Answers to our Clients’ Most Frequently Asked Questions
Have a question? We probably have answered it in one of our many informative frequently asked questions (FAQ’s). To find the answers you’re looking for, you can click on “Show Answer.” You can also select a specific category from the drop-down box to narrow the results, or use the search box at the top or bottom of the page to access relevant information from anywhere on the site.
- Page 2
What is Required Upon Receipt of a Notice of Charge of Discrimination and Right to Sue Letter?
This is the first step an employee takes before initiating legal action for violations of federal or state discrimination laws. The employee must file a charge of discrimination with the DFEH within one year of the alleged discriminatory conduct. As is typically the case, the employee requests an immediate right to sue letter from the DFEH which means that the DFEH closes its file and does not conduct an investigation of the allegations.
The employee has one year from the date the right to sue letter was issued to initiate legal action.
If you have not conducted an investigation of all the allegations in the employee’s charge of discrimination, you must do so now as the DFEH charge triggers an employer’s obligation to preserve all potentially relevant information, issue legal hold notices to persons who may be in possession of potentially relevant information and investigate. Retain experienced employment counsel immediately to further direct the actions.
Company Receives Notice of Audit by Administrative Agency. Should they Retain an Attorney?
It is highly recommended that you retain experienced employment counsel to represent you in connection with any audit. Misclassification of employees and contractors is significant because if one agency determines that members of your workforce are misclassified, your company has likely violated several other state and federal laws. The agencies typically report their findings to one another which may result in additional audits/investigations.
Retaining counsel to navigate the process and work cooperatively with these agencies is highly recommended.
Company Receives Notice of Wage and Hour Claims from Dept. of Labor Standards Enforcement. What Should They Do?
The Department of Labor Standards and Enforcement (DLSE) is the state of California’s administrative agency that enforces California’s wage and hour laws. Typically, after filing the claim, the DLSE will schedule a settlement conference with a representative who will attempt to settle the matter. If the case does not settle, it will be set for hearing. It is important that you retain counsel to ascertain exposure to liability and represent you at the settlement conference and the hearing.
Prior to retaining counsel, obtain copies of all payroll, time and vacation records, as well as copies of the final paycheck and when it was provided to the employee.
Negotiating a Severance Agreement. Can their Attorney Negotiate More Money?
You should always contact an experienced employment attorney to review your severance agreement to ensure that you are fully protected. Most severance agreements provided to employees are drafted to protect the rights of the Company. Aside from monetary payments, it is important that the agreement is fully enforceable, protects all of your rights, addresses various issues that may be important to you following your employment, such as letters of reference and the characterization of your separation.
To the extent that you have any legal claims against your employer, an experienced employment counsel will ascertain the basis of such claims and value whether the offered severance sufficiently compensates you for waiver of such claims.
A Former Employee Opens a New Competing Company. What are the Best Practices to Protect his New Company?
As a former employee, you must understand what you can and cannot do with respect to any information that you learned through your former employer that you may rely upon in opening your new business. You will also need advice on contacting former clients, vendors and employees to announce your new Company, and the limits, if any, on solicitation.
As a new business owner, you also need to understand California employment laws that apply to your new role as an employer and implement policies, processes, handbooks and follow best practices to protect your new company.
What Training Is Available for Supervisors on Their Reporting Obligations and Best Practices for Defensible Documentation?
Sherman Law Corporation offers several different training courses for supervisors of California based Employers on the types of conduct that requires reporting and best practices for documentation to withstand legal challenges.
Please visit our Teaching & Trainings page for sample courses we offer employers.
What are Cost-Effective Methods to Comply with Obligations to provide Supervisors with Required Harassment Training?
Like everything else in life, you get what you pay for. On-line courses and webinars are likely the least expensive method in terms of dollars and cents, but are also the most generic and least likely to do what it is supposed to do – train supervisors to comply with federal and state laws to minimize employer liability.
Further discussion on the pros and cons of live training are addressed in our Teaching & Trainings age.
Can California Employers Require All Employees upon Separation to Execute Severance Agreements Not to Sue the Company?
While severance agreements are not required by law, employees cannot be required to execute a severance agreement as a condition of releasing their employment rights. While it is smart to use severance agreements as a tool to avoid the risk and expense of litigation, it is important to tailor severance agreements to address each employee and matter.
Who is the Best Person to Update Handbooks, Policies, Procedures, Processes and Projected Costs of Compliance?
An employment litigator is the best person to update handbook, policies, procedures, forms and agreements because s/he is regularly litigating employment issues that they then include in their template handbooks, agreements and forms. Because policies, procedures, processes and agreements governing the use of technology, devices, and non-public electronically stored information are prevalent in employment litigation, an employment litigator who regularly confronts these issues is in the best position to counsel employers in these critically important areas.
Given the importance of compliance, we offer both reduced fees and flat-rate packages in connection with this type of work.
What are the Legal Ramifications of an Outdated Employee Handbook Not Followed by a California Employer?
A handbook sets forth the terms and conditions of employment and the policies and procedures that govern the relationship. Often times, the decision to terminate an employee, for example, was based on legitimate, non-discriminatory reasons, but the outdated employee handbook raises a number of employment-related violations that may have nothing to do with the termination that allows the employee to assert legal claims against the employer individually or on behalf of a class.
Moreover, to the extent that there are policies that are not followed at all, or consistently, by the employer, the policies will be used against the employer.