Coronavirus: Can I be fired?

By Jessica Suotmaa 0

Due to the coronavirus pandemic, companies have lost business, sales have gone down, and profits have plummeted. As a result, many are cutting costs by reducing work hours, or even their workforce. Here in Southern California, we have encountered questions from you regarding job loss, such as:

“Can my company let me go for no reason?”
“Can I be fired because of the coronavirus / COVID-19?”
“Can I fight back if my company lays me off for no reason?”

Also, on March 17th, 2020, Governor Gavin Newsom signed an executive order regarding this issue. If you’re working in California, please continue reading as we explain the ordinary situation, and the current situation.

California is “at will”

Unless you have an employment contract specifying employment terms, such as the length of employment, or specific dates of employment, you are subject to the “at will” employment terms in California state.  What “at will” means is that you can be let go at any time, for any reason–or alternatively, no reason at all, at the employer’s will.

Given this, the short answer to all of the questions above is: “yes”. You can be let go, for no reason at all, by your employer due to the coronavirus.

If you do have an employment contract, be sure to see what the terms state regarding breach of contract or early termination.

What is Cal-WARN Act?

If you’re an employer, the executive order signed on March 17th, 2020 will help you.  The order modifies the existing Cal-WARN act to cover COVID-19 (coronavirus).  California Worker’s Adjustment and Retraining Notification (Cal-WARN) originally applies to California employers with more than 75 employees, including part-timers.  Under the act, qualified employers must provide 60-day notice to its employees prior to closing the business operations at the employee’s location, relocating operations to a location more than 100 miles away, or terminating more than 50 employees in a 30-day period.

However, the Cal-WARN act does not cover physical calamities or acts of war, which could be an exception the COVID-19 pandemic falls under.

Violation of the Cal-WARN Act could entitle employees to back pay and cash equivalent to benefits for up to a 60-days or one half of the employee’s employment period (whichever is shorter).

Relief for Employers

The executive order signed by Governor Newsom went into effect on March 4th, 2020, when California officially declared a state of emergency.  Most notably, the order suspends the 60-day notification requirement to employers who meet certain requirements, such as:

  • Prior to termination, relocation, or mass layoffs, the employer notifies affected employees, Employment Development Department (EDD), the local workforce investment board, and the chief elected official of each city and county government.
  • If the employer cannot give 60-day notice, it is required to provide notice as soon as possible, with a brief explanation as to why it cannot adhere to the 60-day requirement.
  • The employer is terminating, relocating, or laying off employees due to circumstances caused by COVID-19, that were not reasonably foreseeable.
  • If the employer is providing notice after March 17, 2020, the employer must include the following statement in the notice:

“If you have lost your job or been laid off temporarily, you may be eligible for Unemployment Insurance (UI). More information on UY and other resources available for workers is available at labor.ca.gov/coronavirus2019.“

If you have any questions regarding unlawful termination, how to handle mass layoffs, or just questions regarding the legal aspects of covid-19 and how it may affect your employment or employees, contact us today!

 

 

 

The 7 new 2020 laws in California

By Jessica Suotmaa 0

If you’re a business owner with employees, it is time to familiarize yourself with these seven new employment-related laws that went into affect on January 1, 2020. Ensure you follow best hiring practices and follow these laws for existing employees.

1. New minimum wage

California has a new minimum wage. If your business employees 25 or less people, the new minimum wage is $12/hour. Otherwise the new minimum wage is $13/hr.

2. Independent contractors

We wrote about the AB-5 law previously, but it is still worth revisiting if you’re hiring freelance workers and treating them like independent contractors. The new law dictates that if a business controls and directs the work of the worker, and the work is an integral part of the business (think, a gig economy driver working for a ride service company), then they cannot be characterized as an independent contractor. Instead, the business has to treat them as an employee.

