Blog

Firing an Employee: FAQ

Firing an Employee

Firing an employee might be hard for many employers as it might result in claims for unlawful termination if not well executed. It is important that the employer knows the rights which the employee, who is about to be, fired has. The employee equally needs to know of their rights during and after being terminated from work. In California, there are various regulations that guide how the firing of an employee should be done.

There are frequently asked questions revolving firing of an employee which this article seeks to address.

Can I fire my employee for no reason?

The California federal law requires that an employer gives the employee reasons as to why they want to terminate them. Despite having the “at-will” general rule which gives the employer rights to hire and fire for almost whichever reason they have, the federal antidiscriminatory law prohibits an employer from firing an employee due to their race, sex, age, disability, religion, national origin among others.

Within what time should I give the employee his last paycheck?

In California, the law provides that the employer is to pay the fired employee all sums owed immediately upon termination of the employment. The amount must include accrued vacation time. If the employer delays in making the payment he will face a penalty.

Am I liable to pay a severance package?

The answer to this question is no. However, if the employer had promised the employee a severance package or had made it an office custom to pay a severance package to an employee who is being terminated then they are liable to pay that amount. If an employer voluntarily considers making a severance pay they can make the employee waive any rights to bring a lawsuit against them on matters relating to the termination.

Can I give reference to a new employer?

Yes. An employer can if they wished to. If he has a great reference to make then that will be for the benefit of the employee. However, an employer is not supposed to talk ill of the former employee out of holding a grudge against them. If he has a negative reference to make they must be based on actual events to avoid being sued for defamation.

Should I seek legal advice before firing an employee?

It is not a requirement under California law. Nonetheless, it is advisable for an employer to get legal advice from an expert before terminating an employee. This is to ensure that he does it in a rightful way thereby avoiding any possible lawsuit.

In conclusion, it is evident that both the employer and employee need to know the laws relating to firing an employee in the state of California. This is important so as to avoid lawsuits that might arise after an employer fires the employee which might lead to financial loss.

Racial Harassment in the Workplace

racial harassment

Photo credit: Evlakhov Valeriy / shutterstock.com

What’s Racial Harassment?

Racial harassment is a pervasive or severe conduct that occurs when an individual or a group of people uses discriminatory practices, remarks or behaviors toward a person based on his/ her religion, language, descent, culture or color.

 

What are Some of the Example of Racial Harassment?

Some of the examples of racial harassment include:

*Showing comic images, pictures or strips which are racially degrading

*Trying to stop or hinder the chance of the victim being promoted.

*Finding excuses so that you can exclude yourself from working with the victim.

*Making jokes, humiliating comments, racially oriented remarks or insinuations.

 

What are the Different Consequences Associated with Racial Harassment?

#1: For the Victim:-

The person who is racially harassed often feels humiliated, outraged and hurt. He/ she normally feel rejected and thus in most cases fail to carry out his or her tasks properly.

 

#2: For the Witnesses inside Work Environment:-

Racial discrimination is a process that can hassle free deteriorate any work environment. Basically, the colleagues of the person being harassed may easily feel uneasy and end up losing the interest of continuing with their duties.

When racial harassment is caused by a group of people who are aiming at ensuring the victim’s life become unbearable, it can lead to hate, physical violence and confrontation.

 

#3: For the Organization:-

A company that faces racial harassment can be forced to evaluate as well as review the different corporate values which define its identity. The organization must ensure that it examine its different policies and procedures, most especially for promotions, contracts and recruitment.

 

What are Some of the Tricks that Can Help in Preventing Racial Discrimination?

Preventing this form of harassment is a procedure that commences when an organization develops as well as communicates an anti- harassment policy. Generally, an effective policy should include a confidential procedure for employees to ensure that they report any form of harassment without fearing that they will be retaliated.

Also, it is ideal that all complains associated with racial harassment are investigated promptly and management ensure that they keep the person who filed the complaint in touch with the progress of the investigation. It is important that the organization also impose heavy penalties to those people who cause racial harassment in work place.

Last, but definitely not least, in case you fall a victim of racial harassment at workplace, do not keep quite but ensure that you report the person harassing you to your boss or HR. For more information about racial harassment in the workplace, the consequences, and what legal actions someone can take, contact us.

Overview of 401 (k): What you Need to Know

401 (k)

Photo credit: karen roach / shutterstock.com

What’s a 401 (k)Plan?

