Employment Law Toolkit

Transcription

1 Employment Law Toolkit October 2014 CALIFORNIA EMPLOYMENT LAW FOR BUSINESS

2 TABLE OF CONTENTS Employment Checklists Hiring Forms and Notices Checklist Workplace Poster Chart Records Retention Overview Checklist for Internal Investigations Termination Checklist for CA Employees Labor and Employment Due Diligence Checklist Annual Employment Law Check-Up Sample Agreements Sample Offer Letter Exempt Sample Offer Letter Non-Exempt Sample Employment Agreement Sample Employee Nondisclosure Agreement Sample Independent Contractor Agreement Sample Employment Policies At-Will Employment Policy Equal Employment Opportunity Policy Policy Against Harassment, Discrimination and Retaliation Overtime Policy Timekeeping/Off-the-Clock Policy Family Friendly Workplace Policy Certificate of Acknowledgement for Employee Handbook Employment Law Alerts Employers Must Reimburse Employees for Costs Associated With Work-Related Cell Phone Use California Supreme Court Upholds Class Action Waivers In Arbitration Agreements But Exempts PAGA Representative Actions San Francisco s New Fair Chance Ordinance: Answers to Employers Common Questions San Francisco s Family Friendly Workplace Ordinance: Answers to Employers Common Questions About Law Group The materials in this binder are for educational purposes only and to give you general information and a general understanding of the law, and are current as of October The materials do not provide specific legal advice. By using the materials in this binder, you understand there is no attorney-client relationship between you and Law Group. Furthermore, these materials should not be used as a substitute for competent legal advice from a licensed attorney in your state. Copyright 2014 Law Group,

3 HIRING FORMS AND NOTICES CHECKLIST

4 HIRING FORMS AND NOTICES CHECKLIST For California Employees Employee Name Date of Hire Recommended Forms and Notices Form/Notice Date Given Date Rec d Date Filed/ Sent Employment Application Offer Letter Background Check Disclosures and Authorization Employment Agreement Commission Agreement Confidentiality and Nondisclosure Agreement Initial Safety Training Verification Employee Emergency Information/Contacts Employee Handbook Receipt Code of Conduct/ Ethics Policy Health Insurance and Benefits Information Property Return Agreement Direct Deposit Authorization Copyright 2014 Law Group, 1

5 Required Forms and Notices Form/ Notice New Hire Notice, Labor Code Section Date Given Date Rec d Date Filed/ Sent California Employee Withholding Certificate, Form DE-4 Employee Withholding Allowance Certificate, Form W-4 Employment Eligibility Verification, Form I-9 Disability Insurance Provisions Pamphlet, Form DE 2515 Paid Family Leave pamphlet, Form DE 2511 Sexual Harassment Information Sheet, Form DFEH-185 [or employer s own version] Workers Compensation Time of Hire Pamphlet Personal Chiropractor or Acupuncturist Designation, Form DWC [if no workers compensation medical provider network] Predesignation of Personal Physician, Form DWC 9783 [if no workers compensation medical provider network] General Notice of COBRA Continuation Coverage Rights Children s Health Insurance Program Notice Permit to Employ and Work, Form B1-4 [if a minor] New Employee(s) Report, Form DE-34 [send to Employment Development Department] Report of Independent Contractor(s), Form DE 542 [send to Employment Development Department] Copyright 2014 Law Group, 2

6 WORKPLACE POSTER CHART

7 WORKPLACE POSTER CHART For California Employers California and federal law impose a number of workplace posting requirements, which are listed below. In addition: For each poster, there may be size specifications and posting location requirements, and some must also be posted in Spanish or other languages. Employers should check local ordinances for additional posters that may be required (San Francisco posters are included in this chart). Depending on the industry or type of work, additional health and safety postings may be required. Employers should check with Cal-OSHA. Employers should periodically check -- at least annually -- to ensure that they have the most current version of required posters. Posters are frequently updated by the agencies that administer them. There are many services that offer the convenience of all-in-one posters or provide employers with a comprehensive posters packet. Employers that use these services remain responsible for ensuring that they are meeting all workplace posting requirements. This chart lists the most common posters required for most California workplaces. For additional information, please visit these websites: o U.S. Equal Employment Opportunity Commission o U.S. Department of Labor o California Department of Industrial Relations CHART BEGINS ON NEXT PAGE Copyright 2014 Law Group, 1

8 POSTER TITLE Notice to Employees: Unemployment Insurance, Disability Insurance, Paid Family Leave Discrimination and Harassment in Employment Are Prohibited by Law Equal Employment Opportunity Is the Law Employee Rights and Responsibilities Under the Family and Medical Leave Act Notice B Family Care and Medical Leave and Pregnancy Disability Leave Notice A Pregnancy Disability Leave Employee Polygraph Protection Act Your Rights Under USERRA Whistleblowers Are Protected Employee Rights Under the Fair Labor Standards Act California Minimum Wage WHICH EMPLOYERS MUST POST? WHERE TO GET FORM NO./ CURRENT VERSION All DE 1857A Rev. 42 (v. 11/13) All 15 or more employees 50 or more employees 50 or more employees pdf rint_poster.pdf laen.pdf E%20B.pdf 5-49 employees E%20A.pdf All private pac.pdf DFEH 162 (v. 11/13) EEOC-P/E-1 (v. 11/09) WH-1420 (v. 11/13) DFEH (v. 11/12) DFEH (v. 11/12) WH-1462 (v. 01/12) All rivate.pdf (v. 07/08) All Employer may use own version All WHD-1088 (v. nwage.pdf 07/09) All MW-2014 Wage Orders All private Post applicable Order(s) for industry or occupation Copyright 2014 Law Group, 2

9 Payday Notice All DLSE 8 (v. 06/02) or employer may use own version Notice to Employees: Injuries Caused by Work Safety and Health Protection on the Job Job Safety and Health: It's the Law Emergency Phone Numbers Access to Medical and Exposure Records Cal/OSHA citations All DWC 7 (v. 06/10) All eng pdf (v. 08/14) All OSHA R All All using hazardous/toxic substances If citation is received str.pdf s_en.pdf Provided by California Division of Occupational Safety and Health (Cal/OSHA) S-500 (v. 03/90) S-11 (v. 11/93) Annual Summary of Injuries and Illnesses Prop. 65 Warning Notice 11 or more employees 10 or more employees nal.pdf Administered by the California Office of Environmental Health Hazard Assessment Form 300A (v. 07/07) No Smoking signage Notice of Workers' Compensation Carrier Time Off to Vote Employee Rights Under the Davis Bacon Act Employee Rights on Government Contracts, Walsh Healy Poster Employee Rights Under the H-2A Program All All All (for 10 days preceding statewide elections) Certain federal contractors Certain federal contractors Employers with H-2A workers Check Cal-OSHA website. Obtain from employer s workers' compensation insurer dprojc.pdf vc.pdf H2A.pdf WH-1321 (v. 04/09) WH 1313 (v. 04/09) WHD 1490 (v. 04/12) Copyright 2014 Law Group, 3

10 San Francisco Minimum Wage San Francisco employers mentid=9316 [Newer version will be required when minimum wage increase takes effect on Jan. 1, 2015] (v. 01/14) San Francisco Paid Sick Leave San Francisco Health Care Security Ordinance San Francisco Family Friendly Workplace Ordinance San Francisco Fair Chance Ordinance San Francisco City Contractor (various posters) San Francisco employers San Francisco employers with more than 20 employees and nonprofits with more than 50 San Francisco employers San Francisco employers and contractors San Francisco contractors mentid= mentid=9322 [Note: Newer version will be required when health care expenditure requirements are adjusted effective Jan. 1, 2015] mentid= mentid= (v. 01/14) Copyright 2014 Law Group, 4

11 RECORDS RETENTION OVERVIEW

12 RECORDS RETENTION OVERVIEW Category Document Time Period HIRING Resumes 1 year ADEA, ADA, Title VII 2 years FEHA, CFRA Job applications 1 year ADEA, ADA, Title VII 2 years FEHA, CFRA References 1 year ADEA, ADA, Title VII 2 years FEHA, CFRA PERSONNEL Requests to employment/ staffing agencies I-9 Forms and verification records Name, addresses and Social Security numbers Personnel actions 1 year after making the request The later of: 3 years from date of hire OR 1 year after termination 1 year after action 2 years after action Merit, incentive and 1 year after seniority systems record made 2 years after record made DISCRIMINATION Discrimination charges Until final disposition of case IRCA 4 years FICA ADEA, ADA, Title VII FEHA ADEA EPA Title VII, ADEA, ADA, FEHA Form EEO-1 1 year Title VII Accommodation requests 1 year ADA Affirmative action records 5 years Title VII Copyright 2014 Law Group, 1

13 FAMILY AND MEDICAL LEAVE Medical certifications, leave notices, records of premium payments, dates and hours of leave taken, records of disputes 3 years after leave ends FMLA Requests for leave 2 years CFRA WAGE AND HOUR Payroll records 1 year ADA, Title VII 2 years EPA 3 years FLSA, Cal. Labor Code 4 years Cal. Unemp. Ins. Code PAID SICK LEAVE BENEFITS HEALTH AND SAFETY Notices of overtime/training opportunities Written training agreements Collective bargaining agreement Hours worked, paid sick days accrued/used Records pertaining to employee benefits plans Summary Plan Description data Records that relate to welfare and pension benefits Records of toxic exposure Work injuries 1 year ADEA Duration of the FLSA training program 3 years after EPA agreement ends 3 years after FLSA agreement made 3 years Cal. Labor Code 1 year after ADEA termination of plan The later of: 6 years ERISA, FMLA OR 1 year after plan termination The later of: 6 years ERISA, FMLA OR 1 year after plan termination 30 years after OSHA termination of employment 5 years following OSHA, Calinjury OSHA Copyright 2014 Law Group, 2

14 CHECKLIST FOR INTERNAL INVESTIGATIONS

15 SAMPLE CHECKLIST FOR INTERNAL INVESTIGATIONS This checklist is intended to be used by employers as an internal investigation reference, to help guide the determination as to whether an investigation should be initiated, as well as to determine the steps that should be considered to complete an investigation. Because an investigation has the potential to both prevent and create legal liability, and because each investigation raises unique legal and factual issues, it is important to contact legal counsel if the employer has any questions about whether and how to proceed. IS THE COMPANY PREPARED TO INVESTIGATE? Does the organization have a reasonable basis for conducting an investigation? Are the organization and legal counsel familiar with the various state and federal laws addressing employee privacy and confidentiality? Are there collective bargaining agreements, company policies and procedures, or trade practices that may affect your investigation, the process of interviewing employees, or the gathering of documentation? Is the organization prepared to objectively evaluate all information that is discovered as part of the investigation? Is the organization prepared to take reasonable actions to correct any problems that are uncovered or confirmed during the course of the investigation? Is the organization prepared to call in professionals to deal with potentially violent or dangerous situations? WHEN TO CONDUCT AN INTERNAL INVESTIGATION Has an employee, vendor, or customer made a complaint of any form of harassment, threatening behavior, or intimidation? Has the organization been made aware of an unsafe business practice or a violation of applicable state or federal safety requirements? Has there been a death or serious injury at the place of employment? Has there been a threat of violence at the organization? Has a member of the organization s management team reportedly observed acts of harassment or inappropriate behavior involving employees? Copyright 2014 Law Group, 1

16 Have employees commented on inappropriate behavior, even though they insist they are not making official complaints? Has an employee complained of unfair or unlawful treatment? Is the organization concerned about workplace wrongdoing, unsafe practices, or illegal actions? THE BASICS OF CONDUCTING AN INVESTIGATION Has the organization determined what information it is trying to gather? Has the organization established a timeline to ensure that the investigation is promptly conducted and concluded? Has the organization evaluated the situation to determine whether the investigation should be handled by a qualified outsider or by someone within the organization (human resources, corporate counsel, or other individual)? Has the organization determined whether the investigation should be conducted under the attorney-client privilege, as well as taken steps to ensure the privilege is maintained during the course of the investigation? Has the organization reviewed all relevant files and records before beginning witness interviews? Is the organization familiar with applicable state and federal laws affecting employee investigations and interviews? Has the organization determined which employees and non-employees are most likely to have information about the subject of the investigation? Has the organization determined the order in which employees and non-employees will be interviewed? Has the organization taken steps to protect employee privacy, but avoided promises of confidentiality? Is the organization monitoring the workplace to ensure employees are not harassed or retaliated against as a result of their participation in the investigation? Does the organization have a system to maintain careful records of workplace investigations, which includes keeping those records in a secure place? Copyright 2014 Law Group, 2

