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Mandatory Membership in professional organization? Colorado California

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  • Mandatory Membership in professional organization? Colorado California

    Hello,

    Can an employer require that an employee maintain membershhip in a professional organization of the employer's choosing, but at the employee's expense? (this would be for an otherwise unliscened profession)

    Also, can an employer require than an employee join and use social media sites (facebook, twitter, yelp, etc) as means of promotion for the employer? (employer wants all employees to join facebook, and then become a "fan" of the company on the company's page, and then post messages and photos etc to the company's fan page as a means of promotion and advertising for the company.) Employees (who are all hourly non-exempt) will not be paid fo the time spent doing these things for the employer.

    Employees and employer are in California.

    Thanks so much for any advice!

  • #2
    Under federal rules, generally "yes" on making employees eat business expenses. However CA has a rule (CLC 2802) that employers must pay for "all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer".

    Now could there be exceptions? Maybe, possibly. If the employee:
    - Was a member of this professional organization prior to being hired.
    - The employee would not have been hired absent valid professional credentials.
    - And the employee could not legally continue to work absent the credentials.
    - Something like say a RN or medical doctor who would not have been hired or eligible to work absent their professional credentials might be an exception to CLC 2802.

    Make all those things true, and the employer probably has a pretty argument that this would be the employee's dime in CA. However make it the employers requirement and not federal, state or professional society requirement, I suspect that argument would fall apart rather quickly. The legal burden of proof is on the employer to show that CLC 2802 does not apply, and not on the employee to proof that it does. CLC 2802 is a tough law to try to get around, and I would not expect CA-DLSE to be very tolerant of most employer's arguments. This law has very clear legal intent and discussions in the CA-DLSE do not indicate much wiggle room.

    -------

    Next issue you raise. If the employer is mandating hours worked anywhere, and the employee is legally non-exempt, then the time spent working is hours worked under federal and CA law. There is legally a very broad federal definition of hours worked and "for the benefit of the employer". No sure things in this world, but I would hate to be the employer trying to defend what you describe in an hours worked claim.

    Regarding order the employee "do this", employers can generally order any employee to do pretty much anything that is not illegal or dangerous on its face. And if we are talking about Exempt Salaried employees, then "hours worked" per se is not an issue, since this class of employees would not be paid based on actual hours worked. But non-exempt employees are paid based on hours worked, and the employer would have opened up a very large and very nasty door with this policy for those employees. Who are going to all file wage claims for hundreds of hours worked following the employers explicit instructions!
    http://www.dol.gov/dol/allcfr/ESA/Ti...9CFR785.12.htm

    29 CFR 785.12 - Work performed away from the premises or job site.

    The rule is also applicable to work performed away from the premises
    or the job site, or even at home. If the employer knows or has reason to
    believe that the work is being performed, he must count the time as
    hours worked.

    -----

    Not your question, but IMO, the employer is an idiot. They are not only legally wrong, but they are legally wrong on issues that their chances of successfully defending themselves are slim and none.
    Last edited by DAW; 12-31-2009, 03:29 PM.
    "Reality is that which, when you stop believing in it, doesn't go away".
    Philip K. **** (1928-1982)

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