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  • Employers Cannot Fire Workers Because of Their Gender Identity or Sexual Orientation

    In a 6-3 vote, the U.S. Supreme Court ruled that “an employer who fires an individual merely for being gay or transgender violates Title VII.”

    What was the issue?  Does Title VII of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex, also includes discrimination based on gender identity or sexual orientation?

    The decision combines three cases, all of which revolved around an employer who allegedly fired a long-time employee for being gay or transgender.

    In the first, Gerald Bostock was fired for “conduct unbecoming of its employees” after he joined a gay softball league.  In the second case Aimee Stephens was fired after telling her employer she was transgender. In the third, Donald Zarda was fired from a skydiving company in New York “because he did not conform to the sex stereotype that men should be attracted only to women.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Corporate Officers’ Liability for Unpaid Wages

    CAN THE LABOR COMMISSIONER HOLD THE CEO OF A CORPORATION PERSONALLY LIABLE FOR UNPAID WAGES?

    In Jones v. Gregory, a California Appellate Court confirmed that a Corporate CEO could not be held personally liable for corporate employees’ unpaid wages. The Labor Commissioner attempted to distinguish itself from the Supreme Court’s recent decision in Reynolds v. Bement (2005) 36 Cal.4th 1075 by arguing that while an individual employee cannot sue the CEO as an “employer,” the Labor Commissioner can. The Fourth Appellate District rejected this argument. The court pointed out that the Labor Commissioner was not trying to “pierce the corporate veil,” or that the CEO was “doing business as” the employer, implying that corporate officers could be held liable for wage violations if the plaintiff can pierce the corporate veil.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • California Supreme Court Rules “At-will” Means What It Says

    By statute (California Labor Code Section 2922) all employment is presumed to be at the will of either party, terminable with or without cause or notice. The presumption of at-will employment codified in section 2922 of the Labor Code can be overcome by an express or implied agreement to the contrary. Evidence outside the writing may sometimes be introduced to explain ambiguities in the contract establishing a “for cause” requirement overcome the at will presumption.

    In Dore v. Arnold Worldwide, Inc., 39 Cal. 4th 384, the employee signed an employment letter containing an at-will provision and defining “at will” as the right to terminate the employment “at any time.” The employee argued that the verbal formulation “at any time” in the termination clause of an employment contract was ambiguous because it did not expressly speak to whether cause was required. The employee argued that he could introduce evidence that cause was required to explain the ambiguity. The Supreme Court disagreed. The court held the words “at any time” ordinarily encompassed the notion of “with or without cause.” The letter also stated that employment was “at will,” a term that, when used in an employment contract, normally conveyed an intent that employment could be ended by either party at any time without cause. Thus, no triable issues of fact existed as to breach of contract and breach of the implied covenant of good faith and fair dealing. So the employer won summary judgment.

    This case must be distinguished from those other cases where the words “at will” and other language could be interpreted as requiring cause or that do not address the issue, thus leaving the door open for other evidence outside the written document that proves a good cause requirement for termination. Unfortunately, the court’s opinion provides no clue as to how it would rule on cases that had similar language (like termination on 30-days’ notice) but did not have at will language. Only one case out of five held the language clearly called for termination without cause. The other four allowed the employee to introduce evidence that 30-day notice meant “for good cause.”

    Many questions remain in this ever-changing legal landscape. Employers should ensure that their offer letters, employment contracts and employee handbooks clearly state employment is at-will and may be terminated without notice and without cause.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Phillip J. Griego of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Legislative Pipeline

    WHAT IS OUR LEGISLATURE DOING TO CALIFORNIA EMPLOYERS?

    The California legislature is currently debating the following bills. We don’t know which ones will make it to the Governor, or which was he will sign, but keep on the look-out for these proposed laws effecting California businesses:

    AB 1912 – Misdemeanor to terminate an employee who brings a firearm to work in her car.
    AB 2095 – Modifies sexual harassment education requirements.
    AB 2186 – Bill to penalize overtime misclassifications.
    AB 2217 – Individual alternative workweeks.
    AB 2327 – Farm labor contractor rule changes.
    AB 2334 – Janitorial service contractor rule changes.
    AB 2371 – Invalidates arbitration agreements that cover FEHA violations.
    AB 2536 – Overtime for in-house workers
    SB 1188, 1189 – Prohibits payment of wages without a free way to cash.

