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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.

  • 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.

  • 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.

     

  • What Is the Harm of Hugs in the Workplace?

    Workplace harassment lawyers in San Jose, CA 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.

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