016 hot topics labor and employment law · 2016-01-18 · 2016 hot topics labor and employment law...

2016 HOT TOPICS LABOR AND

EMPLOYMENT LAW

Presented by Michael C. Saqui

This PowerPoint Presentation was created by The Saqui Law Group and is ©2016 by The Saqui Law Group. All rights reserved.

LEGISLATIVE UPDATE AND TRENDS

New California and Federal Legislation

The bill has two main purposes:

1. To set new requirements for compensating piece rate workers for their non productive time (“NPT”), which includes Rest and Recovery periods (“R+R NPT”), travel time, safety meetings, etc. (“Other NPT”) and;

2. To create a safe harbor for all employers, including those who are currently facing lawsuits regarding a failure to compensate piece rate workers for their NPT.

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AB 1513 Applies to all employers who pay piece-rate.

The compensation provisions of AB 1513 require employers to do all of the following:

1. Separately compensate R+R and Other NPT (or NPT Misc.);

2. Separately capture R+R and Other NPT on employees’ wage statements, including itemizations of the total hours, rate, and gross wages paid for each; and

3. Compensate R+R at the higher of either the applicable minimum wage or the average hourly rate, which is calculated as:

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AB 1513 (con’t)

Here is a sample Wage Statement and the AHR calculation for piece-rate employees as of January 1, 2016

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AB 1513 (con’t)

To qualify for the safe harbor, employers are required to:

1. Make payments to all piece-rate employees for uncompensated or under-compensated R+R and Other NPT during the period of July 1, 2012 – December 31, 2015;

2. Provide notice of such payments to the Department of Industrial Relations by or before July 1, 2016;

3. Complete all such payments by or before December 15, 2016; and

4. Provide detailed statements regarding the payments to each employee.

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AB 1513 (con’t) The most controversial facet is the safe harbor provision.

While AB1513 is designed, in part, to stop the bleeding for employers facing massive liability based on un/undercompensated NPT, many concerns still exist.

1. The compensation provisions apply to employees who are paid on a piece-rate basis for any time worked during a pay period.

2. The new equation could significantly skew the rate for piece-rate workers who also perform hourly work.

3. Employers with lawsuits filed before March 1, 2014 (with limited exception) are not allowed to use the affirmative defense.

4. Most importantly, what fees are Plaintiffs’ attorneys who invested time and resources into their lawsuits entitled to now?

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AB 1513 (con’t)

Many truck drivers and other transportation-related employees are paid on a piece-rate (i.e. by the mile, weight, or by the load).

When the driver is on duty but the truck is stopped, this is non-productive time under AB 1513.

For example: Rest breaks /Recovery time; Loading/Unloading; On-call time; Driver’s vehicle inspection/maintenance; Delays in ports or other destinations.

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AB 1513 (Truckers)

KEY: Capturing this time separately and accurately: Have policy to ensure detailed, accurate Driver’s Daily Log

entries. Have dispatcher record status changes – drivers can radio

dispatcher to notify when they are driving or engaging in NPT tasks / rest breaks.

AB 1513 ensures minimum compensation for drivers, no matter how unproductive they are in a given day or how long it takes to make a particular delivery.

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AB 1513 (Truckers) (con’t) R+R and Other NPT must each be recorded and compensated separately from drive time.

Indirectly limits the effect on truck drivers from “bad” assignments, but employers must pay minimum for all resulting Other NPT. For example: Short trips – Drivers tasked with repetitive low-mileage

trips with long loading/unloading wait times. Congestion/Delays – Employers and Drivers familiar with

delays at destinations like the ports. Drivers may sit in long lines without accruing any mileage, but must still receive minimum wage.

On-call – Time spent on-duty waiting for a load must still be compensated.

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AB 1513 (Truckers) (con’t)

Trucking companies must maintain detailed, accurate records showing all R&R and Other NPT hours worked. Institute new recordkeeping systems to comply with the

records requirements.

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AB 1513 (Truckers) (con’t)

Prohibits motor carriers, shippers, receivers, or transportation intermediaries from coercing or inducing drivers into violating provisions of the Federal Motor Carrier Safety Regulations (FMCSRs) including:

• Drivers' hours-of-service limits; • Commercial driver's license (CDL) regulations; • Drug and alcohol testing rules; and • Hazardous Materials Regulations (HMRs).

Drivers may report coercion directly to FMCSA. Penalties up to $16,000 per incident.

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Truckers (con’t) Note: New FMCSA Regulation Effective January 29, 2016

Poorly-written provisions of California’s Paid Sick Leave law (“PSL”) went into effect on July 1, 2015, requiring California employers to provide PSL to all employees.

In early July, the legislature realized some of its mistakes and ambiguities and tried to correct them.

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Paid Sick Leave - Amendments

Qualification for Leave: Original: Employment in California for 30 or more days

within a year from the commencement of employment. Amendment: Employment in California for the same

employer for 30 or more days within a year from the commencement of employment.

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Paid Sick Leave: Amendment Highlights AMENDMENTS CURE SOME ILLS, NOT OTHERS.

