San Francisco Employment Law Blog

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.

Email Monitoring in the Workplace

monitoring

Technology is changing rapidly. Most people have appreciated the use of emails to communicate with their friends and relatives. Emails are commonly used to pass messages in the workplace. It is important that you ensure that your email is safe. You can even consider changing the password of your email from time to time. An employee should never assume that the email that are sent and received are kept in complete privacy from their employers.

Under the Electronic Communications Privacy Act (ECPA), it provides for implied authorization to review employees’ emails. It also states that a company should state their policy of monitoring e-mails in the company handbook. Since new technologies are coming up, employers now have the options to monitor their employees when they use their phones, computer terminals, emails, voicemails and even when the employee is using the internet. Unless the employee’s company policy states otherwise, an employer can readily listen, watch and even read most of the communications conducted by an employee during the course of their work day.

You will realize that recent surveys actually show that majority of employers monitor their employee’s activity in the workplace. Employer monitor the websites their employee’s visit in order to prevent inappropriate surfing. The survey further shown that 65% pf employers use software to block connections to websites deemed off limits to employees.

You will realize that E-mail is not normally considered private if the email system is used at a company that is owned by the employee. He or she can review its content from time to time. In this case, you should not expect a lot privacy when it comes to email communications. Emails that are actually sent within the company are subject to monitoring. In addition, emails that are sent from the employee’s terminal to another company are subject to monitoring. These emails include those from Yahoo, Hotmail, AOL and so forth.

If this email is deleted, it normally retained in the memory. You will realize that emails are often backed up along with other important data from the computer system. If the employer’s email system has an option for the employee to mark their email messages as private in most cases, this does not always protect the emails. As an employee, you should read the employee handbook so that you can understand your employer’s email policy. If this handbook does not address this issue of email monitoring, the employee should speak with their employer about their policy for the emails and privacy.

It is worth noting that there is email monitoring in the workplace. You should be very careful when sending emails to your colleagues at the workplace. Your employer might review the content of your email from time to time.

Collecting Unemployment Benefits in California

unemployment benefits

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In California, the office that handles unemployment benefits is known as the Employment Development Department.

Qualification for Unemployment in California

You should meet three qualification necessities to collect unemployment benefits in California:

1. Your past earnings must meet a minimum threshold

2. You should be unemployed through no mistake of your own, in accordance with California law.

3. You should be capable, available, and looking for work.

Unemployment Benefits

Before we talk about the benefits, it may be noted that you must register yourself for these benefits as soon as you have been laid off by a company. Many people do the mistake of not registering at the unemployment office in the hope of finding a new job soon. Although you may be confident about your abilities, it is a good idea to register yourself soon. What if it takes a while to get a job of your choice? You may not want to compromise on the work profile due to the urgency of a job requirement. To avoid such situations, it is important to seek unemployment benefits.
How To File For Your Unemployment benefits?
In filing unemployment benefits in California, you will be required to give personal and employment information like name, address, telephone number, e-mail address, name and address of previous employer, date of starting and leaving the job, and reason for resigning or being laid off from the job. After sometime of filing the claim, you will receive a letter specifying the benefits you will receive.  Unfortunately, if your claim gets rejected, you will receive a notice stating the reason of denial of unemployment benefits. Receiving a denial letter does not mean you cannot get the claim. In such a case, you should prepare for appeal to persuade the California to pay you the unemployment benefits. Here is a list of benefits that you can expect. It is important to note that you must register yourself of unemployment to be eligible for the benefits.

Temporary Compensation
Until you find a new job, you can expect temporary compensation from the California government. However, you must qualify for this kind of compensation. The value and duration of the unemployment benefit would depend on the California.

The California unemployment law has its own unemployment benefits program. There are some eligibility criteria that you must qualify to avail the benefits. The unemployment benefits are given only if you meet the qualifying criteria.

 

California Overtime Exemptions

overtime exemptions

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As per the California Law, in case of ” non exempt employees”, the employer has certain responsibilities like paying for overtime and meal expenses. In case of ” exempt” employees, there are no such rules. In order to claim exemption, it is up to the employer to prove that the employee is exempt. Here are some of the most common exemptions under the California Law:

  1. Managerial Exemption: In order to claim Managerial Exemption, the employee must meet the following points:

    i) The employee must have managerial responsibilities in one of the department or sub division of the enterprises.
    ii) The employee must be in charge of supervision of at least two employees.
    iii) Employee has the authority to hire a person or fire a person.
    iv) Employee frequently takes important decisions while performing his or her duties.
    v) The monthly salary of the employee should be at least 2 times more than the minimum wage of the state.

    2. Administrative Exemption:

    In order to claim this exemption, the employee must meet the following requirements:

    i) Employee spends majority of the time in work which is related to the normal business operations.
    ii) Employee always works under the supervision of a manager.
    iii) The monthly salary of the employee should be at least 2 times more than the minimum wage of the state.