17 Does the organization have a system to provide reminders during the course of the investigation to periodically review the information that has been obtained and to consider whether additional information should be gathered? Has the organization thoroughly analyzed and verified the investigation findings? Does the report of findings summarize the information gathered, all conclusions, and the subsequent actions that should be taken? Copyright 2014 Law Group, 3

18 TERMINATION CHECKLIST FOR CALIFORNIA EMPLOYEES

19 TERMINATION CHECKLIST For California Employees Appropriate departments (including but not limited to Human Resources, Payroll, and Security) have been notified of termination Employee notified of reason for termination Final paycheck given to employee Final expense check issued to employee Separation package offered Unemployment insurance pamphlet provided (California Employment Development Dept. Form DE 2320) Notice to Employee of Change in Relationship provided (employer-prepared form or letter) Notice to Terminating Employees provided (California Dept. of Health Services form) COBRA or Cal/COBRA election forms provided HIPAA Notice of Creditable Coverage provided (check with health plan administrator) Retirement plan election forms provided Inventory taken of employee's company files, desk, and work area Company equipment and property returned: vehicle credit and phone cards computer and electronic equipment paper and computer files in employee's possession building entry passcard or badge Exit interview conducted Copyright 2014 Law Group, 1

20 LABOR AND EMPLOYMENT DUE DILIGENCE CHECKLIST

21 LABOR AND EMPLOYMENT DUE DILIGENCE CHECKLIST For California Employers The following is a summary checklist of the subjects and types of information employers may need to examine in connection with labor and employment due diligence for a corporate merger or acquisition. Employment Litigation and Related Issues Determine if any of the following exist over the past five years (or longer if corporate obligations are continuing): Employment lawsuits, judgments and settlement agreements, filed in federal or state court EEOC or state agency lawsuits/judgments/settlements Other federal or state agency lawsuits/judgments/settlements filed or entered into within the past five years Charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) or similar state or local agencies Unfair labor practice charges Charges or complaints filed by employees with any other federal, state or local agency Audits or correspondence from federal, state and local agencies (such as the U.S. Department of Labor, Office of Federal Contract Compliance Programs, etc.) Compliance agreements, conciliation agreements, or consent decrees Workers compensation claims Demand or complaint letters from employees Copyright 2014 Law Group, 1

22 Employment Policies and Practices Review current handbook and make sure it has required/suggested policies. Make sure the policies are up-to-date and accurately reflect the company s practices. Verify with Human Resources or appropriate management personnel. Current employee handbook(s) Employment policies regarding: Equal employment opportunity Harassment Investigations Conduct/discipline/termination Complaint/grievance procedures Attendance policies, including no-fault policies Leaves of absence (FMLA/CFRA/ADA) Sick leave Paid time off Employee classifications Meal and rest breaks Off-the-clock policies and practices Ethics/codes of conduct Employee Files Personnel files/location, content and access Releases for background checks Medical information Copyright 2014 Law Group, 2

23 Individual Employee Issues Employees on leave of absence Employees on short/long-term disability Pending internal complaints/grievances Employees with high rates of absenteeism Independent contractor agreements Employment agreements Trade secret and confidentiality agreements Employee stock agreements Employee loans Employment contracts verbal and/or implied Training Harassment General equal employment opportunity Managing within the law Safety Safety Workplace Illness and Injury Prevention Program Injury and illness records Benefits ERISA benefits plan documents, including summary plan descriptions Form 5500(s) COBRA Determination letters (for tax-qualified plans) Benefits vendor agreements Local ordinances, including living wage ordinances, San Francisco sick leave ordinance Copyright 2014 Law Group, 3

24 Labor Issues Current collective bargaining agreements Pending grievances Grievance settlements within past five years Arbitration decisions within past five years Documentation concerning recent strikes, organizing, or other concerted activity Government Contractors Affirmative Action Plans Goals and Timetables/progress OFCCP audits and compliance agreements Logs/applicant, hiring, promotion, termination EEO-1 reports/surveys Statement of subcontractor compliance Self-assessments Other Employment Documentation and Agreements I-9 forms Audit reports Job descriptions Job tests, including validation studies where applicable Application forms New hire notices (Labor Code section ) Employment contracts Staffing Agency agreements Copyright 2014 Law Group, 4

25 Data on current employees (job title, location, hire date, pay rate, race/gender/age) Arbitration agreements Workplace posters Nondisclosure/noncompete/confidentiality agreements Patent, invention and other types of IP agreements Severance agreements Stock purchase agreements Safety/Workplace Injury and Illness Prevention Program WARN Act issues Copyright 2014 Law Group, 5

26 Your Annual Employment Law Check-Up 111 Sutter Street, Suite 700 San Francisco, CA (415) Wilshire Blvd., Suite 1375 Los Angeles, CA (310) DISCLAIMER: These materials are for educational purposes only and to provide general information and a general understanding of the law. The materials do not provide specific legal advice. By using the materials in this document, you understand that there is no attorney-client relationship between you and Law Group. Furthermore, these materials should not be used as a substitute for competent legal advice from a licensed attorney in your state. Copyright 2014 Law Group,

27 Annual Employment Law Check-Up For California Employers NOTE: Whenever possible, audits, whether handled by your supervisors, committee, or legal counsel, should be conducted at the direction of in-house or outside legal counsel to protect the audit findings under the attorney-client privilege. Company Name: Number of Employees: Number of Exempt: Number of Non-Exempt: Are any of your employees unionized? Yes No If yes, what union(s)? Are you in the process of negotiations with any union(s)? Yes No If yes, which union(s)? Do you have a separate agreement covering management employees? If yes, does it contain an express statement that employment is at will? Do you have individual employment agreements with any employees? Have you checked to ensure that you have provided all legally mandated postings? (Note: Many statutes require employers to post notices of employee rights.) Yes No Yes No Yes No Yes No Copyright 2014 Law Group, 1

28 Annual Employment Law Check-Up For California Employers When were your employment application and selection rules last reviewed? Do you conduct any pre-employment testing? Yes No If yes, what type (physical, psychological, drug, skill level, intelligence, etc.) and for which employee groups? Do you check references? Do you perform background checks? Yes No Yes No If yes, for which employee groups? Have you reviewed your hiring policies to ensure compliance with any applicable state and local ban the box or fair chance laws? Yes No Copyright 2014 Law Group, 2

29 Annual Employment Law Check-Up For California Employers Do you have written Personnel Policies? Yes No Specify the type (for example, Employee Handbook, Manager s Manual, Training Manuals, etc.): Identify the employee groups covered by the written Personnel Policies: Identify the employee groups not covered by the written Personnel Policies: Do your Personnel Policies contain the following provisions: Probationary employment Regular employment Temporary or provisional employment Disciplinary grounds and appeal procedure Performance evaluations Personnel files Vacation, PTO, paid sick leave Disability and pregnancy disability leave Reasonable accommodation policy Family and medical leave Other leave (jury duty, bereavement, military, etc.) Voluntary and involuntary transfers Layoffs Job abandonment Reemployment Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Copyright 2014 Law Group, 3

30 Fitness for duty Annual Employment Law Check-Up For California Employers Yes No Use of company equipment Computer use/electronic communications (including , computers, internet) Social media policy Bring Your Own Device (B.Y.O.D.) policy Confidentiality/trade secrets Overtime Off-the-clock Meal and rest breaks Grievance procedure Equal employment opportunity (non-discrimination policy) Policy against sexual harassment Internal complaint procedure for discrimination/harassment Are your Personnel Policies distributed to employees? Do all employees sign a form acknowledging receipt of the Personnel Policies? Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No When were your Personnel Policies last reviewed? Copyright 2014 Law Group, 4

31 Annual Employment Law Check-Up For California Employers Do you conduct formal performance evaluations? Yes No If yes, how frequently are formal reviews given? Are evaluations properly documented? Are employees given an opportunity on the review to write their comments? Do employees sign their evaluations? Are informal, feedback reviews conducted between the formal reviews? Have performance criteria been established in advance and communicated to all employees? Is there a formal means of relating compensation to performance? If yes, is it consistently applied throughout the company? Are narrative evaluations provided in addition to numerical ratings? Do supervisors discuss reviews with each employee? Is the HR department involved in ensuring compliance with performance review policies throughout the company? Are supervisors taught that their records of evaluation may potentially be used in an attempt to support a claim of wrongful discharge or discrimination/retaliation lawsuit? Are supervisors taught that their records of evaluation may potentially be used as a defense against a wrongful discharge or discrimination/retaliation lawsuit? Does your performance evaluation form meet your needs? Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No When was your performance evaluation form last updated? Copyright 2014 Law Group, 5

32 Annual Employment Law Check-Up For California Employers For your exempt employees, what exemption categories apply to their positions? Professional Executive Administrative Commissioned Sales Outside Sales Computer Software Professional Other Do you have volunteers? (Note: only nonprofits and public employers may use unpaid volunteers.) Do you use unpaid interns? If so, do they satisfy all requirements for an unpaid internship, pursuant to the DOL and DLSE guidelines? Do you have commissioned employees? If so, is their Commission Plan in writing? Is the Commission Plan provided to employees? Do you require employees to sign a copy of the Commission Plan? Do you require employees to sign an acknowledgment of receipt of the Commission Plan? Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No When was the Commission Plan last reviewed? Do you require supervisor authorization before working overtime, for your non-exempt employees? Yes No On what basis/bases do you calculate overtime? Copyright 2014 Law Group, 6

33 Annual Employment Law Check-Up For California Employers Do you have a Meal Period/Rest Break Policy? If so, do your employees sign off on the policies? Do you employ meal period waivers? Do you have an on-duty meal period agreement? Do you have Independent Contractors? Do you use an Independent Contractor Agreement? Yes No Yes No Yes No Yes No Yes No Yes No If yes, when was your Agreement last reviewed? Copyright 2014 Law Group, 7

34 Annual Employment Law Check-Up For California Employers Do you have a progressive discipline policy? Yes No If yes: Have your managers and supervisors been trained on how to use and comply with the policy? Are performance problems brought to the employee s attention and documented by managers and supervisors when they occur? Are the reasons supporting discipline promptly and thoroughly documented? Is the documentation properly placed in the employee s personnel file? Yes No Yes No Yes No Yes No Copyright 2014 Law Group, 8

35 Annual Employment Law Check-Up For California Employers Do you provide training for your managers and supervisors in any of the following areas? Selecting/hiring the right employees How to manage successful performance Performance evaluations Progressive discipline Avoiding wrongful discharge claims Equal employment opportunity (discrimination) law Sexual harassment (Note: Managers in California must receive AB 1825-compliant sexual harassment training every two years) Sexual orientation discrimination FMLA, CFRA, pregnancy, worker s comp, and other leave requests ADA compliance, including engaging in the interactive process Conducting an internal investigation Wage and hour compliance Managing effectively under a collective bargaining agreement Workplace violence prevention and response Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Yes No Copyright 2014 Law Group, 9

36 Annual Employment Law Check-Up For California Employers Have any employees or former employees filed a charge against your company with any governmental agency during the last five years (i.e., DFEH, EEOC, LWDA, OSHA)? Yes No If yes, how many? What was the result? Was a lawsuit filed? Yes No What was the result? Have any other lawsuits been filed against you in the last five years alleging wrongful discharge, discrimination, sexual harassment or any other employment-related claims? Yes No If yes, how many? What was the result? Have any employees filed a complaint with the California Labor Commissioner (or DLSE) or the U.S. Department of Labor in the last five years? Yes No If yes, how many? What was the result? Was a lawsuit filed? Yes No What was the result? Have any wage and hour lawsuits been filed? Yes No If yes, how many? What type? What was the result? What was the result? Copyright 2014 Law Group, 10

