San Francisco Employment Law Blog

Gender Neutral Bathroom Laws 

gender neutral bathroom

There has been a lot of talk about gender neutral bathrooms and whether they are necessary or not, or even if they’re legal. Since it is such a hot topic of debate, it is important to understand the laws about them

What is a Bathroom Bill?

A bathroom bill is simply a common name for a statute or legislation which is meant to define how public facilities are meant to be accessed. To be precise, the bill defines how restrooms should be accessed by transgender people.

 

Basically, bathroom bills often affect access to sex- segregated public facilities for a person based on a determination of his/ her sex as defined in specific ways such as: 

– Sex that is corresponding to the individual’s gender identity

– Sex as assigned or given when the person was born

– Sex as listed or indicated on the person’s birth certificate

Starting 1st March this year, ERAA i.e. Equal Restroom Access Act, California will require single occupancy restrooms to possess signs that indicate they are, in fact, a gender neutral bathroom.

Restrooms that are Being Covered by the California’s ERAA

The ERAA cover in the state of California applies to all single- occupancy restrooms in government buildings, businesses as well as in places set aside for public accommodation such as in parks.

What is Single Occupancy?

Single occupancy simply refers to a toilet facility that contains one water closet and no more than a single urinal that comes with a locking mechanism meant to be controlled by the user.

What Does Equal Restroom Access Act Require?

ERAA needs signs to be put in place that will be used to identify single occupancy restrooms as gender neutral. However, the signs recommended must comply with what is stipulated in Title 24 of California’s Code of Regulations.

What Does Title 24 of the California’s Code of Regulations State?

Title 24 of the California’s Code of Regulation states that there are two signs that employers must adhere to when identifying a restroom, i.e:

1. A sign in form of geometric symbol identifying the restroom as unisex, female or male. For instance, the most common geometric symbol can be the use of circles for female restrooms, triangles for male or triangles superimposed on the circles for the unisex.

Be informed that triangle superimposed onto the circle is the specific indicator needed by California Building Code.

2. A wall mounted designation sign which identifies a permanent space or room to be offered for a toilet facility. However, the sign should be tactile i.e. can be read easily even when a person is trying to view it using a touch.

Last, but definitely not least when adhering to gender neutral bathroom laws, ensure that you only purchase signs that you’ re double sure are complying with the law so that you can avoid being misled.

Jury Duty – What You Can Expect When You Are Called 

jury duty

Law protects employees from being punished or fired by employers for taking leave of work to serve jury duty. Employers are also restricted from trying to discourage or intimidate employees from serving on a jury. They are allowed to require proof from employees that there was called in for jury duty before they are allowed time off work.

 

Jury Selection Process

Whether or not the juror knows any of the defendants, witnesses, victims, experts or investigators in the case or if you happen to have any particular knowledge about the case not publicly known.

After these questions are asked and answered, the jury pool is whittled down. The next step is the judge and attorneys for both sides of the case will decide upon the first twelve jurors who satisfy their requirements.

 

If necessary, the court may decide it is prudent to select some alternates. These back-ups are treated like jurors and listen to all the evidence presented in the case. They do not participate in the actual deliberations unless something prevents one of the original jurors from completing their duty.

Once the jurors are selected, the judge will explain what is expected of them. The judge will probably go over housekeeping items such as if the juror needs a break during the trial, what they can bring into the jury box, how long they have for lunch and what time they are to report each day.
How Long Are Trials?
Most local trials only last a day. Some jurisdictions have made the determination that if you are placed on a jury during the time you are “on call” you have satisfied your commitment and are released from coming back for a period.

During the actual trial, you’ll sit in a designated box and are expected to listen to all the testimony before forming an opinion. Some jurisdictions allow note taking, put provide you the notebooks and pencils as you are entering and leaving the courtroom and collect them as you leave. Some jurisdictions are concerned that people won’t pay close attention and have disallowed note taking.
Who Gives The Jury’s Decision
A foreperson is either determined by the court or elected by the other jurors. This person is the voice of the entire jury and will be responsible for communicating to the court via the bailiff if they can’t hear the testimony, can’t see the visual evidence, it’s too warm or cool, they need a break, etc.

