Post on 09-Dec-2018
Friday, February 1, 2013 Orange County
California Roadmap: Employment Law Update
Copyright 2013, Littler Mendelson, P.C.
Bob Conti, Esq. Littler Mendelson, P.C. Orange County Office Shareholder
949.705.3034 RConti@Littler.com
Presented by:
Michael Gregg, Esq. Littler Mendelson, P.C. Orange County Office Shareholder
949.705.3002 MGregg@Littler.com
Employer must show “undue hardship” to deny accommodations
– No longer “de minimis” standard like federal law
– Back office job may not be reasonable
Covers religious garb, head/face covering, jewelry, artifacts, any other item related to observance of religious creed
Workplace Religious Freedom Act FEHA Amendments Gov’t Code §§ 12926, 12940
Discrimination For Breastfeeding FEHA Amendments Gov’t Code § 12926(q)
FEHA prohibits discrimination based on sex
The amendment adds breastfeeding to the definition of sex
New California Pregnancy Disability Leave Regulations
Effective December 31, 2012
Define “disabled by pregnancy” broadly
Virtually unconditional duty to provide accommodation to pregnant employees where medically “advisable”
New California Pregnancy Disability Leave Regulations
4 months generally equals 17 1/3 weeks or 693 hours
Must provide the same position or comparable position on reinstatement date or within 60 calendar days
Must affirmatively notify employees about comparable positions that become available
Potentially 7 months of group health care coverage under PDL and CFRA/FMLA
California False Claims Act
Makes it unlawful to present false claims to government agencies
Allows employees who planned and initiated FCA claim to recover portion of proceeds
No retaliation
Personnel File Access Amended Labor Code § 1198.5
Current and former employees
Exceptions for certain employees subject to CBAs and employees in litigation
Employees can designate a representative if authorized in writing
Right to view and to copy
Request needs to be in writing
Employer has to have a form
Request can be made to designated person or supervisor
Some limits on what is disclosed
Can redact names of non-supervisory employees
Personnel File Access Amended Labor Code section 1198.5
30 day deadline to comply
Made available at work for current employees or where records are stored for former employees
$750 penalty and injunctive relief with fees
Personnel File Access Amended Labor Code § 1198.5
Designate a representative
Have a form available for requests
Think about what you put in personnel files
Track requests by the same attorney or representative (50 per 30 days max.)
Do not provide files to employees in litigation
Personnel File Access Practical Steps
Wage Statement Compliance Amended Labor Code § 226
“Injury” is effectively presumed for non-compliant wage statements
Even higher risk of penalties
Potential impact on representative/class claims
Wage Statement Compliance Common Errors
Wrong or incomplete employer name
Missing employer address
Missing “total hours”
Failure to include correct pay period dates for corrections or incentive payments
Missing or incorrect overtime or other pay rates (i.e. hourly, piece)
Wage Statement Compliance Practical Steps
Carefully review your wage statements
Fix problems now
Include information on the wage statement when possible or on a stapled attachment or link if not possible
Try to make your wage statements easy to understand
Fixed Salary Cannot Include Overtime Labor Code § 515
Overturned Arechiga v. Dolores Press, 192 Cal. App. 4th 567 (2011)
Social Media in the Workplace Labor Code § 980
Prohibits employers from requiring or asking employees or applicants to: – Disclose user names or
passwords for personal social media
– Shoulder surf personal media
– Divulge personal social media content
Anti-retaliation
Social Media in the Workplace Labor Code § 980
But there is an important exception
Employers can ask employees to divulge personal social media where they reasonably believe the content is related to an investigation misconduct or legal violation
Not applicable to applicants
Brinker v. Superior Court California Supreme Court April 2012
Meal period standard – Employers must relieve employees of all duties for a
timely, 30-minute meal period
– Employers may not pressure, encourage or create incentives for employees to skip meal periods
– First meal period must start before an employee works more than 5 hours (before working 5:01)
– Second meal period must start before an employee works more than 10 hours (before working 10:01)
Brinker v. Superior Court California Supreme Court April 2012
Rest periods – “major fraction thereof “means 2 hours
Hours of Work Number of Rest Breaks
0 to < 3.5 0 3.5 to < 6 1
> 6.0 to < 10.0 2
> 10.0 to < 14.0 3
14.0 to < 18 4
Bradley v. Networks California Court of Appeal December 2012
Reiterates a key take away from Brinker that employees cannot waive meal or rest periods that they do not know they have a right to take
Notifying employees about their rights is very important
Brinker & Bradley Practical Steps
Have a detailed, compliant written policy
Have a reporting system for missed meal and rest periods
Have a mechanism to pay premiums
Have a properly-drafted time certification that references meal and rest periods
Watch out for incentives to skip meal and rest periods
Have training and reminders
Post-Concepcion Cases Arbitration & Class Action Waivers
Class action waivers in arbitration agreements are being enforced, but there is still uncertainty – Some California courts still reluctant to follow
Concepcion
– NLRB’s DR Horton decision
– PAGA may not be subject to arbitration
– Courts are finding other ways to deny arbitration
Arbitration Cases Practical Steps
Review your arbitration agreement or consider adopting one
Make certain the Federal Arbitration Act covers the agreement
Evaluate the delivery and signature process to minimize risk that courts can find a way to refuse to enforce it
See’s Candy Shops v. Superior Court California Court of Appeal October 2012
California permits rounding, like federal law
Provided that the practices does not favor the employer, on balance
But is rounding a good idea?
