Are employers required to offer health insurance to domestic partners?
Is there a meal break violation if the employee begins the meal break after working 5.5 hours?
May I hire an intern for less than minimum wage?
May I fire someone based on at-will status?
Do I have any right to discipline one of my employees who has posted negative comments about our company on his MySpace Web page?
Must my disciplinary process always be a verbal warning, a written warning and then a suspension?
What workers' compensation pamphlets and posters are required?
May I run a credit check on a job applicant or an employee?
How do I implement a random drug testing policy?

Are employers required to offer health insurance to domestic partners?
Yes. California law requires equal civil rights, legal status and benefits for registered domestic partners as for spouses. Insurance companies operating in California are required to provide coverage, and companies that offer dependent coverage must offer it to dependent registered domestic partners. You cannot require documentary proof of registered domestic partner status unless you also require documentary proof of marriage.
A registry has been created with the Secretary of State to register domestic partners conferring on them the same legal status as marriage. Only individuals of the same sex living together in the same household and individuals 62 years of age or older living together in the same household, either of the same or opposite sex are eligible to register.
An employer may request proof of domestic partner registry only if proof of marriage is required of other employees.

May I hire an intern for less than minimum wage?
No. The State Labor Commissioner requires that all of the following tests be met before anyone can be exempt from minimum wage and overtime laws:
• The training, although it may include actual operation of your facilities, is similar to that which would be given in a vocational school;
• The training is for the benefit of the student.
• The student does not displace regular employees, but works under their close supervision;
• The employer derives no immediate advantage from the activities of the student and, on occasion, the employer’s operations may actually be impeded;
•The student is not necessarily entitled to a job at the conclusion of the training period;
• The employer and the student understand that the student is not entitled to wages for the time spent in training;
• Any clinical training is part of an educational curriculum;
• The student does not receive employee benefits.
• The training is general, so as to qualify the student for work in any similar business;
• On completion of the program the student is not fully trained to work only for the employer offering the training;
• The screening process for the program is not the same for employment, but involves only criteria relevant for admission to the educational program; and
• Advertisements for the program state clearly that it is for training or education rather then employment.
The Division of Labor Standards Enforcement (DLSE) requires that the training be an essential part of an established course of an accredited school or of an institution, approved by a public agency to provide training for licensure or to qualify for a skilled vocation or profession. Your employee’s son would not meet this requirement and thus must be paid if he works for your company.


May I fire someone based on at-will status?
Yes, but relying solely upon at-will employment to support a termination decision does not offer protection against most types of wrongful termination lawsuits or charges of discrimination, harassment or retaliation filed with state and federal agencies.

In the absence of an employment agreement (oral or written), either the employee or the employer may terminate the employment relationship at any time, and with or without notice. If there is a contract of employment, the terms of that contract will govern termination.
At-will employment protects employers against "breach of contract" claims where an employee claims he/she may be fired only for cause or that the employee was guaranteed a certain term of employment. It is important to preserve the at-will employment relationship since breach of contract claims are common in the employment context.
The preservation of at-will status is only the beginning, however, not the end of the steps an employer should take to protect itself.

Although not required to do so, most employers use verbal and written warnings, suspensions and other forms of disciplinary action before termination. If you have a policy providing for this progressive discipline approach, be sure your policy also says that you have the right to ignore progressive discipline and terminate immediately at your discretion.
It is critical to document problems with employees as they occur to substantiate the reasons for a subsequent termination. If an employer makes employment decisions based on objective standards and documents the reasons for its decisions, it will be in a good position to defend itself.

Do I have any right to discipline one of my employees who has posted negative comments about our company on his MySpace Web page?
The enormous popularity of MySpace, Facebook and other social networking Web sites has created an online world where individuals often feel free to vent their workplace frustrations. Through online blogs (Web logs) or posting on social networking Web sites, employees may write and others may read and respond to, whatever is on their minds. Unhappy employees may post negative comments about your company which can damage the reputation of your business.
While your employee is correct that the First Amendment does guarantee freedom of speech, that protection generally extends only to government restriction on one’s freedom of speech.
Private businesses have the right to prohibit employees from publicly expressing negative comments about the company in most cases.