Accrual Method: Original: Employees shall accrue PSL at the rate of not less

than one hour per every 30 hours worked. Amendment: Accrual may be on any basis so long as it is a

regular basis and will result in at least 24 hours or 3 days of sick leave available by the 120th calendar day of employment, calendar year, or 12-month period.

Frontload Method: Original: PSL may be frontloaded at the beginning of each

year Amendment: PSL may be provided for each year of

employment, calendar year, or 12-month period.

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PSL for Reinstated Employees: Original: An employee who separates from an employer but

is rehired within one year from the date of separation, shall have previously accrued and unused paid sick days reinstated.

Amendment: Employer is not required to reinstated accrued sick leave that was previously paid out at the time of termination, resignation, or separation. Additionally, a reinstated employee’s PSL rights are subject to the use and accrual limitations of the Law.

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Rate of Pay for PSL: Original: The rate shall be the employee’s hourly wage. Amendment: For non-exempt employees: Method 1: PSL pay is calculated based on the regular rate

of pay during the workweek in which the employee uses paid sick time whether or not the employee actually works overtime in that workweek.

Method 2 (Must be used for piece rate employees): PSL pay is calculated by dividing the employee’s total wages, not including overtime, by the total number of hours worked in the full pay periods of the prior 90 days of employment.

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For exempt employees: Method 3: Paid sick time is calculated in the same manner as

the employer calculates wages for other forms of paid leave time.

Grandfather Provision: Existing PTO or sick leave policies may be grandfathered in if:

1. It was offered to employees before January 1, 2015; 2. PTO or sick leave is made available for the same purposes

and under the same conditions as detailed in PSL Law;

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3. accrual is on a regular basis that resulted in at least 1 day or 8 hours of leave within the first 3 months of employment of each calendar year or 12-month period; and

4. employees are eligible to earn at least 3 days or 24 hours within 9 months of employment.

However, if an employer provided PSL before January 1, 2015 pursuant to a sick leave or PTO policy on any regular accrual, and the plan is modified after January 1, 2015, then it must comply with the new PSL requirements.

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Counsel to Management: The Amendments do not explain how the “24 hours or 3 days of sick leave” translates for employees working 10 hour shifts. The general requirement that all employees are entitled to a

minimum of 24 hours or 3 days of paid sick leave per year is based on a standard 8-hour day/40-hour week schedule.

The safest, most conservative approach is to provide employees who work a 10-hour day schedule a minimum 30 hours of PSL.

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Effective as of January 1, 2016 Enacted to regulate the production and sale. Law enforcement now has instructions not to arrest or

prosecute compliant state medical marijuana card holders or interfere with licenses activity.

Allows for-profit businesses to obtain operational licenses (currently only non-profit businesses).

Allows cities/counties to ban businesses and assess fees and tax medical marijuana businesses.

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AB 266: Medical Marijuana

Most importantly, AB 266 shall not: interfere with an employer’s right to maintain a drug free

workplace; require an employer to permit or accommodate the use,

consumption, etc. of cannabis in the workplace; affect the ability of employers to have policies prohibiting the

use of cannabis by employees/prospective employees; or prevent employers from complying with state or federal law.

(Source: Cashinbis.com / Abovethelaw.com )

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AB 266: Medical Marijuana (con’t)

Amends Labor Code Section 230.8 Labor Code § 230.8 prohibits employers with 25 or more employees from discharging or discriminating against an employee who is a parent from taking up to 40 hours of unpaid leave each year for the purpose of participating in school activities. Amendment broadens the scope: Child Care Facility → Child Care Provider Parent → parent, guardian, stepparent, foster parent,

grandparent, or person who stands in loco parentis to a child

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SB 579: Employee Time Off

Amends Labor Code Section 233 – California’s Kin Care Law Labor Code § 233 allows employees to use one-half of their

accrued sick leave to care for a family member. Amendment broadens the application to comply with

California’s Healthy Workplaces, Healthy Families Act of 2014 (paid sick leave law).

Effective as of January 1, 2016

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SB 579: Employee Time Off (con’t)

Specifically prohibits an employer from paying an employee less than rates paid to employees of the opposite sex for “substantially similar work”. “Substantially similar work” is based on the required skill,

effort, responsibility, and performed under similar working conditions.

The comparison is not limited to other employees at the same location.

Unequal pay based on gender was already largely prohibited by Title VII and California’s Fair Employment and Housing Act.

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SB 358: A Fair Day’s Pay Act

Unequal pay is only permitted based on: A seniority system. Merit system. System that measures earnings by quantity or quality of

production (Piece rate or commission). A bona fide factor such as education, training, or experience. Must be a job-related factor and consistent with business

necessity (the factor relied upon fulfills the business purpose that it is supposed to serve.)

This factor is unavailable as a defense if the employee can show that an alternative business practice would serve the same business purpose without producing the wage differential.

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SB 358: A Fair Day’s Pay Act (con’t)

Strengthens the ability of the Labor Commissioner to collect unpaid wages and civil penalties.

