Experienced Business Attorneys in Sonoma County
A significant part of any successful business is proper management of personnel. By making sure your business fullycomplies with all applicable wage and hour laws and anti-discrimination laws, you substantially reduce your company's risk of exposure to expensive and time consuming lawsuits by your employees or former employees.
At Shapiro, Galvin, Shapiro & Moran, we have been advising Northern California private and public employers for more than 20 years about how they can prevent employment lawsuits from arising. When a potential problem develops, we work hand in hand with our business clients to help them solve the problem at the lowest level reasonably possible. If a lawsuit cannot be avoided, we help our companies successfully defend their employment decisions.We have provided legally required training to more than 1000 employees on the subject of anti-discrimination and accommodation of disabilities in the workplace. We have also provided training and education to supervisors about how to manage their personnel effectively and legally.
These are hard economic times. Many employers face the difficult task of implementing layoffs, or terminating an employee, or disciplining for poor job performance. What is the best way to do this? Call us at Shapiro, Galvin, Shapiro & Moran. We provide prompt answers to these difficult questions before you make a mistake, and we help you maneuver safely through the legal mine fields inherent in the employment arena.
Frequently Asked Questions
Q: SHOULD NON-EXEMPT EMPLOYEES BE PAID ON SALARY?
A: No Non-exempt employees, such as secretaries, receptionists, sales staff, should be paid on an hourly basis based on actual hours worked. Records of actual hours worked must be maintained by the employer (e.g. time cards).
Q: WHAT DO THE TERMS "EXEMPT" AND "NON-EXEMPT" MEAN?
A: Generally, "Exempt" employees meet all the requirements of the Executive, Administrative, Professional or Computer Professional exemptions under California law and do not receive overtime pay. They must be paid at least $2,773/month. "Non-exempt" employees are paid hourly and are entitled to overtime pay. Contact us if you have any question about the proper classification of an employee.
Q: MY SECRETARY WORKED OVERTIME ON A RUSH PROJECT. CAN I GIVE HER "COMP TIME" OFF INSTEAD OF PAYING OVERTIME?
A: No, you must pay overtime pay for overtime hours worked. [ 1 ½ time for hours worked beyond 8 in one day or 40 hrs in one week; double time for hours worked beyond 12 in one day] However, you may allow the secretary to work fewer hours another day during the week, so that your overall payroll expense for the week will balance out.
Q: SHOULD I CONTEST A CLAIM FOR UNEMPLOYMENT?
A: If an employee is laid off or terminated, he or she is usually entitled to unemployment benefits unless the termination was for "serious misconduct". This standard of proof is quite high—ordinary violation of workplace rules or unacceptable work performance will not avoid liability for unemployment benefits. Things like workplace violence, sexual harassment, misconduct with students etc, will satisfy the standard.
Q: MUST I PROVIDE 10 MINUTE BREAKS AND MEAL PERIODS FOR TEACHER'S AIDES AND OTHER NON-EXEMPT EMPLOYEES?
A: Yes. All non-exempt employees must receive at least a 30 minute unpaid meal break after 5 hours of work; and two 10 minute paid rest periods in an 8 hour day (mid-morning and mid-afternoon).
Q: CAN AN EMPLOYEE SKIP A MEAL BREAK AND LEAVE WORK EARLY THAT DAY?
A:No.It is an employer's obligation to ensure that non-exempt employees receive at least 30 minutes of unpaid meal break if they work more than 5 hours in a day.The employee may elect not to take a meal break if the total hours worked in a day will not exceed 6.
Q: CAN A NON-EXEMPT EMPLOYEE COMBINE REST PERIODS WITH THE MEAL PERIOD?
A:No.The rest periods are to be taken as close to the middle of the 4-hour work period as practical.
Q: WHEN IS THE FINAL PAYCHECK DUE?
A:If an employee quits with more than 72 hours notice, payment is due on the last date of work. If less than 72 hours notice is given, payment is due not later than 72 hours after notice is given. You may mail an employee's final paycheck if less than 72 hours notice is given, if the employee so requests and gives a mailing address. If an employee is fired, payment must be made immediately upon termination, including payment of all accrued vacation time.
Q: MUST I KEEP NOTES OR MEMOS OF DISCUSSIONS WITH EMPLOYEES ABOUT PERSONNEL ISSUES?DOES THE EMPLOYEE NEED TO SIGN THE MEMO?
A: You are strongly recommended, but not required, to keep memos of performance related discussions with all employees. Even though all non-contract employees are "at will", which means that the employment relationship can be terminated by either party with or without any reason, notes of performance discussions will support your "legitimate business reason" for making an adverse personnel decision (i.e. termination, contract non-renewal, etc) if you are accused of making the adverse decision for unlawful, discriminatory motives. The employee is not required to sign, nor agree, with the contents of the memo, although fairness concerns may cause you to choose to advise the employee of the memo in their personnel file.
Q: HOW SHOULD I MAINTAIN PERSONNEL FILES?
A: Personnel files are confidential and protected by an employee's right of privacy. Therefore, they should be kept preferably under lock and key, in the custody of the principal or human resource personnel. Medical information and worker's comp records should be kept in a separate file for the employee and only accessed by those personnel with a 'need to know'. Financial records (e.g. wage garnishments, credit inquiries) should also be kept separate, or maintained with the payroll records.
Q: WHAT DO I HAVE TO DO TO ACCOMMODATE EMPLOYEES WITH A MENTAL OR PHYSICAL DISABILITY?
A: Employees with a physical or mental disability, which limits their ability to perform a "major life activity", such as working, are entitled to reasonable accommodation by the employer, unless it would cause an undue hardship. If the employee is qualified to perform the essential functions of the job, except for limitations caused by disability, you must evaluate whether the employee could perform these functions with some reasonable accommodation. You must engage in an "interactive process" with the employee, during which both parties exchange and discuss ideas about possible accommodations. You should keep a memo of that meeting.
Q: WHAT IS A REASONABLE ACCOMODATION?
A: Examples of reasonable accommodations include: modification or adjustment of a job or work area, providing a finite leave of absence, job restructuring, part time schedules, modifying equipment and reassignment to a vacant position for which the employee is qualified. You are not required to eliminate essential functions of the job in order to accommodate the employee. You are not required to reasonably accommodate the employee if it would create an undue hardship on your school (i.e. unduly costly, extensive or it would fundamentally alter the nature of the operation of the school.) Please contact Diocesan counsel for help if you are dealing with an accommodation issue.
Q: I NEED TO LAYOFF, OR NOT RENEW, SOME POSITIONS. HOW DO I CHOOSE WHO GETS LAID OFF?
A: Objective criteria should be used to identify the positions which may potentially be laid off. Criteria such as seniority, job performance, cross-over skills, etc. may be used. Note: salary may not be used as criteria if it would have an adverse impact on older workers as a group, under California law. Be prepared to articulate the objective, evaluative process you used to arrive at the choice for layoff, in case you are challenged for discriminatory motives. Documentation of this process is recommended.