FINAL EXAM
So-called "six magic words" for terminating an at-will employee
" your services are no longer needed"
How covenants not to compete are treated by the law of the vast majority of other states
Covenants are not to compete are NOT illegal will NOT enforce a covenant NOT to compete that is unreasonable in that it covers too wide a geographic area or lasts too long
Definition and elements of contract
Contract: An agreement to do or not do a certain thing Elements: 1. Parties, at least 2, capable of contracting 2. Their consent 3. A lawful object or purpose 4. Sufficient cause or consideration
Quid Pro Quo:
"this for that" harassment must show that another individual: 1. explicitly or implicitly conditioned a job, a job benefit or absence of a job detriment; upon an employees acceptance of sexual conduct 2.arises when a plaintiff proves that a tangible employment action resulted from the refusal to submit to a supervisors sexual demands
Legal issues raised by English-only rules
- EEOC says such rules from of national origin discrimination & allowed only is there is a business necessity for them -CA Law: allows English-only rules where they are necessary to the safe & efficient operation of the business & no other practice will accomplish the business purpose equally as well as less discriminatory impact - requiring bilingual workers to speak only English is not unlawful discrimination. Such workers cannot show that an English-only policy has any adverse effect on them.
How text suggests employer can avoid legal liability from what employers say to those within company about former employees
-Disclose the reasons for firing strictly on s need-to-know basis -Avoid discussing firings at meetings & employee gatherings - Limit announcements to something non-committal -Be sure your personal files reflect fairness, objectivity, & good faith
role of the interactive process in claims of disability discrimination
-employer must engage in a timely and good faith interactive process -employer has ultimate discretion to choose between effective accommodations and may choose less expensive one -Should be an interactive process between the employer and employee where they decide what accommodations are necessary to do the essential duties of the job
Trends in immigration enforcement policy, especially ICE's three-prong approach to worksite enforcement.
1. Compliance through I-9 2. Enforcement 3. Outreach Product I-9 w/i 3 business days
FEDERAL: 2 forms of discrimination
1. Disparate treatment: an employer has engaged in intentional discrimination based on prohibited grounds resulting in an adverse employment action against the employee. 2: Practices that seem neutral but have disproportionate impact on a group of people, such a policy is legal only if there's a valid business reason for its existence (ex: weightlifting)
General procedure for handling a wage claim before the labor commission, that is, the Division of Labor Standards Enforcement
1. Employee goes to the local office of the DLSE and in Mission Valley and completes a simple statement claiming non-payment of wages owed. 2. A couple of months later, there is an informal conference at which there is an attempt to settle the case with a commissioner trying to point out the weaknesses in each side's case. 3. It can be dismissed. If not, it goes to a contested hearing. If either side unhappy, can bring the matter to the Superior Court.
Categories exempt from overtime, including all of the elements
1. Employees who are ALWAYS nonexempt: always entitled to OT & pay & min wage 2. Employees who are ALWAYS exempt: NEVER entitled to OT & pay or min wage Seasonal amusement/recreational bus. ( ski resort, amusement park that is open during 1 season) Employees of local newspapers circulation < 4,000 Newspaper delivery workers Some farmworkers 3. Employees who are exempt id they meet certain requirements: bulk of workers get classified under the rules described 4. Employees wp are exempt from OT ONLY: still entitled to min wage Remember Exempt= Executive Nonexepmt= Not Executive(regular employees)
8 elements that California courts consider in determining whether a person providing services is an independent contractor or an employee
1. worker control manner & means used to complete the job? 2. task part of principals regular business? 3. discharge terminable at will or either party? 4. worker have distinct business w/ equipment/ ee subject to profit & loss? 5. Great deal of skill? 6. payment in cash w/o standard deductions? 7. principal have stronger bargaining position? 8. parties intend that the relationship be er/ee?
