Pre-Employment Screening and how its can violate your rights! With the job market being at one of its worst states ever in American history, the number of people looking for jobs are growing. In light of this, employers know they are in a better position to be selective and demanding in their application process and hiring criteria. However, employers must be careful not to cross certain boundaries that may amount to unlawful hiring practices. Certainly, employees should also be cautious of the pre-employment screening questionnaires they come across and be aware of the information they choose to divulge. Below are some (out of the many) modern issues that arise in the context of hiring and selection.

Laws on Pre-Employment Screening

The importance of knowing your rights when it comes to Pre-Employment Screening. California disabilities law restricts the use of a job applicant’s medical information. Note that this is a restriction, not an outright prohibition. During an interview or through an employment application, employers may ask about an applicant’s ability to perform the specific functions/tasks of the job. However, the employer cannot ask about the applicant’s health or medical history; this includes whether the applicant has ever filed a Workers’ Compensation claim. An example of a permissible inquiry would be, “Are you able to stand continuously for at least 5 hours per day?” An example of an impermissible inquiry would be, “Do you have any health condition that may prevent you from performing the job for which you are applying?”

Effective January 1, 2013, employers are prohibited from requiring or requesting applicants to disclose information regarding their personal social media accounts. Social media accounts can include Facebook, LinkedIn, Twitter, Myspace accounts, blogs, etc. Employers cannot ask applicants for their log-in information (e.g., username and password), require applicants to login to their own account in the presence of the employer or divulge any personal social media information. However, as would any other person in the general public, an employer may independently or through a use of an investigator search for and browse the employee’s social media account.

Employers are also prohibited from asking questions about marital status and/or children. An employer cannot ask an applicant if she is pregnant, has children or is planning to have children. Additionally, even if the employer already knows that applicant has children, the employer cannot ask if he/she has made provisions for childcare.

Under the Fair Employment and Housing Act, medical examinations of applicants are only allowed after a conditional job offer has been made. (A conditional job offer is an offer that is contingent upon the satisfaction of certain requirements). However, such post-offer medical examinations are permissible only if it is directly related to and pertinent to the position being applied for or directly related to whether an individual would endanger himself/herself or others. Such exams cannot be arbitrarily given and must be a requirement for all entering employees in similar positions.

The decision about whether to employ any person cannot be based on general beliefs about his/her disability, e.i., Pre-Employment Screening. Each person must be judged solely on whether his/her particular medical history and condition presently prevents him/her from performing the job safely and efficiently. Any medical standard or employment policy which automatically excludes entire groups of people (e.g. all people with high blood pressure, diabetes, AIDS, or back problems) is usually improper.

Note that if an employer decides not to hire (or promote) an applicant because of his/her disability, then the employer must allow the applicant the opportunity to submit an independent medical opinion. It is illegal for the employer to refuse the employee’s ability to do so.

If an employer refuses to hire (or in certain cases, promote) an applicant based on an illegal reason or selection criteria, the employee may have an employment claim against the employer. With that being said, applicants who have been subjected to any of the unlawful pre-employment inquiries discussed above should contact an employment attorney immediately to discuss his/her rights.

Wrongful termination settlements is said to have occurred when an employer has fired/laid off an employee in direct violation of their existing legal rights. If the wrongful termination law has been violated, the terminated employee can file his/her wrongful termonation settlements employment termination complaint with the government agencies. Alternatively, a private lawsuit can also be filed with the help of a wrongful termination Settlements lawyer.

The “At-Will” concept

All states have now adopted the doctrine of employment “at-will” to a certain degree. This means that employees can typically leave their jobs at any given time without any cause or advanced notice. In addition, it means that the employer can also typically fire / lay-off their employees at any given time without a specific reason. In many instances, employers legitimately ask employees to sign certain agreements or contracts that effectively document & enforce all the terms of this “at will” employment and this shows up in the company’s policy manuals.

The Exceptions

Of course, there are certain exceptions to the rule. Employees as well as employers are not permitted to breach the employment agreements/ contracts or even violate regulations, laws, constitutional provisions/ public policy when they are terminating employment. Exceptions such as intentional emotional distress, breach of implied contract and reliance on an employment offer do exist. “At will” employees can also be fired for certain job-related problems/ non-job-related reasons like personality conflict or the boss not liking the employee’s jokes.