    The current renditions of these bills can be viewed at http://www.leginfo.ca.gov/bilinfo.html

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • When to Engage in the Interactive Process

    EMPLOYERS MAY HAVE TO DETERMINE WHETHER THEY CAN ACCOMMODATE AN EMPLOYEE EVEN IF THE EMPLOYEE IS NOT DISABLED

    In Gelfo v. Lockheed Martin Corporation, the California Appellate Court upheld the trial court’s decision that the employee was not “actually” physically disabled. However, the court went on to say that the lower court “erred in failing to determine, as a matter of law, that Lockheed regarded [the employee] as physically disabled” and should have engaged in an informal interactive process aimed at effecting a reasonable accommodation. The court held that employers must provide a necessary and reasonable accommodation to an applicant or an employee whom it regards as physically disabled. The lesson: if the employer thinks an applicant or employee may be disabled, the employer should engage in the interactive process of determining what, if any, accommodation will enable the employee to perform the essential functions of the job.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Unruh Act Not a Bar to Suit Over Threatened Violence

    CAN AN EMPLOYEE SUE HIS EMPLOYEE FOR THREATS OF VIOLENCE AND INTIMIDATION?

    The California Supreme Court previously held that the Unruh Act, which prohibits discrimination by businesses, does not apply to employment cases. (Rojo v. Kliger(1990) 52 Cal.3d 65). The California Appellate Court in Stamps v. Superior Court recently decided that claims previously believed barred by Rojo can be brought by disgruntled employees. Many people assumed that Civ. Code, § § 51.7 and 52.1, which prohibit discriminatory violence and intimidation and against denial of civil rights by means of threats and intimidation were part of the Unruh Act. The Stamps court clarified the issue and held that Civ. Code, § § 51.7, and 52.1 were not part of the Unruh act. Employees can sue their employers for threats of violence or intimidation on the basis of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability or position in a labor dispute, or for exercising any constitutional right.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, a former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • COVID-19 and Employee Layoffs

    We have received many questions about how to lay off employees due to the Covid-19 shutdown. The answer may require consideration of how many employees you have and how many will be laid off.  This may require further discussion.

    At a minimum you must provide the following:

    1. Paycheck for all hours worked until separation including all accrued but unused vacation time, bonuses and commissions, and any other earned compensation.  

    If you cannot calculate what bonuses or commissions have been earned up to the date of separation, this requires a separate discussion. The paycheck must be provided at the time of termination or within 72 hours if an employee quits without providing 72 hours’ notice.

    2. Notice to Employee as to Change.

    Code 1089 requires that employers provided separated employees with written notice of the employee’s change in relationship with the employer. https://www.edd.ca.gov/Payroll_Taxes/pdf/NoticetoEmployeeastoChangeinRelationship.pdf.

    3. “For Your Benefit, California’s Program for the Unemployed” pamphlet published by the EDD (Form 2320)

    This form published by the EDD is required to be provided to any employee who is being laid off, terminated, or placed on a leave of absence on the last day of employment. https://www.edd.ca.gov/pdf_pub_ctr/de2320.pdf

    4. COBRA and Cal-COBRA Notices. 

    Employers should obtain these forms through your health insurance provider. Includes the Health Insurance Portability and Accountability Act (HIPAA) certificate of group health plan coverage to all terminated employees who are participating in the group health plan at the time of termination.

    5Health Insurance Premium (HIPP) Notice (DHCS 9061)

    For employers with 20 or more employees, the Department of Health Care Services requires that employers provide terminated employees with the Health Insurance Premium Payment (HIPP) notice. https://edsd.org/wp-content/uploads/2017/09/5.g.-Notice-to-Terminating-Employees-HIPP-Program.pdf

    6. California Labor Code Section 2808(b) requires employers to provide to employees, upon termination, notification of all continuation, disability extension, and conversion coverage options under any employer-sponsored coverage for which the employee may remain eligible after employment terminates.

    I recommend you visit the link below and read about news on additional benefits going into effect April 1. 2020.  https://www.californiaemploymentlawreport.com/2020/03/families-first-coronavirus-response-act-enacted-by-the-president-what-employers-need-to-know/

    I hope this helps.  Let me know of any questions.

  • COVID-19 Update

    To our clients  and prospective clients:

    Griego Law Office will remain open in order to address the employment law concerns of our clients and prospective clients by appointment only; no walk-ins. We will endeavor to schedule phone consultations only for the foreseeable future.  We will continue to advise employees and business clients about all aspects of employment law.  In most cases, documents can be exchanged via the internet. My assistant Geri can arrange that.