Major category of workers exempt from wage and hour laws altogether
1. Executive exemption: -Duties involve management of enterprise & -Regularly directs work of at least 2 employees & -Can hire & fire, & has weight for promotion decisions & -Regularly exercises independent judgment & discretion & - primarily engaged in duties that meet the test of exemption - must earn a monthly salary TWICE the min wage 2. Administrative exemption: -Duties involve performance of office work directly related to management polices or general bus. Operations of employers customers & -Regularly exercises discretion & independent judgement & -Regularly assist a proprietor, employee OR -Performs under only general supervision work along specialized or technical lines requiring special training, experience, or knowledge OR -Executes under only general supervision special assignments & -Primarily (51% or more) engages in duties that meet the test of exemption - must earn a monthly salary TWICE the min wage 3. Professional/creative exemption Licensed or certified & primarily engaged in practice: law, medicine, dentist, optometry, architecture, engineering, teaching, or accounting OR Primarily engaged in occupation recognized as learned or artistic profession Knowledge in advance types of field Original & creative in nature & Work is intellectual & varied in character & can't be standardized Regularly exercises discretion & independent judgement & An employee must earn a monthly salary TWICE the min wage 4. Other exemptions -Employees in computer software field if certain requirements met -Outside sales people -Primary duty must be making sales or obtaining orders -Must regularly work away from your place of business
categories of illegal interview questions and why they are illegal.
1. Name: national origin/marital 2. address: finances 3. birthplace: national origin 4. age 5. race/color 6. religion 7. sexual orientation 8. photo 9. height/weight 10. physical or mental disability 11. marital status 12. criminal record 13. orgainizations Can't ask about salary history or arrest record Can ask: have you been convicted of a crime, are there any felony charges against you?
Rights and duties of employers and employees under California Paid Sick Leave Law, including the information in the reading on that law. Also, rights and duties under City of San Diego paid sick leave ordinance.
1. Rights: entitles employees of ANY size to 3 days or 24 hours of paid sick leave in any calendar year 2. Eligibility: ALL employees of an employer of ANY size who work at least 30 hours in a year & work for the employer at least 90 days -Paid sick leave for others: use of sick leave under the law is NOT limited to employees own illness Right extends to care for ill child, parent spouse, grandparent, grandchild, or sibling -employee is NOT entitled to be paid for the value of paid sick leave when employee leaves their job -SD: paid sick leave = 80 hours
Right and duties of employers and employees under the California Family Rights Act ("CFRA")
1. Who: ER w/ 50 or more EE - includes uncomepnsated, part-time, & ee on leave - ee must wored 1250 hr in last 12 month period 2. what: birth of ee's own child, placement of child in adoption/foster w/ the ee, ee's own serious health condition or serious health condition of child, spouse, parent, or domestic partner of ee -Serious health condition: inpatient treatment or continually treatment by or supervised by a healthcare provider 3. how much time: up to 12 weeks in a 12 month period
Key legal issues in the law of government employment, including difference in employer discharge rights and employee speech rights
A citizen who works for the government is still a citizen. Still has first amendment rights
Principles of age discrimination claims under California and federal law Federal:
ADEA: age discrimination in employment act -prohibits discrimination against those age 40 or over -Prohibits an employer from discriminating against older workers in favor of younger workers (even ones younger but over 40) -Allows selection of younger versus older based on merit -An employer cannot justify discrimination based on the fact that getting rid of an older worker will save the employer money
EEOC illustrations of how the duty to accommodate religion in the workplace works and how the EEOC suggested the law applies to the facts of those illustrations.
Accommodations can include flexible schedules, shift swapping or reassignment to another job or department. The costs of rearranging schedules and occasionally paying overtime generally don't constitute hardship. Regularly paying overtime or a need to hire more workers generally do constitute hardship. The size of a business can matter. In its guidance, the EEOC says an employer with multiple facilities might be more able to accommodate a worker who requests a transfer to a location with a nearby place of worship to attend during lunch. "from a nondiscrimination standpoint, a lot of managers have been taught: Treat everybody the same." Employees must also be flexible, and their beliefs must be genuine, which could be hard to prove or disprove.
Treatment of cash shortage, loss, and breakage under law
An employer can't deduct from an employees pay, or require the employee to reimburse the employer for any cash shortage, breakage, or loss of equipment unless the employer can show that such a loss or breakage was caused by a DISHONEST or WILLFUL act, or by the gross negligence of the employee
"Employment at-will" under California law and its exceptions
An employment having no specified term may be terminated at the will of either party on notice to the other. Employment for a specified term means an employment the parties agree in advance will last more than one month. Employment at will establishes the presumption that an employer may terminate its employees at will for any reason or no reason Exceptions: - fundamental public policy such as the states whistleblower laws and discrimination laws - limitations, express or implied to which the parties themselves agree on termination rights
Express contract
An exchange of promises in which the terms by which the parties agree to be bound are declared either orally or in writing, or a combination of both, at the time it is made. aka a contract that is not implied, and has a clear understanding from both parties that it is in fact a contract An at-will contract may be express
The text's legal guidance on how to avoid legal problems with skills testing.