A 401(k) plan is simply a qualified plan usually sponsored or taken care of by an employer. Basically, this plan lets employees save and/or invest a portion of their salary before taxes are deducted. The plan ensures that taxes are not deducted till money is withdrawn by the employee from the account.

 

What are the Tax Merits of Sponsoring a 401 (k) Plan?

* Worker contributions are often deducted on the income tax return of the employer to such an extent that contributions do not in any way go against the set rules explained in the Internal Revenue Code’s section 4.

* Investment gains and elective deferrals are not taxed recently and they are meant to enjoy tax deferral till distribution.

 

What are the Various Types of 401 (k) Plan?

SIMPLE 401 (K) Plans, safe harbor 401 (k) plans as well as traditional 401 (k) plans are the different types of 401 (k) plans recently available to employers. However, each of them is applied or managed under different rules. It is therefore ideal that an employer understands the specific rules which apply to a specific plan he or she partakes. This will allow the plan to be administered easily in accordance with the rules.

 

How Does 401 (k) Plan Work?

401 (k) contributions of the employee are taken out automatically from his or her paycheck every payday. The contribution is supposed to be deducted before employee’s salary is taxed. The deducted amount is supposed to be invested in such a manner that will make the employee benefit in the long run.

 

What are the Various Benefits of 401 (1) Plans?

Here are some of the numerous benefits that 401 (K) plans carry along:

* Any kind of hassle provided it is a legit business can establish a plan and reap maximum benefits from it.

*Employer has the right of restricting people who are not citizens of the US, part- time workers, who are union members, etc. from not being legible for the plan.

* Employee withdrawing from the plan before attaining the age of 59 1/2 years is most likely to be subjected to a penalty of 10 percent.

* Internal based plans and turnkey are often available.

* Plans are normally subject to discrimination and top heavy testing.

Last, but definitely not least, the afore- mentioned factors have made 401 (k) plans prove to be popular and useful. If you want a clear overview of 401k and how it can be of beneficial to you, contact us.

 

Medical Privacy in the Workplace

medical privacy

Photo credit: Micolas / shutterstock.com

The first necessary element of understanding the phenomena of California’s laws related to medical privacy in the workplace is to define its basic element – medical records. These records that are related to a person’s medical history are made when the same person receives some kind of treatment from a health professional. These can include anyone from a physician or nurse, to a chiropractor or a psychiatrist. The same documents can cover, aside from the actual medical history, things like lifestyle choices like smoking or participating in high-risk activities like extreme sports, but also family medical history.

It is not rare that these include lab results, prescribed medications and results of a medical procedure that the same person has received. Any and all of these represent implications related to privacy for any employee if there is a chance the employer is accessing this information for some reason. If the same does occur, the law in the US state of California is triggered and here the key points of how this takes place.

Can Medical Records be Kept Private in the Workplace?

The law in California allows the employer to access medical information about their employee but it has to be related to a legitimate business reason. The information can be volunteered like in the case of sick leave or it can be requested for things like forms used for workers compensation claims. In any case, the information can be attained by the employer, but it both has to be related to the business and it has to be kept private inside of the same organization. This means that only those relevant to the case of the same individual can access this information.

Demanding Medical Test for Hiring a Person

Thanks to the Americans with Disabilities Act, employers cannot ask for medical tests as a basis of getting a job. This means that tests cannot be asked for as a requirement for employment. The main reason why this clause exists in the problem of medical privacy in the workplace is the protection of employees from any kind of employee screening for disabilities or other similar issues. Additionally, the same act forbids anyone from demanding their employees to take a medical test as a way of avoiding them losing their job.

HIPAA and its Role in Medical Privacy

The federal Health Insurance Portability and Accountability Act, also known as HIPAA, represents a standard that is valid nationwide and which regulates the problem of privacy of health information. In other words, it shows the employers how medical records are both disclosed and used. It states that employers have to give notice when dealing with written privacy procedures, restrict the use of this information inside of their organization and finally, it asks for the appointment of a dedicated privacy officer and the training of their staff on this issue.

With this information, anyone will be a lot more suited to understand any relevant issue related to medical privacy in the workplace. At the same time, this knowledge will allow them to better prepare themselves and protect their personal information in the same environment.

Why Do Employers Need the I-9 Form?

i-9 form

Photo credit: Halfpoint / shutterstock.com

What is the I-9 form?