 

The foreman is also responsible for passing along any information from the court to the jurors. For example, making sure everyone as signed the attendance form and fill out the necessary paperwork to receive their daily stipend.
Is There Any Downtime?
The jury only hears testimony and attorney comments which the judge deems appropriate to the case at hand. Any other information which the judge feels will be prejudicial to the defendant will be discussed while the jury is outside the courtroom. These periods can be short or long depending upon what is discussed.

 

This is an opportunity for jurors to talk among themselves about anything not related to the case. This is also a good time for a juror to read the paper or book, balance a checkbook, set up doctor’s appointments, etc.

While jury duty can be inconvenient, it can also be a wonderful educational experience in how the judicial system works.

 

Racial Discrimination In The Workplace

racial discrimination

Racial discrimination is the unpleasant action or attitude, whether consciously or subconsciously manifested, that undermines an individual based on their heritage or because of their race. Racial discrimination happens as an individual or as a whole group or an institution.

Racial discrimination is not something minor because it accounts for a large number of the complaints received by the Equal Employment Opportunity Commission, a group that handles cases regarding inequality in the workplace.

How Does It Appear At Work?

Racial or ethnic discrimination in the workplace has many facets. Some of these facets can be obvious. Since racial discrimination is sometimes subtle, one of the most common aspects of it is that it can take place undetected.

Racial Discrimination in Workplace is Common

Unfortunately, racial discrimination in the workplace still exists. In 2002, a study conducted by Rutgers University showed that it is widespread for discrimination in the workplace to take place.

28% of African Americans have gone through discrimination in their workplaces. It is a lot when compared to 6% of whites.

Discrimination lawyers say that among all forms of discrimination, workplace discrimination is the most dangerous. This is because of the emotional toll it takes on the discriminated employees.

It is much more difficult to turn your back on racial discrimination when it happens in your workplace.

The Challenge of Coming Forward

While you may know how you are being discriminated, proving it may be difficult. An employer would never admit racial or ethnic discrimination.

When it is so difficult to prove it, this will add to your isolation, frustration, withdrawal, self-doubt, and lack of confidence. The stress accumulated at work can then spill over other aspects of your life.

People naturally want to appear strong, so they are often hesitant discussing these issues with others. One viable solution is to talk to a discrimination lawyer.

He or she will not only be able to determine if you have a legal claim against your employer but also to help you cope with the emotional stress resulted from the discrimination at your workplace.

They may advise you to join some supporting groups and visit some professional organizations that deal with such kind of problems.

They may also recommend you a therapist or a job coach.

Employees’ Rights in Workplace

There are certain basic rights in the workplace. Each employee should benefit from these rights. One of these basic rights is freedom from discrimination.

This right takes effect even before you get hired. You also have certain rights as a job applicant and candidate. Aside from race, you have the right to be free from the discrimination of sex, ethnicity, sex, age, religion and national origin.

If you feel that you have been discriminated in your workplace, arrange a consultation with the local discrimination lawyers.

You should be free from workplace discrimination no matter what is your age, sex, nationality or religion. This is why you have some basic rights against discrimination.

Does My Employer Have the Right to Inspect Personnel Files in California?

personnel files

In the recent past, the state of California reviewed its legislation regarding the right to inspect personnel files. This was particularly to allow the employees access to their records. The new law stipulates that an employee or a representative (current and former) has the right to receive and inspect a copy of personnel records and files that relate to their performance and any other grievances.

A current or former employee or representative should receive a copy of their records by writing a request to the employer. This should not take more than 3o calendar days and should not cost more than reproduction cost.

Inspection Rules

To make inspection possible, employers should:

(1) Keep an employee’s records for a minimum of three years after termination of working relationship.

(2) Have current records of an employee for inspection purposes and upon request by a representative or the employee, he or she must provide a copy of the records to the employees’ place of work otherwise to a location agreeable to the requester or the employee

(3) Have former employees records available for inspection purposes and provide a copy if requested by an employee or representative where they store records or at an agreeable location by both parties in writing.

Employer Compliance with Personnel Files

An employer is to comply only once a year with a previous employees’ request to receive or inspect a copy of their personnel records. A copy of the records can be availed to the employee by mail if they agree to reimburse actual postage charges incurred by the employer. An employer should not comply with more than 50 requests by previous employees to avail copies of their personnel records in a single calendar month.