37 Annual Employment Law Check-Up For California Employers Identify three top areas of your company s employment practices that you would like to see improved If there are any other concerns or issues relating to your labor and/or employment policies that have not been addressed in this check-up, please identify. Copyright 2014 Law Group, 11

38 SAMPLE OFFER LETTER EXEMPT

39 SAMPLE OFFER LETTER ** EXEMPT POSITION ** XYZ Company [Date] PERSONAL AND CONFIDENTIAL [Name] [Address] Re: Offer of Employment Dear [Name]: I am pleased to confirm our offer of employment as an [Title] at XYZ Company. Your employment will begin on your first day of work with XYZ Company on [Date]. The terms of your employment with XYZ Company are as follows: A. Compensation Your starting monthly salary will be $[amount], which equates to an annual salary of $[amount]. You will be paid on [insert regular paydays]. B. Schedule Our offices are open from 8:00 a.m. until 6:00 p.m. As a full-time Exempt employee you are expected to work a normal workweek of no fewer than 40 hours per week from Monday through Friday between 8:00 a.m. and 6:00 p.m. Employees in exempt positions are not entitled to overtime compensation and are expected to work the hours necessary to complete assignments on a schedule that satisfies the requirements and responsibilities of the job. C. Benefits The first three months of employment are considered an introductory period. Beginning on the first day of the month following completion of the three-month introductory period, full time employees are eligible to participate in the group health insurance plan offered by XYZ Company. You will be eligible to participate in XYZ Company s group health plans on [Date]. Copyright 2014 Law Group, 1

40 When you become eligible to participate, XYZ Company will pay the monthly premium for your coverage. If you wish to cover dependants, you will be responsible for paying the premium for dependant coverage, and the premiums will be deducted from your end-ofthe month paychecks for the following month s coverage. Finally, XYZ Company maintains a Section 125 Flexible Spending Account for dependent childcare, which you may elect to participate in at your sole discretion. We will provide you details of this plan when you begin your employment. D. Profit Sharing and 401(k) XYZ Company has established a profit sharing plan for its employees. Contributions, if any, to this plan are at the sole discretion of XYZ Company. You should be aware that XYZ Company is not, and will not be, obligated to make any contribution to this plan on an annual basis. Please see Human Resources for details concerning this plan, including eligibility requirements. XYZ Company also has established a 401(k) plan, which is funded completely by the employee. XYZ Company does not contribute to an employee s 401(k) plan. An employee is eligible to participate in the 401(k) plan on the first day of the quarter following completion of 250 hours with XYZ Company. Once again, please see Human Resources for details concerning the 401(k) plan. We estimate that you will be eligible to participate in the plan on [Date]. E. Vacation and Sick Pay In addition to the other benefits described above, you are entitled to [number] days of vacation per year. Vacation is accrued on a semi-monthly basis, beginning on your first day of employment, at the rate of [number] hours per pay period. Since XYZ Company encourages employees to take vacation, we do not allow employees to accrue more than 1.75 times their yearly accrual. In your case, the maximum accrual would be [days] days, and if you reach the maximum accrual, you will not accrue any additional vacation time until you use some vacation. Any unused, accrued vacation will be paid out upon termination. XYZ Company also provides its employees with paid sick leave, in compliance with California law [and the San Francisco Paid Sick Leave Ordinance]. You will be provided with information regarding paid sick leave on your first day of work. F. Employment Authorization Your employment is contingent upon verification of your identity and authorization to work in the U.S. for XYZ Company. You must comply with any applicable U.S. Citizenship and Immigration Services (USCIS) employment verification requirements. Copyright 2014 Law Group, 2

41 G. At-Will Employment Employment with XYZ Company is employment at-will. This means that both you and XYZ Company are free to terminate the employment relationship at any time, with or without cause or and with or without advance notice. Likewise XYZ Company may reassign you or change the terms and conditions of your employment at any time with or without cause or notice. This term of employment is not subject to change or modification of any kind except if in writing and signed by the President of XYZ Company. H. Entire Agreement This offer of employment and the Nondisclosure Agreement [attached as Exhibit 1] contain the entire agreement between you and XYZ Company with respect to any benefit conferred upon you, and all prior agreements, representations, or understandings between us, whether oral or written, are expressly superseded by this offer of employment. Your employment is conditioned upon your execution of XYZ Company s Nondisclosure Agreement [attached as Exhibit 1]. In order to indicate your acceptance of this offer, please sign and date this letter in the space provided below and sign and date the Nondisclosure Agreement, and return both to Human Resources no later than [date]. Please feel free to contact Human Resources or me if you have any questions about this employment offer or any point covered in this letter. We look forward to working with you as a member of our team. Very truly yours, XYZ Company ************************************************************************ I hereby agree to the terms of this offer letter and accept employment with XYZ Company. I understand and agree that this letter supersedes any and all prior representations or agreements, whether written or oral. I also agree that the terms of employment set forth in this letter may not be modified, except by written agreement signed by the President of XYZ Company. Dated: Signed: Copyright 2014 Law Group, 3

42 SAMPLE OFFER LETTER NON-EXEMPT

43 SAMPLE OFFER LETTER ** NON-EXEMPT POSITION ** XYZ Company [Date] PERSONAL AND CONFIDENTIAL [Name] [Address] Re: Offer of Employment Dear [Name]: I am pleased to confirm our offer of employment as an [Title] at XYZ Company. Your employment will begin on your first day of work with XYZ Company on [Date]. The terms of your employment with XYZ Company are as follows: A. Compensation Your schedule will consist of 40 hours per week, 8 hours each day. Your hourly rate of pay will be $[Amount] per hour, for an estimated annual salary which equates to an annual salary of $[Amount]. B. Schedule Our offices are open from 8:00 a.m. until 6:00 p.m. Your schedule will be 8:00 a.m. to 5:00 p.m., with an hour unpaid lunch. You may take two 10-minute rest breaks each day (one in the morning and one in the afternoon). Depending upon business needs, XYZ Company, in its sole discretion, may alter or amend your schedule. C. Benefits The first three months of employment are considered an introductory period. Beginning on the first day of the month following completion of the three-month introductory period, full-time employees are eligible to participate in the group health insurance plan offered by XYZ Company. You will be eligible to participate in XYZ Company s group health plans on [Date]. Copyright 2014 Law Group, 1

44 When you become eligible to participate, XYZ Company will pay the monthly premium for your coverage. If you wish to cover dependants, you will be responsible for paying the premium for dependant coverage, and the premiums will be deducted from your end-ofthe month paychecks for the following month s coverage. Finally, XYZ Company maintains a Section 125 Flexible Spending Account for dependent childcare, which you may elect to participate in at your sole discretion. We will provide you details of this plan when you begin your employment. D. Profit Sharing and 401(k) XYZ Company has established a profit sharing plan for its employees. Contributions, if any, to this plan are at the sole discretion of XYZ Company. You should be aware that XYZ Company is not, and will not be, obligated to make any contribution to this plan on an annual basis. Please see Human Resources for details concerning this plan, including eligibility requirements. XYZ Company also has established a 401(k) plan, which is funded completely by the employee. XYZ Company does not contribute to an employee s 401(k) plan. An employee is eligible to participate in the 401(k) plan on the first day of the quarter following completion of 250 hours with XYZ Company. Once again, please see Human Resources for details concerning the 401(k) plan. We estimate that you will be eligible to participate in the plan on [Date]. E. Vacation and Sick Pay In addition to the other benefits described above, you are entitled to [number] days of vacation per year. Vacation is accrued on a semi-monthly basis, beginning on your first day of employment, at the rate of [number] hours per pay period. Since XYZ Company encourages employees to take vacation, we do not allow employees to accrue more than [1.75] times their yearly accrual. In your case, the maximum accrual would be [days] days, and if you reach the maximum accrual, you will not accrue any additional vacation time until you use some vacation. Any unused, accrued vacation will be paid out upon termination. XYZ Company also provides its employees with paid sick leave, in compliance with California law [and the San Francisco Paid Sick Leave Ordinance]. You will be provided with information regarding paid sick leave on your first day of work. F. Employment Authorization Your employment is contingent upon verification of your identity and authorization to work in the U.S. for XYZ Company. You must comply with any applicable U.S. Citizenship and Immigration Services (USCIS) employment verification requirements. Copyright 2014 Law Group, 2

45 G. At-Will Employment Employment with XYZ Company is employment at-will. This means that both you and XYZ Company are free to terminate the employment relationship at any time, with or without cause or and with or without advance notice. Likewise XYZ Company may reassign you or change the terms and conditions of your employment at any time with or without cause or notice. This term of employment is not subject to change or modification of any kind except if in writing and signed by the President of XYZ Company. H. Entire Agreement This offer of employment and the Nondisclosure Agreement [attached as Exhibit 1] contain the entire agreement between you and XYZ Company with respect to any benefit conferred upon you, and all prior agreements, representations, or understandings between us, whether oral or written, are expressly superseded by this offer of employment. Your employment is conditioned upon your execution of XYZ Company s Nondisclosure Agreement [attached as Exhibit 1]. In order to indicate your acceptance of this offer, please sign and date this letter in the space provided below and sign and date the Nondisclosure Agreement, and return both to Human Resources no later than [date]. Please feel free to contact Human Resources or me if you have any questions about this employment offer or any point covered in this letter. We look forward to working with you as a member of our team. Very truly yours, XYZ Company ************************************************************************ I hereby agree to the terms of this offer letter and accept employment with XYZ Company. I understand and agree that this letter supersedes any and all prior representations or agreements, whether written or oral. I also agree that the terms of employment set forth in this letter may not be modified, except by written agreement signed by the President of XYZ Company. Dated: Signed: Copyright 2014 Law Group, 3

46 SAMPLE EMPLOYMENT AGREEMENT

47 SAMPLE EMPLOYMENT AGREEMENT For California Employees (Short Form) This Employment Agreement ( Agreement ) is made between XYZ Company ( Company ) and ("Employee") as of [insert date]. In consideration of the mutual covenants set forth in this Agreement, the parties agree as follows: 1. Employment. Company hereby employs the Employee on the terms and conditions set forth in this Agreement. 2. Term of Employment. Employee is an at-will employee, and as such may be terminated at any time for any reason, with or without cause, and may terminate this Agreement at any time for any reason, with or without cause. Upon termination of employment, Employee shall be entitled to all compensation earned through the last day worked, and shall not be entitled to any additional compensation. 3. Salary. Company shall pay Employee a salary of $ per month (annualized to $ ), for the services of the Employee, payable at regular payroll periods. Employee shall also be entitled to participate in health insurance programs offered to other similarly situated employees. 4. Duties and Position. Employee shall be employed in the capacity of. The Employee's duties may be reasonably modified at the Company's discretion from time to time. Employee is a full-time, [exempt] employee. 5. Employee to Devote Full Time to Company. The Employee will devote his or her full time, attention, and energies to the business of Company, and, during this employment, will not engage in any other business activity that interferes with his ability to fulfill his duties at Company. Employee is not prohibited from making personal investments in any other businesses, provided that those investments do not require active involvement in the operation of said companies. 6. Confidentiality and Ownership of Proprietary Information. Employee agrees, during and after the term of this employment, not to reveal confidential information or trade secrets of Company or any of its grant recipients or any of its donors or sponsors to any person, firm, corporation, or entity. Employee may disclose the fact of his/her work on any Company products in the public domain, but may not disclose confidential information about those works not yet in the public domain to any person, firm, corporation or entity. Should Employee reveal or threaten to reveal this information, Company shall be entitled to an injunction restraining the Employee from disclosing same, or from rendering any services to any entity to whom said information has been or is threatened to be disclosed, the right to secure an injunction is not exclusive, and Company may pursue any other remedies it has against the Employee for a breach or threatened breach of this condition, Copyright 2014 Law Group, 1

