On August 6, 2016, the Arizona State Legislature enacted the “Declaration of Independent Business Status” law (“DIBS”). The DIBS added Chapter 10 to Title 23 of the Arizona Revised Statutes (Arizona’s “Labor” statute). In short, DIBS allows certain Arizona companies (referred to in the statute as an “employing unit”) to obtain a declaration from those individuals they deem “independent contractors” (rather than employees) so that a rebuttable presumption exists that the relationship is in fact one of independence. Obtaining a declaration under the DIBS is discretionary and the statute states expressly that compliance with the law and the execution of a declaration of independent business status are not mandatory in order to establish the existence of an independent contractor relationship. Further, the failure of a party to execute a declaration in compliance with the DIBS does not create any presumptions and is not admissible to deny the existence of an independent contractor relationship.

Read the rest of the blog post at http://blog.hrusa.com/blog/arizonas-new-independent-contractor-declaration-law/.

As an employment attorney and mediator, I believe mediation is a good alternative to protracted employment litigation.  Below are the top reasons why.

1. Mediation is a Voluntary Process.

Unlike litigation in which federal and state laws and court rules mandate the process (and often the outcome), mediation is a voluntary process. Thus, the parties choose to freely participate and are in control of – if and how – their dispute will be resolved.

2.  There is No Adjudicator to Determine Fault or Liability.

Mediation is about resolving disputes on terms the parties agree to.  Neither party admits fault or liability, nor is there a judge or jury who determines fault or liability.Beth-West-15_web

3.  Mediation Saves Money.

Employment cases can go on for years and even if the case is ultimately settled before trial, the parties will spend a significant amount of money on discovery, motion practice, and pre-trial expenses. This money will likely never be recovered by the employer and will only be recovered by the employee if he/she prevails. Alternatively, the cost of mediation is usually very reasonable; often a mere fraction of the costs of litigation.

4.  Mediation is Efficient and Saves Time.

Courts are impacted and trial dates are usually set out years into the future.  As such, parties will spend many years fighting their case before they ever get before a jury.  On the other hand, mediation can be scheduled at any time pre or post litigation and, when successful, can literally put the dispute to rest as soon as a settlement is reached and the mediation is concluded.

5.  Mediation is Confidential.

Civil lawsuits filed in federal and state courts are public record and, if a trial is ultimately held, it too will most likely be open to the public. However mediation is confidential and the information disclosed by the parties during mediation and any settlement reached, will not be made part of a public record.

6.  Mediation Allows for Candid Communication.

Because mediation is confidential and is held for the purpose of trying to reach a mutually acceptable resolution, the parties can openly discuss their views about the dispute.  They can also freely share their concerns (e.g. weaknesses) about their positions [in confidence with the mediator] without fear of making an admission against their interests.

7.  Mediation Allows for Creative Problem Solving.

Unlike a civil lawsuit where a judge or jury may be limited by applicable law in the types of remedies they can award a prevailing party, mediation allows the parties to engage in creative problem-solving so that they can structure unique settlement terms that may never be possible in court.

8.  Mediation Can Help Employers Avoid the Possibility of Paying the Employee’s Attorneys’ Fees.

In most federal and state employment law statutes, a prevailing party (but more often a prevailing plaintiff/employee) is entitled to reasonable attorneys’ fees.  Often the prevailing employee’s attorneys’ fees far exceed the monetary award received by the employee.  By submitting the dispute to mediation – earlier rather than later – employers can reduce the risk and uncertainty associated with these fees.

9.  Mediation is Final – No Appeals.

Unlike a jury verdict after trial which is subject to appeal and a further expenditure of time and resources, a settlement at mediation is final.

 

For more information, please visit my bio at http://www.weintraub.com/attorneys/lizbeth-beth-v-west.  For information on our Employment Mediation services, please visit our website at http://www.weintraub.com/practice-areas/labor-and-employment/mediation.

It’s that magical time of year! Time for hot cocoa, warm fires, glad tidings – and office holiday parties! Office holiday parties are a time for co-workers to relax and for employers to show appreciation to employees, all of which builds office morale. Of course, office holiday parties also come with an extra serving of risk, especially when the employees get a little too, ahem, relaxed. In fact, inappropriate behavior at office parties is so common that a whole movie is based on this premise (coming out in theaters today)! The challenge faced by employers is finding a balance between providing a good time for their employees, while also preventing the horrors that can come in the holiday party environment.

Holiday Spirits 

Let’s get right to a common source of risk, shall we? Alcohol will be present at most office holiday parties. Of course, there’s nothing wrong with responsible adults enjoying adult beverages responsibly. But even just one employee who exceeds their limits can be costly. For example, there is case law suggesting that if an employee is provided alcohol at an office party, becomes intoxicated and is allowed to drive home, that employee may be considered still within “the scope of employment” and the employer may be liable for the employee’s conduct while driving home (including workers’ compensation benefits if the employee is hurt in a car accident). Of course, alcohol also lowers inhibitions, which can lead to increased risk of inappropriate behavior, as discussed below. Some possible ways of reducing the risks associated with serving alcohol are:

  • Serve with a meal, with servers controlling the portions
  • Give employees a limited number of “drink tickets” for the bar
  • Offer to provide transportation home (let employees know in advance that the company will call them an Uber or a cab upon request)

The Gift of Inappropriate Behavior

Most employees have at least reviewed company policies on appropriate conduct in the workplace – but many seem to throw those guidelines out the window when it comes to an office party! In the relaxed atmosphere of a party, especially when alcohol is lowering inhibitions, employees suddenly feel free to say and do things that they otherwise would never say or do in the workplace. Employees often feel free at an office party to make jokes and innuendos that they know are otherwise off-limits. Or the employee who has been harboring a crush on a co-worker is suddenly emboldened by holiday spirit (and spirits) to make his move, but those advances are not welcome. Of course, inappropriate behavior is not limited to sexual harassment! Employees may branch into inappropriate and even prohibited topics of conversation. For example, Supervisor Sally may know that she cannot discuss Employee Emma’s medical leave, but suddenly her inhibitions are lowered and she answers Employee Busybody when asked in a hushed tone, “so, what is the deal with Emma, anyway?” It is important to remember that workplace policies (and laws!) still apply at the office holiday party, and you may want to send out a reminder to that effect before the party, to at least your supervisors. Also, if there are any complaints about conduct at the holiday party, you must investigate and discipline appropriately, just as you would with any workplace complaints.

To Pay or Not to Pay

A common question is whether employees must be paid wages for time spent at the office holiday party (which could mean overtime wages). The answer hinges on whether attendance is mandatory. If you require employees to attend the party, then you will be required to pay wages, including overtime where appropriate. However, if you make attendance optional, no wages need be paid.

Best wishes and glad tidings as you navigate the tricky waters of the HR nightmare that is an office holiday party – and remember, we’re here if you need us to help recover the morning after!

Weintraub Tobin’s 2016 Labor and Employment Seminar and Training schedule is now available.   Click here for a copy of the schedule.2017 Seminar Series Logo

If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact:

Ramona Carrillo
400 Capitol Mall, 11th Fl.
Sacramento, CA 95814
916.558.6046
rcarrillo@weintraub.com

Chuck-Post-07_webThe White House has issued new information about its policy position on non-competes, including a call to action from President Obama to state and federal lawmakers to curb and limit non-compete agreements.  To read the Fact Sheet, please click here.