesses start off employing people on a part-time basis or on an independent contractor basis first before hiring the worker on as a full-time, salaried employee. Where many businesses run afoul of the laws is when a part-time worker or independent contractor starts to take on more work and responsibility, leading he or she to look and behave more like an actual employee.

A worker is considered an independent contractor if the employer 1) does not control how the worker performs the work, 2) the worker provides a service that is not part of the employer’s usual business and 3) the worker regularly engages in an established business, trade, or profession that is independent of the employer’s business.

Thus, a true independent contractor is a worker that is actually in business for himself. These individuals are more like “freelance” workers who work on more than one project at a time and take several jobs on a “freelance” basis. In those instances, these true independent contractors are able to choose when, where, and how they perform the work.

Why is this important? Well, for one...the independent contractor may NOT file a wrongful termination claim against you.

Wrongful Termination

Since most employees are now employed on an at-will basis, most wrongful termination claims are no longer based on a contract. In other words, at-will employments means you (as the employer) does not need a reason to terminate the worker’s employment, and the employees are free to leave their job at any time.

In an at-will state like California, employers don’t need a reason to terminate an employee; however, the employer may not terminate the employee for an unlawful reason. Most wrongful termination claims are based on termination for discriminatory reasons, for employee’s exercising their legal rights, or public policy.

A few examples of unlawful reasons include firing an employee:

• because the employee is part of a “protected class” such as age, race, gender, disability, sexual orientation, religion, etc.;

• because of the employee’s political beliefs or affiliations;

• because the employee took time off;

• because the employee is a “whistle-blower” who reported the employer for violating the law;

• because of a violation of an implied contract;

• because the employee filed a workers compensation claim or reported an injury; or

• for any reasons that violate public policy.

Thus, although California is an at-will employment state, the employees may bring wrongful termination claims for a variety of reasons.

Discrimination, Retaliation, Harassment

Many employers have learned the hard way that wrongful termination, retaliation, discrimination, and harassment go hand in hand. If you are being sued for wrongful termination, there is a very high chance that you are also being sued for retaliation, discrimination, and harassment. That is because California law is even broader than federal anti-discrimination laws and very employee friendly.

Discrimination

Protected classes under federal anti-discrimination law include the following:

• age (40 years and older),

• race,

• sex (pregnancy, gender identity, and sexual orientation),

• physical disability,

• mental disability,

• religion/ religious practices,

• national origin, and

• political affiliation.

Likewise, protected classes under California’s anti-discrimination law include the following:

• age (over 40),

• race or color,

• sex or gender (pregnancy, childbirth, breastfeeding or related medical conditions),

• sexual orientation,

• gender identity, gender expression,

• physical disability,

• mental disability,

• religion, creed,

• ancestry, national origin,

• medical condition,

• genetic information,

• marital status, and

• military and veteran status.

Clearly, California has more “protected classes” and the “protected classes” are broader and more inclusive. In other words, California gives your employees more reasons to sue you under California’s anti-discrimination laws.

If at any time an employee feels that he or she are a part of any of the above “protected classes” and is being discriminated against, he or she may bring a claim for discrimination against you.

Retaliation

If an employee feels that he or she is being retaliated against for asserting his or her rights or engaging in “protected activity,” the employer may liable for damages pursuant to California’s Fair Employment and Housing Act. As such, it is unlawful for employers to retaliate against employees who resist or object to discrimination or harassment. Retaliation includes discharging, expelling, or otherwise discriminating against an employee because the employee opposed employer’s unlawful actions or because the employee filed a complaint, testified, or assisted in any proceeding against the employer.

Examples of protected activity include: whistle-blowing, reporting harassment, reporting unsavory business practices, taking family or sick leave, filing a complaint regarding wages.

Examples of workplace retaliation include: schedule changes, reassignment to a different position, hostile interactions, blocked promotions and benefits, poor performance reviews, or even termination.

As you can imagine, the term “retaliation” can be interpreted to include many types of actions, including actions the employers may not have viewed or even have intended to be “retaliation.” Many times, employees make claims of retaliation based on the timing of an employee’s actions alone.

