These five strategies you can implement immediately to limit your risk and exposure to employee lawsuits. Useful tools are provided to you to use as checklists, tips and worksheets. This is the fourth part in a five part series. If you desire the entire series immediately at no cost, please contact Harper & Associates, P.C. directly
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July 3, 2006
Westlake Village, Calif. -- Under California Labor law, for an employee to be exempt as a manager s/he must:
1. Have primary duties and responsibilities that involve the management of the enterprise.
2. Customarily and regularly direct the work of two or more other employees.
3. Have the authority to hire or fire other employees or make suggestions, which will be given particular weight, about personnel decisions regarding other employees.
4. Customarily and regularly exercise discretionary power.
5. Spend more than 50 percent of his or her time engaged in managerial duties that meet the tests in the items above, and
6. Earn a monthly salary equivalent to at least two times the state minimum wage for full-time employment. The current minimum salary for someone to be categorized as an exempt employee is $2,430 a month, which is twice the starting minimum wage for full-time employment.
A clear job description should be communicated in writing or contained within your policy manual for each exempt position.
There is critical and detailed analysis to be made for each exemption claimed, whether it is for a salesperson, administrative position, computer professional, executive/managerial position, or professional. Tamara Harper, Esq., Harper & Associates, P.C. uses a worksheet for each of the above type classifications in order to determine if the position is truly exempt. The worksheets are quite detailed. Each position has separately defined criteria and a different worksheet. Please contact Tamara Harper, Esq. directly to discuss the availability of these worksheets as they are specific to each particular situation and not for general use.
An employer cannot just call a position exempt or give an employee an exempt “sounding” job title. In order for the position to be truly exempt, several criteria as set forth by California law must be met.
This area has high potential for employer liability. Remember, just because every other employer in your industry “does it,” does not mean that they will not be sued or audited, and it is your liability and your assets. Is it worth it to protect your assets? Consult your labor /employment counsel before paying an employee as an exempt individual.
Harper & Associates, P.C. helps employers negotiate the maze of employment regulations, giving them peace of mind and limit their liability exposure. Ms. Harper helps companies to never experience the painful process of employment litigation and shows business entrepreneurs how to protect their assets and preserve their wealth by limiting their liability exposure, registering their intellectual property; and holding property in trust.
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One of the most important tools that you can have as an effective defense to an employee lawsuit, is a policy manual or handbook. The cost is nominal when compared to the average attorney retainer for employment defense litigation - $15,000.00 and up. The average employment litigation settlement is approximately $45,000.00 and litigation through trial can run over $100,000.00 not including appeals, for a wrongful termination claim.
Without a written policy manual, or employee handbook, or even a poorly drafted one, you are at a disadvantage to defend yourself when faced with a lawsuit based upon your policies, procedures, or accusations of discrimination or sexual harassment.
The employee handbook should provide employees and supervisors with a clear understanding of the performance and behaviors you expect of them and what they can expect of the company in return. This common understanding of goals and expectations enhances productivity and reduces the opportunity for conflict.
Without an employee handbook, you are significantly more vulnerable to a variety of wrongful termination lawsuits. Make sure that your statements of at-will employment in the handbook are consistent with other policies and statements in employment applications, employment contracts and other materials. All such materials should be reviewed during the preparation of the handbook to ensure consistency in preserving the at-will relationship.
One universal handbook may not be sufficient. Manuals for supervisory employees often are needed as they may include further information not needed for non-supervisory employees such as information of hiring policies, appropriate pre-employment inquiries, drug testing, physical examinations, U.S. Citizenship and Immigration Service regulations, day to day procedural matters such as vacation or leave requests or addressing on the job injuries, performance evaluations, disciplinary procedures, etc. Supervisor’s manuals should also include proper methods of response to employee complaints of discrimination, harassment in violation of company policy, and other types of employee grievances, to help ensure company policies are consistently administered and that supervisors are aware of what is expected of them.
There is no one policy or collection of policies that is appropriate in all employment settings. Policies that are appropriate for inclusion in employee handbook likewise may vary.
Critical to the defense of wrongful termination actions is to establish that employees had notice of your policies, expectations, and prohibitions. One way to do this is through the use of an Acknowledgment and Receipt of the manual form that each employee signs and returns.
Due to the extensive increase in employment litigation and the ever changing canvass of California employment law, policy manuals should be updated at the beginning of each year.
For example, for those handbooks that Tamara Harper, Esq., Harper & Associates, P.C. is updating for the 2006 year, she is restricting the confidentiality policies that are now prohibited. An employee handbook that includes a broad confidentiality policy or restricts reasonable employee speech such as discussing bonus pay, raises or wage pay, violates both state and federal law. California law prohibits employers from publishing or enforcing policies that limit the employee’s right to discuss wages and working conditions.
The use of cell phones that have a camera presents several areas of concern for employers regarding the issue of privacy or protection of trade secrets.
These are just a few of the new developments in the law for 2006. Tamara Harper, Esq., Harper & Associates, P.C. has written a detailed review of the California Labor law changes for 2006 in her articles entitled, “Checklist to Help California Employers Comply with New Labor Laws.” This checklist can be provided to you at no cost by sending an email to Tamara Harper, Esq.
Staying in compliance with California labor laws is overwhelming. Harper & Associates, P.C., understands how you all feel, as we are an employer too. Many of our clients felt the same way too before they worked with Tamara Harper, Esq.. Our clients have found as a result of working together, that they feel confident in the final outcome of their situation.
Our unique competitive advantage is that Harper & Associates, P.C. is very approachable as a firm which makes our clients feel at ease and in capable hands. Tamara Harper, Esq. is an aggressive fighter that is reliable and ethical. Harper & Associates not only offers quality work, but enjoys a good location. Tamara Harper prides herself on her good personal and business relationships with clients, and uses her insight and knowledge to obtain successes for each client.
Harper & Associates, P.C., specialize in solving problems without extensive and costly litigation. Harper & Associates, P.C., offers you the opportunity to be proactive in creating an employment manual now, and not just reactive in defending your company against a Department of Labor or Department of Labor Standards Enforcement audit or against an employee lawsuit.
Because we understand that decisions happen 24 hours a day, 7 days a week, and legal advice is needed promptly and quickly, Harper & Associates, P.C. has just recently started offering, and are the only employment firm in Ventura County that offers a V.I.P Program. This program provides you with Tamara Harper’s contact information to be able to reach her 24 hours a day, 7 days a week, with a guarantee return phone call, for a yearly flat fee.
Harper & Associates, P.C. helps employers negotiate the maze of employment regulations, giving them peace of mind and limit their liability exposure. Ms. Harper helps companies to never experience the painful process of employment litigation and shows business entrepreneurs how to protect their assets and preserve their wealth by limiting their liability exposure, registering their intellectual property; and holding property in trust.
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