Law seminar reaches out to Hollister employers
A dozen Hollister business owners, managers and supervisors
turned out for the first employment law development workshop of
three that will be put on by the law offices of Hoge, Fenton, Jones
and Appel. The law firm staff recently opened a Hollister location
and decided to try out the annual employment law seminar series
they offer in San Jose and Pleasanton.
Law seminar reaches out to Hollister employers
A dozen Hollister business owners, managers and supervisors turned out for the first employment law development workshop of three that will be put on by the law offices of Hoge, Fenton, Jones and Appel. The law firm staff recently opened a Hollister location and decided to try out the annual employment law seminar series they offer in San Jose and Pleasanton.
Attorneys Lisa Aguiar and Vanessa Inman touched on topics from sexual harassment to cell phone policies during the free two-hour seminar at the Veterans’ Memorial Building March 13. Attendees included restaurant and bar owners, a real estate agent and supervisors from a car dealership.
Aguiar and Inman spoke on several jury verdicts from 2006 that show trends in employment law. One trend showed juries in favor of plaintiffs on discrimination suits when supervisors were aware of the discrimination. Another shows a trend in favor of whistleblowers who are retaliated against, especially when they have filed a complaint of wrong doing against their employer with a government agency. In class action suits, jurors have ruled in favor of plaintiffs on wage disputes when employees are misclassified as exempt – meaning they are not paid for overtime work.
In one discrimination case, the plaintiffs were awarded $61 million.
“Issa and Rizhallah [the plaintiffs] sued for national origin discrimination and said their supervisor had called them terrorists and camel jockeys,” Aguiar said. “And this was in 1999. After 9/11, we saw a spike in charges from Middle Eastern employees.”
In the case, Federal Express had a discrimination policy in place, but when the employees complained to their manager and to his supervisors nothing was done to stop it or rectify it, Aguiar said.
“The law says you must have a harassment policy that tells employees what it is, how to report it and what the company will do to take steps once they receive a complaint,” Aguiar said.
Employees can bring charges against an employer for discrimination based on race, sex or sexual orientation, national origin, religion, age or disability. The National Equal Employment Opportunity Commission reported 75,428 charges of discrimination in 2005, down from more than 81,000 in 2003.
“We are not seeing a lot of cases of harassment,” Aguiar said. “Before [in past decades], we saw a lot of sexual harassment law suits.”
Sexual harassment training is mandatory for supervisors in any company that has more than 50 employees, Inman said, but she highly recommends it for all companies.
“Regardless of the size [of the company] I encourage you to train all supervisors because it can be an extremely important tool to use as part of a defense,” Inman said.
Training is required of newly hired or promoted supervisors within the first six months that they enter a supervisory position.
For many employment law issues, having a policy in place is a way employers can prevent being brought before the Equal Employment Opportunity Commission or the California Department of Fair Housing and Employment, also known as the labor board.
“The labor board is very pro-employee,” Aguiar said. “You want to do it right at the outset.”
Employers can avoid issues with wages, hours or breaks by having clear job descriptions and classifying employees properly as exempt or non-exempt. The criteria for the classifications can be confusing, and Aguiar suggests consulting a human resources expert for companies that are not sure which jobs would fall into which category. Exempt employees are salary – they tend to be administrators, executives or professionals – and are not paid overtime while non-exempt employees are paid hourly and do receive overtime pay.
In terms of wages, one sticky point for many employers is getting their staff to take mandatory meal breaks. Some employees may prefer to work through their lunch break or eat at their desk, but employers are mandated by law to require they take a meal break when working a full-time shift.
“If they work an 8-1/2-hour shift, they need to take half an hour,” Aguiar said. “If they work 9 hours, they need to take an hour.”
By requiring that employees clock out or sign out on a time sheet, employers have proof that employees are taking their meal times.
“We need to be realistic and reasonable,” Aguiar said, when one participant asked if it was okay to delay breaks at her restaurant if they had a rush of customers. “If it’s not reasonable to give a waitress a break when it’s scheduled, do it as soon as is practical.”
Other topics discussed:
– Employment agreements
An offer letter bolsters an employer’s ability to terminate employment. The letter explains the terms of employment, that the employment is “at-will” and can be terminated without cause at anytime.
– Grooming policies
An employer can require gender-specific grooming standards, such as females wearing makeup or men keeping their hair short, as long as there is no greater burden placed on either gender.
– Workers’ Compensation
Employees may pre-designate a medical group as their primary treating physician for workers’ compensation claims
– Cell phone use
Hand-held cell phone use will be banned while driving a motor vehicle as of July 1, 2008. Employers could be held liable if an employee uses a cell phone while driving for work purposes. Drivers may use a hands-free headset.
– Minimum Wage increase
The state’s minimum wage is $7.50 as of Jan. 1, 2007 and will be raised to $8 on Jan. 1, 2008. Increases affect wages for exempt and commissioned employees as well.
– Child Support Wage
Deductions
Employers will be penalized for assisting an employee or contractor in evading child support obligations.
– Mileage
The standard mileage deduction for business use is increased to 48.5 cents per mile. Employers may deduct the amount they reimburse as a business expense if it is at or below the IRS rate, while employees who receive more than the IRS rate may have to pay taxes on it.
For more information on employment law visit Hoge, Fenton, Jones & Appel, Inc.’s Web Site at www.hrlaw.com.
Melissa Flores can be reached at [email protected].
Discrimination charges
The National Equal Employment Opportunity Commission showed a decrease in discrimination charges nationwide:
2003
Total charges: 81,293
Race 35.1 percent
Sex 30 percent
National Origin 10.4 percent
Religion 3.1 percent
Age 23.5 percent
Disability 18.9 percent
2004
Total charges: 79,432
Race 34.9 percent
Sex 30.5 percent
National Origin 10.5 percent
Religion 3.1 percent
Age 22.5 percent
Disability 19.4 percent
2005
Total charges: 75,428
Race 35.5 percent
Sex 30.6 percent
National Origin 10.7 percent
Religion 3.1 percent
Age 22 percent
Disability 19.7 percent
