employment issues that arise as companies grow: a litigator’s perspective robyn mckibbin, esq....

Employment Issues That Arise As Companies Grow:

A Litigator’s Perspective

Robyn McKibbin, Esq.Partner, Stone | Dean LLP

[email protected]

© Stone | Dean LLP 2015

Employment Documents

Benefits: Identifies duties of positions Helps evaluate and define

employee expectations and performance

Assists in identifying employee training needs

Helps with issues such as reasonable accommodation, light duty, workers’ compensation, and return to work

Job DescriptionsJob Descriptions


Posting and Notice Requirements

State & Federal Minimum Wage

Equal Employment Opportunity is the Law

Family & Medical Leave (50+ employees)

Your Rights & Obligations as a Pregnant Employee

Safety & Health Protection on the Job

Whistleblower Protection

PostersPosters Pamphlets & NoticesPamphlets & Notices Nonexempt employees must receive

specific wage info upon hire

Paid Sick Leave

Sexual Harassment

Workers’ Comp

Unemployment & Disability Insurance


Smart Hiring Practices

Hire slower, fire quicker

Start with job description

Research social media sites?

Comply with the law & company policy

Best PracticesBest Practices

Possible Exposure:

Negligent hiring

Negligent supervision & retention


Interview Don’tsInterview Don’tsInterview DosInterview Dos

Don’t ask discriminatory questions

Avoid questions about personal life

Don’t allow superficial impressions influence you

Be aware of stereotypes

Keep conversation job-related

Ask only for the information you intend to use in making a hiring decision

Know how you will use the information to make that decision


Use of Independent Contractors

No customary payroll contributions

No employee benefits

No obligation to pay for workers’ compensation coverage

Reduced exposure for potential liability:

No wage & hour claims

No vicarious liability for the intentional/negligent actions

AdvantagesAdvantages


Independent Contractors (cont’d)

Labor Code Violations

EDD

Workers’ Comp

Potential Pitfalls if Company Improperly MisclassifiesPotential Pitfalls if Company Improperly Misclassifies

The TestThe Test

EDD

IRS

Federal Employment Laws

CA Laws


Discrimination Laws

42 USC § 1981 Title VII of the Civil Rights Act of

1964 (“Title VII”) 15+ employees

Title I of the Americans with Disabilities Act of 1990 (ADA)

15+ employees

The Age Discrimination in Employment Act of 1967 (ADEA)

20+ employees

FederalFederal

The Equal Pay Act of 1963 (EPA) The Genetic Information

Nondiscrimination Act of 2008 (GINA)

15+ employees


Discrimination Laws (cont’d)


Fair Employment & Housing Act (FEHA) 5+ employees

Only 1 employee required for harassment claim

Includes volunteers, interns and independent contractors

Race

Religious creed

Color

National origin & ancestry (driver’s license)

Physical or mental disability

Sex

StateStateMarital status

Medical condition, including genetic information and characteristics

Gender, gender identity, gender expression

Pregnancy, childbirth, breastfeeding and related medical conditions

Age (40+)

Sexual orientation

Military and veteran status

Union activity



Other State LawsOther State Laws California Constitution

Labor Code § 98.6

Political Activities

Whistleblowing

Labor Code §132(a)

Labor Code §1197.5

Obesity Cases

Beauty Bias Case

AdministrativeAdministrative

Leave Laws

Paid Sick Leave: CA’s Healthy Families Act of 2014

Pregnancy Disability Leave 5+ employees

Breastfeeding Leave Disability leave (FEHA)

5+ employees ADA

15+ employees

Illness/Injury-Based LeaveIllness/Injury-Based Leave


CFRA FMLA Drug and/or Alcohol

Rehabilitation Leave25+ employees

Military Leaves of AbsenceMilitary Leaves of Absence

USERRA

All employers (regardless of size & all employees regardless of length of service or # of hours worked); up to 5 years for military service

Military Leave and/or Reserve Duty All employers (all private employers regardless of size) Up to 17 calendar days/year while engaged in military training