These employees who have been wrongfully terminated have gone ahead and challenged the rules in court and won wrongful termination settlements and compensation. Though there is no fixed figure that can be attached to this kind of a settlement, it can sometimes be substantial. This settlement covers the lost wages and attorney’s fees & punitive damages are covered only under certain circumstances

The Right Legal Help

If a person has been wrongfully terminated and wishes to file a lawsuit against the employer, he/she will have to hire the services of a wrongful termination settlements lawyer. The person will provide the litigant all the details of this kind of filing and help with all the technicalities and legalities. Having a good lawyer can also result in a higher termination settlement and they will also be able to guide the person through the legal system. Since there are no hard and fast rules when it comes to winning a wrongful termination settlements, having the right legal help is top priority.

Call the Law Office of Stevens & McMillan Today (800) 738-3353 to get you the highest Wrongful termination settlements!

Unfortunately, sickness or injury can strike anyone at any time.  Fortunately, there are a number of laws which protect an Orange County Employee benefits attorney and allow him or her to take of time for health related issues.  Some of these laws include:

Family and Medical Leave Act (FMLA) – An Orange County Employee benefits attorney may take twelve workweeks of leave in a 12-month period for a serious health condition that makes the employee unable to perform the essential functions of his or her job.

California Family Rights Act (CFRA) – An Orange County Employee benefits attorney may take twelve workweeks of leave in a 12-month period for a serious health condition including illness, injury (including on-the-job injuries), impairment, or physical or mental condition.

Pregnancy Disability Leave Law – An Orange County Employee benefits attorney disabled by pregnancy is entitled to up to four months disability leave. If the employer provides more than four months of leave for other types of temporary disabilities, the same leave must be made available to women who are disabled due to pregnancy, childbirth, or a related medical condition.

Pregnancy Discrimination Act (PDA) – Employers must treat pregnancy disability the same as any other disability and offer the same leave and/or accommodations that are offered to persons with other disabilities.

Americans with Disabilities Act – Subject to certain restrictions, a leave of absence may be required as a reasonable accommodation for a person with a disability.

Fair Employment and Housing Act (FEHA) – Like the ADA, FEHA may require an employer to give a leave of absence as a reasonable accommodation for a person with a disability.

Workers’ Compensation Act – An Orange County Employee benefits attorney who suffers a work-related injury and needs time off to recover may be entitled to a leave of absence.

If you have taken a leave of absence under one of these laws and feel like you have been discriminated or retaliated against for doing so, then please contact Stevens & McMillan at (800) 738-3353 for a free consultation. This article has only touched on the general scope of the law and is for information purposes only. This article is not intended to give legal advice.

Wyatt J. Holtsclaw | Attorney

Stevens & McMillan, Orange County Employee benefits attorney

335 Centennial Way

Tustin, CA 92780

714/730-1000

714/730-1067 Facsimile

If you hope to get a job in the next three months, where in the US will you find the most vibrant employment market? According to the just-released Employment Outlook Survey from Milwaukee-based staffing giant ManpowerGroup, the No. 1 spot is the Cape Coral “Metropolitan Statistical Area,” a city designation coined by the Office of Management and Budget. The Cape Coral MSA, on Florida’s west coast 160 miles from Miami, includes Fort Myers.

Manpower MAN +0.17% ranks the top 100 MSAs. Each quarter it surveys employers in those cities about whether they plan to add or cut jobs, keep employment levels the same, or haven’t yet decided. In the Cape Coral area, a net 32% plan to hire new staff in the first quarter of 2015. That’s a substantial bump up from 23% a year ago. Dana Burnett, economic development director for the city of Cape Coral, says the city continues to rebound from the subprime mortgage crisis and construction jobs abound. “We got hit hard and we’re still waking up from that,” he says. Hertz announced last year that it was moving its headquarters to Estero, FLA, inside the Cape Coral MSA, and it’s in hiring mode. There are also retail jobs at the new Sam’s Club opening in January and jobs at a mega-Walmart planned for 2015. A shoe manufacturer, Camuto Group in Bonita Springs, is also hiring people who want to get a job.

