2011 Employment Law “TO DO” List
Review how your company protects its trade secrets. Although an employee may change jobs, she cannot take the company’s trade secrets. So, among other things, an employer should:
- diligently and regularly review all employee agreements – offer letters, nondisclosure agreements, confidentiality agreements, etc. – to ensure trade secrets are properly and clearly identified;
- provide access to only those employees who need to know the trade secrets;
- use technology to know when any employee accesses trade secrets;
- remind departing employees that their obligation to keep trade secrets confidential continues past their last day of employment; and
- obtain an exit certification from departing employees, confirming they no longer possess or have access to trade secrets.
For more information on protecting trade secrets, click here.
Evaluate independent contractor agreements and job descriptions.
A worker is classified as an independent contractor or employee and exempt or non-exempt based on the tasks actually performed. Contracts and job descriptions do not override what the employee actually does. So we recommend employers regularly evaluate independent contractor agreements and job descriptions to ensure these documents mirror the actual tasks performed by the worker. This periodic evaluation is helpful to ensure workers are classified and paid correctly, and will serve as an aid for performance reviews, workers’ compensation claims, and navigating accommodations for disabled employees.
Review internship policies.
An employer with an unpaid internship program should make sure it is compliant. The California Department of Labor Standards Enforcement relies on the U.S. Department of Labor’s six-part test to determine whether a California employer has a bona fide unpaid internship program. Among other things, all interns must receive academic credit for their internship activity. For more information, visit www.dol.gov/whd/regs/compliance/whdfs71.htm.
Review meal and rest period practices.
Until the Brinker case is decided by the California Supreme Court, we recommend employers do their best to ensure that every employee who works more than six hours in a work day receives a duty free meal break. (An employee who works more than five, but fewer than six, hours in a day may waive in writing his right to a duty free 30-minute meal period.)
Note, however, that AB 569 provides that certain employees can be exempt from the 30-minute duty free meal period requirement. Such employees must be covered by a collective bargaining agreement and work in either construction, commercial driving in the transportation industry, or certain security services.
Review social media policies.
As Facebook®, Twitter®, wikis, and other social media advances make it easier for people to communicate, employers must be increasingly mindful of how these tools impact the workplace and how employees use company resources. Although social media is effective for advertising and facilitating communication among employees, if unfettered it also can be used for harassment, discrimination, improper solicitations, fraud, and other employee misconduct or distraction. So, we recommend employers take a close look at the circumstances under which they want to allow employees to use company resources to access social media, and draft a policy setting forth guidelines for such use.
Update leave of absence policies.
SB 1304 provides paid leave for organ and bone marrow donation. Employees are now entitled to receive 30 days of paid leave for organ donation and five days of paid leave for bone marrow donation.
Update discrimination policies and keep genetic information confidential.
The Genetic Information Nondisclosure Act of 2008 (GINA) made it illegal to discriminate based on genetic information. Employers should, therefore, review their equal opportunity and anti-harassment policies to ensure this relatively new law is specifically included.
GINA also requires any information that an employer may have about an employee’s genetics be kept secure and confidential.
Update heat safety policies.
California law requires that employers:
- train employees about heat illness;
- supply water so that each employee can drink at least a quart every hour;
- provide shade for employees during their 5-minute rest break; and
- in certain industries, revise existing Injury and Illness Prevention Plans to include procedures to avoid heat illness if the working temperature meets or exceeds 95° F.
Write it down.
If your company is considering a reduction in workforce or salaries because business is slow, or even a single termination for performance reasons, write down the business reason. Documenting the company’s business reasons and decisions as they happen may help avoid confusion if the company’s reasoning is questioned in the future. Click here for more information on avoiding wrongful termination claims through proper documentation.
For more advice regarding this or any other employment related question, please contact one of our Employment Law lawyers.
This Legal Update is provided as an educational service by Hoge Fenton for clients and friends of the firm. This communiqué is an overview only, and should not be construed as legal advice or advice to take any specific action.