Harassment

Likewise, if an employee feels that he or she is being harassed for being in a “protected class,” the employer may again be liable for damages under California’s Fair Employment and Housing Act. This is because the term “harassment” is equally broad and has been defined to include any negative, inappropriate, or unwanted conduct at an employee based on his or her inclusion in a “protected class.” In other words, if an employee feels that he or she has suffered through any negative, inappropriate, or unwanted conduct because of his or her race, disability, religion, sex, gender identity, marital status, sexual orientation, pregnancy, etc.

Examples of harassment include inappropriate jokes, derogatory comments, sexual innuendo, unwanted touching or hitting, threats (verbal or implied), offensive posters or signs, aggressive or repeated requests for sexual favors, showing favoritism.

Employees may sometimes feel they are being harassed and that certain actions are “wrong,” but the actions they complain about do not rise to the level of unlawful harassment. It is important for employers to know the difference.

Wage Claims

What you need to know about California’s Division of Labor Standards Enforcement and the Labor Commissioner.

California’s labor laws are a maze and various penalties can be imposed against employers, which can make oversight and honest mistakes a very costly mistake later on down the road. Ignorance of the labor code does not excuse a violation of the labor code.

Sometimes employees who have been terminated complain about not being paid properly for the first time ever. This is because many employers and employees are unaware of the technical requires imposed by the California labor law and continue happily along blissfully unaware of any violations until after an employee is terminated.

If an employee believes he is owed money for work he or she has done, the employee can file a “wage claim” with the California’s Division of Labor Standards Enforcement (DLSE). This is in lieu of filing a lawsuit in court. The DLSE has the power to investigate the employee’s claims. In addition, the Labor Commissioner will hold a hearing on an employee’s complaints regarding any of the following issues:

• unpaid wages,

• unpaid commissions,

• unpaid vacation wages,

• failure to pay minimum wage,

• failure to pay overtime,

• failure to make payments for agreed benefits,

• failure to make timely payment of wages after termination, including late payment or nonpayment of final wages,

• meal and rest period violations,

• unpaid split shift premium,

• unpaid reporting time pay,

• unlawful deductions from a paycheck,

• unreimbursed business expenses.

Clearly, the Labor Commissioner has jurisdiction to decide on many difference issues. However, if the employee requests a “right to sue letter” from the DLSE, the employee may bypass a hearing with the Labor Commissioner and file a lawsuit in California superior court for a determination of the above-mentioned issues as well.

Some employers may think that hiring a lawyer for a Labor Commissioner hearing is not necessary; however, the stakes can be just as high in a hearing before the Labor Commissioner as it is in superior court before a judge. The Labor Commissioner has the authority to impose very high penalties for very technical violations. An attorney can ensure that you have your paperwork in order and can help limit any liability you may be facing.

Workers Compensation Claims

We will defend YOU and limit your liability from fraudulent workers’ compensation claims.

Every California employer is required by law to maintain workers’ compensation insurance in order to ensure the employees receive financial support for time the employees must take off work due to injuries sustained while on the job. Although the vast majority of workers’ compensation claims are settled through the employer’s workers’ compensation insurance policy, there are certain (and potentially costly) exceptions.

When an employee gets hurt on the job, he or she will usually file a claim for workers’ compensation benefits. However, an employee who believes that his or her injury is not covered by the employer’s workers’ compensation insurance policy, may now sue you for damages. In such cases, the employee’s case is no longer just a benefits claim. The workers’ compensation claim and a separate civil action in California Superior Court will proceed at the same time. Your workers’ compensation coverage will likely NOT provide you with a defense counsel to defend you in the separate civil action.

In addition, there are certain factors that may affect your employee’s eligibility for workers compensation. The following are some defenses that can be used to limit an employer’s liability for workers compensation:

1) The employee failed to give you notice of his or her job-related injury within 30 days of sustaining the injury.

2) The employee’s workers’ compensation claim was not filed within the one year statute of limitations, which begins from the date of his or her work-related injury or illness.