This is a form that was introduced in 1989 in US and used by employers to verify the identity and eligibility of anyone they hire to work in the US whether citizens or non-citizens. The employees are required to present the original documents with the exception of a certified copy of the birth certificate. Any employee who fails to produce this document or a receipt for a replacement document within three days can be terminated. If one shows the receipt, he/she is given 90 days period to present the original document.

Why Does Employer Need I-9 Form?

There are some reasons as to why the employer needs this form. Below are some of the reasons:

1.It Verifies Your Eligibility To Work In US

Without this form, you will not be eligible to work in the United States. You are required to apply for this form whether you are the citizen or not. When you are issued with the form or the waiting documents, it means that you are eligible to work. Therefore, this form is a proof that you have the required skills and eligible to work.

2.It Verifies The Real Identity Of An Employee

The employers must know the real identity of the employees for transparency and security reasons. The i-9 Form can be used to reveal the real identity of a person since he/she is properly investigated and screened before issued with the document.

3.It Provides Personal Information When Needed For Verification

There are some instances where the personal details of employees are required within the shortest time possible. In such a case, the employers can use this document to get all the necessary information about the employee in this form. When applying for the form, all your personal details and the private information are required. This way, the employers will be able to get any information about the employee without necessarily involving him/her.

4.It Is A Legal Requirement

It is the requirement by the law in California US that all the employers must file or store electronically the i-9 Form of all the employees. It is also the joy of all the employers to abide by the law and meet the entire legal requirement. By doing so, they are obeying the law.

Those are some of the reasons as to why most of the employers in US have such forms for all the employees. It makes their work easier in terms of security and proper management of employees. Therefore, it is part of paperwork when newly employed in US.

Workplace Bullying Law

workplace bullying

Photo credit: Andrey_Popov / shutterstock.com

In California, anti-bullying legislation was introduced in 2003. In the nation, California is the state that was first to introduce legislation regarding workplace bullying. Workplace bullying is defined as recurring, unhealthy mistreatment of one or more target(s) by one or more perpetrators that take any of the forms such as verbal abuse, offensive behaviors that are threatening, inhuman, or intimidating. Workplace bullies are the most common forms of illegal harassment. Workplace bullying can be based on one’s gender, age, race, national origin, physical disability, religion, and number of other factors. Bullying due to those factors is illegal and every employee has rights stipulated in the California labor law concerning workplace bullying.

 

Workplace bullying Signs can go unnoticed because the bullying behaviors begin from little and then grow to big problem for the employees who experience bullying. The signs that one can notice bullying at work include:

  • The employer punishes you physically, psychologically, or emotionally while one does not deserve that treatment;
  • The employer or coworker mocks you due to your ideas, personal circumstances, work or opinions;
  • The employer or coworker publicly embarrasses and humiliates you ;
  • The employer or coworker actions towards you are resentful or holds a grudge seeking revenge
  • The employer or coworker dismantle one’s personal belongings;
  • The employer uses bias tactics to prevent your progression, or advancement in the organization;
  • The employer or coworker spies you, stalks on or bothers you;
  • The employer or coworker aggressively makes you to do or say things unwillingly;
  • The employer or coworker alter threats to you with unjustified termination, punishment, emotional, physical, or psychological abuse;
  • The employer or coworker offensively communicates with you using jokes, rumors, gossip, harassment, or profanity without dignity.

 

Once an employee has noticed sings of bullying, they have to report to ensure that appropriate measure is taken. The united state supreme court says that, where an employee has published sexual harassment /discriminatory harassment policy, the employer must report it under that policy and give the employer the opportunity to fix the situation. In writing the report, one should ensure that the complaints are on a right protected, set forth the harassment as a violation of protected status. Understand the rights and responsibilities if one is harassed in a hostile work environment. The report should be given to the employer and if they allow the harassment to continue or if they retaliate contact an employment attorney.

 

The employers’ duty in workplace bullying law is to maintain a safe workplace. Appropriate remedies that an employer can take for bullying may be to discipline or warn the harasser, to move the harasser, under some circumstances to move the victim, to do training, or in an extreme situation, to terminate the harasser.

 

An employer can protect employees from workplace bullying by discouraging and eliminating bullying. The most effective way to do this is by treating bullying illegal even though it is already illegal. Create a culture in the workplace where in bullying is not tolerated. The employer can take actions in an effort to create a harmonious work environment. Action such as; including bullying in anti-harassment policies, giving instructions on what to do if a bullying incident occurs, investigate and implement discipline commensurate when complaints are brought up.