48 including the recovery of damages from the Employee. [This Agreement hereby incorporates by reference the Nondisclosure Agreement signed by the Employee on [date].] 7. Reimbursement of Expenses. The Employee may incur reasonable and necessary expenses in connection with Employee s duties, including expenses for entertainment, travel, and similar items. Company shall reimburse Employee for all reasonable and necessary business expenses after the Employee presents an itemized account of expenditures, pursuant to Company policy. Mileage reimbursement shall be at the rate set forth by the IRS yearly. 8. Vacation and Sick Leave. The Employee shall be entitled to a yearly paid vacation of weeks ( days). Employee shall also be entitled to paid sick days yearly. Accrual and use of vacation and sick days shall be governed by Company s employment policies. 9. Prior Agreements Superseded. This Agreement supersedes any prior Agreement between Company or any predecessor of Company and the Employee. 10. Arbitration. Any claim or controversy that arises out of or relates to this Agreement, or the breach of it, shall be resolved by binding arbitration pursuant to the [JAMS or AAA] rules governing employment disputes, as such rules may be amended from time to time. A copy of the current [JAMS or AAA] rules are attached to this Agreement. Judgment upon the award rendered may be entered in any court with jurisdiction. 13. Limited Effect of Waiver by Company. Should Company waive a breach of any provision of this Agreement by the Employee, that waiver will not operate or be construed as a waiver of any further breach by the Employee. 14. Severability. If, for any reason, any provision of this Agreement is held to be invalid, all other provisions of this Agreement shall remain in effect. 15. Assumption of Agreement by Company's Successors and Assignees. Company's rights and obligations under this Agreement will inure to the benefit of and be binding upon Company's successors and assignees. 16. Oral Modifications Not Binding. This instrument is the entire Agreement between Company and Employee regarding the subject matter covered by this Agreement. It may be altered only by a written agreement signed by both parties. Oral changes have no effect. Date: XYZ Company Date: Employee Copyright 2014 Law Group, 2

49 SAMPLE EMPLOYEE NONDISCLOSURE AGREEMENT

50 SAMPLE EMPLOYEE NONDISCLOSURE AGREEMENT For California Employees (Short Form) This Agreement is entered into between ( Employee ) and XYZ Company (the Company ). In exchange for the consideration set forth in this Agreement, Employee agrees as follows: Duties, No Conflict. I will perform for Company such duties as may be designated by Company from time to time. During my period of employment by Company, I will devote my best efforts to the interests of Company and will not engage in other employment or in any activities determined by Company to be detrimental to the best interests of Company without the prior written consent of Company. Prior Work. All previous work done by me for Company relating in any way to the conception, reduction to practice, creation, derivation, design, development, manufacture, sale or support of products or services for Company is the property of Company, and I hereby assign to Company all of my right, title and interest in and to such previous work. Proprietary Information. My employment status creates a relationship of confidence and trust between Company and me with respect to any information: (a) related to the business of Company; or (b) related to the business of any client or customer of Company, which may be made known to me by Company or by any client or customer of Company, or learned by me in such context during the period of my employment. All such information has commercial value in the business in which Company is engaged and is hereinafter called Proprietary Information. By way of illustration, but not limitation, Proprietary Information includes any and all technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of Company, and includes, without limitation, respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information. Proprietary Information also includes proprietary or confidential information of any third party who may disclose such information to Company or to me in the course of Company s business. Ownership and Nondisclosure of Proprietary Information. All Proprietary Information is the sole property of Company, Company s assigns, and Company s customers, and Company, Company s assigns and Company s customers shall be the sole and exclusive Copyright 2014 Law Group, 1

51 owner of all patents, copyrights, mask works, trade secrets and other rights in the Proprietary Information. I hereby do and will assign to Company all rights, title and interest I may have or acquire in the Proprietary Information. At all times, both during my employment by Company and after termination of such employment, I will keep in confidence and trust all Proprietary Information, and I will not use or disclose any Proprietary Information or anything directly relating to Proprietary Information without the written consent of Company, except as may be necessary in the ordinary course of performing my duties as an employee of Company. Notwithstanding this paragraph, I understand that I am not assigning my rights to any invention described in Exhibit A to this Agreement and set forth in California Labor Code Section Ownership and Return of Materials. All materials (including, without limitation, documents, drawings, models, apparatus, sketches, designs, lists, and all other tangible media of expression) furnished to me by Company shall remain the property of Company. Upon termination of my employment, or at any time on the request of Company before termination, I will promptly (but no later than five (5) days after the earlier of said termination or Company s request) destroy or deliver to Company, at Company s option, (a) all materials furnished to me by Company, (b) all tangible media of expression which are in my possession and which incorporate any Proprietary Information or otherwise relate to Company s business, and (c) written certification of my compliance with my obligations under this sentence. No Violation of Rights of Third Parties. My performance of all the terms of this Agreement and as an employee of Company does not, and will not, breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me prior to my employment with Company, and I will not disclose to Company, or induce Company to use, any confidential or proprietary information or material belonging to any previous employer or others. I am not a party to any other agreement which will interfere with my full compliance with this Agreement. I agree not to enter into any agreement in the future, whether written or oral, in conflict with the provisions of this Agreement. Survival. This Agreement (a) shall survive my employment with Company; (b) does not in any way restrict my right or the right of Company to terminate my employment at any time, for any reason or for no reason; (c) inures to the benefit of successors and assigns of Company; and (d) is binding upon my heirs and legal representatives. Solicitation of Employees. In order to protect the Company s Proprietary Information, for a period of (12) months following the termination of this Agreement, I will not, directly or indirectly, without the prior written consent of Company, solicit, encourage, hire or take any other action which is intended to induce or encourage, or has the effect of inducing or encouraging, any employee of Company or any subsidiary of Company to terminate his or her employment with Company or any subsidiary of Company. Copyright 2014 Law Group, 2

52 Injunctive Relief. A breach of any of the promises or agreements contained herein will result in irreparable and continuing damage to Company for which there will be no adequate remedy at law, and Company shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate). Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of California. Severability. If any provision of this Agreement is held by a court of law to be illegal, invalid or unenforceable, (i) that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby. Waiver, Amendment, Modification. The waiver by Company of a term or provision of this Agreement, or of a breach of any provision of this Agreement by me, shall not be effective unless such waiver is in writing signed by Company. No waiver by Company of, or consent by Company to, a breach by me, will constitute a waiver of, consent to or excuse of any other or subsequent breach by me. This Agreement may be amended or modified only with the written consent of both me and Company. No oral waiver, amendment or modification shall be effective under any circumstances whatsoever. Entire Agreement. This Agreement represents my entire understanding with Company with respect to the subject matter of this Agreement and supersedes all previous understandings, written or oral. I certify and acknowledge that I have carefully read all of the provisions of this Agreement and that I understand and will fully and faithfully comply with such provisions. COMPANY Signature Date EMPLOYEE Signature Date Copyright 2014 Law Group, 3

53 Exhibit A Section 2870 of the California Labor Code states that: (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable. Copyright 2014 Law Group, 4

54 SAMPLE INDEPENDENT CONTRACTOR AGREEMENT

55 SAMPLE INDEPENDENT CONTRACTOR AGREEMENT This will confirm the terms of your work for XYZ Company as [describe work to be performed]. This Agreement is between XYZ Company (referred to as Company in this Agreement), and whose principal place of business is [address], and (referred to as Contractor in this Agreement), whose principal place of business is [address]. This Agreement becomes effective on [date]. [This Agreement will terminate on [date].] Scope of Work: Contractor agrees to perform the following services: [insert description]. Contractor's services will be referred to as Work in this Agreement. Fees and Invoices: Contractor will submit an invoice each month that services are performed. The invoice will include an invoice number and a brief description of services. All fees are payable within [30 days after invoicing and satisfactory completion of services]. Contractor's fees will be based on a rate of [insert payment rate based on time or project]. Contractor s Expenses: Contractor will be responsible for all expenses in performing the Work specified in this Agreement including, but not limited to, Contractor s overhead, license fees, memberships and dues, travel expenses, meals, insurance premiums, and any salary or other compensation paid to Contractor's employees or contract workers. Relationship Between Parties: Contractor acknowledges that Contractor is engaged in an independent business with a substantial investment in Contractor's own business and equipment. Contractor is not Company's employee and does not receive training from Company. Contractor acknowledges that Company does not supervise or control Contractor's work in any manner. Therefore, Contractor has the sole right to control and direct the means, manner and method by which the Work required by this Agreement will be performed. Contractor sets Contractor s own work hours and works at Contractor s office or any other place Contractor chooses. Contractor performs work for other companies and has the right to continue to do so. In addition, Contractor agrees to furnish all equipment, labor and materials needed for the Work required by this Agreement. Contractor has the right to hire assistants as subcontractors, or to use employees to do the Work. Contractor's employees or contract personnel are not employees of Company. Contractor is solely responsible for all wages, costs, and expenses of such employees or contract personnel and has the sole and exclusive right to supervise and control them. Company will not require Contractor or Contractor's employees or contract personnel to devote full time to performing the Work required by this Agreement. Copyright 2014 Law Group, 1

56 No Benefits: Neither Contractor nor Contractor's employees or contract workers are eligible for workers' compensation or unemployment insurance benefits from Company, and therefore Contractor and Contractor's employees or contract workers will not apply for such benefits. Also, neither Contractor nor Contractor's employees or contract personnel may participate in any employee benefit plan of Company, including but not limited to pension, profit sharing, stock option, health, vacation pay, or sick pay plan. Contractor agrees that in the event a court or government agency determines that Contractor is an employee rather than an independent contractor, Contractor waives any right to recover from Company, and promises not to seek from Company, employee benefits of any kind to which an employee of Company would have been entitled during the period prior to the court or government agency's ruling. Workers' Compensation Coverage: If Contractor hires others to perform any work under this Agreement, Contractor will cover them with workers' compensation insurance as required by law and provide Company with a certificate of coverage. If Contractor is not a corporation, Contractor will also obtain workers' compensation coverage for Contractor. Responsibility for Taxes: Since Contractor is an independent business, Contractor is responsible for all income, Social Security, self-employment, unemployment and other taxes that may be due as a result of payments to Contractor under this Agreement. Upon request, Contractor will provide Company with proof that such payments have been made. No taxes will be withheld from Company's payments to Contractor. Contractor will complete an IRS Form W-9 certifying that Contractor is not subject to backup withholding. Company will provide Contractor with an IRS Form 1099 at the end of each year showing all fees paid to Contractor during the year. In the event of an audit, Contractor agrees to promptly cooperate with Company and provide copies of Contractor's state and federal income tax returns, and other documents as Company may reasonably request. Permits, Certificates and Licenses: Contractor will comply with all federal, state and local laws requiring business permits, certificates and licenses necessary to perform the Work described in this Agreement. Liability Insurance: Contractor agrees to maintain a liability insurance policy of at least [amount] to cover any negligent acts committed by Contractor or Contractor's employees or agents while performing services under this Agreement. Contractor also agrees to have Company named as an additional insured under the policy. Contractor will provide a copy of the declarations page of the policy to Company no later than the effective date of this Agreement. Indemnification. Contractor agrees to indemnify and hold harmless Company from any and all claims by Contractor, which may arise out of and in the course of the performance of services under this Agreement. Any and all claims for unemployment benefits and/or claims for workers' compensation benefits, by Contractor or Contractor s employees, are hereby expressly waived by Contractor. Copyright 2014 Law Group, 2