As long as the skills you're testing for are genuinely related to the job duties, a skills test is generally legal. be sure your tests measure the actual skills and abilities needed [which is to say essential] to do a job. However, interview questions do not have to be essential duties of the job (this is why we get weird interview questions sometimes)
Ways text identifies that non-union employer may make unions unnecessary
Be sensitive to what's going on in the workplace, make reasonable changes if required, fix health and safety issues, be fair and consistent in rules and discipline, offer incentives for excellent performance, survey what other businesses are paying their workers, keep workers steadily employed (consider temp hire for seasonal workers instead of laying off alot)
Treatment of on-call time
Bottom line consideration is the amount of CONTROL exercised by the employer over the activities of the worker Factors used to determine whether THAT EXISTS: 1. Geographical restrictions on employees movements 2. Required response time (no hardline rule) 3. Nature of employment 4. Extent the employer's policy would affect personal activities during on-call time 5. Whether the parties have an agreement as to how such time will be treated Restrictions on use of alcohol are NOT enough to make on-call time compensable On-call time may be compensated at a different rate of pay from the regular rate of pay as long as the on call rate is AT LEAST = to min wage
covenants not to compete and how California law treats them
CA Law makes every contract by which anyone is RESTRAINED from engaging in a lawful profession, trade, or business of any kind to that extent INVALID EXCEPTIONS: 1. Those who sell the goodwill of a business 2. Owner of a business that sells his/her ownership interest in the business 3. Owner of a business that sells all or substantially all the operating assets of the business together w/the good will of the business Ban on non-compete does NOT mean that former employees are free to use trade secrets to compete against their former employer
hours worked," including difference between California and federal law
CA Law: "hours worked" for which Non exempt employee must be paid means the time during which an employee is subject to the CONTROL of the employer, & includes all the time the employee is suffered or permitted to work, whether or not required to do so FED Law the worker DOES have to be working to be compensated.
The legal definition of trade secrets, including circumstances under which California law treats customer lists as trade secrets
CA Law: info that: (1) derives independent economic value, actual or potential, from NOT being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) s the subject of efforts that are reasonable under the circumstances to maintain its secrecy THe information need NOT be in writing but may be in the employees memory
difference in employer liability between acts of sexual harassment by supervisors, on the one hand, and acts of sexual harassment by co-workers and third parties (such as customers) on the other hand.
CA Law: supervisor is not individually liable, even if knows about the harassment and takes no action. -employer IS liable for sexual harassment by a coworker or 3rd party ONLY if the employer knew or should have known about the harassing conduct & failed to take appropriate action -er's control over a harasser who is a 3rd party is considered when evaluating the er's liability for such conduct - er is automatically liable for sexual harassment by a SUPERVISORY ee whether the company had actual or constructive knowledge of the harassment or not -Harasser himself/herself PERSONALLY liable to the victim for $ damages FED Law: NO personal liability for discriminatory practices of ANY KIND
Elements of California and federal disability discrimination claims, including the key aspects of recent changes to the federal law.
CA: non exhaustive list of major life activities Federal: worker must be qualified for a particular job & have a recognized disability that: substantially limits a major life activity; or have a known record of such an impairment; or be regarded as having such an impairment
Individual liability, or not, under California and federal law for acts of harassment.
CA: personally liable Federal: A supervisor is not individually liable, even if knows about the harassment and takes no action. Under those circumstances, of course, the employer still would be liable.
basic elements of the claims for discrimination based on race, sex, and religion, including the differences between California and federal law in what is covered.