Constructive Discharge in California

constructive discharge

Photo credit: ldutko / shutterstock.com

There are times when working conditions become intolerable hence you decide to quit. The resolution to quit can be brought about by many factors. For instance, you may face discrimination or other forms of harassment which endanger your life hence you decide to quit. When you resign from your place of work, there are benefits as well as others which you will forego. But, for the case of quitting due to intolerable working conditions, you are treated as if you were dismissed without your choice to resign.

Constructive discharge in California

It is a situation when you quit or resign your job due to unfavorable working conditions which you are subjected to. Some employees can subject you to illegal working conditions which force you to quit. The act of quitting your job due to unfair working conditions is referred to as constructive discharge. The situation is treated as if you were fired because your employer made you to quit due to subjecting you to unbearable working conditions.

How to prove you were forced to quit

For you to prove to the court of law that you were forced to quit hence you deserve compensation, you can used the following ways to prove your case:

Prove you were subjected to illegal working conditions

If you were subjected to conditions such as sexual harassment or incidences where you were punished as retaliation due to complaints you raised in your workplace, then you deserve to be treated as a case of constructive discharge.

Continued mistreatment

If you notice some form of mistreatment in your workplace, then you need to report to your boss or department head. If the head of the department does not act and the mistreatment continues, then you can quit and file a case under constructive discharge.

Intolerable mistreatment

If the mistreatment was intolerable to an extent where your only left option was to quit, then you can file a case after you leave the work place due to intolerable working conditions.

Quit because of the mistreatment

If there is a male coworker who is making sexual advances to you and you are not comfortable, you should ask him to stop. If he persists, then you need to report the matter to your boss. Give the boss some time to act on the issue but if weeks and months pass but without any change, then you can resort to quitting the job and file for constructive discharge so that you can access damages from your employer.

How Long COBRA Benefits Last in California

cobra benefits

Photo credit: PR Image Factory / shutterstock.com

In the state of California, COBRA i.e. Consolidated Omnibus Budget Reconciliation Act allow workers and their spouses and/ or dependents to continue their group- health insurance coverage even if there is a catastrophe which have occurred and which would otherwise terminate coverage, like the worker getting laid off or his/ her spouse getting divorced. Generally, the benefits that one is supposed to reap from the insurance coverage lasts from one to three years, and it is often determined by the circumstance.

 

What are the COBRA Basics?

If you’ re an employee and you have been covered by your employer’s group- health insurance plan in California, you are usually allowed to continue with your coverage despite the existence of factors which would otherwise terminate your coverage.

Some of the factors which in most cases are referred as qualifying events that can easily end up terminating your coverage as an employee include; being fired, getting laid off or quitting (for other reasons apart from gross misconduct).

The spouse as well as dependents of the employee can continue their coverage also in case any of the afore- mentioned qualifying events occur. In case the employee dies, he/ she divorce with his or her spouse, he or she qualifies for Medicare, the spouse and dependents become eligible for their coverage.

However, be informed that an employee, his or her dependent or spouse who benefits via COBRA is always required to pay the cost of coverage in full. Be informed also that the cost of coverage is normally less as it would cost to buy an individual insurance policy because in most cases employers often negotiate lower group- health insurance rates.

 

How Long Does Consolidated Omnibus Budget Reconciliation Act Last?

The qualifying events greatly determine the period of COBRA benefits. Basically, in case the qualifying even happens to be the quitting of the employee, reduction of working hours of an employee or termination of an employee, benefits last for 1 year.

In case the qualifying event is the death of an employee, divorce or the employee or loss of dependent status by the defendant under the plan, COBRA benefits last for three years.

Be informed that COBRA coverage is liable to extension from 18 to 29 months in case the qualifying event is the reduction of hours, quitting or termination of employee. However, in such a scenario, the beneficiary should either have a disability at the time of the qualifying event or he/ she accidentally becomes disabled during the first 60 days of COBRA coverage.

Last, but definitely not least, for more information about how long COBRA benefits last in California, kindly do not hesitate contacting us.

 

The Basics of the Law Behind At-Will Employment in California

at-will employment

Photo credit:  ESB Professional / shutterstock.com

Sometimes, new employees will come across on their job application, employee handbook or employment contract that they will be hired “at will”. For a lot of individuals, this term, at-will employment, is a complete mystery. However, the same individuals are often dismayed when they find out its actual meaning: that their employer has the power to let them go at any time and for any reason they deem fit. In this regard, the reasons why any employer can fire their at-will employees is quite versatile and diverse, naturally to the benefit of the same job provider. If or when the same employment ends, the employees will have a very limited legal potential to do anything about it. But, at the same time, there is a lot more to the same form of employment that is relevant to the employee, especially in the state of California. Here are the most important basic facts about at will employment in California.

