You Ask — We Answer

July 2010

If we require employees to undergo background checks, fingerprinting, and other costly employment-related investigations, may we charge any portion to the employee? We are a small agency and are trying to contain costs, but the checks are required to be done for all new employees.

Although costly, pre-employment investigations assist employers in acquiring qualified candidates and may ultimately save employers unexpected future costs. Some applicants provide false or incomplete information on their job applications. Because of this, it is a good idea to investigate and verify application information. Unfortunately, especially when hiring numerous employees, this can be costly. Under California law, employers cannot pass the cost of background checks and other pre-employment investigations onto their prospective employees.

Are we required to provide Harassment Prevention Training for our associates every two years?

In 2004, the California Legislature passed AB 1825, which requires employers who regularly employ 50 or more employees to conduct at least two hours of sexual harassment training to supervisory employees once every two years, and within six months of being hired/promoted into a supervisory position. A supervisory employee includes any employee who works in California and has the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend such action to the employer.

To the extent the associates satisfy this definition, they must take part in sexual harassment training every two years. If they are not supervisory employees, California law does not require that they take part in the training. Nevertheless, employers are well-advised to provide sexual harassment training to all employees. Under the Fair Employment and Housing Act, employers have a duty to prevent harassment. This duty extends to harassment by all employees, regardless of whether they hold a supervisory role. Consequently, harassment training for all employees makes both legal and practical sense.

May a California employer terminate an employee at-will if the employee is on a probationary status?

It depends. California Labor Code section 2922 presumes that all employees are at-will employees. To overcome this presumption, an employee must point to an express or implied agreement limiting the employer’s ability to terminate at-will. This is true whether or not the employee is on a probationary status. Even if there is no express agreement limiting the presumption of at-will employment, employers must consider whether their conduct may have created an implied agreement. In doing so, employers should look to the parties’ entire relationship, including but not limited to: the terms of any relevant application for employment, employee handbook or manual; the personnel policies and practices of the employer; the employee’s longevity of service; actions or communications by the employer constituting assurances of continued employment; and the practices of the industry in which the employee is engaged.

Due to the economic downturn, we are considering closing operations at one of our facilities. Do we have to provide notice to our employees?

Both federal and state laws require certain businesses to provide at least 60 days’ written notice to affected employees, public officials and union representatives prior to executing a mass layoff, plant closing, relocation or termination. Whether this obligation exists depends upon the number of employees working for the employer and the number of employees affected by the closure. For additional information, consult the Employment Development Department’s Worker Adjustment and Retraining Notification (“WARN”) link at http://158.96.229.240/eddwarn.htm and the Department of Labor’s WARN link at http://www.dol.gov/compliance/laws/comp-warn.htm.

I have heard that the Employment Development Department has a work share program that provides for some unemployment insurance benefits. Where can I obtain more information about the program?

The Employment Development Program allows for the payment of work sharing unemployment insurance benefits to individuals whose wages and hours have been reduced, e.g., in lieu of a layoff. More information can be obtained regarding the program at http://www.edd.ca.gov/pdf_pub_ctr/de8714bb.pdf  .

Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.