Month: April 2015

Employee’s Use of Facebook’s “Like” Button Protected Under the National Labor Relations Act

facebook-fan-page-marketing

In August of 2014, The National Labor Relations Board unanimously upheld that an employee’s clicking of Facebook’s “like” button could be considered protected, concerted activity under section 7 of the National Labor Relations Act. This decision was the first to address the specific use of the “like” button in the context of protected employee speech.

The dispute in this case arose when the employer issue a paycheck to at least two employees with the wrong amount of taxes withheld. Several employees left comments on a former employee’s Facebook page criticizing the employer’s accounting abilities that resulted in all of them owing additional taxes. One current employee selected the “like” button after a comment by the former employee stating that she was going to the labor board to complain. A second current employee made a comment calling the current owner an expletive. Both employees were subsequently terminated.

Finding that the Facebook discussion at issue involved an ongoing dispute involving tax withholding practice, and that the comments were made on a private Facebook page rather than directed at the general public, the Board held that the activity was concerted and protected under the National Labor Relations Act. Thus, the employer violated the NLRA when it terminated both employees.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been harassed, discriminated or retaliated at work? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

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Employers Must Reimburse Employees for Mandatory Use of a Personal Cell Phone for Work-Related Calls

PhoneCall

In Cochran v. Schwan’s Home Serv., Inc., Plaintiff filed a class action on behalf of 1,500 customer service managers who were not reimbursed for expenses pertaining to the work-related use of their personal cell phones.

The court found that if an employee is required to make work related calls on a personal cell phone, then he or she is incurring an expense under section 2802 of the California Labor Code. It does not matter whether the employee’s personal cell phone bill is paid by a third party (i.e., a family member or friensd), whether the employee changed plans to accommodate work-related cell phone usage, or whether the employee has an unlimited plan and thus incurred no additional expense for the work-related calls. Also, the details of the employee’s cell phone plan do not factor in into the liability analysis.

The court said that to hold otherwise would result in a windfall to the employer, because it would be passing its operating expenses on to its employees.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

FedEx Delivery Drivers Are Employees, Not Independent Contractors

fedex drivers

In a class action case, Alexander v. FedEx Ground Package Sys., Inc., FedEx drivers claimed they were improperly classified as independent contractors and sought damages for unpaid wages, reimbursement for business expenses, and associated penalties.

The Ninth Circuit ruled in favor of FedEx and found that drivers were employees as a matter of law under California’s right to control test. The Ninth Circuit found that FedEx unambiguously controlled the manner and means by which the drivers complete their jobs.

For example, FedEx controlled the appearance of the drivers and their vehicles, the times the drivers could work, how and when packages were delivered, and required drivers to comply with FedEx’s “standards of service” and “Safe Driving Standards.”

The court rejected FedEx’s argument that it provided the drivers with “entrepreneurial opportunities” by giving them the ability to operate multiple routes and hire employees, because this could only be done with FedEx’s consent.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

Animals in the Workplace: Practice Pointers for Employers

Animals in the Workplace 3

Employers who are evaluating a requested accommodation for assisted animals for disabled employees may deny the accommodation if they can, after engaging in the interactive process, establish any of the following:

• Providing the accommodation would create an undue hardship, considering the employer’s size, budget, work type, workforce, and other factors;
• No reasonable accommodation would allow the applicant or employee to perform the essential functions of the position in question in a manner that would not endanger his or her health and safety, because the job inherently imposes an imminent and substantial degree of risk;
• No reasonable accommodation would allow the applicant or employee to perform the essential functions of the position in question in a manner that would not endanger the health or safety of others, because the job imposes an imminent and substantial degree of risk to others.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

Animals in the Workplace: New Accommodation for Employees with Disabilities – Part II

Animals in the Workplace 2

The purposes of the California Fair Employment and Housing Act’s (FEHA) disability protections are to ensure that an “individual’s employment opportunities are commensurate with his or her disabilities” as well as “to ensure discrimination-free access to employment opportunities.”

While accommodation should be construed broadly in favor of disabled parties, employers are not required to accommodate any animal that is requested by an employee with a disability. An employer is required to “engage in a good faith interactive process to identify and implement the employee’s request for reasonable accommodation.”

This requires “timely, good faith communication between the employer… and the application or employee… to explore whether or not the applicant or employee needs reasonable accommodation… and if so, how the person can be reasonably accommodated.” An employer must respond to an accommodation request within 10 days of receiving notice.”

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been harassed, discriminated or retaliated at work? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

Animals in the Workplace: New Accommodation for Employees with Disabilities – Part I

Animals in the Workplace

In 2013, there was an amendment to the disability regulations of the California Fair Employment and Housing Act (FEHA) that introduced assistive animals as a reasonable accommodation for employees and applicants with disabilities. Cal. Code Regs. 11065(a)(n)(1), (p)(2)(B).

Specifically, “assisted animals” is defined “a trained animal, including a trained dog, necessary as a reasonable accommodation for a person with a disability.” Further, an assistive animal can be a guide’s dog trained to guide a blind or visually impaired person, a signal dog or other animal trained to alert a deaf or hearing impaired person to sounds, or a service dog or other animal individually trained to the requirements of a person with a disability.

The regulations further requires that the assistive animal be “free from offensive odors and displays habits appropriate to the work environment. Further, the animal must “not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace.” Finally, it must be “trained to provide assistance for the employee’s disability.”

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been harassed, discriminated or retaliated at work? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

Investigations Can Be Powerful Tools to Prevent Discrimination and Harassment

investigation

A positive development in employment law is the increasing use of the facts gathered to improve both the workplace as well as future investigations. Investigating discrimination and harassment in the workplace can accomplish several goals:

• It helps determine the extent of any problem
• It ensures compliance with the decree, and
• It can prevent violations of law or policy

Further, employers can go beyond these objections and channel the information learned from investigations back into the workplace. Good results form when investigations findings are used to address problem areas in workplace operations, to help identify problem employees, to reveal areas in which employees need training, and strengthen internal investigations. Employers paying attention to trends and investigations may help save costly time and money in the future.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.

What Constitutes Adequate Workplace Investigation?

adequate-workplace-investigation

California courts have made it clear that workplace investigations are required in many circumstances including when harassment, discrimination or retaliation occur. As a result, workplace investigations have become increasingly important in employment litigation. The result of this has been an increased scrutiny of workplace investigations.

Fundamentally, the trier of fact must examine whether the required investigation was of a quality sufficient to meet the employer’s obligations under the law. In California, two cases established benchmarks by which many investigations are still judged: Silva v. Lucky Stores and Fuller v. City of Oakland. Among the factors discussed in those cases were:

• Investigating promptly
• Choosing the right investigator
• Being objective
• Interviewing all relevant witnesses
• Looking for and reviewing relevant documents
• Conducting a fair analysis of the facts.

The Law Offices of Payab & Associates is a Los Angeles based law firm with more than 17 years of experience in employment cases. Our office has successfully litigated many complex disputes including wrongful termination, sexual harassment, racial discrimination, wage and labor disputes, and retaliation cases.

Are you or anyone you know been harassed, discriminated or retaliated at work? Contact the Law Offices of Payab & Associates @ (800) 401-4466 or visit http://payablaw.com/ if you have any questions regarding your rights at the workplace.