How social media is affecting employment law?

Posted on December 24, 2011 by admin

How social media is affecting employment law?
Employees are increasingly spending more time during the workday on social media, and not necessarily for business purposes. There was a recent study that said that employees spend approximately ten hours a week during the workday surfing social media. Oftentimes, these are the same people who are claiming that they worked an extra half-hour and now they want overtime for it. There’s also going to be some issues with privacy on employer hardware, and monitoring employee use of social media—how far can an employer intrude into the non-work-related social media that employees are engaging in?
a recent case, which involved a company’s social media policy, the NLRB issued a complaint for an unfair labor practice because an employee’s use of social media can be considered “protected concerted activity.”
What can an employer do, right now, to protect himself? The answer is to implyment a “social media policy”, wherein the employer informs the employee of what exactly the companies’ policies, if and when, the employee uses social media at work. These types of policies need to be signed by both the employee and employer and placed in the employee’s file.
A social media policies must be communicated clearly. Where companies have clearly communicated policies, the employers’ search of text messages was “not overly intrusive” and therefore lawful. This is important should an employer needs to defends oneself in a lawsuit, or labor action.
Before implementing such policies an employer should know when they, themselves, may violate the NLRA by implementing overly broad policies. An employer violates the law if a workplace rule explicitly restricts Section 7 protected activities (i.e., “You can’t talk about your wages.”). but prohibiting conduct that’s clearly not protected under the NLRA isn’t a violation – an employer may properly restrict communications such as: (1) conversations about the employer’s proprietary information, (2) explicit sexual references, (3) criticism of race or religion, (4) obscenity, profanity, or egregiously inappropriate language, (5) references to illegal drugs, and (6) online sharing of confidential intellectual property.
Because social media is a fact of life for millions of people, the real question is not whether employees are using social media while at work, the real question is how to regulate it so no harm befalls the employer, or other employees.
Further, because many, if not most, networkers are employees, the question is also how far employers can and should go to guide employees’ social networking activities to prevent or reduce employment-related problems.
Employers must implement social networking policies, obtain employee consent for monitoring and conduct their monitoring legally and responsibly.
There are numerous other legal issues related to the use of social media by employees in the workplace, such as using work time for such activities. Further articles in the future will focus on such issues.

Reasonable and responsible employee use of social media starts with clear, work-connected policies, including a social media/networking policy, to frame acceptable and unacceptable e-behavior.

Every employer needs a simply worded social media policy to provide employees with practical guidelines to help prevent unthinking, harmful employee actions. Having no such policy is like having no curfew for teenagers. Few things are worse for employers or parents than hearing “You never told me that!” Tell your employees, nicely but firmly, what you expect from them.

While socially networking, we must avoid:
• Illegal activity.
• Disclosing trade secrets or other confidential or sensitive information.
• “Watering down” patented or copyright-protected information.
• Harassing or otherwise being mean-spirited by spreading gossip—or even the truth—about others.
• Wasting our work time or that of others.
Consent for monitoring is crucial, but “sell” it to employees.

At work and beyond the workplace, however, employees can agree to and accept as reasonable the privacy standards that employers offer at the time of hire, or as a requirement for continued employment.
Note that even with consent, overbroad or intrusive monitoring will still spell trouble.
An employer’s right to monitor and search extends only to information needed to protect its business and its people. Never seek other information.

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AN OVERVIEW OF THE NEW 2012 EMPLOYMENT LAWS

Posted on December 24, 2011 by admin

AN OVERVIEW OF THE NEW 2012 EMPLOYMENT LAWS

The scope of this article is to address the most important new 2012 employment laws for our chamber members. The following list contains the highlights of some of these laws:

1. Payroll information and pay rate notice mandated for new hires: new Wage Theft Protection Act requires employers to provide a written notice as of Jan. 1, 2012, to every California newly hired non-exempt employee except those covered by union contracts that meet certain criteria. The notice must contain the following information:
- The employer’s name, including any “doing business as” names, physical address of the main office or principal place of business and mailing address if different, and telephone number;
- The employee’s rate or rates of pay, including overtime rates, and the basis of the employee’s pay (that is, by the hour, shift, day, week, piece, commission, or otherwise);
- Any allowances claimed by the employer against the minimum wage, including meal or lodging allowances;
- The employer’s regularly established payday;
- The name, address, and telephone number of the employer’s workers’ compensation insurance carrier; and
- Any other information the Labor Commissioner deems material and necessary.

The Labor Commissioner is instructed to prepare a template that complies with these notice requirements which promises to be available by mid-December on its website, http://www.dir.ca.gov/DLSE/dlse.html. Furthermore, employees who receive this notice must be notified of any changes to the information within seven calendar days, either in a separate writing or on the employee’s pay stub. Employers who fail to give this notice are facing penalties of $5,000-25,000 for violations.

2. Independent Contractor Penalty: A new Labor Code §226.8 has been added to the books. It adds enforcement penalties for misclassification of workers as independent contractors.

The new law imposes a civil penalty for the “willful misclassification” of a worker. The penalty amount ranges from $5,000 to $15,000 per misclassified worker. An additional lump sum of $10,000 to $25,000 may be imposed where the employer has engaged in a “pattern or practice” of willful misclassification.

“Willful misclassification” means “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”

Additionally, the hiring company may also be liable for charging fees or expenses to the improperly classified independent contractor. Liability may be imposed for “charging a fee, or making any deductions from compensation, for any purpose, including for goods, materials, space rental, services, government licenses, repairs, equipment maintenance, or fines arising from the individual’s employment” where it would have been improper to charge any employee for such items.