57 Intellectual Property: Contractor hereby assigns and transfers to Company all of Contractor's rights in the Work. The rights assigned include, but are not limited to, all title and interest in all copyright, trademark, patent and any other proprietary rights. Contractor will assist Company if necessary, at no additional cost to Company except for reasonable out-of-pocket expenses, in obtaining and enforcing all copyrights and other intellectual property rights. If Contractor hires employees or contract workers to assist Contractor in completing the Work, Contractor will, as soon as practical, provide Company with each person's name, address and telephone number. Contractor is responsible for obtaining an assignment from each person, in writing, of all intellectual property rights in the Work to Company in a form to be approved by Company. Confidentiality: In the course of Contractor's relationship with Company, Contractor may have access to confidential trade secret information (referred to in this Agreement as Confidential Information) including, but not limited to, formulas, customer lists, designs, processes, inventions, methods, business strategies, plans, and operations. All of the Confidential Information will remain the sole property of Company and will not be used or duplicated by Contractor except in connection with the Work to be done by Contractor under this Agreement. Contractor will keep the Confidential Information in the strictest confidence and will not disclose it by any means to any third party, except with Company's prior written approval, and only to the extent necessary to do the Work. Contractor may disclose the Confidential Information to [his/her/its] employees or contract personnel only to the extent necessary to do the Work and only after they have agreed in writing to the provisions of this Paragraph. Upon termination of this Agreement, Contractor will return to Company all of the Confidential Information in Contractor's possession, including computer files, written documents and notes, and will cease to make any further use of it. Contractor's obligations under this Paragraph will remain in effect during the term of this Agreement and will continue after its termination. Termination of Agreement. This Agreement will terminate on the completion of the Work as described in this Agreement. [or: Either party may terminate this Agreement at any time by [10] business days written notice to the other party. 1 ] In addition, notwithstanding the foregoing, Company may terminate this Agreement immediately and without prior written notice to the Contractor if the Contractor is convicted of any crime or offense, fails or refuses to comply with the written policies or reasonable directive of the Company, is guilty of serious misconduct in connection with performance under this Agreement, or materially breaches provisions of this Agreement. Headings. Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof. 1 Note that the ability to terminate at-will is an indication of an employer-employee relationship. Therefore, the company should consider including in the agreement specific grounds for its termination. Copyright 2014 Law Group, 3

58 Binding Effect, Entire Agreement, Modifications, Waiver: This Agreement will be binding on the heirs, successors and assigns of the parties. It may not be assigned without the written consent of both parties. This is the entire agreement between Company and Contractor. It supersedes all prior agreements, if any. It can only be changed by a written agreement signed by Company and Contractor. If any part of this Agreement is deemed unenforceable, the remaining portions will continue in full force and effect. A waiver of a breach of any portion of this Agreement will not be considered to be a waiver of any future breaches. This Agreement will be governed by California law. By signing below, Contractor and Company acknowledge and agree to the terms set out in this Agreement. CONTRACTOR By: Signature Date COMPANY By: Name Printed Signature Date Copyright 2014 Law Group, 4

59 SAMPLE AT-WILL EMPLOYMENT POLICY Your employment with XYZ Company is employment at-will. This means that both you and XYZ Company have the right to terminate your employment at any time, with or without advance notice, and with or without cause. Employees also may be demoted or disciplined and the terms of their employment may be altered at any time, with or without cause and with or without notice, at the discretion of XYZ Company. Any such demotion, discipline or other change in employment status shall not change the at-will nature of your employment in any way. No one other than the President of XYZ Company has the authority to alter this arrangement, to enter into an agreement for employment for a specified period of time, or to make any agreement contrary to this policy, and then only in writing signed by the President of XYZ Company. Copyright 2014 Law Group, 1

60 SAMPLE EQUAL EMPLOYMENT OPPORTUNITY POLICY For California Employees XYZ Company is an equal opportunity employer. XYZ Company treats employees and applicants based on their qualifications, ability to do the job and level of competence. XYZ Company will not discriminate against employees or applicants on the basis of race, color, religion, sex, sexual orientation, gender identity, gender expression, pregnancy, breastfeeding, national origin, ancestry, age, physical disability, mental disability, medical condition (including genetic characteristics), family care status, military or veteran status, marital status, or any other protected classification under federal, state or local law. In order to ensure equal employment opportunities for disabled individuals, XYZ Company will make reasonable accommodations for the known physical or mental limitations of an otherwise qualified employee with a disability, unless undue hardship would result. XYZ is committed to engaging in a timely interactive process to identify and implement reasonable accommodations. If an employee with a disability believes he or she needs a reasonable accommodation, the employee should contact Human Resources. XYZ Company also will make reasonable accommodations in accordance with applicable law for disabled veteran employees and in connection with an employee s religious beliefs and practices. Furthermore, XYZ Company is committed to engaging in a timely interactive process to determine effective reasonable accommodations for an employee who is a victim of domestic violence, sexual assault or stalking who requests an accommodation for the victim s safety at work. An employee who believes he or she needs an accommodation should contact Human Resources. Copyright 2014 Law Group, 2

61 SAMPLE POLICY AGAINST HARASSMENT, DISCRIMINATION AND RETALIATION For California Employees GENERAL XYZ Company is committed to providing a work environment that is free from sexual harassment, as well as personal harassment, discrimination and retaliation based on such factors as race, color, religion, sex, sexual orientation, gender identity, gender expression, pregnancy, breastfeeding, national origin, ancestry, age, physical disability, mental disability, medical condition (including genetic characteristics), family care status, military or veteran status, marital status, or any other protected classification under federal, state or local law. As such, XYZ Company maintains a strict policy that forbids sexual harassment and personal harassment, discrimination and retaliation. XYZ Company also does not tolerate abusive conduct or bullying toward any person in the workplace, whether or not based on a protected classification. This includes conduct in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to XYZ Company s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person s work performance. HARASSMENT EXAMPLES Harassment, whether sexual or personal, includes verbal, physical and visual conduct that unreasonably interferes with an employee's work performance or creates an intimidating, offensive or hostile working environment. Here are some examples of sexual and personal harassment that XYZ Company will not allow or tolerate by or against either men or women. While the conduct described below may not constitute unlawful behavior in all circumstances, such conduct is considered unprofessional and unacceptable by XYZ Company. Sexual Harassment Sexual harassment may include unwelcome solicitation of sexual favors (coercion), unwelcome sexual advances, or other unwelcome written, verbal, physical or visual conduct with sexual overtones. Here are examples of these categories. Coercion: This is called "quid pro quo" sexual harassment. It occurs when a supervisor/manager of an employee conditions continued employment or an employment benefit (a promotion, pay raise, transfer, etc.) on submission to or acceptance of unwelcome sexual advances. Unwelcome Sexual Behavior: This occurs when any employee continues to express unsolicited sexual interest in another employee after being put on notice that the Copyright 2014 Law Group, 3

62 interest is unwelcome. If both employees consent to a relationship, however, it is not sexual harassment. Hostile Working Environment: This occurs when sexual conduct interferes with an employee s work performance and creates an intimidating, hostile, or offensive work environment. Here are some examples: Written: Sexually suggestive or obscene letters, notes or invitations. Verbal: Sexually derogatory comments, slurs, jokes or remarks. Physical: Assault (like a threat), unwelcome touching, impeding or blocking movement of or following an employee. Visual: Leering, gestures and sexually suggestive objects, pictures, cartoons, posters and magazines. These examples are not an exhaustive list of the kinds of conduct that should not occur in the workplace. The point is that any unsolicited, unwelcome or offensive conduct that has sexual overtones is simply unacceptable in the workplace. So, you must be careful to avoid this problem. Personal Harassment Also, XYZ Company will not allow or tolerate any personally insulting or demeaning remarks or acts based race, color, religion, sex, sexual orientation, gender identity, gender expression, pregnancy, breastfeeding, national origin, ancestry, age, physical disability, mental disability, medical condition (including genetic characteristics), family care status, military or veteran status, marital status, or any other protected classification under federal, state or local law. This includes, but is not limited to, racial slurs, ethnic jokes, posting of offensive statements, posters, cartoons, assault or other unwelcome physical conduct, or other similar conduct. Just like the examples under sexual harassment, these acts can create a hostile working environment, which will not be tolerated. APPLICATION OF POLICY This policy applies to all XYZ Company employees at all levels, meaning co-workers, supervisors, managers and professionals. XYZ Company also will attempt to protect employees from harassment by non-employees in the workplace. Furthermore, this policy applies to both direct, personal interactions, written interactions, as well as communications through XYZ Company s electronic communication systems or on social media. REPORTING AND INVESTIGATING PROCEDURE If you believe that you are the victim of either sexual or personal harassment, discrimination or retaliation, or abusive conduct, or you witness such work-related harassment or conduct, by any XYZ Company personnel or any other person, you should promptly report it. You may do so without fear of retaliation. Copyright 2014 Law Group, 4

63 Depending on what will make you the most comfortable, you can report it to Human Resources or to any manager. Considering all the circumstances, XYZ Company will make every effort to investigate all such claims promptly, thoroughly and confidentially to the extent possible. XYZ Company will let you know about its decision regarding the alleged harassment. CORRECTIVE ACTION If XYZ Company finds harassment, discrimination, or retaliation occurred in the workplace, XYZ Company will take immediate and appropriate action to: Stop the harassment, discrimination or retaliation, Discipline the offender, Take steps to prevent further harassment, discrimination or retaliation, and Conduct follow-up work to ensure that harassment, discrimination or retaliation is not resumed and the complaining employee or employees do not suffer any form of retaliation for reporting the harassment or discrimination. ADDITIONAL INFORMATION For additional information, you may contact the local office of California Department of Fair Employment and Housing (at the locations listed on XYZ Company s DFEH poster) or the local office of the Equal Employment Opportunity Commission. You can obtain contact information for these agencies by checking the government listings in the local telephone directory or on the Internet. Copyright 2014 Law Group, 5

64 SAMPLE OVERTIME POLICY For Employees Working in California Non-exempt employees may be required to work overtime for business needs. XYZ Company pays employees for their hours worked according to the law. Non-exempt employees generally receive overtime compensation for hours worked in excess of 8 hours in a day or 40 hours in a work week and as otherwise provided by applicable law. For purposes of calculating overtime hours, XYZ Company s work week runs from 12:01 a.m. Monday to 12:00 midnight on Sunday. Non-exempt employees will be paid one and one-half (1-1/2) times the employee s regular hourly rate for all hours worked over eight (8) hours in one day, or over forty (40) hours in one seven (7) day work week, or for the first eight (8) hours on the seventh (7th) consecutive day of work in a work week. Double time will be paid for any work in excess of eight (8) hours on any seventh (7th) consecutive day of work in a work week, or after twelve (12) hours worked in one day. Human Resources or your manager must approve all overtime work in advance. It is against XYZ Company policy to work overtime without prior approval. Working unauthorized overtime is grounds for discipline, up to and including termination. Absence from work for paid holidays, vacation, illness, bereavement, or jury duty is not counted as time worked for the purpose of computing overtime. Exempt employees are expected to work as much as is necessary to complete their job responsibilities. No overtime or additional compensation is provided to exempt employees. Copyright 2014 Law Group, 6

65 SAMPLE TIMEKEEPING/OFF-THE-CLOCK POLICY XYZ Company requires all non-exempt employees to record their time worked on a time sheet for payroll purposes. Violators of this policy are subject to disciplinary action up to and including termination. An employee s time sheet is the record of his or her hours worked, from which his or her payroll check is computed. Employees must take care to ensure that their time sheet is an accurate record of the time worked. If for any reason an employee fails to accurately record his or her time worked, the employee should see Human Resources immediately so that the error or omission can be corrected. The following rules must be observed regarding time cards: Employees must accurately record the actual time worked during each and every work day. Employees must not begin work prior to their scheduled shift time and must not end work after the scheduled end of their shift. Exceptions are permissible only when the employee has received advance approval from Human Resources or the employee s manager. Employees must record their actual out and in time for meal periods or whenever they leave the office for any reason other than XYZ Company business. Employees must enter vacation and other time off in the space where the employee normally would sign in as if working. Overtime must be authorized by Human Resources or the employee s manager before the overtime is worked. Any modifications or alterations on an employee s time card must be initialed by the employee s manager. Employees should sign their time cards at the end of each pay period, provided that they are completed correctly. Note: You may not begin working until you have clocked in. Working off-the-clock for any reason is a violation of XYZ Company policy. If you forget to clock in or out, or if you believe your time records are not recorded accurately, you must notify Human Resources or your manager immediately so the time can be accurately recorded for payroll purposes. Copyright 2014 Law Group, 7

