Category: Employment Law

By Roy Schneider, Esq.

Interns can help to instill a mentorship culture at your company and inject new ideas into the organization. However, the intern- employer relationship can be a tricky one, and should be carefully considered.

Unpaid Interns

The most common question that is raised when an employer is considering bringing an intern on board is whether or not that intern will need to be paid.  Although common, the practice of hiring unpaid interns may actually violate California and federal labor laws unless the internship is part of a school curriculum program or more akin to a training program than actual employment. The Department of Labor has developed the following 6-part test, in which all 6 criteria must be met, to determine whether an intern can be unpaid.

1. The training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in a vocational school;
2. The training is for the benefit of the interns;
3. The interns do not displace regular employees, but work under their close observation;
4. The employer derives no immediate advantage from the activities of the interns and on occasion the employee’s operations may be actually impeded;
5. The interns are not necessarily entitled to a job at the conclusion of the internship and;
6. The interns and the employer understand that the interns are not entitled to wage for the time spent in training.

In addition, the DOL has increased audits of companies in an effort to ensure that no workers are mistreated because of misclassification. If your company has improperly classified an intern as an “unpaid intern” and you’re audited by the DOL or a state agency you could face hefty fines and be responsible for unpaid wages plus interest, penalties and related taxes.

If your company has hired unpaid interns in the past, or currently employs them, or is considering hiring them, you should consult an experienced employment law attorney at Schneiders & Associates, L.L.P. to determine how best to legally protect your company.

Interns as Independent Contractors

It is rare that an intern should be classified as an Independent Contractor. The main problem with classifying interns as independent contractors is that most working relationships with interns look nothing like independent contractor relationships.

Independent contractors are typically their own legal entity, provide their own tools, set their own hours, and have multiple clients and their own work premises. Interns, on the other hand, have rarely formed an LLC or corporation, generally are not working for multiple employers and are most likely working only on your company’s premises.

Interns as Part-time Employees

The experienced employment law attorneys at Schneiders & Associates, L.L.P. recommend, in most cases, that employers hire their interns on a part-time basis. Your part-time employee policy should be written clearly in your employee handbook, and your intern offer letter should indicate what benefits part-time employees are and are not eligible for.

Best Practices When Hiring Interns

Even though the intern will be paid at least minimum wage as an employee, make it apparent that the internship program is about learning. Include this in the offer letter to interns and in any documentation that you give them throughout their internships, including employee handbooks.

Give interns meaningful tasks, but have learning or mentoring sessions associated with each task. Give them direct supervisors and have those supervisors meet with the interns regularly.

If you have additional questions regarding hiring and working with interns, structuring an internship program, or any other intern-employer relationship questions, contact an employment law attorney at Schneiders & Associates, LLP.

By Ted J. Schneider, Esq.

Technology is a double-edged sword. It allows us to work remotely and to have greater flexibility as to where and when we work, but the freedom it affords can also be a burden. When you can work from anywhere, and at any time, it often feels like you should be doing so!

Studies suggest people are caving under the pressure – whether explicit or implicit – to work while technically off the clock. According to the Pew Research Center, approximately 44% of Internet users regularly perform some job tasks outside the workplace.

All the work that is being done outside of work hours is creating a compliance problem for many businesses. California law and the federal Fair Labor Standards Act (FLSA) require employers to compensate employees that are classified as nonexempt for all time worked. These nonexempt employees must be paid time and a half (overtime) for all hours worked over eight hours in a day or forty hours in a week. This means that employees need to be paid (at overtime rates if applicable) for time spent checking and responding to emails, calls, texts, etc. during non-work hours.

In order to remain compliant in this technology-driven age, we advise our clients to take the following steps.

Develop a Timekeeping Policy that is Compliant with the law.

Explicitly tell your nonexempt employees, preferably in writing and as part of your employee handbook, whether they are permitted to work after normal business hours.  Make it clear that “working” includes checking emails, texts and taking phone calls.

Implement the Timekeeping Policy.

A policy is not worth the paper it is printed on if it is not implemented consistently. Make it easy for employees to report their after hours work, and discipline employees who do not report their after hours time. Make it clear that working “off-the-clock” is strictly prohibited. That is, make sure employees understand that all time worked, even if it is after normal working hours, must be recorded and documented.