    Computer Professional Exemption:

    In order to qualify for this exemption, the following guidelines has to be met:

    i). The employee must spend majority of the time in any one of the following works:
    a) Interacting with the users in order to improve the existing hardware and software systems.
    b) Involved in the design, development and testing of the various computer programs.
    ii) The employee must be extremely skilled and well aware about the different computer systems and their application.
    iii) The hourly wage of the employee must be above the minimum limit.

    4. Inside sales employee: In order to claim exemption under this head, the following guidelines must be met:

    i) The wage of the employee must be more than 1.5 times the minimum wage limit of California.
    ii) Majority of the compensation of the employee must be in the form of commissions.

  2. Outside sales employee: In this case, these are the following guidelines which must be met:

    i) Must be at least 18 years of age.
    ii) The employee must spend majority of the time working in locations outside the place of the business.
    iii) Must be involved in selling only tangible items.

California Law on Jury Duty Leave

jury duty leave

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The Labor Code section 230 governs the California law on paid jury duty leave. The law makes it clear that employers should accord employees the freedom and time to attend jury duty. In doing so, the employers should desist from subjecting the employees to discrimination, intimidation or disciplinary action. Employees furnished with summon papers by a court to act as witnesses ought to inform their employers beforehand about their intention to undertake jury duty. Employers should verify the employees have the mandate to attend jury duty by soliciting for the necessary documentation.

How jury duty leave is paid

The issue that persists in the minds of employees is whether they will receive salary while on jury service. Well, this issue is multidimensional and dictated by a number of factors.

The organization’s policy

An organization may have a policy in place that ensures employees are paid for duty service. If such a policy does not exist, an employee does not receive any pay since an employer is not obliged to do so.

States’ laws and policies

Some states have a provision that guarantees payment of employees while on jury duty leave. Paid jury duty leave differs from one state to another. For instance, in states such as Alabama, District of Columbia, Colorado and Tennessee, employees receive paid jury duty leave though it has some variations. Full time employees in Alabama receive their regular pay even when on jury service. On the other hand, full time employees in District of Columbia receive their normal salary for the initial five days of jury duty.

Nonexempt employees

An employer’s nonexempt, hourly employees are not entitled to payment in the course of jury duty. No payment is extended during the entire period that they do not work. They are only paid if they make use of their accrued paid time off. However, a union agreement or a contract may compel an employer to pay a nonexempt employee while on jury duty.

Exempt employees

An employer has an obligation to pay exempt employees for all the days they implement their assigned duties. However, there are situations when an employer can withhold payment for an exempt employee. Such situations can arise if jury duty interferes with an employee’s capacity to undertake work related tasks for an entire week.

In conclusion, it is crucial for employers to formulate jury duty leave policies that aim at fairness of all employees. This is because employees are citizens thus have a responsibility to participate in the legal process whenever required to do so. As for employees who are not sufficiently conversant with jury duty policies, seeking the counsel of California labor lawyers helps in deeply understanding the matter.

Disability Discrimination: What to Do

disability

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With the upcoming pressure on the mentally impaired and physically disabled, the law enforcing bodies firmly established some laws to protect the rights of the disabled in terms of equal employment opportunities. Federal Laws like the ADA, FMLA, Rehab Act, and California state employee rights, in some way or the other, offer protection of the rights of workers with disabilities.

Impaired or not, every individual deserves equal rights to compete for a job or continue his or her position in the organization. But what happens if you’ve been treated unfairly, or have been wrongfully terminated? Here is what you should do:

  1. Inform Employer of Breach of Right

Even though the ADA was established in 1990, there are a surprising number of disability discrimination cases being taken up in court. The reason? Your employer may simply not be aware of the accommodation that you are entitled to. Don’t be too hasty about taking any legal actions just yet. Take some time out to provide your employer with detailed information so that he or she is given a chance to remedy their actions.

  1. Assert Your Rights

Once you’ve done your part informing the employer, your next step should be to recommend ways that you would receive “reasonable accommodation”. For instance, let’s say you’ve been turned down for promotion because it requires long hours of driving; and your disability doesn’t allow you such a liberty. Therefore, one suggestion could be to install some equipment that could facilitate your driving ability; this is your disability right. Since you are able to perform the job to the full capacity, fair consideration should be given to you for the position.

  1. File Formal Complaint; Internally

When the above steps fail, it’s time to make a formal complaint to the upper managers. The reason why this is significant is because, if you decide to take matter to the court, you will have formal documentation that proves:

  1. The entire management was aware of the issue and discrimination; it is documented
  2. The company was provided with the chance to make amends

iii. You have had your rights violated

  1. Obtain a Right-To-Sue Letter

Before you file an official lawsuit, you must get a right-to-sue letter from the Equal Employment Opportunity Commission. Once you file your charge of discrimination, stating the details of the violation, your case will be processed. It is important to note that if you forego this step and file a lawsuit, the judge will immediately discard your case.

  1. Hire a Disability Lawyer to File Your Lawsuit

On obtaining your letter to sue, it’s time to get in touch with an experienced firm of lawyers who have the expertise and resources to fight for your disability rights. Once you have the best source in hand, the rest of the paperwork will be handled by them!

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