BYOD Policies and Business’s Proprietary Information

Trends predict that by 2017, half of all employers are expected to require their employees to supply their own devices for work.  While a well-implemented and maintained bring-your-own-device (BYOD) workplace has its benefits (such as driving innovation, reducing, or completely eliminating, the expense of constantly replacing outdated devices, and potential wage and hours claims for ‘overtime’ hours worked), there are definite security and legal risks that every Orange County business should explore.

As we head into a BYOD era, security should be a primary concern for employers.  Many companies invest heavily in the development of their trade secrets and other intellectual property and rely on their IP portfolio to give them a competitive advantage over other businesses.  In general, California law affords protection to those trade secrets (learn more here), but certain steps must be taken in order to obtain a legal shield. For example, your company must demonstrate that the trade secret is in fact “secret.”  An Orange County intellectual property lawyer can help walk you through this process.

Exceptions for Non-Compete Clauses in California

When an employee leaves a company, the employer often wants to try to ensure that the employee does not offer his or her services to competing or similar businesses. The most common (preemptive) step an employer will try to take is to include a non-compete clause in an employee’s contract, or attempt to have an employee to sign such an agreement in exchange for a severance package. However, some states have attempted to limit the reach or effectiveness of non-complete causes as a matter of public policy.

While many states will allow reasonable non-compete clauses in employment contracts, California expressly forbids them, save for a few limited circumstances. California Business and Professions Code section 16600 states in part that, “[E]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.”

Does FMLA Leave Apply to A Certain Business?

FMLA, or the Family Medical Leave Act, was created with the intention of balancing the needs of California employers with the needs of their employees when the employees had to take extended medical leaves for serious medical conditions or to care for family members. FMLA applies to any employer in the private sector who engages in commerce or in an industry or activity affecting commerce, and who has 50 or more employees each working day during at least 20 calendar weeks in the current or preceding year. While many employees assume FMLA leave is paid time-off, the law does not require it. However, whether an employee receives paid FMLA leave should be clearly explained in the employee’s work agreement.

An employee is eligible for FMLA leave if he or she:

FMLA and Employee Leave

Is your Orange County employer complying with the various federal and state laws that govern the amount of time off certain employees must be allowed? For example, the Family Medical Leave Act (FMLA) is one such set of guidelines and can be tricky to navigate, especially when it appears that an employee does not actually qualify for the time off he or she is requesting. FMLA requires covered employers to provide employees job-protected and unpaid leave for qualified medical and family reasons. Qualified medical and family reasons include: personal or family illness, family military leave, pregnancy, adoption, or the foster care placement of a child.

But what happens when an employer doesn’t believe an employee qualifies for FMLA leave? Can it risk a lawsuit for saying no?

Examples of Unlawful Dismissal in the Workplace

Have you been treated unfairly at work because of your age? Sex? Race? Both federal and California law clearly prohibit your employer from discriminating against you (such as by dismissing you or demoting you) for a number of reasons, including your race, religion, gender, sexual orientation, and age. California’s Fair Employment and Housing Act (FEHA) goes even further and makes it against the law for your employer to dismiss/discharge you based on your:

Are CA Employers Required to Give Holidays Off?

With the holidays quickly approaching, many California employees may be wondering if their employers have to pay them for the time they are given off of work. Not surprisingly, the answer is: it depends.

Like many other states, California employers are not required to pay their workers holiday pay when they close for business on official holidays. And working on a holiday does not guarantee overtime or additional compensation, though some employer’s do have a policy to pay extra rates such as time-and-a-half. If an employee does work on a holiday, California law only requires that an employer pay an employee their usual rate of pay. The law does not require that an employer pay you any additional pay if you work on the day of a holiday unless it is part of their common practice or if you have worked in excess of a 40 hour, 8 hour per day work week. What’s more, Saturdays and Sunday are paid at the same rate as hours worked during a weekday.

Does your employer have to give you a holiday off?

What is the FLSA?

The Fair Labor Standards Act (FLSA), which affect many private and public companies; including those in California, prescribes standards for the basic minimum wage and overtime pay. The FSLA is administered by the Employment Standards Administration’s Wage and Hour Division within the U.S. Department of Labor.

The basic requirements of the FLSA include:

  • Payment of the minimum wage
  • Overtime pay for time worked over 40 hours in one workweek
  • Restrictions on the employment of children
  • Recordkeeping

GINA and Employee Medical Testing

In many cases, a potential employee’s family history is a great indicator of predispositions to certain hereditary diseases and illnesses. In a perfect world, this information could assist employers in making hiring, firing, and demoting decisions, potentially affecting a business’s bottom line for the better. However, the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.

“Genetic information,” as defined by GINA, includes:

Not All Employee Speech on Social Media is Protected

As many Orange County business owners should be aware, the National Labor Relations Board continues to focus on the issue of social media in the workplace. While the NLRB routinely gives employees some leeway for what some might consider “unprofessional” social networking etiquette, a recent pro-employer decision indicates that there is in fact a line in the workplace that employees can cross. This means, that as a California employee, you may be limited in what you can say online.

The recent case involved two employees that had a profanity-laced conversation via Facebook about their employer. After receiving a screenshot of this conversation, the employer, a non-profit organization based in California, made the decision to terminate the two employees, citing concerns based on their Facebook conversation.