Wage & Hour

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Beware.  Routine criticisms of job performance when directed to employees engaged in a caring profession, may subject you to retaliation and whistleblower claims.

So you hire an employee, call her a brick layer.  She is a horrible brick layer.  You get in constant arguments with her concerning the quality of her brick laying.  You say that the bricks must be square and aligned and she says, no they look better if they are crooked, uneven and “rustic.”  Firing that employee for discharging her duties as a brick layer in a way the employer finds unacceptable is, in almost all cases, a low risk decision.  Subjective dislike of an employee’s work performance is a time honored and well recognized “legitimate nondiscriminatory, nonretaliatory,” reason for termination.
Continue Reading Have You Ever Disagreed With An Employee About How They Should Do Their Work?

We all understand the common meaning of the word “employer.” In California, “employers” need to keep track of the various rules and regulations, all of which have their own definitions of the word.  Most frequently, the number of employees dictates whether a given statute or ordinance applies to the employer.  In addition, California’s Fair Employment and Housing Act (“FEHA” or the “Act”), exempts certain “employers” from the application of the anti-discrimination laws found within the Act.

This blog post focuses on protecting the so-called “religious entity” exemption from the FEHA.
Continue Reading Protecting Your Religious Entity Exemption Under The FEHA While Complying With Other Laws

The following discussion concerns the California Fair Pay Act, and how to apply it.  If you are unfamiliar with the Act, you may wish to begin by reading this blog.

I get calls from employers asking: “When I group my employees by substantial similarity of work, how do I know that I am doing it correctly?”  These employers fear that someone – a Court, a plaintiff, or an employee – will come along and challenge the employer’s determination of who among its employees are engaged in “substantially similar” work.

The statute affirmatively requires employers to engage in that grouping.  Unlike earlier equal pay act legislation, California’s Fair Pay Act puts the burden of proving compliance with the statute on the employer.  Many employers are understandably concerned that their categorization of employees into groups of “substantial similarity” will be subject to criticism and attack.

The statutory language itself provides some relief to this anxiety.  The section says:
Continue Reading California Fair Pay Act Confusion – Understanding California Labor Code Section 1197.5

Weintraub Tobin Shareholder, Beth West, shared her expertise and testified before the California Legislature’s Subcommittee on Sexual Harassment Prevention and Response on February 15, 2018. The hearing focused on the legal issues surrounding sexual harassment and Ms. West’s testimony identified challenges employers face in having effective anti-harassment programs in place, as well as some legal challenges employers face when complaints are filed.
Continue Reading Attorney Beth West Testifies Before the California Legislature

In case you haven’t noticed, immigration has been a hot topic of discussion in the news lately. While debates over Dreamers and the wall have dominated those discussions, the workplace has been swept into it all as well. On the one hand, the federal government’s efforts to curb illegal immigration have reached the workplace via frequent raids of businesses suspected of employing undocumented workers.  On the other hand, California has deemed itself a “sanctuary state” and pushed back on these immigration sweeps via laws that punish employers who cooperate with federal authorities carrying out the raids.  The collateral damage in that fight may just be the employers who are stuck in the middle.  Employers who allow ICE agents into their business risk violating California law, but employers who turn the same agents away could find themselves in hot water with federal authorities.  What to do?   Fortunately, the state Labor Commissioner and Attorney General have jointly issued some guidance to aid employers in navigating these treacherous waters.
Continue Reading California Labor Commissioner and Attorney General Jointly Answer “Frequently Asked Questions” on Immigration Sweeps