California National Guard Leave All employers; unlimited paid leave for military service under

certain circumstances, i.e., when Governor signed state of emergency

Civil Air Patrol Leave 15+ employees 10 days/year for volunteer member of the CA Civil Air Patrol

Military Spouse Leave 25+ employees Up to 10 days unpaid leave for employees with spouses/partners

on leave from active military service


Civic Duty LeaveCivic Duty Leave

CA Court Time No specified time limit To serve as a juror, crime victim, appear as

a crime victim witness, obtain relief from domestic violence, sexual assault, stalking

Voting No more than 2 hours to vote at beginning

or end of shift if not sufficient time to vote outside of work

Organ/Bone Marrow Donation 15+ employees

School Visits and Activities Suspended Child School Activities

25+ employees; must allow employees time off to visit their child’s school or licensed daycare center; may take up to 40 hours each year (but not exceeding 8 hours/month)

Leaves for Volunteer Firefighters, Reserve Police Officers, and Emergency Rescue Personnel

50+ employees: up to 14 days/year for fire or law enforcement training

Literacy Leave 25+ employees Reasonable accommodation to

enroll in education program No specified time limits

Religious Leave Title VII FEHA


Supervisor Training

Sexual discrimination, harassment and retaliation prevention training (AB1825) 50+ employees

Every 2 years


Supervisor Training (cont’d)

Effective 1/1/15, training must include preventing abusive conduct in the workplace (such as bullying)

Up to 1/3 of employees may be subjected to workplace bullying

Bullying costs $200B annually

Protecting Trade Secrets

‘‘There are only two categories of companies affected by trade secret theft: those that know they’ve been

compromised — and those that don’t know it yet.”


What is a trade secret? What is a trade secret? Information that 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

Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy

Famous Trade Famous Trade Secrets: Secrets: Coca ColaWD-40ListerineLena Blackburne’s Baseball Rubbing MudGoogle Algorithm

Protecting Trade Secrets (cont’d)

What a trade secret is:What a trade secret is: Customer’s requirements

from a temporary staffing agency

Plans and designs for a product

Customer “routes” Customer lists for a

salvage business Carrier’s policyholder

information

What a trade secret is What a trade secret is notnot:: Business forms and

procedures widely used in the industry

Specialized knowledge or skills utilized during employment but were techniques developed during prior employment

Salary information


What is “misappropriation”?What is “misappropriation”?Acquisition of a trade secret by somebody who knows or has reason to know that the information was acquired by improper means; orDisclosure or use of a trade secret of another without express or implied consent by a person who:

Used improper means to acquire knowledge of the trade secret;

Knew or had reason to know that it was misappropriated; Knew that it was a trade secret


What are reasonable steps to protect confidentiality?What are reasonable steps to protect confidentiality?Restricted access

Tracking disclosure

Confidentiality expressed in your practices

Admonish employees when not practiced

Label appropriately

Notify new employees and remind exiting employees of their obligations

Disciplining & Terminating At-Will Employees

What should employers document? Attendance (days absent and reasons)

Conversations with employees

Performance reviews & issues — good & bad

DOCUMENT, DOCUMENT, DOCUMENTDOCUMENT, DOCUMENT, DOCUMENT


Disciplining & Terminating At-Will Employees (cont’d)

Writing Skills Matter … Be clean and concise

Avoid banter

The evils of e-mail

Ensure files are maintained Make Consistent and Reasonable Disciplinary Decisions When You Cannot Terminate an

Employee…

Disciplining & Terminating At-Will Employees (cont’d)

Post-Termination

Potential Liability for:Potential Liability for:DefamationInterference with Prospective Economic AdvantageStatutory LiabilityFraud & Negligent Misrepresentation

QUESTIONS?


employment issues that arise as companies grow: a litigator’s perspective robyn mckibbin, esq....

Documents

decision stone dean

employment act

disabilities act

employment issues

civil rights act

title vii15 employees

employment documents

cas healthy families