3) The employee’s injury was self-inflicted or intentional. This is because California’s mandatory workers’ compensation insurance is meant to only cover those injuries caused by an accident or the employee’s carelessness.

4) The employee’s injury was not linked to activities that are within the course and scope of the employee’s employment, i.e. the employee was injured during his or her commute or during a rest or meal break. Was the employee clocked in at the time he or she was injured? Was the activity the employee engaged in at the time of injury within the course and scope of his employment?

5) The employee’s injury is a result of the employee’s own willful negligence or horseplay. For example, any behavior that violates the company’s policy at the time of injury (including drugs and intoxication) will probably not be covered by workers’ compensation insurance.

6) The employee did not attend mandatory doctor appointments. When an employee files a workers’ compensation claim, he or she is required to attend an independent medical examination, and employees cannot refuse medical treatment without good cause.

7) The employee is unable to determine or explain the cause of his or her injury. This is because the employee bears the burden of proof and must show why the accident happen.

8) The employee’s injury is not as bad as the employee claims, i.e. if the employee is cleared to return to work sooner.

9) The employee’s injury was caused by a pre-existing condition. If the employee has a pre-existing condition that resulted from an injury not sustained at work, the employee is only responsible for the aggravation to the pre-existing condition.

Our firm can provide you with an aggressive, innovative, and practical defense to help resolve the matters. We know that workers compensation claims can sometimes be rife with fraud, but it can also cause a significant disruption in your time and business.

We protect employers.

Employee Handbooks

If you are thinking of starting a business, you should have an Employee Handbook. Reviewing the handbook should be one of the first things you do with an new hire. The handbook sets the tone of the employer-employee relationship.

If you own a business and currently do not have an Employee Handbook, our attorneys can help draft a custom one that is tailored to your business’ needs. A well- drafted Employee Handbook can help your business run smoothly on a daily basis, can help your business avoid costly mistakes and oversight, and can limit your liability in any future litigation.

Why are Employee Handbooks important? An Employee Handbook essentially communicates the rules of employment with your employees. It tells employees (and employers) what the rules are; what is required of them; what is acceptable; and how issues will be handled. It keeps everyone accountable, and it gives you (the employer) the power (and the justification) when making tough decisions.

Most Employee Handbooks provide the following: an introduction to the company, information regarding work schedules and rest and meal breaks, rules regarding the use of company technology, rules regarding safety in the workplace, information regarding performance reviews, information on disciplinary actions and termination, and how and when any benefits offered to the employees. You should apply all the rules in your Employee Handbook should be applied consistently to all employees so that your employees do not accuse you of unfair treatment, favoritism, or discrimination.

If you have already distributed an Employee Handbook to your employees, our attorneys can help you determine if your Employee Handbook adequately covers your business’ interests and needs. The issues that are of utmost importance to a restaurant owner will be different from the issues that concern the owner of a construction company. However, many of the wage and hour issues will be the same. Our attorneys can help you identify issues specific to your business that may have a negative impact on your success. Most importantly, our attorneys can make sure your Employee Handbook complies with all local ordinances and state/federal laws.

Our number one goal is to safeguard your business. Let us help.

Mandatory Employee Training

At the Bailey Law Corporation, we know that your may not have the time, the energy, or even the desire to ensure that your employees are receiving all mandatory training. Our attorneys can help you satisfy all your employee training obligations under California Law by providing training specially tailored to your business’ needs. Not only will we inform you of any training obligations you may have, but we can also help you conduct the training as well as be available to answer any questions your employees or supervisors may have. It is important to not only provide the mandatory training, but you should also provide mandatory training that has your business in mind and maximizes your potential for success. A well-trained staff can help prevent costly mistakes and save your business thousands in future liability.

California currently has several laws that make certain employee training mandatory.

• Sexual Harassment Prevention Training: Employers with 5 or more employees must provide sexual harassment and abusive conduct prevention training to all employees (even nonsupervisory employees) every two years. Supervisors are required to have at least 2 hours of sexual harassment training, and nonsupervisory employees must have at least 1 hour of training. This training is also required for all temporary or seasonal employees as well. The training should educate employees on examples of harassment based on gender identity, gender expression, and sexual orientation.