CA:Fair Employment and Housing Act -Protects a broader range of categories: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, martial status, sex, age or sexual orientation -Applies to 5 or more ee , except for the prohibition on harassment, which applies to er with 1 or more ee -Prohibit discrimination against those perceived to a qualifying disability, race, or religion -CA anti-discrimination law does not "outlaw discriminatory thoughts, beliefs, stray remarks that are unconnected to employment decision-making." -Only if severe and pervasive enough Federal:Title VII of the Civil Rights Act -Prohibits discrimination based on race, color, religion, gender and national origin (separate law deals with age, citizenship, disability, genetic information) -Applies to 15 or more employees -Doesn't expressly prohibit sexual harassment -Prohibit discrimination against those perceived to a qualifying disability
Elements of sexual orientation discrimination, including treatment of sexual orientation discrimination under California and federal law
CA:expressly prohibits employment discrimination based on a person's perceived or actual sexual orientation , must allow to appear or dress consistent with gender identity Federal: its not expressly clear. does not prohibit discrimination based on sexual orientation(but EEOC and few federal courts have concluded that it does)
tension b/w an employer's right to set reasonable grooming standards and the prohibitions on certain forms of discrimination.
CAlaw specifically permits an er to require its ee to follow "reasonable workplace appearance, grooming, and dress standards." CA er may require women to wear make-up without imposing a similar requirement on men, as long as employees are allowed to dress consistent with their gender identity or gender expression. (Ibid.) Employers may not prohibit employees from wearing pants because of their sex. - can make them wear uniform or costune - cant prohibit them from wearing religious markings
Treatment of discrimination against transgender individuals under California and federal law.
California's anti-discrimination law prohibits discrimination against a person because of gender or gender identity. Federal:On April 20, 2012, the EEOC published a decision holding that, for the first time, discrimination against a transgender employee is indeed discrimination on the basis of sex.
California regulation that addresses questions in job interviews, particularly the new laws about inquiries into criminal history and salary history.
Can't ask about criminal history or salary history
The legal issues raised by job applications.
Cannot include salary history, criminal history, disability, questions about age, race, ethnicity, any other protected group
COBRA
Consolidated Omnibus Budget Reconciliation Act Requires qualifying employers (usually 20 or more employees who offer a GROUP health care plan) to offer employees & former employees the option of continuing their health care coverage if the caoverage is LOST or REDUCED because: 1. Employment has been terminated for any reason EXCEPT gross misconduct 2. Employees hours have been reduced Under certain circumstances, employees spouse & dependents are eligible for coverage such as when the employee dies or is divorced or becomes eligible for Medicare
The legal definition of defamation and how it applies to statements made about former employees
Defamation may be in the form of either libel or slander, each of which is false & unprivileged communication Slander = Spoken (oral) Libel = literature ( written)
Accent discrimination
Discrimination based on individuals accent is only permitted where the accent affects the individual's ability to perform a job requiring communication skills -Same general rule applies to a requirement of english fluency - Is a BFOQ
Legal issues raised by unionizing campaigns, including employer and employee rights and duties
Employer conduct that violates the law: -Threatening employees w/ loss of jobs or benefits -Threatening to close the plant -Questioning employees about their union sympathy or activities -Promising benefits to employees to discourage their union support -Transferring, layoff, terminating, assigning employees more difficult work tasks, or punishing employees b/c they are engaged in union Labor org. Violates the law: -Threats to employees that they will lose their jobs unless they support union -Seeking suspension, discharge or other punishment of an employee for not being a union member -Refusing to process a grievance b/c an employee has criticized union officials or b/c an employee is NOT a member of a union in states where union security clauses are not permitted -Engaging in picket line misconduct
Definition of the employer's duty to provide "reasonable accommodations" to enable a disabled employee to perform the essential duties of his or her job.
