Southern California Employment Law Blog

Understanding California Bonding Leave

March 28, 2019 | Davis & Wojcik

The Family and Medical Leave Act (FMLA) is a federal law that provides job security to an employee who is absent from work because of the employee’s own serious health condition or to care for specified family members with serious health conditions, as well as for the birth of a child and to care for a newborn child, or because of the placement for adoption or foster care of a child with the employee. 29 USC § 2601 et seq.

The California Family Rights Act (CFRA) is the California equivalent of FMLA and provides similar protections. Gov.C. § 12900 et seq. Under FMLA and CFRA, both the mother and father are entitled to leave to bond with the newborn even if the newborn does not have a serious health condition. See 29 CFR § 825.120(a)(2).

The New Parent Leave Act (NPLA), which became effective on January 1, 2018, applies to smaller employers with 20-49 employees. (FMLA and CFRA cover 50 or more employees). Gov. C. § 12945.6. The NPLA requires employers with at least 20 employees to provide up to 12 workweeks of parental leave for eligible employees to bond with a new child within one year of the child’s birth, adoption or foster care placement.

What Can Employers Ask Applicants and Employees?

January 28, 2019 | Davis & Wojcik

California law prohibits discrimination against job applicants and employees on the basis of age, race, color, religion, sex (including pregnancy, childbirth, breastfeeding, and related medical conditions), national origin, ancestry, mental and physical disability (including HIV and AIDS), medical conditions (such as cancer and genetic characteristics), marital status, genetic information, sexual orientation, gender (including gender identity and gender expression), and military and veteran status.

In order to avoid the appearance of discrimination, employers should limit requests for information during the pre-employment process to those details essential to determining a person’s qualifications to do the job. The following are some general guidelines that employers and employees should know regarding the employment application process.

NAME: An employer should never ask questions about an individual’s name that require the applicant to disclose ancestry, national origin, race, religion or marital status, (i.e., asking for an applicant’s “maiden” name, or asking questions about the origin of a name, rather than simply asking if other names have been used). However, it is acceptable to ask an applicant’s name or previous name for purposes of checking their past work record.

Breaking Up: Advice for Terminating Employees

January 25, 2019 | Davis & Wojcik

Breaking up is hard to do. There can be many reasons why an employer finds it necessary to end the employment relationship. It could be for performance reasons, a reduction in force or realignment of duties. Under any of these circumstances, it is not to easy to tell an employee that they are unemployed. Administering the termination in a legally improper way will only make it worse. Here are a few legal tips for administering a termination.

Required Documents

After the decision has been made to terminate an employee, there are certain legal requirements that must be met. For example, federal law requires that all employers with 20 or more employees provide a Consolidated Omnibus Budget Reconciliation Act (COBRA) notice and election form to employees who are participating in the employer’s group health plan the day before the termination and to any of the terminating employee’s dependents on the plan. Cal-COBRA must be offered to both terminated employees of small employers (2-19 employees) and terminated employees covered under federal COBRA when their 18 months of federal COBRA coverage expires.

Let’s Talk Lunch: Understanding California’s Meal Period Laws

December 20, 2018 | Davis & Wojcik

Here are some fun facts about lunch. The origin of the word lunch (luncheon) comes from the anglo-saxon word, “nuncheon,” meaning “noon drink.” In Spanish, the word for lunch is almuerzo. In German, lunch is mittagessen. Hobbits call it Elevenses. In California, however, lunch is called… mandatory.

The Basics

Under California law, employers must provide employees with no less than a thirty-minute meal period for shifts exceeding more than five hours. A second meal period is required if an employee works more than ten hours per day. Labor Code § 512. An employer is not required to police meal periods. However, an employer must do more than simply make meal periods available. The employer must relieve the employees of all duty, relinquish control over their activities and must not impede or discourage employees from taking a meal period.

“Old Man Take a Look at My Life” – Age Discrimination in California

November 2, 2018 | Davis & Wojcik

In 1970, after finding early success as a musician, a twenty-five-year-old Neil Young purchased the Broken Arrow Ranch in Northern California. As part of the purchase, Mr. Young inherited two elderly employees, Louis Avila and his wife Clara, who lived on the ranch as caretakers. A fond relationship developed, and Mr. Young eventually wrote the song “Old Man” as a tribute to Mr. Avila. The lyrics of the song compare two men born decades apart by musing, “Old man, look at my life, I’m a lot like you were.”