The employer may take reasonable measure to ascertain the identity of the employer (current or former) or the representative. Before handing over the records for inspection, the employer can obscure the name of non-supervisory employee(s)

Termination and Personnel Files

In case a former employee was terminated because they violated employment relate policy that involved workplace violence or harassment, the employer can comply with their request to inspect personal records by:

(1) Availing the records to the former employee at a place other than the workplace that is reasonably accessible by driving from the employees’ place of residence.

(2) Mail a copy of the personal records to the employee.

If the employer does not allow a current or former employee or a representative to have a copy or inspect the personnel records within the mutually agreed or specified times, the current or former employee or the labor commissioner can recover $750 from the employer as a penalty.

Rights to inspect personal files do not relate to reports, records, crime investigations, letter of reference and ratings that:

(1) Were obtained before the employee’s employment.

(2) Were obtained I regard to a promotional exam.

(3) Were prepared by examination committee members who can be identified.

 

Signing a Non-Compete Agreement

non-compete agreement

When Donald Trump promised to give America back to the Americans; non-compete agreements became a household name. Hiring foreign employees is becoming a serious deal. Everybody wants a chunk of the world’s most flexible workforce.

So, if you landed a major gig only for your prospective employer to give you a non-compete agreement, don’t worry. This article details the nooks and crooks you should know before coloring the dotted lines.

What is a Non-Compete Agreement?

A non-compete agreement is a document that legally binds two parties. It restricts the employee from starting a competitive business for a designated amount of time. The agreement burns you from exploring new opportunities in rival companies. Also, you cannot disclose information considered by your employer confidential or proprietary.

For clarity, just know that this legal binding is meant to protect the working condition and wages of the US workforce while at the same time allowing the hiring of foreign employees. So, whether to sign it or walk away is determined by how bad you need that job.

How Important Is It?

The law obliges every potential employer to confirm the authorization of their new employees for work but not to discriminate against hiring foreign employees. It is an essential document this.

The non-compete agreement started as a scalpel for industries to protect their intellectual properties. With time technology has made this need a desperate must-have bludgeon that exploits every sector in the US. With the uncertainties and unpredictability of the future, companies have to retain their most valuable capital – their talented employees.

When no is not a luxury you can afford, try to bargain for better terms. Read every line. Scrutinize every detail. Make sure you get it right before signing. The non-compete law varies in every state.

Where You Should Pay Attention

The larger the regional radius that binds you, the more you should negotiate for better terms. Also, ask the hiring company to specify which companies are out of your reach so you find yourself exiled from the rest of the industry. Remember that that contract comes with an expiry date.

Keep your employer on a short leash. Limiting yourself to one place for long periods is a career killer. Again, bargain for the departure time. Does the contract hold if you are fired? Also, in case you decide to sue the employer when the contract is still valid, who pays for the company lawyer?

Hiring foreign employees gets harder every day. The non-compete agreements are the latest forms of economic insurance.

How to Handle Intoxication in Workplace

intoxication in the workplace

There are several organizations who suspect that their employees and workers are working under the influence or there is intoxication in the workplace. Now the question remains, how to handle this situation when you are suspecting your employees to be working under the influence at work?

What to Do

Under such circumstances when you suspect intoxication in the workplace, you must send the concerned employee a notice to meet the supervisor to find out whether the suspicion is true. Before taking this step, you should document the facts like slurred speech, the odor of alcohol, balance problems, bloodshot eyes etc. to show why you suspect intoxication in the workplace.

You can also involve a trained observer such as a Supervisor or a law enforcement officer to observe the employee and determine the truth. In the case that the employee is under the influence of the controlled substance, then the trained observer has to establish the “reasonable suspicion” after a careful visual examination.

Lawful Searches

A lawful search can also be an option, with the employee’s consent. You can also ask the employee directly whether he/she works under the influence at work. If the employee replies “yes”, then you need to ask them what they have ingested.

The statement of the suspected employee is to be documented. In case the employee disagrees to this request, then you have the right to ask the employee to undergo an alcohol or drug test which would help to disapprove your suspicion.

Drug Testing

In case the employee declines to take this alcohol or drug testing, then you have to document the incident and place the employee on administrative leave. Also, the employer should be arranging a transportation to get the employee back home. Under such circumstances, the employer or the management should not allow the employee to drive back home.

A breath test is the least intrusive test for alcohol. In case the suspicion is for the controlled substances, then the least intrusive test is urinalysis.