• California’s Labor Code protects employees who express themselves regarding their political beliefs. Even if a company’s CEO has endorsed one candidate, employees may speak out in favor of the opponent.
• State and federal laws protect “whistleblowers,” meaning employees who speak out about activities of their employers they believe to be unlawful. If an employee believes his/her employer is disposing of toxic waste in an illegal manner and has reported that allegation to the proper authorities, he/she may speak up about it.
• Employers in California may not prohibit employees from discussing their wages or working conditions with each other.

Negative comments posted on a MySpace page about an employer’s products, services or methods of operation could justify discipline or termination, unless they were protected by law (such as those listed above).
An employer would be wise to consult with legal counsel before taking any action against the employee to ensure the comments posted on the MySpace page are not among those legally protected. 

Must my disciplinary process always be a verbal warning, a written warning and then a suspension?
Although many employers have adopted progressive discipline as standard, you need to follow your own policies and procedures. If your policy mandates the disciplinary steps above, you should follow the process. For union employees, you also may be required to follow certain steps, as outlined in the bargaining agreement.
Your policy should provide some latitude for disciplinary action. For instance, you would not want to be bound by a verbal warning, then a written warning if the employee had engaged in a violent act that jeopardized the safety of your employees. In developing your discipline policies, be sure that the employer retains the right to take any action deemed necessary, up to and including discharge.


What workers' compensation pamphlets and posters are required?
Employers must post a notice about the employer's workers' compensation insurance, the name of the insurance carrier and, and who within the company is responsible for handling workers' compensation claims.

An employer must give each new employee a workers' compensation insurance pamphlet.


Do we have to file a workers' compensation claim for an employee injured on the job and who tested positive for marijuana?
Yes. Failure to file/process a claim may subject the employer to a penalty.

Procedurally, the claim must be filed, and the defense asserted with the Workers' Compensation Appeals Board before or no later than the mandatory settlement conference, which may not occur until several months or even years after the date of the injury. The employer must prove the impact of alcohol/drugs on the injury at the time of trial; therefore, it is critical to gather as much evidence as possible at the time of the injury.

It also is possible that the use of drugs/alcohol may not be a direct cause of the accident, or even the injury. But the intoxication may be grounds for "apportionment" — in other words, the workers' compensation amount the employee receives for the injury will be reduced accordingly.

Therefore, any reasonable doubt as to applicability of coverage generally is resolved in favor of coverage.

In this situation, the employee was hit on the head by falling debris, and any state of intoxication might not have made a difference. A completely different argument could be made if the employee was operating equipment and was under the influence of drugs/alcohol so as to cause an accident.

When an employee tests positive for drugs/alcohol after a work-related injury, conduct a timely and full investigation in preparation for future hearings.

May I run a credit check on a job applicant or an employee?
The federal Fair Credit Reporting Act restricts an employer's ability to use credit reports and investigative consumer reports for employment purposes. A release is required from the employee or applicant, and the employer must provide a number of notices to the employee or applicant throughout the process.


How do I implement a random drug testing policy?
California is very sensitive to individuals' right to privacy, and the state constitution places strict restrictions on drug testing. Random drug testing as described above is not permitted in California.

• Pre-employment screening
• "Reasonable suspicion"
• Post-accident
• Random

• For drivers of large trucks under Department of Transportation guidelines
• For certain pipeline workers
• For aviation personnel
• For correctional officers having contact with prisoners

These exceptions have been tested by case law in California, and random drug testing is not allowed in other fields. Indeed, one case held specifically that safety is not a compelling reason for testing employees on a random basis (See Luck v. Southern Pacific Transportation Co., 218 Cal.App.3d 1 (1990), cert. denied, 111 S.Ct. 344 (1990)).

"Reasonable" is not merely rumored or speculation but a suspicion based on specific, objective facts and rational inferences from observing an employee's behavior.
According to various sources, examples of drug and/or alcohol abuse include but are not limited to the following signs:

• Odor of alcohol
• Odor of marijuana
• Slurred speech
• Flushed, swollen face
• Red or runny eyes or nose
• Pupils dilated or constricted, or unusual eye movement
• Lack of coordination
• Tremors or sweats
• Weariness, exhaustion
• Sleepiness