Enforce the Timekeeping Policy.

When off-the-clock time is reported, pay your employees for that time. Although you must pay employees for all after hours work, if such work was not authorized or done in violation of company policy, do not be afraid to discipline employees who do not comply with these expectations. If you do not want to pay employees overtime for working after hours, then ensure that your managers and supervisors are trained not to send emails or text messages to employees after hours, because employees will be tempted to respond.  Hold your emails until normal business hours to avoid establishing an expectation that your employee should be checking or responding to emails while at home.

If you have any questions about paying employees for work done after hours, or establishing an off-the-clock policy, or any other employment related issue, contact an experienced labor and employment law attorney at Schneiders & Associates, L.L.P. today.

By Ted J. Schneider, Esq.

Most employers know that their workers are protected from discrimination while they are employed.  Surprisingly, some are unaware that prospective employees are protected throughout the application and hiring process as well.  Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act, the Pregnancy Discrimination Act and the Age Discrimination in Employment Act of 1967, as well as other federal and state laws, are all applicable to prospective employees.  Therefore, employers must be extremely careful about the questions they ask individuals applying for a position.

Employers should avoid asking any questions that might give a prospective employee reason to believe he or she was not selected for a position due to discrimination.  Employers should not inquire about an applicant’s race, unless it is for an Equal Employment Opportunity Commission purpose (which should be noted).  Employers should not ask about an applicant’s citizenship status, and instead should inquire as to whether the individual has authorization to work in the United States.

Employers should also be sensitive to discrimination based on gender and sexual orientation when conducting interviews.  Employers should never ask gender-related questions or anything regarding pregnancy or children.  Avoid asking a prospective employee about marital status or religion as well.  An employer might be concerned that a prospective employee will miss work due to young children or religious holidays.  However, if the employer is concerned about an applicant’s attendance, the interviewer should only ask about prospective employee’s attendance records at previous places of employment.  If the employer already knows a candidate has children, do not ask if the prospective employee has made provisions for child care.

Individuals with disabilities are protected under federal and state law.   Employers must consider and accept applications from applicants with and without disabilities equally.  An employer should never ask about a disability.  All that matters is that the individual is able to perform job duties, with or without reasonable accommodation.  The ADA prohibits questions that are likely to elicit information about a disability.  For example, never ask if a candidate has or has ever had a disability, or inquire about the nature of an apparent disability.  Do not ask a candidate if he or she is taking prescription drugs or medications. 

California prohibits discrimination based on criminal convictions, so employers should be aware not to ask about an applicant’s criminal history without seeking advice from counsel regarding the circumstances under which such inquiries are permitted.  Also, in California, employers may not ask a candidate about his or her credit history or obtain a consumer credit report, other than in certain narrowly-defined circumstances, and only after specific disclosures and procedures have been followed.

If you are a business owner, it is in your best interest to put together a list of interview questions for prospective employees and to review that list with an experienced attorney.  You should also be sure that all of the parties conducting interviews are aware of the rules relating to interview questions and abide by them.  If you would like assistance creating a set of proper interview questions, job applications and procedures for your business, the experienced labor law attorneys at Schneiders & Associates, L.L.P. are available to advise you.

By Ted J. Schneider, Esq.

There is no law that states that companies must have employee handbooks. However, employee handbooks are a good idea, once a company has more than one or two employees. Definitive and universal employment rules give employees guidance and assurance that all employees will be treated under the same set of policies.  Employee handbooks also provide companies with important legal protection – if an employee challenges an employer’s actions in court, the company can point to its employee handbook as evidence of how the company operates with respect to its employees. A well-crafted employee handbook can serve as a powerful defense tool in the event of an employment-related lawsuit.

It is critically important to use caution when establishing company policies, whether they are formal written regulations or informal rules and common practices.  Legal requirements for policies vary depending on the number of employees employed by the company.  Companies should carefully review their employee handbooks to make sure policies and procedures comply with applicable employment laws, which can change every year, and to avoid pitfalls and potential legal issues with personnel.  An inadequate or improper employee handbook could serve as evidence against the company in a lawsuit filed by an employee claiming the company engaged in an illegal employment practice.