Employer is required to provide reasonable accommodation unless it provides a undue hardship Test undue hardship- same for religious and disability, different under federal Employer can select less expensive option
Factors the NLRB considers in determining whether employer has engaged in unlawful workplace behavior during unionizing campaign
Employers May: Use letters posters, brochures, speeches to tell employees that they currently enjoy many job benefits and that their wages and benefits are comparable They Can't: -Ask employees their thoughts on union matters/how they plan to vote -Attend meetings and spy on employees -Grant employees promotions, pay raises, etc if they oppose union -Close down a worksite to pressure employees not to unionize -Dismiss, harass, reassign or punish workers if they unionize -Refuse to bargain collectively
Legal issues raised by severance pay and severance agreements
Every actually & constructively fired employee is NOT legally entitled to severance pay Law only requires you give severance pay of the employer has EXPRESSLY or IMPLIEDLY promised the employee that they would do so 3 examples of ways employer may be obligated to make severance payments: 1. Formal written contract or benefit plan 2. Written policy in the employee handbook 3. Clearly established pattern in which the employer has given severance to employees in similar circumstances
All discussion and illustrations of disability law in text, class discussion, and this review including enforcement of the law
FED: Disability discrimination under Federal Americans w/ Disabilities Act a business must have 15 or more ee to be covered; Part-time are counted CA FEHA: er w/ 5 or more ee are covered -Disability is any physical or mental condition that affects major life activity -Includes: caring for oneself, performing manual, walking, seeing, hearing, breathing, learning, & working
Treatment of commuting time
FLSA (Fair Labor Standards Act)You needn't pay employees for the time they spend commuting between their homes and their normal job site; that's not considered on-the-job time. But you do have to pay for commuting time that is actually part of the job CA:when employer requires its employees to meet at designated places to take its buses to work & prohibits them from taking their own transportation, employees are subject to the CONTROL of the employer-->thus time spent traveling on their buses is COMPENSABLE as "hours worked"
Elements of national origin discrimination
Federal Equal Employment Opportunity Commission (EEOC) national origin discrimination includes:Birthplace of individual or their ancestral, as well as the display of the physical, cultural, or linguistic characteristics of a particular national group
The common interest privilege
Former employer & prospective employer are viewed as having a common interest in the exchange of info about former or prospective employees -Statement CANNOT be the basis for a defamation claim if it is a communication concerning the JOB PERFORMANCE or QUALIFICATION of an applicant for the employment based upon CREDIBLE evidence made w/o malice by current or former employer of the applicant -Current or former employer is also authorized to answer whether or not the employer would rehire a current or former employee
Genetic Information Non-Discrimination Act, both the terms of the law and the practical issues it raises for employers.
Health care issue/ cost issue
Right to workplace privacy, both the general legal and case-based rules and the specific legal rules that apply in California.
If employers are clear & consistent in communicating that all workplace communications equipment is subject to company monitoring, they are likely to defeat any employee claim that they expected such communications to be private. "Under current practice, workers who object to their employer's surveillance and sue must prove to a judge or jury that they had a reasonable expectation of privacy and that the employer's techniques were offensively intrusive and served no legitimate business purpose.
How the NLRB regulates employee handbooks and employer response to social media postings, even in non-union workplaces.
If its protected talk about the union, or formation of a union it's okay and protected.
legal issues raised by Googling a job applicant, and otherwise investigating a job applicant's social media postings and how the text suggests that an employer may minimize at least one of the legal risks in doing such searches.
If you google an applicant must only look for things relevant to the job. It is suggested you turn this process over to an independent party so they can only consider essential information that is not discriminatory
Principles of California workers' compensation law
Is an employees exclusive remedy against their employer for any injury arising out of & in the course of the employment & for the death of any employee Conditions: 1. at the time of the injury, the ee is performing service growing out of & incidental to their employment & is acting w/i the course of their employment ( ie: doing things that didn't lie in the job) 2. injury is proximately caused by the employment either w/ or w/o negligence 3. Where the injury is NOT caused by the intoxication by alcohol or the unlawful use of a controlled substance or the injured employee 4. Injury is NOT intentionally self- inflicted 5. Employee has NOT willfully & deliberately causes their own death 6. Injury does NOT arise out of an altercation in which the injured employee is the initial physical aggressor 7. Injury does NOT arise out of voluntary participation in any off-duty recreational, social, or athletic work- related duties, EXCEPT those activities are a reasonable expectation of, or are expressly or impliedly required by the employment
Key issues related to the law of the gig economy, especially the uncertainties in that law
Key issue is whether these workers are properly classified as employees or as independent contractors If new law is required, it is unclear whether it should come from the state or federal government, and whether any such new rules should be developed mainly by legislation, regulation, or litigation."