Cape Coral’s robust picture compares favorably with a nationwide seasonally adjusted net employment outlook of 16%. That may not be as strong as the top MSAs on the list but, says Manpower Senior Vice President Kip Wright, “This is one of the most positive outlooks in the last six or seven years. It’s the strongest it’s been since Q1 of 2008,” he says. “We’re starting to see that the recovery is sustained, the stock market is improving, oil and gas prices are stabilizing, consumers have more money in their pockets and they’re rebuilding their savings.” The other plus: while there is plenty of low-wage food service and retail jobs, according to the Bureau of Labor Statistics (roughly one-eight of the new job openings in September 2014 were in retail trade, according to the BLS), there are also many jobs in professional business services, manufacturing, health care, and construction.

To gauge companies’ hiring plans, Manpower surveyed more than 18,000 US employers, gathering data in the top 100 metro areas. It used a research firm that quizzed hiring managers and human resource professionals by phone and email over the first two weeks of October. The firm asked one multiple-choice question about companies’ plans for the first quarter of 2015: How do you anticipate total employment at your location to change in the next three months to the end of March 2014, as compared to the current quarter? Companies could choose four answers: Increase staff. Reduce staff. Keep staff levels the same. Unsure. Then Manpower crunched the numbers and came up with a “net employment outlook.” The survey is a rough measure since it doesn’t count the number of jobs employers plan to add or subtract, but simply asks whether they plan to hire or fire.

After Cape Coral, the second-strongest hiring outlook is in McAllen, TX, near the southernmost tip of the state. A net 29% of employers plan to hire in Q1, the same number as a year ago. Kelli Stanton, Manpower’s regional director for South Texas says there are jobs opening up in construction, durable goods manufacturing, transportation, utilities, and professional and business services. There is also a lot of retail construction and new restaurant chains like Texas Roadhouse. Because it’s on the border, McAllen benefits from Mexicans who go there to shop for goods they can’t get at home.

Deltona, FLA, and Grand Rapids, MI are tied for third place. One of the spurs to Deltona’s growth is major construction at the Daytona speedway (Daytona is part of the Deltona MSA) that is adding a new level onto the structure, and across from the speedway, workers have broken ground on One Daytona, a huge shopping center centered around a Bass Pro Shop sporting goods store. Grand Rapids is benefiting from a housing revival after the whole state was severely battered by the great recession. Some of the employers that are in hiring mode: Steelcase, Spectrum Health, Mercy Health and Amway. Cascade Engineering, an auto products manufacturing, is also taking on new employees.

The city with the worst job outlook: Spokane, WA, with only a 2% net employment outlook, though Manpower Business Development Manager Christina Gross says the Spokane economy isn’t doing as poorly as that number suggests. “It’s a reflection of winter,” she says. Retailers hire a lot of temporary work for the holidays and then scale back hiring in Q1.” But Spokane also has three health care facilities and an insurer, Premera Blue Cross, that are doing well, and four universities including Washington State, also generate employment. “We’re busier and the overall feel is that people are getting back to work,” she says.

See our slide show above for 13 cities where the hiring outlook is the best (there are several ties so we included more than 10) and 11 cities with the worst net employment outlook (there is a six-way tie for fourth place).

Article extracted from Forbes.com

The law is an ever-evolving entity in a symbiotic relationship with its citizens; it shapes us, and we shape it. Here is the list of the most prominent court cases in the United States that have, inevitably so, shaped our lives for years to come. The Law Offices of Stevens & McMillan are forever indebted to such cases, and work to honor them everyday! For all your Employee Rights needs, give us a call at (800) 738-3353.

• Brown v. Board of Education

On May 17, 1954, the Supreme Court unanimously declared state laws that established separate public schools for black and white students unconstitutional, saying they had a detrimental effect on minority children. Though the decision helped spur the civil rights movement and paved the way for integration, it was not welcomed overnight. In 1957, Arkansas Governor Orval Faubus used the National Guard to block nine black students from entering Little Rock High School. In 1963, Alabama Governor George Wallace personally blocked a door at the University of Alabama to prevent two black students from enrolling. In both cases, the incidents resulted in interventions from the highest level — in Little Rock, President Dwight D. Eisenhower deployed the 101st Airborne Division to integrate the school, while in Alabama, President John F. Kennedy sent in the National Guard to remove George “segregation now, segregation tomorrow, segregation forever” Wallace from the university doorway.