The further step after it has been proved that the employee has worked under intoxication in the workplace is that the concerned employee can be given reasonable corrective directions that will effectively prevent similar or same conduct in the near future during the tenure of the employee’s work in the organization.

A written warning is to be given to the employee that he or she would be required to submit an alcohol or drug testing in the event of similar conduct in future. Also, the concerned employee has to be observed at work for the next few days/months so that you may ensure that similar conduct is not repeated again.

Pregnancy Leave in California

pregnancy leave

California has the most comprehensive set of laws protecting women during pregnancy leave and maternity leave. One law gives CA women extra benefits over its federal counterpart. The California Family Rights Act provides significantly longer job protection in the event of pregnancy complications, followed by an extended maternity leave.

Should this situation arise, the extended job protection will be welcome. But can you afford all the time away from work? You can if you plan ahead, then act promptly.

California Family Rights Act

The California Family Rights Act is similar to the Federal Family Medical Leave Act in that it allows for twelve weeks of unpaid, job-protected leave. Both laws apply only to employers with more than fifty employees.

The California law differs in how an absence from work for you own disability is treated. Suppose you experience pregnancy complications and need to leave work twelve weeks before your delivery.

Under the Federal law, you would have used up your job protected time. The California law does not count time away from work for your own disability. This is covered under the California Pregnancy Disability Leave Act.

7 Months of Partially Paid Job-Protected Leave

Combine the two situations and California laws together, and you get seven months of partially paid, job-protected leave: four months before delivery if complications arise, plus six weeks to recover from delivery, plus six weeks to bond with the baby.

California SDI and Paid Family Leave provide the partial payment of 55% for up to seven months if needed.

Keep the Job but Lose the House?

The good news is the California laws protect your job for a long time at partial pay. Should this happen to you and you qualify under the rules, your job will still be open for you? But will you be able to make your mortgage payments after seven months with a 45% pay cut?

Four separate California laws combine to create up to seven months of job-protected, partially paid leave. The California pregnancy leave laws protect your job for up to four months before your delivery should you experience complications.

The CA Family Rights Act provides a fresh set of twelve weeks (nearly three months) of job-protected leave after your delivery. The California State Disability Insurance (SDI) and Paid Family Leave provide partial income replacement during your pregnancy leave and maternity leave

Seven months at a 45% pay cut can severely damage a family’s finances, especially when the additional expenses of feeding, clothing, and raising a newborn get added into the picture. Purchase supplemental short term disability insurance before getting pregnant.

Your normal labor and delivery will be a covered benefit, and you will close the gap on your big pay cut should the need arise for seven months of missed work.

Purchase supplemental short term disability insurance before getting pregnant, and your answer will be YES!

How to Go About Whistleblowing

Whistleblowing

If you want to inform the authorities about your manager or employer due to any unlawful reason, then you must know how to go about whistleblowing properly before you consult your lawyer. The reason can either be sexual harassment, racial discrimination, non-payment of your pay check or retaliation with you as a whistleblower. Some tips are provided here to help in this regard.

Always remain alert: Whenever you suspect that the communication you received indicates towards some illegal activity then you should write about it in a personal diary. In case such information is in the form of an email, you should save it as a hard copy so that you can use it later on as evidence.

Consult an attorney: When you suspect something illegal is happening around you then you should confirm whether it’s legal or not to help you by seeking the advice of an experienced attorney. They can help you report about it more effectively.

File an informal complaint to your immediate boss: Sometimes your immediate boss or supervisor can help you in this respect if he/she is honest and law abiding. You can file an informal report with him/her and keep it as a record, whether your complaint is in writing or oral.

Avoid taping conversation: If you overhear suspicious conversations between your supervisor or manager and someone else then you should never try to record it to use as evidence. Normally tape recording of a private conversation is considered illegal and even a criminal act according to the law of various states.

Avoid doing some silly and illegal things: If you expect that during proceedings the person, against whom you have filed the complaint, will threaten you or will try to dirty your name by presenting the facts they have at their disposal, then you should avoid doing silly things like violating any of the company’s policies.

You should go on doing your work as usual, as your activities will also be under the microscope. Your each and every step may be monitored by the suspected person or his/her conspirators so they can blame you for illegal activities like fighting at the workplace, disobedience, or failure to meet deadlines and terminate you. They will not leave any stone unturned to convince the judge that your termination has nothing to do with the complaint against him/her.

