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What to consider when laying off employees due to COVID-19. Learn More

  • 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 .

  • Steps to Take When You’ve Been Underpaid

    You work hard for your paycheck, and every dollar counts. So you might be surprised to learn that getting underpaid is quite common, and not every employee realizes it’s happening. Employee rights lawyers recommend verifying the accuracy of every paycheck you receive before you deposit it. If you do think you’re being underpaid, talk to an employment law attorney in San Jose, CA right away.

    Fair Labor Look for common pay stub errors.

    Many different payroll errors can result in you receiving a smaller paycheck than you should. As you examine your pay stub each week, ask yourself the following questions.

    • Are my hours correct?
    • Is the rate of pay correct?
    • Did I get paid time-and-a-half for overtime?
    • Did my employer take out unusual deductions?

    Report the mistake to human resources.

    It’s possible that a too-small paycheck is simply due to a clerical error. Visit your company’s human resources department to discuss the issue. You have the right to request a timely payment of the money you’re owed. In most cases, your employer should include compensation in your next paycheck.

    Maintain your own work records.

    Whether or not you’ve previously detected paycheck errors, it’s good practice to retain your pay stubs and keep your own records. Keep a small notebook in your car or desk, and write down the times you arrive at work and leave each day. Add up the hours and make a note of whether you’re owed overtime pay.

    Talk to a labor attorney.

    Contact an employment lawyer, and schedule an initial consultation. Bring your recent pay stubs and any other relevant documents, such as your employment contract if you have one. Your lawyer will review these documents, explain the applicable labor laws, and discuss your options. In some cases, employers are more willing to pay what they owe their employees when they learn that a lawyer has been retained—even before an official complaint is filed. If you’re still denied the pay you’re entitled to, your employment attorney can file a lawsuit.

    Talk to your co-workers.

    Your lawyer may recommend that you speak privately with your co-workers to find out if they’re also being underpaid. You and your co-workers may pursue a collective action against the employer. In litigation, there can be strength in numbers.

  • What Should You Do If an Employee Makes a Sexual Harassment Claim?

    All sexual harassment claims should be taken very seriously. Even if the employee hasn’t yet filed an official complaint, you should take immediate action. First, contact an employment lawyer in San Jose, CA . He or she can give you the legal guidance that will minimize your company’s liability.

    Man Scolding in the Office When you watch this video, you’ll be reminded to speak with all involved parties to get to the bottom of what has happened. Take action to put an end to the sexual harassment, and execute disciplinary action as specified in the employee handbook. Later, you’ll need to follow up with the involved parties to make sure the behavior has stopped and the victim didn’t suffer any retaliatory actions. You can prevent future problems by holding training sessions focused on raising awareness of sexual harassment, and explaining your company’s zero tolerance policy.

  • How Federal and State Laws Impact Marijuana in the Workplace

    Employers in California must be mindful of both federal and state laws. This can get complicated because these laws can evolve frequently, especially when they pertain to marijuana. Although Californians can legally possess and use marijuana for medical and recreational purposes, federal law still classifies it as a Schedule I drug that has no medicinal use. This means that it’s possible for employers to face legal difficulties if they knowingly continue to employ workers who use marijuana. To keep your company out of legal entanglements, seek employment law advice from a labor attorney in San Jose, CA who is familiar with these matters.

    Drug Free

    Drug-Free Workplace Policies

    Not all companies may be affected by the marijuana use of employees, as long as the substance is not taken to or used on the company’s campus. However, if your company is subject to the 1970 Federal Controlled Substances Act, it must have a Drug-Free Workplace Program in effect. Companies are subject to this law if they are nonprofits that receive federal grants (of any amount), or if they are for-profit entities that receive $100,000 or more in federal contracts. An employment lawyer can draft a drug-free workplace policy to include in your employee handbook.

    Marijuana-Related Work Issues

    Beyond the legal requirements, there are other issues for employers to consider. Employees who work while under the influence are more likely to be involved in workplace accidents. Their productivity may suffer, and the mere fact that some people are working under the influence of marijuana may affect the morale of the entire workplace.