3. Sexual Harassment Training

If your business has more than five employees, you are required to provide sexual harassment training to all employees every two years.  SB 1343 also requires employers to provide new employees sexual harassment training within six months of being hired.

4. Lactation Accommodation

California already requires businesses to provide nursing mothers time to nurse or pump, but with the passing of SB142, businesses must ensure nursing mothers have a proper place to do so. A restroom or break room is insufficient. The location must be close to the employee’s work station, must have electrical outlets, and must be private.

5. Arbitration Agreements

An arbitration agreement is a contract whereby an employee and employer agree that certain, if not all, disputes will be settled via arbitration outside the court (rather than in court with a lawsuit). Companies can no longer force employees into mandatory arbitration agreements with the passing of AB51. This law does not apply to arbitration agreements entered into prior to January 1, 2020.

6. Paid Family Leave

With SB 83, the benefits under paid family leave increase from six weeks to eight weeks. New parents will have more time to stay home with their children starting July 1, 2020.

7. Hair Discrimination

California has banned discrimination based on natural hair style or texture with the passing of SB 188, also known as the Crown Law. Employers and schools cannot discriminate against potential incumbents based on their natural hair, or require a certain hairstyle instead of their natural hair.

 

Do you have questions or concerns as a business-owner and employer? Call an experienced business and employment attorney today! 

Why the Order of Business Matters

By Jessica Suotmaa 0

Did you ever wonder which came first, the chicken or the egg? Similarly, you may have wondered if you should be filing your company with the State or with the Federal Government first? Or perhaps they’re just one and the same?

They are not.

There is an order which you should follow, but consultants offering quick and helpful tips will tell you to register for a tax identification number first. After all, if you’re a small business owner just getting started, you need your tax id to open a bank account and give to vendors to receive payments. Obtaining a tax ID may be your primary concern and all that other paperwork can be handled by them.

Note: Most banks require your State registration documents to open a bank account.

You pay them to set up the tax ID for you, and you don’t hear back unless there’s a problem–but usually there isn’t and you obtain your tax ID immediately.

Note: You can apply for a business tax ID for free on the official government website.

Then a month later, you may discover that you cannot use the name of your business. Someone else has already claimed it but you didn’t know because you didn’t check the name on your local State’s Secretary of State website.  It’s a quick and free search that prevents you from pursuing registration for a name that is not available to you.  In other words, it prevents you from wasting time and money.

So now what? You have to change the name on your tax ID because it doesn’t match. You may have to change website domain names, email names, logo designs, business cards, and other promotional material in which you’ve already invested.

Not ideal.

To avoid a situation where you have to back track, start the process the right way.  The correct order for starting a business in California is as follows:

  1. Determine your business needs by the type of business you’ll be doing.
  2. Talk to a professional (such as an attorney) about the best way to organize your business (e.g. partnership, LLC, corporation).
  3. Decide on the organization and tax methods.
  4. Decide who will be the primary responsible person.
  5. Decide on a company name, trade name or “doing-business-as” (DBA) name.
  6. If applicable, search the State’s Secretary of State business website for the business name of your choice.
  7. If the name is available, prepare documents for registration.
  8. Pay applicable fees.
  9. Wait for the documents to arrive.
  10. Apply for the Employer Identification Number (EIN), aka “tax ID”.
  11. If applicable, order a copy of your corporate book.
  12. If applicable, order your marketing materials.

Starting a business can be challenging. While it’s tempting to allow companies that offer package deals to do-it-all for you, it’s important to realize you need to know what they are doing for you. Is it to your advantage? Will your business outgrow the model? Is the organization or tax method appropriate for your type of business? Consult a business attorney for professional advice.

Why is California considered immigrant-friendly? About Sanctuary States.

By Jessica Suotmaa 0

While the passing of new year’s reminds us of resolutions and letting go of the past, for Californian immigrants, 2018 marked a new era.  The Sanctuary State bill passed in October of 2017 came into effect January 1, 2018, making California the first sanctuary state ever.