Increases penalties against employers for non payment of wages.

Permits the Labor Commissioner to: issue a levy; act as levying officer; and hold the property of a judgment debtor until final

determination of exemptions claimed by judgment debtor. Creates individual personal liability to any individual noticed

with the levy who fails to satisfy it.

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If an employer fails to pay a judgment for unpaid wages, they will be prohibited from doing business in California unless they obtain a surety bond of up to $150,000 or reach an agreement with the Labor Commissioner.

If the employer continues to conduct business in California, it is subject to a separate $2,500 penalty (plus $100 each day in violation) and a stop order.

Failure by an employer, owner, director, officer, or managing agent of the employer to obey the stop order is a misdemeanor.

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Explicitly permits employees to disclose their own wages and to discuss or inquire about another employee’s wages. Does not require that the employer must disclose wage

information about other employees. Discussing and inquiring about wages was already largely

protected by the National Labor Relations Act. Explicitly protects employees from retaliation for seeking

wage information. Will be enforced by the Division of Labor Standards

Enforcement.

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Existing California Fair Employment and Housing Act (“FEHA”) law requires employers to provide reasonable accommodations for a worker’s disability or religious beliefs.

The passage of AB 987 makes a request for a reasonable accommodation a protected activity under FEHA.

AB 987 also makes it an unlawful employment practice to retaliate against any worker that requests such reasonable accommodation, regardless of whether the accommodation request was granted.

Effective January 1, 2016

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AB 987: No Retaliation

Counsel To Management: Requests for reasonable accommodation should be treated just like any other protected activity before making adverse employment decisions.

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AB 987: No Retaliation (con’t)

This law prevents the employer from retaliating against that

employee’s family members employed by the same employer. This continues to expand the number of people potentially

protected by an employee who engages in a protected activity.

Effective January 1, 2016

Counsel To Management: If an employee engages in a protected activity, do not retaliate against them or their family members.

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AB 1509: Retaliation Liability Extended To Employee Family Members

Effective as of October 2, 2015: Provides a small reprieve to employers who work quickly to

correct the CA Labor Code § 226 deficiencies. Details an employer’s right to “cure” a limited type of wage

statement violations, in order to cut off a civil PAGA lawsuit for the following violations: The dates of the period for which the employee is paid; The name and address of the entity that is the employer; and If the employer is a farm labor contractor, the name and

address of the legal entity that secured the services of the employer.

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AB 1506: Private Attorneys General Act of 2004 (PAGA)

Under the “cure” process, the “aggrieved” current or former employee (or their attorney) sends a certified PAGA letter identifying the violations to both the employer and the Labor and Workforce Development Agency.

To “cure” the alleged violations and avoid the penalties, the employer must provide fully compliant itemized wage statements to each aggrieved individual for each pay period for the three-year period prior to the date of written notice.

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AB 1506: Private Attorneys General Act of 2004 (PAGA) (con’t)

Employers now have 33 days from the postmark date of the notice to cure the specified errors in their itemized wage statements.

Employers may only take advantage of this cure process once in a 12-month period for the same violation or violations contained in the notice, regardless of the location of the worksite.

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Counsel To Management: The law does not change an employee’s ability to seek the

“statutory” penalties. It is imperative that employers comply with all wage statement requirements to avoid such penalties.

Because the 33 calendar day cure period runs from the postmark date of the PAGA notice, quick action must be taken by the employer to; immediately identify the extent of the errors; make necessary wage statement adjustments for 3 years;

and distributing the new wage statements to current and existing

employees is paramount to take advantage of this opportunity.

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Case Law Update

Significant Decisions

In 2015 the US Supreme Court heard oral argument to establish a rule of whether the filing period for constructive discharge cases begins to run when an employee resigns or after the last alleged discriminatory act. No decision has been made yet.

Currently the federal courts are split on this issue resulting in different outcomes in different areas of the country.

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Constructive Discharge Changes? Green v. Brennan

Counsel to Management: If the Supreme Court determines that the period begins only

once employees quit, then employees may be able to utilize events from the entirety of their employment to claim they were constructively terminated.

Such decision could greatly increase the size of awards and settlements of constructive discharge cases.

While this case deals with a federal employee, who has a different filing time limit, it gives the Supreme Court an opportunity to clarify the issue for the private sector as well.

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Constructive Discharge Changes? Green v. Brennan (con’t)

In 2015, A federal contractor argued in the United States Supreme Court that a California federal court should not be permitted to void an entire arbitration agreement because that court deemed several provisions of the agreement to be unconscionable under California law. MHN’s counselors had filed suit alleging they were

misclassified as independent contractors instead of employees, thereby violating both state and federal labor laws.

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MHN Gov’t. Svcs., Inc. v. Zaborowski

The Ninth Circuit court found that, not only was the arbitration provision improperly buried in the contract, but that it was also unfair because: the six-month statute of limitations was too short; only MHN could select the pool of potential arbitrators; and discovery procedures were limited.