    Medical Marijuana Considerations

    Labor attorneys are often asked if employers must make exceptions for workers who have a valid medical marijuana card. Remember that marijuana is still illegal under federal law. Even under state law, California courts have made it clear that it’s within an employer’s rights to terminate or refuse to hire an individual who tests positive for marijuana, with or without a medical marijuana card.

  • When Is Political Speech Allowed at Work?

    In today’s politically contentious landscape, many employees find it difficult to abide by the golden rule: Never discuss politics in the workplace. This can create problems if heated political debates interfere with employees’ job duties and attentiveness to customers. Freedom of expression in the workplace differs from state to state. Employers should check with a labor rights lawyer in San Jose, CA for the reliable employment law advice they need to craft a written policy regarding political speech.

    This video provides a brief introduction to this topic, including a discussion of the National Labor Relations Act, anti-discrimination laws, and the First Amendment. It’s a common misconception that the right to free speech guaranteed by the First Amendment extends to the workplace. In fact, it only prevents governmental action against the impingement of free speech. This means that employers can take action to limit political debates in the workplace, particularly if these debates could be considered harassment.

  • Employment Law in the News: Can NFL Players Be Fired Over Protests?

    An intriguing question regarding unlawful termination has been making headlines lately: Are NFL team owners legally able to fire players who use time on the field to protest social injustices? Despite the urgings of the 45 th President, whether or not an NFL owner can let a player go because of protests is a bit more complicated than simply saying, “You’re fired.” Employment lawyers serving San Jose, CA would defer to the player’s contract and the collective bargaining agreement when determining whether a termination is unlawful or not.

    In the typical workplace, an at-will employee can be fired at any time for any reason, as long as the termination does not arise from discrimination based on a protected class. Employees who work under a contract, such as NFL athletes, can only be fired under the terms specified in the contract. The typical NFL contract requires athletes to conduct themselves in a manner that befits the “public respect.” It’s possible for an NFL owner to fire an athlete if he or she claims that the athlete’s protests have diminished the public respect. However, since fans are about evenly split between disliking the protests and appreciating the true meaning behind them, the athlete could possibly argue that protesting in such a way actually upholds the public respect.

    football - field

  • Can Employers Ask Questions About Intended Pregnancies?

    Legal protections in the workplace have come a long way from previous decades, but some employers still run afoul of employee protection laws, including those regarding pregnancy. Civil rights attorneys in San Jose, CA can offer employment law advice to employees who think they may have been discriminated against based on a protected class, such as pregnancy. pregnant - woman

    Asking About Pregnancies and Intended Pregnancies

    It is not within an employer’s rights to ask about an employee’s intentions to become pregnant, or about whether she is currently pregnant. Employees have every right to consult a labor rights lawyer if they are asked this question. Likewise, employers may not ask job candidates about their intentions toward parenthood, nor can they base a hiring decision on whether a job candidate intends to become pregnant or is pregnant.

    Disclosing a Pregnancy Status

    Women often choose to give their employers a heads up when they are expecting to use maternity leave soon. However, not every new mother will take multiple weeks off. Women are within their rights to work up to their due date, and then take vacation time for the delivery and recovery period. Women who aren’t yet expecting, but intend to become pregnant, can use time off for doctor’s appointments and infertility treatments in accordance with the company’s policy.

    Requesting Leave

    Women who plan to take maternity leave given by the company—or time off requested under the Family and Medical Leave Act (FMLA)—must give reasonable notice of the leave. Not every employee is eligible for FMLA. Those who do are lawfully allowed to take up to 12 weeks of leave within a 12-month period for family or medical reasons, such as the birth of a child. FMLA leave is unpaid. At the end of the leave, employers are legally required to restore the employee’s previous position, or an equivalent position that offers the same benefits and wages.

    Requesting Reasonable Accommodations

    It’s possible for a pregnant woman to be unable to carry out certain job duties due to the conditions of pregnancy. During the last few weeks, for example, she may not be cleared by a doctor to take a business trip. There may also be restrictions on heavy lifting. Although employers cannot ask about pregnancies or intended pregnancies, they should be given reasonable notice about any accommodations the employee needs.