As an employer, it is critical for you to understand your basic obligations as an employer to avoid potential lawsuits by current or former employees. Additionally, understanding employment law will also decrease the likelihood that your business will unknowingly commit a crime. The following are the top ten employment law questions answered by our attorneys:
1. When do I have to pay my employee overtime?
The Fair Labor Standards Act (FLSA) requires that employers pay employees one-and-a-half times (1.5x) their regular pay for any hours worked greater than forty (40) per week for non-exempt (hourly) employees. If your employees are exempted from overtime requirements, such as white-collar employees in the administrative, executive, and professional fields, you do not have to pay your employee overtime.
2. When do I have to give my employees breaks and lunches?
While Federal Law does not require an employer to provide breaks, California requires that non-exempt employees and contingent workers be given one paid 10-minute break for every four hours worked and one unpaid 30-minute lunch when an employee's shift lasts longer than six hours.
Employers do not have to ensure employees take their meal breaks. The employer satisfies its legal obligation to provide an off duty meal period to its employees if:
- Relieves its employees of all duty;
- Relinquishes control over their activities;
- Permits them a reasonable opportunity to take an uninterrupted, 30-minute break; and
- Does not impede or discourage them from doing so.
3. What questions cannot be asked during an interview?
An employer cannot ask a candidate questions relating to his or her age, religion, national origin, or marital/parental status unless it is considered a "Bona Fide Occupational Qualification", which means the potentially discriminatory qualification is justifiably necessary to perform the position being filled. To err on the side of caution, you should refrain from asking the following questions as an employer
- Are you married?
- Do you have kids?
- What's your religion or do you celebrate religious holidays?
- What's your race/nationality?
- How old are you?
- Do you have any disabilities or health problems?
4. How many days am I required to pay employees for sick leave?
Under California's new Paid Sick Leave law, employers are required to provide and allow employees to use at least 24 hours or three days of paid sick leave per year. An employee starts accruing paid sick leave if they have worked for the same employer for at least 30 days within a year in California, and satisfy a 90-day employment period. Employers may choose whether to have an "accrual" policy or a "no accrual/up front" policy whereas an "accrual" policy is one where employees earn sick leave over time, with the accrued time carrying over in each year of employment; and a "no accrual/up front" policy makes the full amount of sick leave for the year available immediately at the beginning of a year-long period, except for initial hires where it must be available for use by the 120th day of employment.
5. What does employment "at-will" mean?
California is an at-will employment state. Under the at-will presumption, a California employer, absent an agreement or statutory or public policy exception to the contrary, may terminate an employee for any reason at any time. However, Title VII of the Civil Rights Act of 1964 prohibits termination at-will if the termination is based on protected status such as race or ethnicity.
6. What is the Family School Partnership Act?
The Family School Partnership Act is a California law that allows parents, grandparents, and guardians to take time off from work to participate in their children's school or child care activities. This law applies only to employers with 25 or more employees. Employers must provide 40 hours per year to parents to participate in school activities. The employees can choose to use existing vacation time, personal time, or compensatory time off to account for their time used to participate in their child's school or child care activities.
7. What is COBRA Insurance?
Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), a covered group health insurance plan must offer an opportunity to continue health plan coverage to each qualified beneficiary who would otherwise lose coverage under the plan as a result of a qualifying event. COBRA coverage applies to employers with 20 or more employees. California law requires employers to send COBRA-related notices to employees and qualified beneficiaries. Employers risk serious financial penalties if they do not comply with COBRA regulations, even if their error was unintentional.
8. What do I have to do when making payroll cuts?
An employer should always make cuts equally across all employees and provide written notice at least thirty days prior to the reduction. An employer cannot make pay determinations based on an employee's age, race, skin color, religion, national origin, sex/gender, disability/veteran status, or marital/parental status.
9. Can my employee refuse to work because of certain working conditions?
The Occupational Safety and Health Administration (OSHA) requires that an employer provide employees a workplace that is free from hazards that are likely to cause serious injury or death. Employees have the right to refuse to work in conditions that would be considered reasonably dangerous or life threatening. However, if an employer addresses the unsafe conditions in accordance with OSHA policy and the employee continues not to work, there may be legal grounds for termination.
10. What is the proper way to handle employment verifications?
An employer can only release details on a former employee's dates of employment and position(s) held within the company. If asked, an employer can state whether an employee is eligible for rehire, but an employer should not provide specific details regarding poor performance. Furthermore, an employer cannot disclose a current employee's rate of pay without first obtaining the employee's consent.