66 SAMPLE FAMILY FRIENDLY WORKPLACE POLICY [SAN FRANCISCO ONLY] XYZ Company complies with the San Francisco Family Friendly Workplace Ordinance ( FFWO ). Pursuant to the FFWO, eligible employees may request a flexible or predictable working arrangement required to assist with care for: 1) a child under age 18 for whom the employee has assumed parental responsibility (this includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis to that child); 2) the employee s parent who is age 65 or older; or 3) a person with a serious health condition in a family relationship with the employee (this includes persons to whom the employee is related by blood, legal custody, marriage, or domestic partnerships, as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent). Eligible employees are those who: 1) are employed in San Francisco; 2) have been employed by XYZ Company for six months or more; 3) and work at least eight hours per week on a regular basis. Requests for a flexible or predictable working arrangement must be in writing and submitted to Human Resources. Requests must be submitted on XYZ Company s Flexible or Predictable Working Arrangement Request Form. You should submit your request well in advance of the date you wish the requested change to take effect, as it may take up to six weeks to consider any request. XYZ Company will consider requests in compliance with the FFWO, and may deny requests for bona fide business reasons. XYZ Company will not retaliate against any employee for requesting a flexible or predictable working arrangement under the FFWO, for exercising any right under the FFWO, or based on the employee s caregiver status. Nothing in this policy or the FFWO creates a right to be paid when XYZ Company does not have sufficient work for the employee. Furthermore, time off under this policy (including, but not limited to, a parttime schedule or other reduced work schedule) may run concurrently with leaves of absence or other time off for which the employee is eligible, as permitted by law. For more information, please refer to the FFWO poster located in the [e.g. break room] or contact Human Resources. Copyright 2014 Law Group, 8

67 CERTIFICATE OF ACKNOWLEDGMENT OF RECEIPT AND UNDERSTANDING OF THE EMPLOYEE HANDBOOK For California Employees This certificate acknowledges that I have received a copy of the XYZ Company Employee Handbook, read it and understand its contents. I understand that the Employee Handbook supersedes all prior personnel policies and XYZ Company Employee Handbooks. I understand that it contains important information about XYZ Company s general personnel policies, benefits and provisions that control my employment relationship with XYZ Company. I understand that this Employee Handbook is not an express or implied contract for a specific period of employment or for continuing or long-term employment between XYZ Company and me. It is, however, the final and complete understanding regarding my "atwill" employment status. This means that both XYZ Company and I have the right to terminate my employment at any time, with or without notice, and with or without cause. I also may be demoted or disciplined and the terms of my employment may be altered at any time, with or without cause and with or without notice, at the discretion of the Company. Any such demotion, discipline or other change in employment status shall not change the at-will nature of my employment. No one other than the President of XYZ Company has the authority to alter this arrangement, to enter into an agreement for employment for a specified period of time, or to make any agreement contrary to this policy, and any such agreement must be in writing and must be signed by the President of XYZ Company specify that it supersedes the at-will employment relationship. I acknowledge that XYZ Company reserves the right to change, in writing, any provision in this Employee Handbook, except the at-will employment provision, at any time, for any reason without advance notice. Though XYZ Company can make changes, I understand that nothing in this Employee Handbook can be modified or deleted, nor anything added, in any way by oral statements or practice. I understand that I may not disclose to anyone outside of present XYZ Company employees any confidential, sensitive or proprietary information about XYZ Company, its clients or its methods, as described in the Employee Handbook. Your Signature Please Print Your Name / / Date you signed certificate Please return this signed Certificate of Acknowledgment to Human Resources Copyright 2014 Law Group, 9

68 EMPLOYMENT LAW ALERT Employers Must Reimburse Employees for Costs Associated With Work-Related Cell Phone Use In Cochran v. Schwan s Home Service, Inc., issued August 12, 2014, the California Court of Appeal held that California Labor Code section 2802 requires employers to reimburse employees for a reasonable percentage of their cell phone bills when employees must use their personal cell phones for work-related calls. Reversing the trial court s order denying class certification to a putative class of 1,500 service managers of a food delivery provider, the Court held that it did not matter for purposes of Labor Code section 2802 reimbursement whether or not employees changed their personal cell phone plans to accommodate workrelated usage, had plans with limited or unlimited minutes, or paid the cell phone bills by themselves. Rather, [t]o show liability under section 2802, an employee need only show that he or she was required to use a personal cell phone to make work-related calls, and he or she was not reimbursed. Though the Court found that employers must reimburse employees for a reasonable percentage of their cell phone bills, it did not define how such a percentage should be calculated. Cochran provides a reminder to employers to ensure that they reimburse employees for all necessary expenditures incurred in connection with the performance of the employees job duties. With respect to work-related usage of a personal cell phone, reimbursement for a reasonable percentage of the cell phone bill is required regardless of who pays the bill, the type of cell phone plan an employee has, or whether the employee has to incur an extra expense for the work calls. Copyright 2014 Law Group, 1

69 EMPLOYMENT LAW ALERT California Supreme Court Upholds Class Action Waivers In Arbitration Agreements But Exempts PAGA Representative Actions On June 23, 2014, the California Supreme Court issued its much-anticipated decision in Iskanian v. CLS Transportation Los Angeles, LLC, Case No. S204032, holding (i) the Federal Arbitration Act (FAA) preempts the Discover Bank rule, which restricted enforcement of arbitration agreements containing a waiver of class action proceedings, but (ii) FAA preemption did not extend to representative claims under California s Private Attorneys General Act of 2004 (PAGA). Thus, while Iskanian broadly permits enforcement of a class action waiver in an arbitration agreement, it also will motivate plaintiffs attorneys to routinely add PAGA claims to wage and hour complaints in the hope of limiting the effect of an arbitration provision that bars class claims. In Iskanian, the employee sought to bring a class action lawsuit based on his employer s alleged failure to compensate its employees for, among other things, overtime and meal and rest periods. The employee had entered into an arbitration agreement that waived the right to class and representative proceedings. The Court determined that a California rule restricting enforcement of employment class action waivers on grounds of public policy or unconscionability was preempted by the FAA. In doing so, the Court affirmed the holding of the Court of Appeal that the U.S. Supreme Court s decision in AT&T Mobility LLC v. Concepcion invalidated the California Supreme Court s decision in Gentry v. Superior Court, which had previously held such waivers to be unenforceable under certain circumstances. The Court also held that the class waiver at issue was not unlawful under the National Labor Relations Act. The Court carved out an exception, however, for PAGA claims. After deciding that an employee s right to bring a PAGA action is unwaivable under California law, the Court went on to hold that the FAA does not preempt California s prohibition of waiver of PAGA representative actions in an employment contract. The Court explained that the FAA s goal of promoting arbitration as a means of private dispute resolution does not preclude our Legislature from deputizing employees to prosecute Labor Code violations on the state s behalf. Having concluded that the employee s PAGA waiver was unenforceable, the Court next observed that although the employee must arbitrate his individual claims, the employer must answer the PAGA claims in some forum. Consequently, the Court stated that unless the parties agreed to a single forum for resolution of all claims, on remand the trial court would have to decide whether to bifurcate the individual claims from the PAGA claims and then decide which set of claims would be resolved first. California law, not the FAA, governs these remaining issues. Iskanian represents a significant development for employers, who may now clearly require their employees to waive the right to bring class action lawsuits. Employers will be unable to require their employees to forgo representative actions under PAGA, however, barring a contrary ruling by the U.S. Supreme Court. Copyright 2014 Law Group, 1

70 EMPLOYMENT LAW ALERT San Francisco s New Fair Chance Ordinance: Answers to Employers Common Questions On August 13, 2014, San Francisco s new Fair Chance Ordinance 1 (FCO), will take effect, with the goal of reducing recidivism by removing some of the initial hurdles that often prevent individuals with criminal records from being considered for jobs for which they are otherwise qualified. The FCO provides specific limitations on the timing, scope and use of inquiries into an applicant s or employee s criminal history, and imposes detailed notice, posting, recordkeeping and reporting obligations on covered employers, including affirmative obligations that are triggered even before an employer begins accepting applications. The FCO is enforced by San Francisco s Office of Labor Standards Enforcement (OLSE). To assist employers with compliance under the FCO, we have compiled answers to the common questions employers have been asking about this new ordinance. QUESTIONS AND ANSWERS When does the FCO take effect? The Fair Chance Ordinance takes effect on August 13, Job postings and hiring processes that occurred before August 13, 2014 are not subject to FCO requirements. Which employers are subject to the FCO? The FCO covers private employers that are located in or do business in San Francisco and have 20 or more employees, whether or not those employees are located in San Francisco. Employer includes any individual, firm, corporation, partnership, labor organization, association, or other organization however organized (such as non-profits), as well as job placement, referral agencies and other employment agencies. The ordinance only applies to an employer s jobs located in San Francisco. The ordinance also covers contractors who do business with the City and County of San Francisco, regardless of where the work is being performed, but not if those contractors have a cumulative annual contract with the City for $5,000 or less. To whom does the FCO apply? The ordinance applies to any applicant or employee seeking employment in San Francisco with a covered employer. The ordinance applies to any type of employment, whether full-time or part-time, temporary or seasonal, contracted or contingent work, work on commission, work through a temporary agency, or any form of vocational or educational training with or without pay. What is an employer s basic requirement under the FCO? An employer must limit its inquiries into the criminal background of applicants and employees and be cautious in its use of any information obtained as a result of such an inquiry. 1 Article 49 of the San Francisco Police Code and San Francisco Administrative Code section 12T; added by Ord. No , File No , Approved 2/4/14, Enacted 2/14/14, Effective 3/14/14, Operative 8/13/14. Copyright 2014 Law Group, 1 It also applies to any applicant or employee who works for a company that contracts to work with the City and County of San Francisco, regardless of where the work is being performed. Are there criminal history topics that an employer may never inquire about under the FCO? Yes, the FCO specifies that there are certain topics

71 that an employer is prohibited from inquiring about, requiring disclosure of, or considering, at any time with respect to applicants or employees. Topics that an employer may never inquire into include: (1) an arrest not leading to a conviction (other than an arrest that is still under criminal investigation or in criminal proceedings); (2) participation in or completion of a diversion or deferral of judgment program; (3) a conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative; (4) a conviction or other determination or adjudication in the juvenile justice system, or information regarding a matter that was considered in or processed through the juvenile justice system; (5) a conviction more than seven years old; or (6) information pertaining to an offense other than a felony or misdemeanor (such as an infraction). Similarly, if the employer receives this information, it may not use it in any manner for purposes of making an adverse action decision. It is important to keep in mind, however, that the FCO states that it does not supersede any federal or state law that otherwise requires an employer to make an inquiry that would be prohibited by the FCO. Also, employers should be aware of their obligations under California Labor Code 432.7, which prohibits asking applicants, or using information in making employment decisions, about certain arrests and convictions. 2 How does the FCO define inquire for purposes of the law? Inquire means any direct or indirect employer conduct that is intended to gather information from or about an applicant, candidate, potential applicant or candidate, or employee, using any 2 Cal. Labor Code prohibits public and private employers from requesting job applicants to disclose, or considering as a factor in determining any condition of employment (including hiring, promotion, termination, apprentice training program or other training program leading to employment), information concerning: 1) an arrest or detention that did not result in conviction; 2) a referral to, and participation in, any pretrial or posttrial diversion program; or 3) a conviction that has been judicially dismissed or ordered sealed. The law states, however, that it does not prevent an employer from asking an employee or applicant about an arrest for which the employee or applicant is out on bail or on his or her own recognizance pending trial. Copyright 2014 Law Group, 2 mode of communication. This includes, for example, application forms, interviews, and background check reports. Thus, an employer who gathers information directly or indirectly about an applicant s/employee s criminal background will have inquired about that person s criminal history under the FCO. Can an employer ask about criminal history on the job application form? No. The FCO states that employers may not inquire on the job application, or require applicants or potential applicants for employment or employees to disclose on the job application, the fact or details of any conviction history or unresolved arrests or any of the criminal record topics that are off-limits at any time (see above). At what point can an employer inquire about an applicant s criminal history? With the exception of the subjects that an employer is barred from inquiring about at any time (see above), an employer may inquire about an employee s or applicant s conviction history or unresolved arrests only after the employee or applicant has had a live interview or after the employer has extended a conditional offer of employment to the person. How is conviction history defined under the FCO? Conviction history means information regarding convictions or unresolved arrests, whether that information is transmitted orally, in writing or by other means, and obtained from any source, such as from the applicant/employee or from a background check. How is unresolved arrest defined under the FCO? An unresolved arrest means an arrest that is undergoing an active and pending criminal investigation or trial. An arrest is considered resolved under the FCO if the individual was released and no accusatory pleading was filed charging him/ her with an offense, or if the charges were dismissed or discharged.