Topics to include in an employee handbook include:

• Introduction, with a company mission statement and business history
• Working hours, timekeeping requirements, and attendance policies, including hours for full-time and part-time employees and overtime policies and procedures
• Employee benefits, including insurance, holidays and which employees qualify for benefits
• Anti-harassment policy, describing what behaviors are prohibited and what actions employees must take if they have evidence of illegal harassment
• Vacation and sick leave policies, with clear calculations of accrued time off
• Leave policies, including, if applicable, FMLA/CFRA leave, pregnancy disability leave, jury duty and other California and federal required leaves of absences
• Alcohol and drug abuse policies, including testing and help with substance abuse
• Equal Opportunity Employer policy, clearly communicating the company’s commitment to prohibiting unlawful discrimination
• Discipline and prohibited conduct policies, clearly describing conduct that may result in discipline or termination and stating that the company reserves the right to discipline or terminate for reasons not stated in the handbook
• Safety and health issues, stating safety rules and the procedure for reporting dangerous conditions and injuries, and an injury and illness prevention policy
• Use of company email, social media, telephones and computers, as well as addressing use of personal electronic devices on company time
• Confidentiality policy to protect the company’s trade secrets and proprietary information
• How the company will handle conduct and situations not covered by the employee handbook
• Description of at-will employment, clearly stating that the employee handbook is not a contract of employment or a guarantee of continued employment

The employment law attorneys at Schneiders & Associates, L.L.P. routinely work with employers, of all sizes, to develop a tailored and specific employee handbook, ensuring that all policies and procedures are in compliance with current federal and state laws and to avert expensive legal disputes with employees. 

Whether you are contemplating crafting an employee handbook for your business, or would like us to review or update your existing handbook, contact our office to request an Employee Handbook Questionnaire and to schedule an appointment to discuss your company’s policies and handbook needs.

By Roy Schneider, Esq.

“You can never be too cautious.”

“An ounce of prevention is better than a pound of cure.”

These and other common sayings may make it seem like a smart business move to conduct criminal background checks of all job applicants and exclude any applicant who has ever been arrested for, or convicted of, any crime in the past. Why hire a person with a criminal record when, surely, there are applicants out there with unblemished records?

In reality, however, the issue of job applicant criminal background checks is a complicated one. It is not illegal to conduct a criminal background check, but employers must be careful about how they use the results of these background checks to exclude applicants. 

In some cases, it may be illegal discrimination for an employer to exclude an applicant because of the results of the background check. For example, in January 2012, the U.S. Equal Employment Opportunity Commission (EEOC) reached a settlement with Pepsi Beverages regarding this precise issue. Pepsi had a policy and practice of excluding job applicants who had arrest records but no convictions, as well as excluding applicants with convictions for minor crimes along with applicants convicted of more serious offenses.  The EEOC’s investigation determined that Pepsi’s policy unfairly excluded a higher number of African Americans from the job applicant pool. Pepsi reached a settlement with the EEOC – making financial payments to affected job applicants, offering jobs to qualified applicants who had previously been excluded, and changing its background check policy.

The EEOC’s guidance on criminal background checks for job applicants is as follows: Generally, any criterion used to screen job applicants must be relevant to the applicant’s ability to perform the job in question.

• An arrest record is rarely, if ever, relevant because under American law, everyone is innocent until proven guilty.
• Convictions for minor crimes may also be irrelevant and should not be considered. As an example, a conviction for underage drinking may not be relevant, unless the person is applying for a bartender job where he or she has the responsibility to check identification.
• Convictions in the distant past are rarely, if ever, relevant to an applicant’s ability to perform a job unless the conviction relates to the job in question. For example, a conviction 20 years ago for writing one bad check may not be relevant to a job as a lifeguard. However, if the job is for a position in a bank, then the conviction may still be relevant to the applicant’s ability to perform that job honestly.

California law is in accord with the Guidelines promulgated by the EEOC. California employers should avoid a rule that automatically bars employment to any applicant who has a record of criminal conviction. As noted with the EEOC, this type of policy may violate state and federal law if the conviction is not job-related and the policy has a disparate impact upon a protected class. 