Counselors To Management: A favorable ruling in this case would be a windfall to employers. Either way, the ruling will provide guidance on how to structure arbitration agreements which will be enforceable.

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MHN Gov’t. Svcs., Inc. v. Zaborowski (con’t)

On December 14, 2015, the US Supreme Court reversed a CA Court of Appeal decision finding that the language of DirecTV’s service contracts was not subject to a state law barring class action waivers because the Federal Arbitration Act overrules state law bans on class action waivers. The Supreme Court stated, while it recognizes that CA courts

are the ultimate authority on CA law, since the CA Court judged it as an arbitration contract, the arbitration provision must be evaluated under the ruling established in Concepcion which concluded that the FAA overrules other state law bans on class action waivers.

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DIRECTV, Inc. v. Imburgia

Source: Law360

Counsel To Management: This ruling shows there is no wiggle room around federal

precedent favoring arbitration. However, it is important to note that the Supreme Court recognized that state courts can invalidate class action waivers if they can find a ground to overrule that applies to contracts generally and not exclusively to arbitration agreements.

Therefore, Employers who use class action waivers should avoid raising red flags: document the acceptance of the terms; do not hide the arbitration clause within the contract; and make the arbitration clause fair for both sides.

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DIRECTV, Inc. v. Imburgia (con’t)

EEOC TRENDS

The agency brought in more than $356.6 million in monetary relief for employment discrimination victims through mediation, conciliation and settlements in private sector and state and local government workplaces ($60.5 million more than 2014). It brought in an additional $65.3 million in litigation recoveries

($42.8 million more than 2014’s figure). As well as $105.7 million for federal employees and

applicants.

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EEOC SECURED OVER $525M IN 2015

Received 89,385 charges. Filed142 discrimination lawsuits. 155 lawsuits alleging discrimination were resolved by agency

staff. Recovered more than $33.5 million in remedies through the

resolution of 268 systemic investigations prior to litigation ($20.5 million more than it recovered through the 260 systemic investigations completed in 2014.) At the end of the year, the agency said it had a total of 218

active cases on its docket.

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EEOC 2015 YEAR IN REVIEW

EEOC v. Star Transport, Inc.: Two truck drivers were awarded $240,000 by a federal jury in Chicago after they were fired by their trucking company for refusing to transport alcohol because it violated the tenets of Islam.

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Religious Discrimination: 2015 EEOC Cases

EEOC v. NTW, LLC dba National Tire and Battery: An Arab and Muslim mechanic working for NTB alleged harassment and failure to prevent religious based harassment where managers and co-workers regularly called him “Taliban,” “al-Qaeda,” “Bin Laden,” and “terrorist” in addition to accusing him of making bombs. He also alleged that he complained to management repeatedly about this treatment. This case settled for $22,500.

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Religious Discrimination: 2015 EEOC Cases

EEOC v. Consolidation Coal Company, et al.: Jury finds that defendants violated the law by forcing an employee to retire because she refused to clock in and out using a biometric hand scanner. The employee explained her religious belief that the technology is related to the “Mark of the Beast” and the Antichrist. The Mining company refused to consider an alternative method for clocking in and out and told her she would be written up and discharged if she did not use the hand scanner. The jury awarded her over $500,000.

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Religious Discrimination: 2015 EEOC Cases (con’t)

EEOC v. Abercrombie & Fitch: After four years of appeals, the US Supreme Court held that Abercrombie’s refusal to hire a teenager who wore a headscarf (hijab) because it did not conform to the company’s “look” policy was a failure to hire/refusal to accommodate religious beliefs and constituted discrimination. Ambercrombie paid her over $25,000 and approximately $19,000 in court costs.

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EEOC v. Citi Brands, LLC dba Dunkin’ Donuts Bakery: Plaintiff had been hired as a donut maker and was told that he would start Friday, at 3pm. Plaintiff informed his manager that he could not work Friday afternoon because of he was a Seventh-Day Adventist and Friday evenings are their Sabbath. His job offer was then revoked and he sued claiming failure to hire. This case settled for $22,000.

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EEOC v. United Parcel Service: The EEOC claims that UPS’ dress code prevents males with beards or hair below collar length from having customer contact. As a result, multiple men were denied religious accommodations and either had to cut their hair or beards to avoid discipline or to obtain higher paying positions within the company. This case has not yet settled or gone to trial. It will be an interesting case to test the limits of dress codes regarding hair styles and religion.

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EEOC v. Wal-Mart Stores East, LP.: The EEOC claims that a Wal-Mart manager would tell his employee to “go back to Africa,” mock his accent, and say that “all Muslims do is blow up buildings.” After the employee complained he was allegedly threatened with termination and placed on a one-year “coaching period.” The case settled for $75,000.

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EEOC v. Triangle Catering, LLC: A Rastafarian who kept his head covered with a small cap was hired by a company as a delivery driver and told, shortly thereafter, that he would have to remove the cap. The employee explained that he could not because of his religion and was thereafter terminated. This case is pending.