72 What is a live interview under the FCO? A live interview includes an interview conducted in person, over the phone, via videoconferencing, or through the use of other technology. Are there steps an employer must take before making a conviction history inquiry? Yes. Prior to making a conviction history inquiry, an employer must provide the applicant/employee with a notice of rights under the FCO. The notice is available on the OLSE s website. Additionally, prior to obtaining a background check report, the employer must comply with all federal and state notice requirements that apply to such reports, including under the Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA). Does the FCO place limits on how an employer may use an applicant/employee s conviction history (assuming the above steps have been followed) in making employment decisions? Yes. In making an employment decision based on conviction history, the FCO directs employers to conduct an individualized assessment of the information. The employer may consider only directly related convictions, and must consider the time elapsed since the conviction or unresolved arrest, as well as any evidence of inaccuracy, rehabilitation, or other mitigating factors. Also, before basing an adverse action on anything in an applicant/employee s criminal history, the employer must follow certain notice requirements laid out in the FCO (see below). What is a directly related conviction under the FCO? A directly related conviction includes a conviction or unresolved arrest for which the conduct underlying the conviction/arrest has a direct and specific negative bearing on the individual s ability to perform the duties or responsibilities of the job. How can an employer determine if a conviction or unresolved arrest is directly related to the job at issue? The FCO specifies that an employer must consider these factors in determining whether a conviction or unresolved arrest is directly related to the job: 1) whether the job would provide the applicant/ employee the opportunity to commit the same or a similar offense; and 2) whether the circumstances that led to the prior alleged conduct will recur in the job. Significantly, the FCO specifies that the OLSE may not find a violation of the ordinance based on an employer s decision that conviction history is directly related in a particular situation, although the agency may find a violation based on an employer s failure to conduct an individualized assessment. If the employer determines that the conviction history is directly related to the job, what can the employer do with that information? An employer may decide to take adverse action based on information in the applicant/employee s conviction history, after following notice requirements specified in the FCO (see below). An adverse action includes failing or refusing to hire, to discharge, or to not promote any individual, or to limit, segregate or classify employees so as to deprive them of employment opportunities, or any other action that would adversely affect his/her status as an employee. What steps are required if the employer intends to base an adverse action on an employee s conviction history that is directly related to the job? The FCO directs that prior to taking adverse action, the employer must provide the individual with a copy of the background check report, if any, and must notify the individual of the proposed adverse action and the reason(s) for it. Employers must also comply with federal FCRA and California ICRAA notice requirements. Copyright 2014 Law Group, 3

73 What rights does an applicant or employee have once notified of a prospective adverse action? Once an employer notifies the applicant or employee of a prospective adverse action, the individual has seven days to provide the employer with notice (in writing or orally) that the conviction history is inaccurate, or with evidence of rehabilitation or other mitigating factors. Upon receipt of such notice, the employer must delay the adverse action for a reasonable period of time and reconsider the adverse action in light of the information. What are examples of evidence of rehabilitation or other mitigating factors? This would include, for example: an individual s compliance with all the terms and conditions of their parole or probation (not including an inability to pay fines, fees or restitution due to indigence); employer recommendations from post-conviction employment; educational attainment or vocational or professional training since the conviction; letters of recommendation from community organizations, counselors, case managers, teachers, or parole officers; and the age of the individual at the time of the conviction. Additionally, examples of mitigating factors could include an explanation of coercive conditions, physical or emotional abuse, or untreated substance abuse or mental illness that contributed to the conviction. What are an employer s obligations if the employee presents evidence of inaccuracy, rehabilitation or mitigating factors? The employer must postpone the adverse action for a reasonable period of time, during which it must reconsider the decision based on the new information provided by the applicant/employee. If the employer ultimately decides to take adverse action, what final steps must it take? The FCO directs that upon taking any final adverse action, the employer must notify the applicant/ employee of the final adverse decision. Additionally, employers must comply with adverse action notice requirements under the federal FCRA and California ICRAA. Does the FCO impose any requirements on employers with respect to job advertisements? Yes. All solicitations or ads that are reasonably likely to reach individuals who are reasonably likely to seek employment in San Francisco must affirmatively state that the employer will consider for employment qualified applicants with criminal histories consistent with the requirements of the FCO. Furthermore, it is unlawful under the FCO for any such job advertisement to express that persons with arrest or conviction records may not apply for or will not be considered for employment. Does the employer have to post a workplace notice about the FCO? Yes. Employers must post a notice informing applicants and employees of their rights and the employer s obligations under the ordinance. The notice must be posted in a conspicuous place at every workplace, job site, or other location in San Francisco under the employer s control that is frequently visited by employee or applicants. Employers must also send a copy of the poster to each labor union representing their workers in San Francisco. The notice must be posted in English, Spanish and Chinese, as well as in any language spoken by at least 5% of the employees at the workplace, job site or other location where it is posted. The poster is available on the OLSE s website. What records does the FCO require employers to keep? The FCO requires covered employers to retain records of employment, application forms, and other pertinent data and records for a period of three years. The employer must make records available to the OLSE to monitor FCO compliance, upon appropriate notice and at a mutually agreeable time. Failure to retain adequate records documenting compliance with the FCO, or failing to provide the OLSE with access to records raises a presumption Copyright 2014 Law Group, 4

74 that the employer has failed to comply with the FCO, absent clear evidence otherwise. It is anticipated that the OLSE will publish procedures to specify records that must be maintained. What are an employer s reporting obligations under the FCO? The OLSE may require employers to provide information on an annual basis to verify compliance with the FCO. It is anticipated that the OLSE will publish annual reporting procedures. What applicant/employee rights are protected under the FCO? The FCO prohibits employers from interfering with applicant/employee rights under the FCO, and prohibits retaliation for the exercise of such rights. Specifically, the rights protected under the FCO include the right to: file complaints or inform any person about alleged FCO violations; cooperate with the OLSE in FCO investigations or prosecution; oppose any policy or practice that is unlawful under the FCO; and inform any person about their FCO rights. The FCO states that taking adverse action against someone within 90 days of their exercise of rights under the FCO creates a rebuttable presumption that the action was retaliatory. The FCO does not preempt or limit any other law or regulation or provision of a collective bargaining agreement that provides greater rights or protections for applicants or employees. Do the FCO s prohibitions or limitations apply if there is another law that requires the employer to consider certain criminal history? The FCO specifies that it does not supersede state or federal laws that govern matters covered under the FCO. So, for example, an employer may inquire about criminal convictions outside the time periods specified in the FCO if the employer is required to do so by a state or federal law. How is the FCO enforced and what are the penalties for violations? The OLSE is responsible for enforcing the FCO s employment provisions. Anyone may report suspected violations to the OLSE within 60 days. The OLSE may investigate possible violations of the FCO, and if it determines that a violation has occurred, it may order any appropriate relief. For a first violation, or for a violation that occurs during the first 12 months that the ordinance is in effect (until August 13, 2015), the OLSE will only issue warnings and notices to correct. For second violations, the OLSE can impose a penalty of up to $50.00 per violation. Penalties for each subsequent violation cannot exceed $ per violation. If multiple employees or applicants are impacted by the same procedural violation at the same time (for example, all applicants for a particular job opening are asked on the job application for criminal history), the OLSE will treat that as a single violation. If an employer does not promptly comply despite the OLSE s enforcement efforts, the OLSE is authorized to refer the matter to the San Francisco City Attorney to consider initiating a civil action against the employer. Furthermore, the City may bring a civil action against an employer for violations, in which case remedies may include reinstatement, back pay and benefits, liquidated damages of $50 per day for each aggrieved applicant or employee, injunctive relief, and attorney s fees. Where can employers find the FCO and pertinent materials? The OLSE s website provides a link to the ordinance and related materials. Go to aspx?page=6599. What are the recommended action steps for employers to comply with the FCO? Recommended steps include: Revise internal policies and procedures as needed to prohibit inquiries about the specific topics identified in the FCO as being off-limits at Copyright 2014 Law Group, 5

75 any time (unless the employer is covered under a federal or state law that would require that inquiry). Review policies and procedures to ensure that criminal history inquiries (as permitted by the FCO) are made only after an applicant s first live interview or after a conditional offer of employment has been extended. Remove criminal history inquiries from job applications and interview forms that are used for jobs covered by the ordinance. Prior to conducting criminal background checks, provide the required FCO official notice and follow all procedures under the California and federal consumer report laws. When considering an applicant/employee s conviction history after a live interview or conditional job offer has been extended, be sure to make an individualized assessment of the information, and only make employment decisions based on criminal history that is directly related to the position in question. Follow FCO and consumer report law procedures regarding adverse action decisions, including providing pre- and post-adverse action notices and allowing the individual with an opportunity to present information regarding inaccuracy, rehabilitation or other mitigating factors. they contain the FCO-required statement that the company will consider applicants with criminal histories consistent with FCO requirements, and to ensure that these materials do not suggest that people with arrests or convictions should not apply. Post the required FCO notice at all San Francisco worksites, in English/Spanish/Chinese and any other language spoken by at least 5% of your San Francisco workforce. The poster is now available from the OLSE s website in English, and will soon be available in other languages. Maintain records regarding employment actions and decisions covered by the FCO for three years. Records should include copies of advertisements and solicitations, job postings, job applications, interview forms, records and notes, documentation regarding notices provided under the FCO, background check results (if obtained), documentation provided by applicants/employees in response to background check results, and documentation of adverse decisions. Periodically check the OLSE s FCO web page for updates. Ensure that all company personnel involved in hiring and/or promotion processes (from recruiters, to human resources personnel, to interviewers) are aware of the FCO s limitations on inquiring about criminal history during the application process, the limits on using any permissibly obtained information, the employee s right to present information to convince the employer to reconsider, and the employer s obligation to reconsider any adverse employment decision. Review job ads and solicitations to ensure that Copyright 2014 Law Group, 6

76 EMPLOYMENT LAW ALERT San Francisco s Family Friendly Workplace Ordinance: Answers to Employers Common Questions Citing the myriad challenges facing employees who have caregiving responsibilities, including lengthy commutes and rigid work schedules, San Francisco s Board of Supervisors adopted the Family Friendly Workplace Ordinance (FFWO) 1, which took effect on January 1, The FFWO, which covers employers with 20 or more employees (anywhere), allows eligible employees working in San Francisco to ask their employers for a flexible or predictable working arrangement to care for a child, parent or sick family member. The FFWO lays out detailed timing and process requirements for responding to employee requests, and imposes new posting and recordkeeping obligations on employers. The FFWO is enforced by San Francisco s Office of Labor Standards Enforcement (OLSE). The FFWO is riddled with traps for unsuspecting employers -- and potentially expensive consequences for violations. To assist employers with compliance, we ve compiled answers to the common questions employers have been asking about this new ordinance. QUESTIONS AND ANSWERS What is the basic requirement under the new FFWO? The FFWO allows certain employees working in San Francisco to request a flexible or predictable working arrangement to care for a child, parent or sick family member. Employers must consider any requests and may not retaliate against an employee for making a request under the ordinance or based on the employee s caregiver status. Which employers are subject to the FFWO? The ordinance covers any employer that regularly employs 20 or more employees, regardless of the work location of those employees. Employer includes any agent of the employer, corporate officers or executives who directly or indirectly employ or exercise control over the wages, hours or working conditions of any employee. Employer also includes any successors in interest to an employer, but does not include a state, federal or local government entity other than San Francisco. Who is eligible to request a flexible or predictable working arrangement for caregiving purposes? An eligible employee is someone who is employed within the geographic boundaries of San Francisco, regularly works at least eight hours per week, and has been employed by the employer for at least six months. An employee is a caregiver if he or she is a primary contributor to the ongoing care of: one or more children under age 18 for whom the employee has parental responsibility; the employee s parent(s) aged 65 or older; or a person who has a family relationship with the caregiver/employee and suffers from a serious health condition. Employees who perform public health or safety functions may be exempted. Our employees are subject to a collective bargaining agreement does the FFWO apply to them? Yes, unless the requirements of the ordinance are expressly waived in clear and unambiguous terms in the collective bargaining agreement. 1 SF Admin. Code, Ch. 12Z; added by Ord , File No , App. 10/9/2013, Eff. 11/8/2013, Oper. 1/1/2014; amended eff. 2/14/2014. Copyright 2014 Law Group, 1