So, while whistleblowing you should remain alert and have a legal opinion help you with your findings. You should do your duties as usual without giving any chance to your manager or employer to evaluate your negative performance and demote or fire you.

Understanding Your Paycheck Stub

paycheck

If you look at your paystub and you’re wondering why you’re not getting as much as your salary is supposed to give you, then keep on reading. It is important to manage your finances and budgeting and a large part of that is understanding your paycheck stub and the deductions that occur every time you get paid.

 

What is Usually Included in a Paystub?

Different companies might print their paychecks in different ways, but there are always several key components that employers need to include on the statement by law.

  • Gross wages: This is total amount of income you earned over the pay period. Pay periods are usually either bi-weekly or monthly, this is determined by the employer. If you are a salaried employee, this is simply your yearly salary divided by the amount of times. If you are paid hourly, the paystub would show your pay rate (your pay per hour) and the number of hours worked. Your gross wage would be these two multiplied together. Keep in mind that this is not the amount that you get paid, because it does not include deductions.
  • Federal tax: Besides Medicare and Social Security, this is a cut of your paycheck that is taken by the federal government. If you remember back when you were first hired, you might recall filling out a W-4 form. This form indicated your tax situation (exemptions, status, and so forth) and let your employer know how much to withhold from your pay for federal taxes.
  • State tax: Whether you have to pay state taxes depends on the state in which you are residing and working. California does participate in state taxes, and this money usually goes into funding for state programs such as public safety, public works, education, health, court justice system, and more.
  • Local tax: This is less common, and will depend on the city you live in. New York and Washington DC are among the several cities that have this additional city tax.
  • Social security: This money is set beside by the federal government in order to provide benefits for the elderly. When you retire, you will be able to use social security benefits in the form of a monthly social security payment.
  • Medicare: Medicare is similar to social security in that a certain percentage is deducted from your paycheck, and when you retire at 65, this money is used to help cover health insurance.
  • Other: You may see additional withholdings and deductions, such as life insurance premiums or retirement plan contributions, such as a 401K
  • Net pay: This is the amount you get paid after all deductions have been made, the amount that is given to you on  your paycheck or direct deposit.

Temporary Employees: Who Are They, and What Laws Govern Them?

temporary employees

Who Are Temporary Employees?
A worker who seeks for a job through a temporary agency is referred to as a temporary employee. In other words, the individual worker is also referred to as a leased or contingent employee, but it boils down to the same thing.

The temporary agency, also known as a professional employer organization, handles all human resource functions related to all employees under its mandate. The employees work on a limited time span as opposed to the day-to-day basis of conventional workers. Their contract is short-term and is often projected-oriented arrangement.

Who is The Actual Employer of Temporary Workers: The Company or Agency?
Temporary employees acquired through an agency remain to be employees of that agency. Depending on the application of employment law, the employer of the leased workers can be an enjoined employer with the temporary agency (if they wish to do so).

Do Employment Laws Apply to Temporary Workers?
The same employment laws for regular employees cover leased workers. However, some companies take advantage of the situation and deny these employees the general workers’ rights. In some cases, contingent workers are miscategorized as private contractors due to the nature of their work. Their jobs are short-term and project-based, hence the room for their employee rights to be abused.

Why Do Companies Hire Temporary Employees?
The practice of leasing employees on short-term basis is not new. However, it begs the question why employers should use temporary workers instead regular, day-to-day workers. Here are some of the reasons:

· Saves on wages: permanent employees can adversely weigh on companies’ revenues. To cut on wages, employers decide to go for short-term workers
· In cases of fluctuating workload: some companies have fluctuating workload. It wouldn’t be economical to keep employees on a permanent basis in such a case. Employee leasing is the best approach here.
· To fill in for a temporary absence: when regular employees are caught up with emergencies that bar them from coming to work, it can be tricky for a company. Temporary workers can help with such a predicament.
· To accommodate part-time workers: permanent employees can request for part-time working. During their absence, leased workers could help with the extra workload.

While these are good reasons companies opt for leased employment, some employers do it for ulterior, often illegal, reasons:

· Avoid paying employee benefits, which can cut down payroll amounts up to 30%
· Make it easy for them to lay off employees
· Prevent workers from joining unions
· Avoid instances of compensating workers
Just be sure to keep your reasons for hiring part time employees legal and you won’t have any problems down the road.

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