Legal Updates

Workplace Romances

Workplace Romances

What are your policies around workplace romances?

Valentine’s Day is a week away. Unfortunately, for employers and employees, workplace romances don’t always lead to chocolate dipped strawberries and champagne. Even when a workplace romance is consensual, employers and employees need to be careful in handling such relationships. Of course, when sexual harassment or other prohibited conduct occurs, employers in particular must act swiftly and appropriately.

In my article titled “Sex, Love and Payroll: Employers Face Tricky Issues With Workplace Romances,” I offer some food for thought and some practical steps employers and employees can take to deal with workplace romances. The article is published in the February 2012 edition of the Contra Costa Lawyer magazine, the official publication of the Contra Costa County Bar Association. I am not only proud to be able to contribute to the magazine, but also proud to have been asked to serve a three-year term on the Board of Directors.

DLSE Provides Updated FAQs on Wage Theft Prevention Act

DLSE Provides Updated FAQs on Wage Theft Prevention Act

New employees must receive employment and wage information as per the Wage Theft Prevention Act.

As I have discussed with many companies, the new Wage Theft Prevention Act went into effect on January 1, 2012 in California. Part of this law requires employers to provide to all new non-exempt employees (with some exceptions) certain information about their employment. The main provisions of the Act deal with new hires starting in 2012. However, the notice requirements are ongoing. In other words, for current/continuing employees (hired in 2010, for example), when any of the required information changes (for example, an employee gets a raise), the employer has seven (7) calendar days to notify the employee of the change. So, you will have to provide the required information to current/continuing employees when changes of any of the required information are made.

In late-December 2011, the California Department of Labor Standards Enforcement (DLSE) published a sample form that can be used to comply with the new law. It might be easier for employers to use the DLSE’s Form, however the form includes some ambiguities and raises some questions.

To help employers, the DLSE issued FAQs regarding the new law and the DLSE’s Form. The FAQs themselves have been a source of frustration, and already have been revised a couple times – most recently on January 23, 2012. In this most recent update, the DLSE added several new FAQs and revised its answers to two of the original FAQs. The most recent update states that it would be a “best practice” for employers to provide the required information to current employees, even thought the law only requires the information be provided to new hires and to current employees only if there is a change in the required information. As this is a new law in California, employers should continue to monitor my updates, and check with the DLSE for more guidance.

The DLSE Form (available in English and five other languages) and the DLSE FAQs can be found here.

OSHA Form 300A Posting Deadline

OSHA Form 300A Posting Deadline

Post your OSHA form 300A by February 1st.

By February 1, 2012, non-exempt employers must post OSHA Form 300A (or an equivalent) containing a summary of the total number of job-related injury and illnesses that occurred the year before. OSHA also requires additional information to be supplied on the Form including the total amount of hours worked in 2011 and other details. The Form must be posted in a conspicuous place (or places) where notices to employees are customarily posted, and must remain posted through April 30, 2012.

Prior to posting the Form, a company executive is required to certify that “he or she has examined the OSHA 300 Log and that he or she reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.” An appropriate company executive is any of the following: (a) an owner of the company (if a sole proprietorship or partnership); (b) an officer of the corporation; (c) the highest ranking company official working at the establishment; or (d) the immediate supervisor of the highest ranking company official working at the worksite. Employers need not post the OSHA 300 Log (only post the OSHA Form 300A), but employees and former employees are allowed to review the OSHA 300 Log.

Many employers may be exempt from the posting requirement. If your company has fewer than ten (10) employees, then it need not post this information. Also, if your company is in one of the industry groups specified by OSHA, then it need not post OSHA Form 300A. All employers covered by OSHA, regardless of size and industry, however, must report to OSHA any workplace injury related fatality or hospitalization of three (3) or more employees within eight (8) hours.

It is important for every covered employer to comply with OSHA’s requirements, and to take appropriate steps to maintain accurate records. OSHA can cite a company for its failure to comply with these posting and/or other recordkeeping requirements. To help employers better understand the requirements, OSHA has provided OSHA 3168 Publication which provides some FAQs and OSHA contact information.

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US Dept of Labor Publishes Two New Fact Sheets

US Dept of Labor Publishes Two New Fact Sheets

2 new fact sheets written by the US Dept of Labor

For several years, employee claims of retaliation have been on the rise. As a result, awareness and case law have blossomed in this area. In December 2011, the US Dept of Labor took notice and published two new fact sheets regarding unlawful retaliation under the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA).

  • The fact sheet regarding the FLSA can be found here. It provides information regarding the FLSA’s prohibition of retaliating against any employee who has filed a complaint and/or cooperated in an investigation.
  • The fact sheet regarding the FMLA can be found here. This fact sheet describes the general prohibitions against retaliating against an individual for exercising rights under the FMLA.

Both employers and employees should be sure to understand what is and what is not considered prohibited harassment under the FLSA, FMLA and other federal and state employment laws.