From our experience, some of the more frequently asked questions and our common responses:
As an employer, there is no guarantee that any exact termination procedure will free you from wrongful discharge liability claims.
However, a continuous, proactive application of both well-articulated, updated policies for personnel, well-documented interactions with failing personnel, and the thoroughly articulated business-based reasons for terminations are key elements of a best-possible defense. See also, “Employee Terminations; Firing Low-Performing Workers While Limiting Repercussions.”
The California Supreme Court clarified uncertainties on such duties in its 2012 Brinker Restaurant Corp. v. Superior Court decision. Brinker held while employers must authorize and provide the meal and rest periods in the required frequency and duration, management are not the “police,” i.e., supervisors are not obligated to ensure that workers take their breaks or that no work is being performed during them. Best practices include regular documentation of the employer’s provision of such breaks and clear, open procedures for workers to raise complaints and concerns over possible management-created barriers to their taking them. See also, “Required Meal Periods and Rest Breaks Revisited, Off-Duty Time during a California Work Day.”
Federal and state law forbids sexual harassment, broadly “disrespectful, unprofessional and unwelcome conduct based on sex.” Such improper conduct can be verbal, written, or physical. Hostility based on gender (even if not motivated by sexual desire), sexual favoritism, and threats and demands to submit to sex in order to keep one’s job or avoid some other loss can also be unlawful.
Prevention and education are key in establishing a safe work environment for all, free from the interruptions and hostilities that sexual harassment creates. Written policy and effective training covering harassment, discrimination and retaliation are all employer responsibilities. See also, “Are You Doing Everything Possible to Prevent Workplace Sexual Harassment?.”
An employee handbook (manual) containing all legally required policies and procedures is an essential tool to protect employer and employee alike. A current, thorough policy manual and written internal procedures and forms covering all major aspects of the workplace relationship permit managers and rank-and-file workers alike to know where they stand.
Bowles Law has developed – and periodically revises to match the changing law – a template California “soup-to-nuts” employee handbook to serve as the foundation of a finalized set of workplace policies customized for a client’s actual operations and legal obligations. The firm can also assist with handbooks for other states. Contact our Client Service Representative for pricing and order information. See also, Employee Handbooks California.
California employees have constitutional rights to privacy. Court decisions set out the line between an employer’s corresponding health and safety obligations to test for drugs and alcohol and the workers’ rights to be left alone. For example, an employer may usually conduct “suspicion-less” drug testing at hiring, as long as it’s conducted across-the-boards. However, California prohibits random drug testing of employees once hired except under specific narrowly defined circumstances.
Employers should have clearly stated drug-free workplace policies specifically banning the workplace use, purchase/sale and influence of illegal drugs and alcohol. Policy should also plainly explain the circumstances in which the company will require drug testing as well as the disciplinary actions for policy violations. See also, “Drugs and Alcohol in the Workplace, Balancing Worker to Privacy with an Employer’s Rights to Protect Safety.”
State and federal laws provide detailed standards for employee and independent contractor classification. Misclassification of an employee as independent is a significant error. If that misclassing is intentional, a business may be severely fined.
With the rise of the “gig” economy, this is perhaps the most contested workplace issue in California. This state’s landmark 2018 supreme court decision in Dynamex Operations West, Inc. v. Superior Court) is imposed a highly restrictive three-part “ABC” test independent contractor classification:
- Worker is free from the hirer’s control and direction in connection with the performance of the work, both under the contract and in fact;
- Worker performs work outside the usual course of the hiring entity’s business; and
- Worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Dynamex has generated at two major waves of legislation carving out exceptions to the ABC test, reinstating the more forgiving “balancing test” between control and independence factors of earlier court decisions. See also, “What’s New in 2021: California’s Newest Independent Contractor Law Part I.”