But hold on, what does it mean for California to be a “sanctuary state”?

 

California Values Act SB54

The senate bill limits local and state law enforcement agencies from sharing information with federal agencies, such as ICE.

Whereas in a non-sanctuary state, law enforcement officers can hold a detainee until ICE picks them up, even if they have not been charged.  In California, law enforcement cannot hold a detainee, but they can transfer the detainee to a detention center if the detainee is convicted of one or more of about 800 crimes or is a registered sex offender.

The list of 800 or so crimes include assault, battery, sexual abuse and exploitation, rape, crimes endangering children, burglary, robbery, theft, fraud, forgery, a crime resulting in death, gang/drug/weapon-related offenses, and even some domestic violence offenses and driving under the influence (DUI) felony convictions.  These provisions are from the TRUST Act), where the conviction requirement only stands if the crime was committed (or charged) within 15 years.

In California, law enforcement (e.g., the police) cannot ask someone about their immigration status.  Immigrants who admit to being illegal can also not be arrested just for their immigration status. It’s important to note that while the police cannot arrest someone for their immigration status, ICE officers can.

However, law enforcement can still respond to ICE requests if the detainee has been convicted or charged with a crime in the list.

In some cases, ICE has access to local prisons and is allowed to interview an inmate already in custody.

ICE can also assist local law enforcement in cases where the primary goal is not immigration enforcement.

Hospitals, schools, and courthouses in California are not required to share information with ICE.

Why does bill SB54 matter?

California has about 2.3 million illegal immigrants.  27% of Californians are foreign-born, and roughly every 5th green card is issued to a California resident.  SB-54 bill states three primary reasons why the bill is important for California:

  1. “Immigrants are an Essential Part of California”
    • One in four Californians are immigrants
    • 50% of Californian children have at least one immigrant parent
    • The cost of mass deportations would be too high for our families and communities.
  2. “Entangling Local Law Enforcement Agencies with Immigration Enforcement is Harmful”
    • Prior to TRUST Act (2013), California spent a lot of local resources assisting ICE in detaining illegals e.g., in 2012 California spent $65 million tax payer money to help ICE detail people.
    • Studies show that when illegals are afraid of local law enforcement, they do not report crimes or assist in providing information or acting as witnesses.
  3. “California’s Resources Cannot be Commandeered to Carry Out Deportations”
    • Federal law states that California cannot be required to use local resources to detain and deport illegal residents.

How does California compare to other states?

The Immigrant Legal Resource Center (ILRC) published a report stating facts on today’s state of immigration policies:

  • Department of Homeland Security (DHS) has a budget of over $18 billion.
  • DHS relies on voluntary help from local governments, especially local law enforcement agencies.
  • Local law enforcement agencies have no legal authority to enforce immigration laws.
  • Local law enforcement agencies do not have to assist DHS with immigration enforcement.
  • However, one in four counties will voluntary detain immigrants at ICE’s request.
  • Compared to one year ago, over 400 counties have stronger limitations on immigration enforcement.
  • Some counties have a signed agreement of cooperation with ICE (287(g)).

ILRC has created a color-coded map of the U.S. showing counties by the level of ICE-cooperation.

Map on how ICE-friendly counties are

The greener the county, the more policies it has in place against helping ICE detain and deport illegal immigrants.  From this map, we can see that California is by far the greenest state, making it th

California and Nevada ICE influence

ILRC reminds readers that just because policies are in place, doesn’t mean cities and local authorities agree on the policies. In Orange County, the city of Los Alamitos approves its precedent-setting anti-sanctuary ordinance, whereby the city voted not to follow California’s sanctuary policies. Another example is how the city of Los Angeles may adhere to sanctuary policies, but the smaller cities in Los Angeles county or other counties may not.

To view the interactive map and find your county, visit the Immigrant Legal Resource Center website.

 

Why do you think California is immigrant friendly? Share your reasons below!