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Counsel to Management: When a dress code or work duties conflict with an individual’s

religious beliefs, carefully consider if a reasonable accommodation can be made. This may be as simple as making an exception to the dress code or allowing them to deliver a different shipment of goods.

Utilize the interactive process with the employee, similar to a disability claim, to determine if an accommodation is possible.

A worker must still be able to do the essential functions of their job with the reasonable accommodation. If they cannot then they can be transferred or terminated.

This is a hot bed of litigation right now. When in doubt, call an attorney.

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Religious Discrimination

EEOC Proposing rules surrounding “Employee Wellness Programs” which are sometimes part of group health plans.

Rules are only in the proposed stage but may be enacted at some point in 2016. The rules address the concern that these plans will make

improper health inquiries or discriminate against those with disabilities.

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EEOC Wellness Programs

The proposed rules provide that Wellness Programs:

must be voluntary; CANNOT be used to deny or limit health coverage; may not take action against those who fail to achieve certain

health outcomes; and Caps incentives and penalties for nonparticipation or failure to

achieve health outcomes at 30% of total cost of coverage.

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EEOC Wellness Programs (con’t)

SAFETY OSHA

In 2015, Cal/OSHA Appeals Board ruled against two employers whose Injury and Illness Prevention Programs (IIPP) failed to effectively address the hazard of indoor heat. All CA employers are required to have an IIPP which

contains a general plan to keep the workforce free from work-related injuries and illnesses.

The case stemmed from 2012 “serious” citations Cal/OSHA issued to a temporary staffing agency and a warehouse operator. A “serious violation” is cited when there is a realistic

possibility that death or serious harm could result from the actual hazardous condition.

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Cal/OSHA Wins Decision Protecting Workers from Indoor Heat Hazards

The employee suffered heat illness while working inside a freight container with a temperature over 100 degrees. The employee reported his illness to his temp agency

supervisor that had the him transported to a local clinic. Both the employer and temp agency were penalized

$18,000 for failing to implement an effective IIPP. Both companies appealed. In March 2015, an

administrative law judge dismissed the citations. Cal/OSHA appealed the decision to the Appeals Boards,

and the three panel board agreed with Cal/OSHA.

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Cal/OSHA Wins Decision Protecting Workers from Indoor Heat Hazards (con’t)

This was the first case of indoor heat considered by the Appeals Board. The ruling affirms that California’s IIPP standard can be used to address the hazard of indoor heat.

Importantly, the temp agency was also held responsible.

Counsel To Management: All employers, even those who are primarily indoors, must have an IIPP in place, especially in settings of high heat. Further, this decision also reinforces the fact that all employers have a responsibility for ensuring compliance with all Cal/OSHA standards, not just the employer in charge of the worksite.

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Cal/OSHA Wins Decision Protecting Workers from Indoor Heat Hazards (con’t)

OSHA’s penalties were previously exempt from automatic increases to keep them in line with inflation.

The 2016 Budget removed this exemption going forward. Proposed fines reportedly to be raised by about 80% Maximum penalty for a willful violation could be up to

$127,000 from the current $70,000. Enactment date is uncertain, but the penalties must increase

on or before August 1, 2016.

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OSHA: Penalties to Increase

Went into effect January 1, 2015 Employers must report all work-related fatalities (within 8

hours), as well as all inpatient hospitalizations, amputations, and losses of an eye (within 24 hours).

Unless exempt, Employers must prepare and maintain records of any occupational injury or illness for a period of five years.

Exempt Employers? Those with 10 or fewer employees during previous calendar year, and certain low-hazard industries.

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OSHA: Changes to Recordkeeping Rule

Recordkeeping Partial Exemption in Certain Industries (Updated January 1, 2016) NOT Exempt: agriculture, mining, construction,

manufacturing, transportation, communication, and electric, gas and sanitary services.

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OSHA: Changes to Recordkeeping (con’t)

LABOR TRENDS 2015

Plaintiff Gary Ross, an Air Force veteran who suffered back spasms from prior military injuries, was offered a job; presented his medical marijuana card during his drug screening; the company hired him and fired him when the positive test came back.

The California Supreme Court acknowledged that state law cannot completely legalize marijuana for medical purposes because marijuana remains illegal under federal law even for medical users.

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Medical Marijuana Ross v. RagingWire Telecommunications (2008) [Current law]

In 2015, Plaintiff filed a lawsuit against Kohl’s alleging, among other things, disability discrimination for firing him after he tested positive for marijuana after he was injured on the job and went to the workers’ compensation health provider. Plaintiff had a diagnosed anxiety disorder for which he had a valid medical marijuana prescription; and which Kohl’s was informed of prior to his termination. Kohl’s has explicit policies prohibiting employees from

consuming alcohol or drugs at work. Kohl’s prohibits conduct, “which adversely affects an

employee’s job performance or other interests of the company.”

