Q: How can an employer protect itself from a wrongful termination lawsuit?

A: Although an employer cannot prevent a disgruntled former employee from filing a wrongful termination lawsuit, an employer can take certain steps and precautions to preserve information which will support their decision to terminate the employee. Most California agreements for employment are at-will rather than for a particular length of time. Employers in their hiring documents should include language where the employee acknowledges that his employment is at will and no other person has the authority to agree to different term of employment.

Good documentation of the employee's work performance is often critical in defending a wrongful termination lawsuit. Where an employer establishes guidelines for disciplining its employees, documentation of an employee's misconduct and action taken by the employer is important to support the employer's decision to terminate. A lack of such documentation may support the employee's position that the termination was wrongful, especially if the employee had received favorable job evaluations prior to the employee's dismissal.

Q: Should my company have an employee handbook?

A: Businesses often find that as they get larger, it is important to have consistent and uniform policies and procedures in place. One way that objective can be accomplished is to develop an employee handbook. It can be a valuable source of information for employees about what is expected of them and what they can expect from the company.

Employers often worry that committing themselves to certain procedures limits their ability to effectively run the company.Such limits are not necessarily bad because lawsuits by employees often claim that the employee was treated differently from others. If the company has a uniform written policy that is followed, those types of claims are minimized. Overall, the advantages of a properly drafted handbook outweigh the disadvantages.

Q: My employee handbook is several years old. Should it be updated?

A: Employers who fail to follow handbook policies may have trouble defending themselves if a lawsuit is filed against the company. Many times, however, the reason why a particular policy was not followed was because company procedures changed but those changes were not reflected in the handbook. Periodic review and revision of the employee handbook will minimize this problem.

In addition, employment law is an area where changes are occurring at a rapid pace. Employers must be ready to modify their policies when needed. Generally, it is a good idea for employers to review their handbooks at least on an annual basis.

Q: What are some of the questions an employer should not ask during an interview or on a job application?

A: California Government Code Section12940 specifically prohibits employers from making inquiries either by way of a job application or during an interview that are not job related. Specifically prohibited are questions that may either directly or indirectly result in discrimination as to race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status or sex.

Q: What is the difference between hourly and salaried employees?

A: The first difference seems obvious. The rate of pay would be calculated differently. Hourly employees are paid a set amount for each hour worked with an increased amount for those hours that are worked overtime.

The rate of pay for salaried employees is usually a set amount either per month or per week without any extra compensation for those hours that are worked overtime.

Even though an employee is paid on a salary basis, he or she may not be exempt from receiving payment for overtime hours. In order to make this determination, employers and employees must look to both state and federal law and consider each job position on a case by case basis. If the job does not fit into one of the specific exemptions that are provided by law then the employee must be paid additional compensation for overtime hours that are worked, even though the employee is paid a salary.