77 What is a flexible working arrangement? A flexible working arrangement is a change to the employee s terms and conditions of employment that gives the employee flexibility to assist with caregiving responsibilities. What is a predictable working arrangement? A predictable working arrangement is a change to the employee s terms and conditions of employment that provides scheduling predictability so that the employee can assist with caregiving responsibilities. What are some examples of flexible or predictable working arrangements that an employee may request? The employee s request for a flexible or predictable working arrangement may include (but is not limited to) a change in the number of hours the employee is supposed to work, the employee s work times and work location, work assignments or other factors, or even predictability in a work schedule. The employee may seek, for example: 1) a modified work schedule; 2) changes in start and/or end times; 3) part-time employment; 4) job-sharing arrangements; 5) telecommuting; 6) a reduction or change in work duties; or 7) part-year employment. Note that the FFWO defines a work schedule as those days and times within a work period that the employer requires the employee to perform the employment duties for which the employee receives compensation. What activities are considered caregiving responsibilities? The employee s need to provide care to children under age 18, a person or persons with a serious health condition who is in a family relationship with the employee, or a parent of the employee age 65 or older. A child includes a biological, adopted or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis to the child. Who is considered to be in a family relationship with the employee? The employee/caregiver has a family relationship to another person if they are related by blood, legal custody, marriage, or domestic partnership, as a spouse, domestic partner, child, parent, sibling, grandchild or grandparent. What constitutes a serious health condition? Serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice or residential care facility or involves continuing treatment or supervision by a health care provider. What does an employee have to do to request a flexible or predictable working arrangement under the FFWO? The employee s request for a flexible or predictable working arrangement must be in writing and specify the working arrangement requested, the date on which the employee wishes to start the arrangement and the duration of the arrangement, and must explain how the request is related to caregiving. Is there a certain form an employee must use to make the request? The OLSE has prepared a model FFWO request form that may be used, or the employer may prepare its own form that complies with the ordinance. What is the employer s responsibility if the employee makes an oral request for a changed working arrangement? If the employee makes an oral request, the employer, either orally or in writing, must refer the employee to the posted FFWO notice, and instruct the employee to prepare and submit a written request for the desired flexible or predictable working arrangement. Can the employer ask for verification of the employee s caregiving responsibilities? Yes. The employer may ask the employee to provide information about his or her caregiving responsibilities as part of the employer s consideration of the request. Copyright 2014 Law Group, 2

78 What steps must the employer take after receiving an employee request for a changed working arrangement? Within 21 days of the employee s request, the employer must meet with the employee regarding the request. Then, the employer must consider the request and respond to the employee in writing within 21 days of that initial meeting (although the employee and employer may agree to extend this deadline.) What happens if the employer grants the employee s request? If the employer grants the employee s request, the employer must confirm its agreement in writing to the employee. There is no particular form that the employer is required to use for this purpose. Note that if the employer grants a request for a predictable working arrangement, the FFWO does not require the employer to compensate the employee if there is insufficient work for the employee during the period of the predictable working arrangement. What happens if the employer denies the request? If the employer denies the employee s request, the employer must provide the employee with a written response containing a bona fide business reason for the denial. The employer must also inform the employee of his or her right to request reconsideration of the denial under Section 12Z.6 of the FFWO, and include a copy of the text of that section in the employer s written response. In particular, Section 12.Z.6 states: (a) An Employee whose request for Flexible or Predictable Working Arrangement has been denied may submit a request for reconsideration to the Employer in writing within 30 days of the decision. (b) If an Employee submits a request for reconsideration under this Section, the Employer must arrange a meeting to discuss this request to take place within 21 days after receiving the notice of the request. (c) The Employer must inform the Employee of the Employer s final decision in writing within 21 days after the meeting to discuss the request for reconsideration. If the request for reconsideration is denied, this notice must explain the Employer s bona fide business reasons for the denial. What are the employer s obligations if the employee asks for reconsideration of a denied request? If the employee submits a written request for reconsideration to the employer within 30 days of the denial of the original request, the employer must meet with the employee within 21 days, and within another 21 days after that meeting the employer must inform the employee of its final decision, in writing. If the employer denies the request for reconsideration, the employer must explain its bona fide business reasons for the denial. What constitutes a bona fide business reason for denying an employee s request for a changed working arrangement? Bona fide business reasons for an employer s denial of a request include, but are not limited to: 1) the identifiable cost of the change in a term or condition of employment, including the cost of productivity loss, retraining or hiring employees, or transferring employees from one facility to another facility; 2) a detrimental effect on the employer s ability to meet customer or client demands; 3) the inability to organize work among other employees; and 4) insufficiency of work to be performed during the time the employee proposes to work. (Note that the OLSE may not challenge the validity of the employer s bona fide reason for denying an employee s request for a flexible or predictable working arrangement or use the employer s bona fide reason as the basis for finding a violation of the FFWO, as discussed below.) How often can an employee ask the employer for a changed working arrangement? Generally, an employee may make a request for a flexible or predictable working arrangement Copyright 2014 Law Group, 3

79 twice every 12 months. However, if the employee experiences a major life event the birth of a child, the placement of a child with the employee through adoption or foster care, or an increase in the employee s duties caring for a person with a serious health issue the employee may make one additional request, which the employer must consider. If circumstances change, can an agreement for a changed working arrangement be revoked? Yes. On 14 days written notice to the other, either the employer or the employee may revoke a flexible or predictable working arrangement. If either party revokes, the employee may request a different arrangement, and the employer must consider the new request and respond as described above. If the employer revokes the arrangement, the employee may make an additional request, over and above the two (or three see above) allowable requests in a 12-month period. What employee rights are protected under the FFWO? Generally the FFWO prohibits the employer from taking any adverse employment action against the requesting employee for exercising rights under the ordinance or on the basis of the employee s caregiver status. Specifically, the FFWO provides that it is unlawful for the employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected by the ordinance, and for the employer to discharge, threaten to discharge, demote, suspend, or otherwise take adverse employment action against any person on the basis of caregiver status or in retaliation for exercising rights protected by the ordinance. The rights protected by the ordinance include, but are not limited to: requesting a flexible or predictable working arrangement; filing a complaint with the OLSE alleging a violation; informing any person about an employer s alleged violation; informing any person of his or her rights under the ordinance; cooperating with the OLSE or other person in the investigation or prosecution of any alleged violation; or opposing any policy, practice or act that is unlawful under the ordinance. Does the employer have to post a notice about the FFWO? Yes. The OLSE has created a multi-lingual notice that must be posted in the workplace. Every employer is required to post the notice in a conspicuous place at any workplace or job site where any employee (who is employed within the geographic boundaries of San Francisco) works. The notice must be in English, Spanish, and Chinese, as well as translated into any language spoken by at least 5% of the employees at the workplace or job site. If the employer has not already posted the notice, the employer should do so immediately. Does the employer need to retain documentation regarding the employee request? Yes. Employers must retain all required documentation for three (3) years from the date of the employee s request for a flexible or predictable working arrangement. The employer must allow the OLSE access to the documentation, on reasonable notice, to monitor the employer s compliance with the FFWO. In the event that the employer fails to maintain or retain the required documentation, or fails to permit reasonable access to the documentation, it will be presumed that the employer violated the FFWO, in the absence of clear and convincing evidence showing otherwise. Who is responsible for administering and enforcing the FFWO? Administrative enforcement is handled by San Francisco s Office of Labor Standards Enforcement. Significantly, the OLSE s authority is limited to determining whether the employer has met the FFWO s procedural, posting and recordkeeping requirements, as well as determining whether an employer has discriminated against an employee on the basis of caregiver status, or has retaliated against an employee for exercising the rights protected by the ordinance or for cooperating with Copyright 2014 Law Group, 4

80 an investigation or enforcement action. In addition, the City of San Francisco may pursue enforcement of the FFWO through the civil courts. What happens if the employer fails to comply with the FFWO? The OLSE may investigate possible violations, order violators to pay penalties, commence an administrative action, or initiate (through the City) a court action. However, the OLSE may not base a finding of violation on the validity of the employer s bona fide reason for denying an employee s request for a flexible or predictable working arrangement. In addition, the City may pursue a legal action in civil court for violations of the FFWO. What are the penalties for violating the FFWO? In 2014, the OLSE will only issue a warning and correction notice to any non-complying employer for violation. Starting on January 1, 2015, an employer s failure to comply with the procedural, posting and documentation requirements of the FFWO may trigger administrative penalties up to $50 paid to each employee whose rights were violated, for each day or portion of a day that the violation occurred or continued. If the employer fails to promptly comply with the FFWO, the OLSE may order the employer to pay to the City an additional $50 per employee per day of violation, to offset the cost of implementing and enforcing the ordinance. If the City chooses to file a civil action, the City may seek appropriate legal and equitable relief to remedy the violation, including but not limited to: injunctive relief, reinstatement of a wrongfully terminated employee and back pay, any benefits and pay wrongfully withheld, liquidated damages of $50 to each employee whose rights were violated, for each day of violation, and reasonable attorneys fees and costs. What should an employer do to comply with the new FFWO? Recommended steps include: Promptly post in the workplace the required FFWO poster, if the employer has not already done so. The poster may be downloaded from the OLSE s website at showdocument.aspx?documentid= Review and update employee handbooks and other personnel policies to ensure compliance with the ordinance. Law Group has prepared a sample employee handbook policy addressing employee rights and employer responsibilities under the FFWO. Prepare a form for employees to make requests for flexible or predictable working arrangements. A sample request form may be downloaded at aspx?documentid= Develop a means to track employee requests and employer responses in light of the FFWO s specific deadlines, and consider designating a single individual tasked with oversight of the request and response deadlines and process. Update recordkeeping procedures to ensure compliance with the specific timing and record retention requirements of the FFWO. Train supervisors and managers regarding the FFWO, so that they adhere to company practice and protocols in the event an employee directs a request to them. If applicable, seek to amend any collective bargaining agreements to include an express waiver of the FFWO for bargaining unit employees. Review any applicable agreements with staffing and temporary employment agencies to confirm their compliance with the FFWO. Where can I find the FFWO and pertinent materials? The OLSE s website contains a copy of the ordinance and related materials. Go to aspx?page=6305. Copyright 2014 Law Group, 5

81 Singular Focus on Employment Law Law Group is 100 percent focused on providing employment law services to businesses in California. The quality, capability, and depth of our services is demonstrated by the varied experience of our employment attorneys, the significant number of major employers we represent throughout the state, and the success we achieve through early settlements, summary judgments, trials and appeals. Cost-Effective Representation Based on our experience and success working with major corporations, 111 SUTTER STREET SUITE 700 SAN FRANCISCO CA T F WILSHIRE BLVD. SUITE 1375 LOS ANGELES CA T F we are able to offer competitive rates because of our operating efficiencies and reduced overhead relative to larger firms. Additionally, we are able to provide alternative fee arrangements for single plaintiff cases, class actions, appeals, and other matters. Industry-Specific Experience We represent employers from startups to Fortune 50/500 companies. Our attorneys have a wealth of experience working with employers in various industries, including retail, financial services, high tech, transportation, restaurant, telecommunications, manufacturing, energy, public utilities and health care. Diversity Law Group is one of the largest women-owned employment law firms for business in the United States. We participate in many diversityfocused legal organizations and maintain a strong program to recruit and retain women and other diverse attorneys. about San Francisco Los Angeles One of the largest women-owned employment law firms for business in the United States Comprehensive employment law services Litigation Trials Appeals Class actions ERISA litigation Counseling Traditional labor Numerous summary judgment successes Alternative fee arrangements Monthly webinars designed exclusively for in-house counsel While many of our clients began working with Law Group because of our diversity and cost-effective rates, they have remained with us because of the high-quality professional services we provide and the results we achieve working together. FOR MORE INFORMATION To learn more about our practice and attorneys, visit our website.