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EMPLOYMENT LAW – SELECTION OF EMPLOYEES

April 1, 2019

This Newsletter shall discuss the restrictions imposed on employers in recruiting and hiring employees by Federal law and California law. In general, both Federal and California law prohibit an employer from asking any question, in either an employment application or an employment interview, which relates to race, religion, color, national origin, sex or marital status, unless it is a bona fide occupational qualification for employment. Employers should carefully review their employment application forms and interview procedures to ensure compliance with applicable law.

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NATIONAL LABOR RELATIONS BOARD – NEW GUIDELINES ON EMPLOYEE HANDBOOKS

February 27, 2019

The National Labor Relations Board (“NLRB”) General Counsel, Richard Griffin, recently issued the “Report of the General Counsel Concerning Employer Rules,” a comprehensive report providing guidance to employers on what the NLRB deems to be lawful and unlawful company handbook provisions and policies. The rules in the Report apply to both unionized and non-unionized employers because the National Labor Relations Act (“NLRA”) restricts all employers from issuing policies or rules that inhibit employees from engaging in activities protected by the NRLA, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.

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EMPLOYEE PRIVACY RIGHTS

February 27, 2019

The California Constitution expressly provides that all persons have a right to privacy. However, the right to privacy is not absolute and some intrusion into a person’s privacy will be permitted if there is a legitimate competing interest and the intrusion is reasonably calculated to further that legitimate interest. In the workplace, an employee may effectively waive the right to privacy under certain circumstances. This Newsletter shall discuss some of the situations in which the right of privacy arises in the workplace.

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LOS ANGELES FAIR CHANCE INITIATIVE FOR HIRING

January 27, 2017

On December 9, 2016, Los Angeles Mayor Eric Garcetti signed the Los Angeles Fair Chance Initiative for Hiring (Ban the Box) ordinance (the “Ordinance”) that bars certain employers in the City of Los Angeles (the “City”) from asking job applicants about their criminal conviction history until the employer makes a conditional offer of employment to the applicant. The Ordinance takes effect January 1, 2017.

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Employee Classification Issues For New Companies

May 1, 2009

There are several major issues facing all start-up companies relating to their workforce. This Newsletter shall provide a quick overview of three of these issues. Employee or Independent Contractor. Many new companies want to classify their workers as independent contractors because they believe that having independent contractors will simplify payroll administration by not having to withhold federal and state income taxes and social security and medicare taxes, save money on employment related taxes, and that the worker will have less rights than an employee. However, it is important to understand that the courts and the Internal Revenue Service and Franchise Tax Board are not bound by the company’s classification, and that there are substantial risks associated with a misclassification. These risks include tax penalties for failing to withhold taxes, and lawsuits by the worker for failure to pay overtime or provide employee health and welfare benefits. In an overall sense, the more control the company has over the day-to-day activities of the worker, the more likely the worker will be classified as an employee. If it is unclear as to whether a worker is an employee or an independent contractor, the company or the worker may file IRS Form SS-8, Determination of Worker Status for Purposes of Federal Employment Taxes and Income Tax Withholding, and the IRS will review the facts and circumstances and officially determine the worker’s status.

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