• Roe v. Wade

Roe v. Wade divided the country into those who believed in an unborn child’s right to life and those who believed in a woman’s right to choose. It raised issues of morality and privacy and is still hotly debated today. In the early 1970s, Norma McCorvey (alias Jane Roe) was a single Texas mother. Pregnant for a third time, McCorvey decided she did not want to bear a third child, but Texas state law prevented her from having an abortion. On Jan. 22, 1973, the U.S. Supreme Court ruled that the constitutional right to privacy extends to a woman’s decision to have an abortion. The decision came too late for Roe, who was impregnated in 1969 (she had the child and gave it up for adoption), but it guaranteed the right of women nationwide to terminate unwanted pregnancies through abortion by obliging all 50 states to legalize the divisive medical practice.

• Miranda v. Arizona

That most television-friendly of Supreme Court cases,Miranda v. Arizona, was decided in 1966. Under Chief Justice Earl Warren, the court determined 5 to 4 that the police had to follow certain procedures to ensure the protection of a criminal suspect’s Fifth Amendment privilege against self-incrimination. The ruling included the stipulations that suspects be told they have the right to remain silent, that anything they say could be used against them and that they have the right to an attorney. Without these Miranda warnings, the court deemed, prosecutors could not use statements made by defendants under interrogation. The decision reversed the conviction of Ernesto Miranda, who had been found guilty of kidnapping and rape in Arizona after he had confessed during police questioning without being informed of his rights.

• Marbury v. Madison

Before vacating the Oval Office in March 1801, John Adams appointed a number of Federalists to judicial openings in an attempt to handicap President-elect Thomas Jefferson’s incoming Democratic-Republican Administration. But because Adams’ Secretary of State, John Marshall, failed to deliver all of the appointees’ commissions, and because Jefferson subsequently directed his new Secretary of State, James Madison, not to deliver the remaining notices — a number of employees were unable to assume their new positions.

One frustrated appointee, Federalist William Marbury, petitioned the Supreme Court to force Madison to deliver his commission. On Feb. 23, 1803, the court handed down a unanimous decision that Madison was not required to deliver the agreement because the law requiring such action — the Judiciary Act of 1789 — conflicted with a piece of the Constitution. Marshall, by that time Chief Justice, argued that the Judiciary Act was unconstitutional and therefore void, thus establishing the basis for judicial review and solidifying the role of checks and balances in American government.

• District of Columbia v. Heller

It had been 70 years since the Supreme Court had last tackled the central conundrum of the Second Amendment: Does the right to bear arms apply only to militias? This 2008 case specifically challenged Washington, D.C., gun-control legislation that generally prohibited carrying a pistol without a license and also required that all firearms be kept unloaded. In a split decision, the often conservative-leaning Roberts court concluded that the Second Amendment does protect an individual’s right to possess a firearm unconnected with service in a militia. It was possibly the most important government statement regarding guns in the U.S. since the Second Amendment was ratified in 1791.

• Citizens United v. Federal Election Commission

In January 2010, the Supreme Court upheld the right of corporations to spend money influencing political campaigns, ruling that these entities ought to have the same First Amendment rights as individuals to engage in “political speech.” The historic — and, in some quarters, infamous —Citizens United v. Federal Election Commission decision fell to a tight 5-to-4 vote. Its implications are huge: superseding earlier understandings, the court deemed corporate money, funneled by lobbyists and special-interest groups into politics, equivalent to any individual donation — even though, by many people’s reckonings, a corporation with its resources and focused agenda is hardly the same thing as an individual person. President Obama, for one, was scathing about the verdict, saying “this ruling strikes at our democracy itself.” But such prominent First Amendment advocates as Floyd Abrams — often associated with defending journalists’ rights — argued vociferously that the court did the right thing by preserving the guarantees of the amendment.

• Plessy v. Ferguson

Long before Rosa Parks refused to move to the back of the bus, Homer Plessy refused to move to a “blacks-only” railway car. Plessy, who was seven-eighths white and one-eighth African American, was arrested in accordance with Louisiana’s Separate Car Act. In 1896, the Supreme Court ruled the law did not contradict the 14th Amendment’s equal-protection clause. And while the majority opinion didn’t include the exact phrase “separate but equal,” that’s the concept it sanctioned. According to the court, the Constitution guaranteed legal, but not social, equality: segregation was constitutional. There was just one dissenting opinion, from Judge John Marshall Harlan, who wrote, “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.” More than half a century would pass before the Supreme Court ruled on “separate but equal” in Brown v. Board of Education.