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Medical Marijuana (con’t) (Shepherd v. Kohl’s)

Kohl’s also has a company policy that states, “No person will be discriminated against in hiring, termination or in imposing any term or condition of employment or otherwise be penalized based upon either: a. the employee’s status as a registered medical

marijuana card holder; or b. a registered medical marijuana cardholder’s

positive drug test for marijuana.”

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Plaintiff claims he did not violate policy because he consumed marijuana four days before the shift in question and was able to perform his essential job functions.

Plaintiff also claims that Kohl’s discriminated against him due to his physical disability by terminating him and violating their own company policy.

Kohl’s own policies provide the basis for Plaintiff’s lawsuit because of the way they are worded.

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Counsel To Management: Currently, employers are allowed to ban the use of marijuana

by employees, contractors, and other workers. Employers may require employees to pass a drug test as a

condition of employment provided an employer tests all applicants and doesn’t single out applicants based on protected characteristics (such as race or disability); courts have upheld this type of testing.

Approval or tolerance of medical marijuana use should not be considered in any industry for which specific federal or state safety standards prohibit its use.

Given the pace of legal change and emerging case law, companies should review relevant policies on a regular basis.

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Medical Marijuana (con’t)

When Can Employers Drug Test? Pre-employment screening as a condition of employment; As part of a physical examination; Under reasonable suspicion; During a post-accident test; Random testing of employees in a pervasively regulated

industry; or In a position critical to safety or the protection of property

(limited circumstances).

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Employee Privacy at Work: Drug Testing

California Constitution: Article 1 Section 1, inalienable rights include the right of privacy.

Expectations of privacy can be created by: Statutes, regulations, and Court rulings Workplace policies and practices Express or implied assurances (i.e., locks and passwords) Social norms

What helps Employers: Clear policies, consent, reasonableness, and respect Ideal Policy Includes: No expectation of privacy on company

devices, or on personal devices used for business purpose; Content boundaries; Employees should expect monitoring.

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Employee Privacy At Work

Employers can legally monitor what an employee does at work with a legitimate business purpose.

The reason for a particular type of workplace surveillance must be more important than an employee’s expectation of privacy. For example:

Do not videotape a locker room or restroom. Can audio-record conversations between customers and

employees. • BUT you must have consent from both – Penal Code §

632. Can video-record storage facility to deter theft.

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Employee Privacy at Work: Surveillance

Always balance employee’s expectation of privacy versus business needs

Searches personal bags (handbags/backpacks) brought to work as loss prevention

Note: Wage & Hour Concern – employees are generally required to clock out before bag check, not compensated for time waiting to be searched

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Employee Privacy at Work: Bag checks

Recent California federal court decision (Frlekin v. Apple, Inc.) Court dismissed the class action seeking pay for time spent

waiting for bag check – not compensable time under Wage Orders 4 and 7.

Apple required employees to have their bags checked, but only when the employees exercised the option to bring personal bags to work.

Employers must be mindful of both privacy concerns and wage and hour concerns

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Employee Privacy at work: Bag checks

Certain types of speech by employees in online forums is protected by the NLRA, even if vulgar. Generally, speech which complains about or disparages

an employer’s employment practices will be protected. Certain types of speech receive less protection:

Spreading deliberately or maliciously false information. Attacks on the employer’s product rather than its

employment practices.

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Social Media And The National Labor Relations Act (“NLRA”)

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Social Media and the NLRA (con’t)

Protected “The owner is a mother

f***ing crook and a cheapskate, he won’t let me use a sick day to go to the strip club! #F**kthisjob”

“The boss’ drug policy is bulls**t! How else am I supposed to put up with this crappy job? #legalizeit”

Not Protected “The company’s food is made

out of rat poison and ground-up cinderblocks.” #youarewhatyoueat

“Yesterday I caught the boss having an affair with the HR Manager #hideyawife” (unless that actually happened)

A Savings Clause will not save you. Statements in your policy which state that the policy will

be administered in compliance with the NLRA will not cure overbroad or ambiguous policies.

Counsel to Management: Make sure your policies are narrow and target the specific behaviors the company seeks to prevent. If a policy is broad or ambiguous, the NLRB will almost always find that it could be construed to violate the NLRA.

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Social Media Policies and the NLRA

California has only passed one state law against e-cigarettes, which bans sales to minors.

A bill has passed the State Senate which would regulate e-cigarettes in the same way as conventional tobacco products, making it illegal to use them in restaurants, bars, hospitals and workplaces. The bill is currently held at the California Assembly.

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Electronic Cigarettes (E-cigarettes)

The Food and Drug Administration is expected to finalize rules requiring federal approval for most flavored liquid nicotine juices and e-cigarettes sold which would also redefine e-cigarettes as tobacco products.

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Electronic Cigarettes (E-cigarettes) (con’t)

Counsel to Management: California does not have a state-wide ban on e-cigarettes

inside the workplace. Before prohibiting e-cigarettes in the workplace, review state and local laws regarding smoke-free workplaces.

Over 100 cities and counties in California have some restrictions regarding e-cigarette use in indoor and outdoor spaces, including large cities/areas.