    Please contact our office so that we can coordinate an appointment with you: 408-498-7671, ext 3 or geri@griegolaw.com.  You may be transferred to a message center.

    Please leave a message explaining your reason for a visit and a phone number.

     

  • California Supreme Court Opinion New Paradigm in Test for Independent Contractors

    The California Supreme Court just radically altered the test for who is or is not an independent contractor (Dynamex Operations West, Inc. v. Superior Court.)  Whether a worker is an independent contractor or an employee is the critical question to determine the application of Federal and State wage and hour laws, the jurisdiction of the Division of Labor Standards Enforcement, Employment Development Department, Franchise Tax Board, IRS, Workers Compensation. Appeals Board and a host of other State and Federal laws.

    California’s Industrial Welfare Commission (“IWC”).

    “ABC test” used in some other jurisdictions.

    California had a number of different definitions for determining whether an individual is an employee depending on the applicable statute or regulation.  There were anywhere from between 6 and 18 factors to consider, no one of them conclusive in itself, considered in balance with all the other factors.  Now there is only one—”suffer or permit to work.”  To determine whether an employer has “suffered or permitted” an individual to work the employer must establish three factors known as the “ABC test.”  If the employer fails to establish any one factor the worker is NOT an independent contractor.  The factors are:

    (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; and

    (B) that the worker performs work that is outside the usual course of the hiring entity’s

    business; and

    (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.

    The court’s opinion offers some guidance as to how to apply the three-part test.

    (A) How to satisfy this part of the test depends on the nature of the business. Again, quoting from the opinion—”For delivery service, those aspects include obtaining customer/customer service, prices charged for delivery, routes, delivery schedules, and billing. Plaintiffs contend that these factors are all controlled by Dynamex because it obtains the customers, maintains a centralized call system, maintains a package tracking system, sets the prices for its services and customers are billed by Dynamex. .  .  .  There is also evidence that customer service is handled by some of the drivers, depending on the customer’s relationship with that driver. Finally, the defendant does not necessarily control the drivers’ delivery schedules, as a number of drivers state that their only obligation is to complete the deliveries by the end of the business day.”

    (B).  “[W]hen a retail store hires an outside plumber to repair a leak in a bathroom on its premises or hires an outside electrician to install a new electrical line, the services of the plumber or electrician are not part of the store’s usual course of business and the store would not reasonably be seen as .  .  .  an employee.  On the other hand, when a clothing manufacturing company hires work-at-home seamstresses to make dresses from cloth and patterns supplied by the company that will thereafter be sold by the company .  .  .   or when a bakery hires cake decorators to work on a regular basis on its custom-designed cakes .  .  .  , the workers are part of the hiring entity’s usual business operation and the hiring business can reasonably be viewed .  .  .  as employees.”

    (C) Does the worker perform the same services for other employers or did the worker have employees of his or her own? Did the worker independently choose the burdens and benefits of self-employment? Generally, such an individual “takes the usual steps to establish and promote his or her independent business — for example, through incorporation, licensure, advertisements, routine offerings to provide the services of the independent business to the public or to a number of potential customers, and the like.”

    Employers in California that have independent contractors should immediately review their relationship using the “ABC test” to determine whether such workers should be reclassified.  The penalties for violating Section 226.8 include fines between $5,000 and $15,000 per violation of the law, in addition to any other fines allowed by law. If the employer is engaged in a pattern or practice of violating this law, the fines are increased to between $10,000 and $25,000 per violation.

    © The Law Office of Phillip J. Griego 2020

     

     

  • What Is the Harm of Hugs in the Workplace?

    People Hugging In recent months, the increasing number of high-profile allegations of sexual harassment and sexual assault has put a spotlight on the charged issue of proper decorum in the workplace. The issue that many employers face, however, is that the line between innocent behavior and offensive behavior can be difficult to draw. That’s why it’s important for employers to be as transparent as possible about workplace rules regarding unwanted touching—including behavior that many people might regard as innocuous, such as hugs. In addition, employers should make themselves familiar with the laws of their state regarding sexual harassment and sexual assault. Staying inside these laws is essential for protecting your company from potential lawsuits from current and former employees. If you are concerned about whether your workplace policies are strong enough to protect your company from possible legal action in the future, you may want to consult with a lawyer in San Jose, CA, with experience in employer rights .