LABOR & EMPLOYMENT
With the expansion and complexity of California employment laws, our clients rely on us more than ever. We review and draft employment handbooks, agreements, policies, and address various day-to-day issues. Below is a general overview of business employment issues:
- Hiring. Hiring is the process of locating, interviewing, and sending an offer letter to an individual. Generally, most businesses do not focus on this phase past a general job posting. We recommend additional processes and procedures during this phase. California laws are strict when addressing hiring and employers need to be careful.
- Onboarding. Onboarding is the process of hiring an individual to work for the business. Even though easily done, there are certain forms, policies, and documents that we recommend new employees receive, in addition to the disclosures required by the State of California.
- Job Description. A job description lists the employees’ job duties, qualification, pay, reporting, limitation, and other important, job-related information. The job description is not employee-specific, rather position related. There are certain recommendations that should accompany a job description that often save employers in lawsuits.
- Offer Letter. Once a candidate is ready for onboarding, an offer letter is generally generated and sent to the candidate. The offer letter specifically outlines the pay rate, job duties, conditions, start date, and other job-related conditions such as signed contracts, employment eligibility, and other documents. An offer letter is an important milestone and often protects the employer and the employee.
- Discipline and Improvement. Problems at work with an employee must be addressed in a certain manner. Failure to do so or just terminating the employee may create more issues in the future.
- Benefits. Great employees are hard to find. Once found, employers must take strategic steps to reward its employees and retain them. Benefits are the one of the more popular methods of employment retention. Benefits introduce a new dynamic into the business. Some are required while some are not.
- Terms of Employment. Terms of employment are generally addressed in an employment agreement or an offer letter if it is at-will employment.
- Employee Handbook. An employee handbook is a set of policies that the business has. Handbooks vary depending on the needs and requirements of the business. Some policies are reiteration of an existing legal requirement while others are purely optional. An employee handbook is a great tool to demonstrate to employees the set of standards they and the business adhere to. The handbook must be drafted by a lawyer since it contains many legal pitfalls a layperson may now know exist. Most handbooks are not comprehensive enough and do not address the crucial elements that we believe are an absolute must. Our firm provides a set of flexible arrangements to make a handbook a possibility.
- Policies. Policies are documents that the employer enacts that are in addition to the existing handbook. We recommend that all policies be confined to a handbook unless they are temporary. A formal, written policy is always recommended as opposed to verbal and vague changes. The business is protected when policies are written and acknowledged by the employee.
- Termination. Termination is the process whereby an employee is terminated from the company. We recommend a formal termination process that triggers certain protocols. Often, when emotions run high and there is a lack of guidance, most employers make many mistakes that come at a high cost. We recommend retaining an attorney to assess the situation and advise on next steps. Even though the process varies, generally, the employer must provide certain disclosures to the employees.
- Settlements. A settlement is a process whereby an employer settles a dispute with employees. It typically involves a severance and separation agreement where in exchange for a severance payment, the employee releases the employer from any liability. There are certain requirements that need to be met when these agreements are used.
- At-Will Employment. At-will employment is the default form of employment unless otherwise specified in an employment agreement. At-will employment means that both the employer and the employee may terminate employment without notice.
- Employment Agreement. Employment agreements are agreements between the employer and the employee. They are typically a guarantee that an employee will remain with the employer for a period and cannot be terminated unless a triggering event occurs.
- Employee Intellectual Property Agreements. When hiring managerial employees, there is always a risk the employee will take confidential company information and/or claim to own inventions. The employee IP agreement ensures that the confidential information is identified, dissemination restricted, and any intellectual property assigned to the company. These agreements must be narrowly drafted to ensure courts do not interpret them as non-compete agreements, which are unenforceable in California.
It is so simple to hire an employee, why would I need a lawyer?
Yes, it is very easy to hire an employee. However, there are certain things you should consider and provide to your employees before you hire them. Also, the state of California has several requirements upon hiring.
I am terminating an employee; do I need a lawyer?
Yes. In most cases, a lawyer is needed to assess the situation and advise the business whether proposed termination is lawful.
When do I need a handbook?
As soon as you have employees, even if you have only one. It may take just one employee and a bad set of policies to bring a company down.
What HR forms are required?
There is no set HR system, and each business decides which forms to use. We provide a set of basic HR forms that will allow a business to be compliant as well as to assist in employee management.
Are there certain employment documents or disclosures that I must provide?
Yes, upon hire and upon termination. They can be found on the EDD website.
Do I need a job description?
Yes. The last thing you need is an employee alleging that they are doing something that you never sanctioned. An annually updated job description is vital to keep employees’ duties and responsibilities current.
Do I need an offer letter?
It is strongly recommended. An offer letter is a record of the terms and conditions of employment. Upon occurrence of those conditions, only then you consider a candidate an employee.
What do I need when I promote and employee?
Generally, you would need promotions in writing to document the changes in compensation and position. This is to prevent confusions to the employees’ duties.
What if the employee’s schedule changed?
To prevent confusion and claims that an employee worked more than authorized, we recommend a change of status form that will document the changes.
Why do I need a handbook?
A handbook is a set of policies that the employer presents to the employees. It clearly establishes how the business addresses certain legal, regulatory, and practical issues. It avoids confusion, sets a professional tone, and gives clarity to employees as to what to expect.
What if my employee told me that they are planning to open their own business, competing with mine?
Speak to us immediately. California has certain laws that either can hurt you or help you depending on whether you use them right. Termination is not always the best choice. Consult with us so you may have peace of mind and next steps in handling the situation.
Are non-compete agreements enforceable?
Unless an exception applies (related to sale of business), non-competes are not enforceable.
How can I prevent an employee from working for someone else?
There are ways to handle this situation to achieve your objective without violating the law.
Can I just terminate an employee that is having problems?
Yes and no, depending on the circumstances. The termination may be unlawful or may be attributed to unlawful termination.
Can I just hire an employee as a contractor (1099)?
No. Recent California law changes presumes that all workers are employees unless established otherwise. This issue is very sensitive and may bankrupt the company. If done correctly, hiring contractors may increase revenue. In certain circumstances a business can still hire independent contractors (1099) but there are restrictions that need to be addressed.