Employers should read their employee handbooks and determine the exact wording and extent of their existing smoking policies.

Make sure your policy clearly defines smoking.

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Electronic Cigarettes (E-cigarettes) (con’t)

On Assignment Staffing Servs. Inc. (August 27, 2015) The Board held: 1. The ability to opt-out of the company’s arbitration policy

did not render the policy lawful. 2. The opt-out procedure itself interfered with employees’

Section 7 rights “because it forces [employees] to reveal their sentiments concerning Section 7 activity.”

3. The company’s policy required workers to affirmatively reject the company’s “preferred course of action” and created a permanent record of which employees chose to opt out.

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Arbitration Update: NLRB Opt-Out Provisions

Nijar Realty, Inc., d/b/a Pama Management (Nov. 20, 2015) Affirmed On Assignment Staffing – any arbitration

agreement that included a class action waiver, even with an opt-out provision, is not lawful.

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Arbitration Update: NLRB Opt-Out Provisions (con’t)

Enforcement of “Unlawful” Arbitration Agreement Amex Card Services Company (November 10, 2015)

Reaffirmed DR Horton and Murphy Oil The Board held: The Arbitration Policy at issue was unlawful because it

requires submission of all employment-related claims to binding arbitration, thereby compelling employees to waive Section 7 rights.

Because the policy is unlawful, Respondent violated Section 8(a)(1) by enforcing the policy in District Court when it filed a motion to compel individual arbitration.

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Arbitration Update: NLRB Unfair Labor Practice

Enforcement of “Unlawful” Arbitration Agreement Although the actual Policy stated, “Any claim under the

National Labor Relations Act” is not covered and did not preclude employees from filing a charge with the NLRB, the form that the employees were required to sign did not include this language; therefore, the Board held that employees would reasonably believe the policy waived their right to file a charge with the Board.

The form references but does not incorporate the policy.

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Arbitration Update: NLRB Unfair Labor Practice (con’t)

Enforcement of “Unlawful” Arbitration Agreement The Board still held it was unlawful because employees

would reasonably believe the policy waived their right to file a charge with the Board.

Thus, because employees would reasonably believe that the Policy interferes with their ability to file a charge with the Board or access the Board’s processes, the Policy violates Section 8(a)(1).

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Arbitration Update: NLRB Unfair Labor Practice (con’t)

NLRB is expanding its reach by attacking workplace and handbook policies: Conduct policies

Policies that limit “negativity” or “gossip” Social Media Policies

Policies that could be read as prohibiting the ability to complain about employers online

Video Recording Overbroad or blanket policies banning video recording

in the workplace which could be viewed as restricting the right to record protected concerted activity or disputes with the employer.

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NLRB Reaching into Non-Union Workplaces

Arbitration Agreements Any arbitration agreement which limits the right to bring,

participate in, or assist a class action. E-mail Use Rules which restrict nonbusiness use of the e-mail

system which could affect the ability to organize. Confidentiality Policies Non-fraternization policies, Policies which restrict employees ability to discuss

employer investigations, disciplinary records.

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At-Will Disclaimers Disclaimers which suggest that the at-will relationship may

never be altered or can only be altered under very specific conditions.

NLRB has provided guidelines and examples for compliant at-will statements

Off-duty access policies Policies which too narrowly restrict the purposes for which

employees may be present at the workplace when not on duty. Logo, Copyright and Trademark Policies Policies which restrict fair use of employer logos and

trademarks

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On September 1, 2015 (revised October 26, 2015), the NLRB issued Guidance Memorandum 15-08, which states, “Effective immediately, parties may submit electronic signatures on a union authorization card in support of a showing of interest” for an election!

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NLRB: E-Signatures Sufficient For Showing Of Interest

Unions can now use email and social media to get the requisite 30% showing of interest, with minimal verification requirements. Submissions need only require: The signer’s name; The signer’s email address or other known contact

information (e.g., social media account); The signer’s telephone number; The language to which the signer has agreed; The date the electronic signature was submitted; and, The name of the employer of the employee.

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NLRB: E-Signatures Sufficient For Showing Of Interest (con’t)

Unions are also required to submit a Declaration that: 1. Identifies what electronic signature technology was used and

explains how its controls ensure: I. That the electronic signature is that of the signatory

employee, and II. That the employee signed the document;

2. Asserts that the electronically transmitted information regarding what and when the employees signed is the same information seen and signed by the employees.

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Counsel to Management Although it may appear that the Board is attempting to provide

safeguards to prevent fraudulent signatures, the Board recognizes that simply clicking a “submit” button from a webpage will be sufficient.

The allowance of e-signatures should be seen as yet another demonstration of the fact that the Board and the General Counsel share the view that the purpose of the Act and the agency is to encourage and promote collective bargaining and make it easier for employees to unionize.

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Effective January 1, 2016, California’s minimum wage is

raised from $9.00/hour to $10.00/hour. This is for each and every hour worked, including all

nonproductive time – whether employees are hourly, piece rate, or on commission.

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Wage Increase Alert!

