Thursday, March 29, 2012

Ever wish you had a friend in employment law? I am now offering transparent, flat-free employment law counseling

In my practice, I meet two types of clients: the ones who reach out to an employment attorney before they face litigation or administrative claims, and the ones who didn't. Both types of client, for the record, are a pleasure to work with - however, it is always easier (and less expensive) to try and prevent a lawsuit than it is to resolve a dispute once a problem employee has filed a complaint.

In response to concerns about unpredictable legal costs, a huge factor for employers deciding whether to pick up the phone and call an attorney for employment advice, I started to seek out alternative billing models to better meet my clients' needs. I regularly read law practice management blogs and journals, and have long admired the pioneering work that The Beale Firm, from Knoxville, Tennessee, has done for their employer and employment law clients. After working to set up a similar model here in Santa Barbara, Ventura and San Luis Obispo Counties, I am excited to launch the Central Coast's first fixed-fee employment counseling services to businesses and nonprofits.

Whether you have one employee or 1,000, employment decisions have a lasting impact on your business and your bottom line. To help our clients manage risk and manage legal costs, we have developed a special fee structure for business and non-profit clients that enables you to access legal advice throughout the year. If you have ever wished you could call your attorney but still have control over your budget for legal and consulting costs, this plan is for you!

At Hardin & Coffin, we understand that having an attorney on hand to answer questions about hiring, employment contracts, wrongful termination, discrimination claims, FEHA and ADA accommodations, retaliation, defamation, wage and hour issues or any aspect of an employee’s relationship with your business or nonprofit is a vital part of your growth as an organization. Whether you are big enough to have in-house counsel or a dedicated human resources department, or small enough that hiring a part-timer will double the size of your workforce, having a friend in the employment law field is invaluable when it comes to employment decision making.

I currently offer two annual fee plans, both offering significant savings over my usual hourly rates:

• $5,000 – 25 hours of prepaid employment advice.

• $2,500 – 10 hours of prepaid employment advice

 WEV graduates, NAWBO and Santa Barbara, Ventura and Santa Maria Contractor’s Association members save an additional 5%! If you belong to an organization or a professional association that doesn't currently receive a discount, get in touch and we will work with you and your group to offer a similar rate.

Once you sign up, each month you will receive a statement detailing the services you have received and the amount of time you have remaining in your package. If you face litigation or administrative hearings, my firm will work with you to set up an alternative billing structure to cover the additional time requirements.

In addition to our flat rate legal consultation packages, I also offer services billed on a traditional hourly rate. Let our employment attorneys help you with:
 • Hiring and Firing
 • Employee Handbooks
 • Employment Contracts
 • Wrongful Termination
 • Discrimination
 • FEHA and ADA Accommodations
 • Discrimination Claims
 • Sexual harassment
 • Hostile work environment claims
 • Retaliation
 • Defamation
 • Overtime claims

Want to know more about our employment law services? I offer free thirty-minute consultations, and am always happy to meet with employers to discuss your employment attorney needs.

 DISCLAIMER: This is an advertisement for legal services, provided by an attorney licensed by the State Bar of California. Nothing herein is intended to guarantee or represent a certain outcome to your case, and every matter is different. No attorney-client relationship is formed or intended to be formed by your use of this information, and nothing herein is legal advice, which should always be obtained directly from an attorney familiar with your legal situation.

Monday, March 12, 2012

Union Bank to buy Pacific Capital Bancorp - what will this mean for Santa Barbara employees?

Another Monday morning scoop from Pacific Coast Business Times, and this one has mixed messages for the Santa Barbara County economy:

According to PCBT, eighteen months after buying Pacific Capital Bancorp, Santa Barbara Bank & Trust's parent company, Dallas-based Ford Financial Fund is selling the local banking group to Union Bank's parent for an estimated $1.5 billion.

The deal will likely cause a further shake-up at Santa Barbara Bank & Trust, which has laid off at least 300 employees and had 963 employees in 2010.

UPDATE: more great reporting from PCBT has revealed that Santa Barbara Bank & Trust will be renamed and re-branded as part of the Union Bank group. My guess is that this will provide a big boost to Montecito Bank & Trust, now one of the only local banking groups on the central coast.

Wednesday, March 7, 2012

When does casual humor become sexual harrassment?

Mary Luros, a Napa attorney with the firm of Hudson & Luros, LLP, writes an excellent business column in the Napa Valley Register. Check out this great article about a topic that impacts business owners everywhere: the thin line between one employee's humor and another's sexual harassment.

Tuesday, March 6, 2012

Can an employer ask a job applicant for access to their Facebook page?

This interesting article from MSNBC raises some timely issues related to employer "screening" of job applicants' social media posts. However, internet searches on potential employees can be problematic, raising issues of discrimination and privacy.

According to MSNBC, in Maryland, job seekers applying to the state's Department of Corrections have been asked during interviews to log into their accounts and let an interviewer watch while the potential employee clicks through wall posts, friends, photos and anything else that might be found behind the privacy wall.

Arguably, this makes sense when the potential employment is in law enforcement: if an employee is associating with recreational drug users, for example, then this could impact their suitability for employment in a corrections facility. However, what if the applicant is looking for work in a small business? Increasingly, small business owners are turning to Google searches of public information to get a read on what type of employee they are hiring. For example, Forbes recently ran an article titled "Facebook Can Tell You If A Person Is Worth Hiring." The article, based on a study published in the Journal of Applied Social Psychology, says that publicly available content on Facebook (photos, status updates, and conversations with friends) can be used to measure emotionally stability, conscientiousness, extroversion, intellectual curiosity and agreeableness - all qualities considered essential by employers.