Law of vacation and limited discussion we had about law of sick days
Law of Vacation: Private sector er are NOT required to provide paid vacation days IF they provide: May NOT adopt a use it or lose it policy, once vacation time is earned an employee may not forfeit it -The employer MUST pay unused vacation due included in final paycheck -er may cap the #of vacation days an employee accumulates Law of Sick Day: CA er are required to provide ee to at least 24 hours of 3 days of paid sick leave per year. SD er must provide at least 1 hr of sick time for every 30 hr worked, may limit the ee use to 40 hr per year. -MAY adopt a use it or lose it policy for unused sick leave.
Rights and duties of employers and employees under the federal Family Leave Act and how they differ from rights and duties under CFRA and California's Pregnancy Disability Law
Major Difference: FMLA treats pregnancy as a qualifying disability(must have severe pregnancy symptoms though); under CFRA there's a separate pregnancy disability leave law CFRA Pregnancy disability law: provides up to 4 months of unpaid leave in ADDITION to the 12 weeks of CFRA leave for employees at companies w/ 5 more more employees - er CANNOT require the ee to use paid time off as part of her leave -Leave care for domestic partner as well FED law: medical certification provided to er PDL= must reinstate to same job FMLA=can reinstate to same job or similar job
Constructive discharge
Occurs if the employer either intentionally or knowingly permitted working conditions that were so intolerable at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employees position would be compelled to resign -Must be significantly extraordinary & aggregise -Legal consequence: exactly the same as an actual discharge
Bona fide occupational qualifications and how they relate to job descriptions
Religion, sex or national origin can be a BFOQ only if its a reasonably necessary qualification for the normal operation of the business Race can NEVER be a BFOQ ex: black Santa clause
Law of meal and rest breaks
Rest: Employer must authorize and permits all employees to take rest periods, should be in the middle of each work period.; 10min every 4 hr (no rest for total 3.5 hr) - counted as hr worked; no deduction Meal: more than 5 hr, 30 min unpaid meal break (if 6 hr, give up break) - 10 hr, must have 2 unpaid 30 min break (12 hours can waive 2nd)
Effect of long-term employment on at-will contract
There is no effect, but Can't fire an employee when they reach close to retirement age, just because you don't want them to get their benefits be very careful, and make sure you have good cause if they employee has been with you for more than 10 years
Rights, duties, and remedies under the Uniformed Services Employment and Reemployment Rights Act, including associated terms such as the escalator principle
USERRA: applies to employers of ANY size & applies for up to 5 years of cumulative military service Employer may NOT require service member to use earned vacation to perform military service, but they had a right to use such earned vacation time -Returning service member who has been honorably discharged is entitled to seniority & other rights & benefits determined by seniority that the person has of the date of the commencement of service in the uniformed that he/she WOULD HAVE HAD if they remained continuously employed w/ REASONABLE certainty Escalator Principle: employee is entitled to reemployment in the job that he/she WOULD HAVE attained w/ reasonable certainty if not for the absence due to uniformed service -position that is higher or lower than the one the service member held before going on military leave
California law limiting use of consumer credit reports in hiring process
We discussed California law that limits an employer's ability to use consumer credit reports in the hiring process to certain categories of positions -managerial position -regular access to credit card applications -entering into financial contracts on behalf of the company -confidential info, including trade secrets -10,000 or more cash in the workday
The law of retaliation.
Unlawful to retaliate against someone for filing a complaint or cooperating in an investigation of sexual harassment or sex discrimination -Exposes company to SAME liability & damages as the harassment itself -To establish retaliation plaintiff must show that she engaged in a protected activity, her employer subjected her to an adverse employment action, & a causal link existed b/w the protected activity & adverse action A person doesn't have to be right about what they are complaining about, they just have to have reasonable belief.
EEOC guidance on the use of criminal records in the hiring process
Use of criminal record at all tends to discriminate against minority groups, You must have good reason to use criminal record CA: still can use criminal history, ONLY after a conditional offer of employment, don't have to show its related to the essential duties, just have to tell the applicant and let them explain, but still don't have to hire
The law of layoffs, especially the WARN act
WARN: Worker Adjustment & Retraining Notification Requires covered employers to provide 60 days advance notice of plant closing & mass layoffs (Have 100 or more full-time employees) -Must send written notice to states dislocated worker unit & the chief elected officer of the municipality where the closing or layoff will take place EXCEPTION: no need for 60 day advance notice if closing or layoff is unforseen or caused by natural disaster
Law of uniforms
When an employer requires an employee to wear a uniform, the uniform must be provided, and maintained (cost of upkeep) by the employer. The same is generally true of tools. The term uniform includes wearing apparel and accessories of distinctive design or color
Rights and responsibility of employer toward workers who work unauthorized overtime.