At-Will Employment

The law, speaking from the most general standpoint across the US, presumes that anyone is an employee at will. The same does not stand only if the employee can prove that he or she was not hired on an at-will basis. This has to be proven through the use of a written document that was signed by both parties or through an oral statement that was made in the presence of a witness or a third party.

Documents used in the Process – At-Will Employment

Employers usually take a substantial effort to signal that their employees are hired on an at-will basis. This can come in the form of policies, handbook, applications, job evaluations and any other documents related to their employment. If any formal document was signed, the employee has no chance using the law to prove they were wronged in some manner by the employer. That is why anyone must check their document to be sure if they signed that they agree to be fired at any time and without a case. At the same time, a document signed which include a job security promise do not represent an employment at will. If these are breached by the employer, the employee has a right to sue.

Rights of Employee and At-Will Employment Agreements

Often, employers provide their new employees with a written statement that shows they are at-will employees. But, even those who are at-will employees have a set of legal rights. At will employment in California covers protection that a person cannot be fired for reasons that are illegal, either under the state law or the federal one. The same is true for being fired for complaining about a particular illegal activity, about harassment or discrimination, or safety and health violation in the same work environment. The same is true for the protection when it comes to taking medical or family leave, serve in the US military or taking the time to serve on a jury or vote. These are not reasons for getting fired at an at-will job.

With this crucial information on at will employment in California, anyone working under this type of an agreement can make sure their rights are fully protected.

California Paycheck Deductions

paycheck deductions

Photo credit: PORTRAIT IMAGES ASIA BY NONWARIT / shutterstock.com

All employees must be able to know what their wages or salaries are a well as the exact amounts they take home when all deductions are factored. There are some paycheck deductions like social security and health insurance premiums that are legal but on the other hand, there are deductions that are very illegal. In the city of California, employers aren’t allowed to deduct several expenses from employees’ paychecks

* Items that can never be deducted

There is a basic rule in California stipulating that the employer must pay for all normal costs of running the business. He must never pass such expenses to the employee. Such expense must never be deducted from employees’ paychecks. These types of expenses include;

(a) Business expenses

Employees must be compensated for any loss that they suffer while doing any job. Employees must never deduct these business expenses from the paychecks of their employees. Such examples include gifts for clients, business meals, tolls etc.

(b) Cash shortages and breakages

An employer must never charge an employee for the losses that are caused by carelessness on the side of the employee. For instance, if an employee drops glasses in a restaurant business, the loss will be incurred by the business

(c) Tools and equipment

The employer must reimburse the employee for the items the employee purchases while carrying out business duties. Such item might comprise of hand tools or even uniforms

(d) Licensing and bonding

If employees must be licensed or bonded to work for employers, the employers must foot the costs. On the same note if an employer wants his employees to take fingerprints or even photographs, he must pay for the costs of all those items. Employees who are required to undergo medical exams as a condition for employment must be reimbursed such costs

(e) Tips

In California, tips are given to employees. Tips are not part and parcel of employees’ salaries. Tip sharing and pooling is allowed but employers and their managers must never participate

* Items that may be deducted

Employers may deduct expenses from employees’ paychecks only if they are allowed by the federal law or through collective bargaining agreements. Employers are also allowed to deduct health insurance premiums but they can only do this after getting an authorization from their employees in writing. This means that employees do not have the power to deduct any amount of money even if they owe such employees money

If employers advance money to their employees, they cannot make deduction for such advances unless such employees authorize in writing

 

FREE and CONFIDENTIAL

We Collect or You Don't Pay

* These fields are required.

TOP AVVO RATING AGAIN

avvo top employemtn attorneys

AS SEEN ON TV: YOU WILL FEAR NOW BAD BOSS!

super lawyer 2015

los angeles super lawyer 2015

Employee Resources

-EMPLOYER TRICKS.
-SEXUAL HARASSMENT.

See if your company can legally require you to work an alternative workweek, CLICK HERE.

CALCULATE YOUR POSSIBLE CALIFORNIA OVERTIME HERE

CALCULATE YOUR POSSIBLE CALIFORNIA OVERTIME HERE

**CA Overtime is Over 8 Hours worked in a DAY, Federal overtime is over 40 hours in a week.

Previous Posts