Effective January 1, 2016, AB10 increases the salary rate computer software professions must earn in order to be considered exempt from overtime.

$41.27 an hour increased to $41.85 per hour.

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Exempt Computer Software Professionals

Wage Increase Alert!

Multiple state agencies and the courts are finding that independent contractors are often being jointly employed. To avoid this do not: Excessively control or dictate work schedules; Control the manner in which work is performed; Conducting training; Supplying or requiring specific equipment; Directly supervise or discipline contract employees; and Require exclusivity.

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Independent Contractors: Increasing Workplace Rights

Be aware that you can still be liable to a contractor if your employees harass the contractor.

You can still be liable for OSHA violations pertaining to a contractor.

If you are directly hiring individuals and classifying them as independent contractors then there are multiple tests applied by various state agencies which will need to be considered to avoid the contractor becoming an employee.

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Independent Contractors: Increasing Workplace Rights (con’t)

Fixed and variable work arrangements involve flexibility in schedules ('flextime').

There is, however, another type of variable work arrangement that involves flexibility in location, called telecommuting.

Telecommuting is defined as a work arrangement in which some or all of the work is performed at an off-site location, such as in the home or in office space near the home.

Telecommuting can be a very useful tool that works to the advantage of both the employer and the employee.

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Flexible Work Arrangements: Telecommuting

Pros and Cons: Communication may be by phone, e-mail, fax, and pager. Employee productivity may improve or decrease. Some people

work best in isolation, while others are easily distracted or need the stimulation of coworkers.

Communication methods and times must be carefully planned to avoid problems and to assure that the employee is not left out of the loop in communication and recognition.

Telecommuting can be extremely valuable for both the employee and the department in cases where the employee has a long commute or the department has insufficient space.

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Many other factors need to be considered in developing a telecommuting agreement: May have to reimburse for supplies and tools used for work,

including internet and computers; Workers’ compensation does cover home offices; OSHA guidelines for home-based worksites makes employers

responsible for the safety of workers in home offices; Fixed v. unfixed hours; Reporting injuries and illness; Liability insurance coverage.

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Its time for management to prepare for the possible workplace disruption generated by — Campaign 2016!

Be mindful of allegations of discrimination, bullying and the creation of a hostile work environment.

Employers should review their policies and procedures related to harassment, and monitor the workforce for this type of unwanted behavior during election season.

However, it is illegal to discriminate on the basis of an employee’s political activity or affiliation. Be mindful not to retaliate against someone running for

office or campaigning or fundraising for a candidate or a party.

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Political Discussions at Work

Deal with political discussions as any other potentially negative situation or escalating conflict among people. There is a fine line between allowing employees freedom of expression and allowing potential sources of conflict. Manage the potential conflict before it escalates! Communicate the difference between expressing personal

beliefs and attacking the beliefs of others. Update and post your harassment policies/complaint

system. Use progressive discipline if an employee repeatedly

attacks or scorns political beliefs of coworkers. Make sure your policies clearly spell out the need to honor

diverse opinions and values.

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Political Discussions at work

California Labor Code §2802 requires employers to reimburse employees for “all necessary expenditures or losses incurred...”

Employers must reimburse a “reasonable percentage” of employee’s cell phone bills when the employee is required to use their personal cell phone for work. The same applies to home office internet use, personal tablets, and other personal items which employees may be required to use for work.

Time spent performing work, responding to emails, or handling work-related phone calls outside of regular business hours are still compensable.

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Cell Phones: The Law

Counsel to Management Employers must reimburse employees for necessary

expenditures; Not willing to pay for phone use? Make a clear policy that

the use of personal cell phones or other devices for work purposes is strictly forbidden; and consistently enforce it.

Willing to pay for phone use? Establish a policy setting the rate of reimbursement, the procedure for receiving such reimbursement and when such agreement will end.

Prefer company phones? Establish a policy defining the appropriate uses for such devices, who is responsible for damage to such device, and return policies for the device.

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Cell Phones

Counsel to Management (con’t)

You may be liable if your employee is performing work on a phone when in an accident. Make sure to forbid the use of mobile devices while driving unless being used with a hand-free device as required by law in California.

CA has extensive phone privacy rights. Tread carefully when making any policy which allows you to review or audit phone usage of personal cellphones for which the company provides reimbursement and make sure a policy about company phones is clear, fair, and consistently enforced.

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Cell Phones (con’t)

Time and place restrictions for cell phone. For example: No cell phone use during meetings and phones silenced. All personal cell phones should be on silent or vibrate at all

times in the office. Strict prohibition on the use of personal cell phones for

personal calls or texts during working hours except on breaks.

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Cell Phones: Office Policies to Consider

Don’t put your head in the sand… 114

Labor Regulatory Compliance!

Questions

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Central Coast Office: 512 Pajaro Street Suite 14 Salinas, CA 93901 Tel: (831) 443-7100 Fax:(831) 443-8585

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016 hot topics labor and employment law · 2016-01-18 · 2016 hot topics labor and employment law...

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