• Bush v. Gore

In Bush v. Gore, the Supreme Court decided one of the closest presidential elections ever. With both former Texas governor George W. Bush and Vice President Albert Gore needing to win Florida to claim the presidency, polls closed with just 537 votes separating them. The closeness of the race merited a machine recount of ballots under Florida law. Due to highly-publicized controversy over whether the design of the ballots confused voters or whether machines would miscount incorrectly completed ballots, the Florida Supreme Court ordered manual recounts in several counties. But the U.S. Supreme Court immediately ordered these recounts halted the following day, declaring that counting certain ballots by different methods than others violated the Equal Protection Clause of the Fourth Amendment. The Court found that the recount ordered by the Florida Supreme Court was invalid, and that no alternative recount could be performed within the state’s legal time limit. On 12 December 2000, the Supreme Court ruled that the original Florida results would stand, effectively naming Bush the next President of the United States.

• Lawrence v. Texas

In a landmark decision for the gay rights movement, 2003’sLawrence v. Texas declared unconstitutional a Texas law prohibiting sodomy. The case arose when police, after receiving a tip of a domestic disturbance, arrested two men found engaged in homosexual activity. When the case eventually made its way up to the Supreme Court, the 6-3 decision also struck down similar sodomy laws in 13 other states, thus legalizing consensual same-sex sexual activity in all U.S. states and territories. On behalf of the majority, Justice Anthony Kennedy maintained that the right to privacy protected such sexual acts, overruling the Court’s previous view that had resulted in the opposite verdict over a similar 1986 case, Bowers v. Hardwick. Justice Antonin Scalia wrote a dissenting opinion, arguing that states should be able to legally enforce moral opposition to homosexual conduct. But only two fellow justices backed him, and the case soon became an iconic victory for gay rights activists across the nation.

• Dred Scott v. Sanford

Dred Scott, a slave who had lived in the free state of Illinois and the free territory of Wisconsin before moving back to the slave state of Missouri, appealed to the Supreme Court in hopes of being granted his freedom. Instead, in 1857, in the case of Dred Scott v. Sanford, the United States Supreme Court declared that all blacks — regardless of whether they were slaves or free men — were not and could never become citizens of the United States. The court also ruled that the 1820 Missouri Compromise was unconstitutional. The decision meant that slavery would be constitutionally permitted throughout the entire country and its territories.

Led by Chief Justice Roger B. Taney, a staunch supporter of slavery, the court’s majority held that, because of Scott’s color, he was not a citizen and therefore had no standing to sue. Taney wrote in the Court’s majority opinion that the framers of the Constitution believed that blacks “had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit. He was bought and sold and treated as an ordinary article of merchandise and traffic, whenever profit could be made by it.”

While the Declaration of Independence clearly includes the phrase “all men are created equal,” Taney argued that “it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.”

Abolitionists were appalled by the court’s decision. However, some, including Frederick Douglass, hoped that the ruling would put a spotlight on the issue of slavery and would ultimately result in its destruction.

Wrongfully terminated for no reason?

Recent cases have addressed the issue of whether the employer is obligated to “ensure” the employee takes these breaks. The cases have decided that employers are not obligated to police breaks and ensure no work is being performed during that time. Rather, employers simply must provide 30-minute, duty-free meal periods, and similarly a 10 minute rest break.

Even though employers are now not legally obligated to police rest breaks at no time can an employer retaliate against an employee for complaining about not receiving their statutorily entitled rest periods or breaks? If an employer is simply not allowing breaks or actively opposing breaks and an employee complains about this practice to his employer it would be illegal for the employer to terminate this employee to intimidate other employees into not complaining.

Similarly, if an employee complains about being discriminated on the basis of his race, sex, religion, age or disability and an employer terminates them because of their complaint this would be wrongfully terminated. Further, if for an employer terminate an employee for complaining about these

Whenever an employee complains about not receive rest periods, meal breaks and similarly to not be discriminated and harassment based upon their sex, age, race, or disability but is terminated for such complaints this would be wrongfully terminated. This article is not intended to give legal advice. If you need consultation concerning specific questions relating to meal and rest periods, or retaliation for complaints about not be provide these breaks call a professional employment attorney same as Stevens & McMillan at (800) 738-3353.