• Talent Agencies Must Provide Sexual Harassment Training and Educational Materials: All talent agencies must provide training and educational materials discussing sexual harassment prevention, retaliation, reporting resources, nutrition and eating disorders to adults artists. The training and educational materials discussing sexual harassment prevention, retaliation, and reporting should cover all of the content found the Department of Fair Employment and Housing’s Form 185. In addition, the training and educational material discussing nutrition and eating disorders should include the content specified on the National Institute of Health’s Eating Disorder’s webpage. There are similar requirements for children artists as well.

• Hotel and Motel Operators Must Provide Training on Human Trafficking Awareness: Hotel and motel operators must provide interactive training and education regarding human trafficking awareness to the employees who are likely to interact or come into contact with victims of human trafficking. For example, “an employee who has recurring interactions with the public, including, but not limited to, an employee who works in a reception area, performs housekeeping duties, helps customers in moving their possessions, or drives customers.” In addition, this training and education is mandatory for the duration of the employee’s employment. Thus, the first interactive training and education should be completed within six months of employment and all subsequent training and education must occur every two years thereafter.

Anti-Harassment Policy

California’s Fair Employment and Housing Act (FEHA) prohibits discrimination, harassment, and retaliation in the workplace. As such, all employers are obligated to “take reasonable steps to prevent and correct all harassing, discriminatory, and retaliatory behavior in the workplace. In order for you (as the employer) to comply, you must create a harassment, discrimination, and retaliation prevention policy that includes a complaint procedure, and (most importantly) this should be distributed to all of your employees. This policy should be in writing and discussed with employees on a regular basis (i.e. every six months). The policy should list all current protected categories under FEHA, create a complaint process, provide a complaint mechanism that doesn’t require an employee to complaint directly to his or her immediate supervisor, instruct supervisors to report any complaints,

In addition, all of your managers should receive their mandated two-hour training and be well-versed in this policy so that they may act as role models of appropriate workplace behavior.

Although all managers should be very familiar with the policy, any employees designated as complaint handlers should be familiar with the anti-harassment policy and also receive specialized training in how to conduct prompt, thorough, and fair investigations of complaints. During the course of investigations, the complaint handler needs to be impartial, fair, and not make any legal conclusions.

If you have an anti-harassment policy, our attorneys can review it to ensure that it sufficiently protects your company’s interests and adequately informs your employees as to what is appropriate workplace behavior. If you do not have such a policy, our attorneys can help you create one for your specific business.

Handling Complaints

All complaints should be handled fairly, consistently, throughly, and quickly. The complaint handler, who is usually an employee, should begin investigations by conducting in-person interviews, whenever possible, first with the complaining party and then with the accused party so that the accused has a chance to respond. It is good practice to only reveal the allegations made against the accused party during his or her interview- not before.

In addition, there may be relevant witnesses (who are not the complaining party or the accused party) and documents to reviewed by the complaint handler. Sometimes, the complaint handler will need to visit work sites, videotapes, or take pictures during the course of his investigation. The key here is to be thorough and take all complaints seriously.

Most times, you (as the employer) can only promise limited confidentiality, i.e. information will be revealed only on a “need to know” basis. Complete confidentiality is sometimes not possible and, often times, not practical. Sometimes, employers and managers may have some concerns about sharing sensitive information even on a “need to know basis.”

It is important to remember that prompt investigation benefits you (the employer). Acting quickly can stop the bad behavior, lets employees know that you take the complaints seriously, helps to ensure you can get your hands on the evidence you will need (i.e. emails, videos, witness accounts), and nips an issue in the bud so that it does not spiral out of control.

Many times, missteps or honest mistakes during investigation may lead employees to immediately file suit for harassment, discrimination, or retaliation. You are not alone. Our attorneys have helped many clients through some tricky investigations and guided employers and employees to a fast and quick resolution.

It is important to remember that a thorough well-conducted investigation can put many complaints to rest, can preserve relationships, and can prevent employees from pursuing litigation against employers. Our attorneys are experienced in guiding employers and their managers through contentious investigations.