Finding out more about a potential employee sounds like a good idea, but like everything in employment law, there are downsides. Treat casual internet searches just as you would reference checks - with care. Even though the information is available publicly, the results of online searches and Facebook reviews could provide access to information about religious views, national origin, or sexual orientation. You can't ask questions about these things in an interview, and by finding out the answers in an internet search, you could be subjecting yourself to later claims for “disparate impact” or discrimination claims. For example, say you run an internet search on a job applicant and Google turns up a webpage telling you the potential employee is a volunteer deacon at a local church. You now know something - that the applicant is likely to have a particular set of religious beliefs - that you could never ask about in interview. A competing applicant turns out to be a cantor at their local synagogue. You are a Christian, and hire the employee who volunteers at the church. Proving that you didn't discriminate may be a difficult task!

If you choose to search social networks and the internet for information on an applicant, consider asking the employee for permission to do so. This won't protect against discrimination claims, but may help against arguments that you have invaded their privacy.

Mistakes in hiring can become expensive, and by seeking guidance through the hiring process, you stand a good chance of avoiding future claims. The foregoing is intended as information for clients and the Santa Barbara, Ventura and San Luis Obispo business communities, and nothing here is intended as legal advice or to form an attorney-client relationship. If you have questions about hiring and background checks, contact me!

Friday, March 2, 2012

Physician's assistant wins record $168 Million verdict in harassment suit

A Sacramento jury has awarded a whopping $168 Million to a hospital employee who sued her employer, Sacramento's Mercy General Hospital, for harassment. Mercy General Hospital is run by Catholic Healthcare West, now known as Dignity Health (although there is not much dignity in the events reported in this lawsuit). The verdict is thought to be the largest ever for a single harassment claim in U.S. history, and because the hospital intends to appeal the verdict, it could have ramifications for all of us.

Ani Chopourian, a physician's assistant, worked at at Sacramento's Mercy General Hospital for two years. "I have never seen an environment so hostile and pervasive,” said Chopourian of the harassment she endured, which led to her filing at least 18 separate complaints with her supervisors. She was fired after filing her last complaint, which dealt specifically with the quality of patient care and doctors' demeaning behavior. The final complaint was deemed "professional misconduct" by Mercy General Hospital.

According to a report in the Los Angeles Times, among the complaints filed by Chopourian are details of a surgeon who stabbed her with a needle (and in another incident, broke the ribs of a patient in a fit of rage). Yet another surgeon regularly greeted her with the phrase "I'm horny" and slapped her on the bottom; a third called her a "stupid chick" and made racially disparaging remarks about her Armenian heritage, asking if she had joined Al Qaeda.

The verdict includes $125 million in punitive damages and $42.7 million for lost wages and pain and suffering.

Under California and Federal employment law, the employer was liable for the behavior of the surgeons [Faragher v. City of Boca Raton (1998) 524 US 775, 789–790, 118 S.Ct. 2275, 2284]. California law takes things a step further and under FEHA, the employer is “strictly liable” for quid pro quo sexual harassment perpetrated by a supervisor and has no defense to liability. As an employer, once you know or suspect that harassment or discrimination is occuring in your workplace, it is unlawful for you “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” [Government Code § 12940(k) .]

My first thought on the Chopourian case was "what were they thinking?" The steps an employer takes to prevent harassment from occurring and the actions taken to investigate and remedy complaints affect whether the employer will be held liable for the harassment. Both California and Federal Employment law set out clear guidelines for preventing harassment and discrimination, and handling complaints when they come in: it is hard to believe that a huge employer like Catholic Healthcare West did not follow the law.

In California, employers with at least 50 employees must provide all supervisory employees lwith at least two hours of interactive training regarding sexual harassment prevention and correction at least once every two years. If you hire a new supervisor, you must train them within six months of their hire date. [Government Code § 12950.1(a),(c).]

Under FEHA, you must also:

—display a poster on the illegality of sexual harassment in the workplace

—distribute an information sheet on sexual harassment to all employees.

Get a copy of the poster and information sheet from the Department of Fair Employment and Housing..

If you don't use the DFEH information sheet, you must provide equivalent information to all employees that contains the following information:

—the illegality of sexual harassment

—the definition of sexual harassment under applicable state and federal law

—a description of sexual harassment, with examples of proscribed conduct

—internal complaint process available to the employee

—legal remedies and complaint process available through the DFEH and FEHC

—how to contact the DFEH and FEHC; and

—legal protection against retaliation for opposing sexual harassment or for filing a complaint or otherwise participating in an investigation, hearing or other proceeding regarding a claim of sexual harassment.

However small your business, having a Workplace Discrimination Policy that mirrors California and Federal law is incredibly helpful. My take on using these in smaller workplaces is simple: it is much easier for a small business to defer to an objective guideline - the employee handbook - than it is to step up and tell an employee that they are out of line without any backup. For assistance in drawing up a Workplace Discrimination Policy, you should contact an employment attorney who specializes in representing employers.

As always, this is not intended as an advertisement and is offered as a service to my clients and the community. Nothing herein is intended as legal advice and the above is for informational purposes only. Every situation is different and you should consult a licensed attorney for advice tailored to your business needs.