A unique add-on to this law- Violations Must Be Posted On Company Website:
One rare section of this law provides that if an employer is found to have violated this law, among other remedies, the state labor agency or a court may order the employer to post facts about the violation on the company’s website.
In addition to the “unique add-on”, the new law also penalizes certain advisors who incorrectly recommend that the employer classify workers as independent contractors. Section 2753 Labor Code states: “A person who, for money or other valuable consideration, knowingly advises an employer to treat an individual as an independent contractor to avoid employee status for that individual shall be jointly and severally liable with the employer if the individual is found not to be an independent contractor.

This means that an outside HR consultant who gives wrong advice is on the hook for the penalty. The law carves out exceptions for “A person who provides advice to his or her employer,” e.g. the company HR director, or “an attorney authorized to practice law in California or another United States jurisdiction who provides legal advice in the course of the practice of law.” Based on this new penalty, it would be quite risky for any outside consultant, other than a lawyer, to advise a company to hire workers as independent contractors.

3. Wage Penalties: The prior maximum penalty for each worker paid less than the determined prevailing wage was $50-, per calendar day for each worker. That amount will now be $200- for each violation. Further, there will be an increase in the minimum penalty from $10- to $40- per day for violations of prevailing wage obligations.
Penalties will increase as well for contractors and subcontractors who fail to respond to a written request for payroll records within 10 days. The current penalty, per calendar day, is $25-, and will increase to $100- per calendar day starting in 2012.
HAPPY NEW YEAR FELLOW CHAMBER MEMBERS!!

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First Part: What you need to know about Cal. Family Leave Act

Posted on December 24, 2011 by admin

DO YOU KNOW WHAT THE FAMILY & MEDICAL LEAVE ACT IS ALL ABOUT?
A TEN STEPS APPROACH TO FIGURING OUT THE FAMILY & MEDICAL LEAVE ACT

(Please keep in mind that the following is the bare bones of the FMLA, and that this ten steps approach encompasses numerous issues not addressed in this article).

1. What companies are required to abide by the Family and Medical Leave Act (FMLA)?
The FMLA only applies to companies that have at least 50 employees, in either this year or last year.

2. Are all employees covered by the FMLA that work for such companies?
An employee who works for such a company is eligible to use the act if the employee has worked for at least a year, and at least 1,250 hours during the prior year, at a company facility that has at least 50 employees within a 75-mile radius.

3. Can an employee receive the benefits of the FMLA for any issues related to medical needs, and or family needs?
Leave is available for the employee’s own serious health condition or to care
for a family member with a serious health condition. Leave is also available to bond with a new child.
The most important issue here is what is considered a serious health condition. The FMLA specifically defines what is considered “a serious health condition”. “A serious health condition” involves:
Any period of incapacity or treatment requiring inpatient care
(i.e., an overnight stay in some sort of medical facility); Being
incapacitated for more than three consecutive calendar days,
that involves continuing treatment by a health care provider;
Continuing treatment by a health care provider for a chronic
or long-term condition that is incurable or so serious that, if not
treated, would likely result in a period of incapacity of more than
three calendar days, or for prenatal care (other than routine
medical appointments); and Restorative dental or plastic surgery
after an accident or injury, or the removal of cancerous growths
(voluntary or cosmetic treatments, which are not medially necessary
are not considered “serious health conditions” unless inpatient
hospital care is required).

4. How much leave is available to the employee?
An employee is entitled to take up to 12 workweeks of leave, either all at once or intermittently, in a 12-month period to bond with a new child, handle
qualifying exigencies relating to a family member’s call to active duty, care
for a family member with a serious health condition, or recuperate from a
serious health condition.

5. Has both the employer/employee meet the notice and paperwork requirements?
An employee must give reasonable notice and provide certain information. An employer must designate FMLA leave and give the employee required notices, among other things.

6. Does an employer need to have some sort of “certification” from the employee substantiating the need for use of the FMLA?
An employer can, and should, request a certificate from the employee documenting and verifying an employee’s need to take leave for a serious medical condition, military caregiver leave or qualifying exigency leave. The need for a certificate is particularly important if an employer is not sure whether the employee’s situation qualifies for FMLA, or one needs more information. There are at least four types of certifications available.

7. What sort of actions does and employer need to do while an employee is on leave under the FMLA?
An employer must continue the employee’s health benefits, manage and track intermittent leave, arrange for substitution of paid leave, and more. In addition, an employer has to make sure the work gets done while the employee is out, whether by distributing the employee’s responsibilities to coworkers, hiring a temporary
replacement, or outsourcing the job.

8. What does an employer need to do when an employee returns from leave?
An employer must return the employee to the same or an equivalent position
and restore the employee’s seniority and benefits, unless an exception applies.

9. Are there any other laws applicable in lieu of FMLA?
Whether or not the FMLA applies, the employee may be protected by the
Americans with Disabilities Act, workers’ compensation statutes, federal family
and medical leave laws, and other laws.

10. What sort of records should an employer keep?
An employer must keep certain payroll, benefits, leave and other records. In addition and employer should certainly keep proper documentation of any decisions made regarding the employee’s issues with FMLA, as well as all conversations with the employee.

Next month I will expand some of the issues above. If anyone would like me to specifically address an issue let me know and I will do so in the next article.

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