Forty-eight years later, baby boomers who enjoyed this folk-rock tune are now finding themselves in situations more akin to Mr. Availa than Neil Young and are now the employees of younger owners and managers. Unfortunately, many of these employees are not inspiring soulful ballads. Instead, they are being treated poorly or forced out after years of dedicated employment.

Age Discrimination

The Impact of the #MeToo Movement on California Employment Laws

October 23, 2018 | Davis & Wojcik

The #MeToo movement, with its focus of preventing sexual harassment and sexual assault, has led to the passage of new California employment laws. Some of these laws are good for employers, some are bad, and some depend on your political outlook. Regardless of political affiliation, there is no doubt that the #MeToo movement has influenced California lawmakers into passing new legislation aimed at supporting the #MeToo movement. Here are a few laws that will take effect on January 1, 2019.

Freedom from Defamation

It is common practice for potential employers to call former employers for a reference on prospective employees. Currently, employers are permitted to inform another prospective employer whether the employer would rehire an employee. Such communications are deemed to be privileged and protected from a lawsuit for defamation — if done without malice.

“A Sword and Shield” – Protecting Your Business with an Employee Handbook

October 11, 2018 | Davis & Wojcik

The importance of an employee handbook cannot be understated. As long as the handbook is drafted properly, and the policies are followed, an employee handbook can be used as both a sword and shield to protect the employer from liability.

shield-1412482-300x200 As a shield, an employee handbook helps reduce potential liability. One of the greatest benefits of having an employee handbook is its potential to protect companies from employees’ legal claims. An employee handbook can be used to assist the employer in avoiding and defending against discrimination, harassment and wrongful discharge claims.

longsword-1422533-300x225 As a sword, the employee handbook allows employers to be proactive. An employee handbook should articulate the employer’s expectations by clearly describing the employer’s policies and procedures. This includes the actions supervisors and employees should take in the event that an employee has a problem or grievance. Employers should not wait until a lawsuit is filed before learning about what occurs at the workplace. In addition, one of the goals of an employee handbook should be to promote fairness and evenhanded treatment of employees by establishing uniform standards that can be applied by all employees.

The Basics of Wrongful Termination

October 10, 2018 | Davis & Wojcik

If you have been recently fired, you have come to the right place. Being fired is a terrible experience. Not only does it take away your livelihood, but it is often unfair and unjustified. But just because the termination is unfair, it does not mean it is unlawful.

I meet with recently terminated employees on a daily basis and they all want to know if they have a case for wrongful termination. Unfortunately, most of the time, I must tell them that they do not. This blog post explains the basics of wrongful termination.

“At-Will” Employment

Can I Terminate an Employee Who Doesn’t Return from Medical Leave?

October 8, 2018 | Davis & Wojcik

In California, covered employers are required to provide up to 12 weeks of unpaid, job-protected leave to eligible employees for certain family and medical reasons, such as an employee’s serious health condition. But what happens if the employee is unable to return to work after the protected leave expires? When can an employer hire someone else to fill that position?

Our firm gets this question often from employers who feel they are being “held hostage” by employees who are unable to return to work. Their business suffers from an insufficient workforce, but it will suffer more if accused of disability discrimination.

Under the Family Medical Leave Act (“FMLA”) and the California equivalent, the California Family Rights Act (“CFRA”), an employer is only required to make an offer of equivalent employment. However, the Americans with Disabilities Act (“ADA”) and workers’ compensation laws create additional obligations to “reasonably accommodate” the employee’s disability.

Understanding New Guidelines for Classifying Independent Contractors

October 5, 2018 | Davis & Wojcik

The Independent Contractor classification may not be dead, but it is seriously wounded. The California Supreme Court recently announced a new test for determining whether a worker is an employee or an independent contractor in the landmark decision of Dynamex Operations West, Inc. v. Superior Court of Los Angeles, No. S222732 (Cal. Sup. Ct. Apr. 30, 2018).

Under the new Dynamex decision, a hiring entity classifying an individual as an independent contractor now bears the burden of establishing that such a classification is proper under the “ABC test.” To do so, the entity must prove each of the following three factors:

(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;