You must pay OT even when it was not authorized -But you can punish them
Implied covenant of good faith and fair dealing
a fair and honest cause or reason regulated by good faith as opposed to one that is trivial, capricious, unrelated to business needs or goals or pre textual neither party will engage in conduct for the purpose of denying to the other the benefits of the contract For Example: Even if you are an at will, an employer cannot yank away a benefit that you are on the cusp of earning. Ex: you just close a big sale, you are fired before manager signs off you are still entitled to the bonus
EEOC guidance regarding use of criminal convictions in hiring
an employer may be liable for unlawful discrimination based on race or ethnicity if the employer disqualifies a candidate from consideration for a job where the employer cannot show the criminal conviction was related to the job duties and necessary for the business California law now bars employers from including a question about criminal history on a job application and from in any way inquiring into, or considering, a job applicant's criminal record before a conditional job offer is made.
The California Fair Pay Act.
bars CA employers from paying workers of one sex more than workers of the opposite sex for "substantially similar work" unless the employer can show that the pay gap is justified by a factor other than sex, race, or ethnicity, such as a system that determines pay based on quantity or quality of production or a gap that resulted from differences in education, training, or experience
Legal issues raised in crafting a job description according to the text
be careful not to violate the laws that prohibit discrimination in employment and that seek to assure employment opportunities for people with disabilities."
Legal issues raised by use of social media to complain about wages, hours, and conditions of employment.
comments must be aimed towards unhappiness about wages, hours and conditions of employment. If the employer has policy in employee handbook saying not to post if it's about things other than wages, hours, and conditions of employment they may be able to fire, but if it's about the wages, hours, conditions of employment then the employee is protected.
concept of negligent hiring and the tension it creates between an employer's duty to respect an applicant's privacy, on the one hand, and the employer's duty to avoid harm to others, on the other hand
employer will be liable if the employer know, or should have known that hiring a particular employee create a risk or hazard. As a former employer you are obligated to disclose what you know if it could potentially cause harm, if not, the former employer will be liable if something bad happens
Undue hardship as it relates to employer's duties to accommodate religious practices in the workplace, including the difference between federal and California law on what an employer must show to establish an accommodation would be an undue hardship to avoid the duty to accommodating an employee's religion.
federal law: an er is excused from accommodating an employee's religion if more than minimal cost is involved, but under CA law the burden on the employer must be much greater to excuse accommodating an employee's religious needs. federal employment discrimination law: all an employer must do is show that accommodating the employee's religion would cause the employer more than a minimal burden or expense. CA law: by contrast, excuses an employer from accommodating an employee's religion only if it would cause the employer the same kind of burden that accommodating an employee's disability would cause. That means any accommodation must impose "significant difficulty or expense" on the employer in light of the er's resources & # of ee
California law on how job applicants and current employees are treated differently for purposes of drug testing and why
mployer can test all applicants, but can only test a current employee if the employer has an "individualized suspicion" that the employee is using drugs or is in an especially sensitive safety or security position.
Law of internships
no California statute or regulation that specifically exempts persons participating in an internship from minimum wage and overtime requirements. 1. training similar to vocational school 2. benefit of the trainee 3. do NOT displace reg ee; worker under their watch 4. er gets no immediate advantage; operations might be immpedied 5. not entitled to job @ end 6. not entitle to wages -loos at totality of circumstances
Implied contract
no written record or verbal agreement, it's not expressly stated
Law of tipping
o employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer. Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for."
Hostile Environment:
person complaining must show that he or she was subjected to verbal or physical conduct of a sexual nature or directed at him or her because his or her gender; the conduct was unwelcome; the conduct was sufficiently severe or pervasive to later the conditions of the victims employment and created an abusive working environment from the perspective of the complaining person and a hypothetical person with the same fundamental characteristics severe or pervasive is determined by the totality: 1. the nature of the unwelcome sexual acts with physical touching generally more offensive than verbal abuse 2. the frequency of the offensive encounters 3 the total number of days over which the offensive conduct occurred 4. the context in which the sexually harassing conduct occurred