In addition, California employers may not ask job applicants to disclose information relating to a referral to or participation in a criminal diversion program. The employer cannot seek the same information from any other source, nor use it as a factor in decisions related to hiring, promoting, training or termination. Further, a California employer may not inquire about convictions for most marijuana possession offenses more than two years old.

Business owners and hiring managers are to be credited for wanting their workplaces to be safe and staffed by honest, trustworthy employees. It is important, however, for employers to make sure that it uses the results of job applicant background checks in a fair manner to prevent illegal discrimination. 

If you are conducting or are thinking about conducting job applicant criminal background checks and would like to know more about the legal ramifications and how best to protect your business, please call us for an appointment with one of our knowledgeable employment law attorneys.

Schneiders & Associates, L.L.P. is a multi-service law firm located in Oxnard, California with a focus in business related matters.

By Ted J. Schneider, Esq.

Job-seekers have to be ready to respond to any interview question asked of them, but not every question has to be answered.

To ensure that employers do not discriminate against candidates based on age, gender, race, health and family arrangements, there are certain regulations which restrict the type of questions which are permissible during an interview.  Below, we explore several topics that may be problematic and should not be asked of potential employees:

Questionable Questions

Let’s take a look at a few topics that may be problematic.

Age: Does anyone like to be asked their age unless just turning 21?  Probably not.  While an interviewer may ask whether a candidate is over the age of 18 or 21, he or she may not ask for a specific age.

Nationality: An interviewer can ask whether a candidate is legally allowed to work in the U.S., but he or she can’t ask about the applicant’s nationality or status as a citizen.

Religious beliefs: Same goes for questions that ask about religious beliefs. The interviewer may be in the right if he or she needs to know if the interviewee can work on certain holidays, but otherwise, this topic should be off limits.

Health: While in many states an interviewer cannot ask if a candidate smokes, he or she may inquire as to whether the applicant has ever violated any corporate policies on alcohol or tobacco. Furthermore, an employer may ask whether the person being interviewed uses illegal drugs, is able to lift a given weight, or can reach items at a specific height. They also can ask if the individual is capable of completing certain tasks associated with the job and if any reasonable accommodations might be needed.

Family status: Employers want to know about an applicant’s availability which may sound like a legitimate concern. They cross the red line, however, when they try to determine if a candidate has children or plans to have children in the future. An interviewer also cannot ask about an applicant’s maiden name or marital status.

Criminal record: A prospective employer is allowed to ask the applicant whether or not he or she has ever been convicted of a crime that relates to the job, but may be restricted from asking whether the candidate has ever been arrested.

Military service: An interviewer cannot discriminate against a member of the National Guard or Reserves. He or she can, however, ask if a candidate will anticipate any extended time away from work.

Acing the Interview Process

The interview process can be a stressful time for employers and employees alike, but it will be a smoother process if you have a basic understanding of what can and can’t be asked during these initial meetings. 

As a candidate being interviewed, remember that if you’re asked a question which you’re not comfortable answering, or you think may be illegal, be sure to keep a positive attitude and try not to focus on the negative and instead deliver an answer which showcases your ability to fulfill the requirements of the job. For example, you may be asked if you can have a babysitter in a moment’s notice if an unexpected work emergency pops up. In answering this question, you may be concerned that you will be divulging too much information about your family life and, like many mothers, you may fear that they may not hire you because of the responsibilities that come along with parenthood.  Rather than answering the specific question about a babysitter, you may instead wish to say “I am very flexible and am able to travel or work late when the need arises.” This answer addresses the interviewer’s question while preserving your privacy and also keeps the conversation going in a positive direction-one which showcases why you are the best candidate for the job.

As an employer looking to hire a new employee, it’s important that everyone in your organization from the receptionist to the hiring manager who might come in contact with the candidates have a basic understanding of what topics and questions are off limits. You might even consider having a list of approved questions and a list of questions which are prohibited, regardless of the position being filled. These procedures should be a matter of strict company policy and should be reviewed each year to ensure compliance with all discrimination laws.

The employment law attorneys at Schneiders & Associates, L.L.P will be pleased to assist your organization with setting up proper protocols for interviewing candidates.  If you would like to meet with us to discuss this further, please give us a call.