Check to see if timekeeping systems round at any point during the day
Evaluate whether rounding is necessary
Consider eliminating rounding and tracking and paying time to the minute
See’s Candy Shops v. Superior Court California Court of Appeal October 2012
Fisher v. Univ. of Tex. at Austin
Ways Ruling May Affect Employers
Disparate Impact
Federal Contractors
Diversity Programs
Confidentiality of Investigations
Banner Health System (July 30, 2012) – Employer’s blanket rule prohibiting
employees from discussing ongoing investigations of employee misconduct was invalid.
– Employers must now establish a specific legitimate business justification for requiring employees to maintain confidentiality during internal investigations of employee complaints.
GRAD STUDENT UNIONS?
BROWN UNIVERSITY, 342 NLRB 483 (2004): GRADUATE STUDENTS ARE NOT EMPLOYEES UNDER THE
NLRA BECAUSE THEIR RELATIONSHIP WITH THE UNIVERSITY IS PRIMARILY “EDUCATIONAL” AND NOT “ECONOMIC”
NLRB INVITED BRIEFING ON WHETHER TO OVERRULE BROWN UNIVERSITY
Faculty Members As Managerial Employees
National Labor Relations Board v. Yeshiva University: Supreme Court held that full-time faculty are managerial employees.
NLRB revisiting Yeshiva
Tip #1: No Trash Talk
Disfavored Language:
1. Inappropriate Discussions: Prohibition against “inappropriate discussions about the company, management, and/or coworkers”
2. Defamation: Prohibition on any social media post that “constitutes embarrassment, harassment or defamation of . . . of any [company] employee”
Permissible Language: Do not post comment that is vulgar, obscene, threatening, intimidating, defamatory, harassing or discriminatory
Tip #2: Keep It Confidential
Disfavored Language: Prohibition on disclosing “material non-public information” or “any information that is considered confidential or proprietary”
Permissible Language: You should not disclose any of the Company’s trade secrets or confidential business information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Confidential business information may include internal reports, policies, procedures; business plans and product-launch dates; financial information of patients/customers; the Company’s attorney-client communications or other internal business-related confidential communications.
Tip #3: Protect Your Logo
Disfavored Language: Prohibition on using “the Employer’s logos and photography of the Employer’s store, brand, or product, without written authorization”
Alternative #1: You should not use the Company’s logo, trademark or proprietary graphics in a way which suggests that you are representing the Company or while engaging in conduct that violates Company policy. For example, you should not create a social media page with the Company’s logo placed in a way which might suggest to readers that the Company is sponsoring the page.
Tip #3: Protect Your Logo
More Aggressive Alternative: You should not use the Company’s logo, trademark or proprietary graphics (collectively, intellectual property or “IP”) for any commercial purpose, such as selling or advertising any product or service, without the Company’s prior written consent. You should not use the Company’s IP in any posting unrelated to the terms or conditions of your employment that disparages the Company’s brand, products or services. You should not use the Company’s IP in a way which suggests that you are representing the Company or while engaging in conduct that violates Company policy.
Tip #4: Protect Privacy
Disfavored Language: Prohibition on “revealing . . . personal information regarding coworkers, company clients, partners, or customers without their consent”
Permissible Language: To reduce the risk of identity theft, stalking, and similar criminal conduct, you should not disclose personally identifying information (such as personal contact information obtained from the Company’s files, Social Security numbers, credit or debit card numbers or financial account numbers) of the Company’s employees, customers, vendors or competitors.
Tip #5: No Photography
Disfavored Language: “Get permission before posting photos, video, quotes . . . of anyone other than you online.”
Permissible Language: You should not post images or video of the Company’s employees, customers, vendors or competitors that would be discriminatory, harassing, threatening, vulgar, obscene or similarly inappropriate or offensive.
Tip #6: Employee Disclaimer
Disfavored Language: Requiring that employees state in any post about the employer that they are expressing their own view
Permissible Language: Unless you have received prior authorization from [insert job title], you should not represent or suggest in any social media content that you are authorized to speak on the Company’s behalf, or that the Company has reviewed or approved your content. If that will not be obvious from the content, you should specifically state, “The views expressed in this post are my own. They have not been reviewed or approved by [insert name of company].”
Tip #7: Social Networking On The Job?
Disapproved Language: You cannot social network “on company time.” Alternative #1: Unless specifically authorized, employees are prohibited from using the Company’s electronic resources to engage in social media activity. Employees may use personal devices, such as a non-Company smart phone or tablet, during rest breaks and meal periods to engage in social media activity as long as the employee’s personal device is not connected to the Company’s network.
Disclaimer Option?
Board’s repeated comment: “[T]he rules contained no limiting language to inform employees that [the rules] did not apply to Section 7 activity.”
Use a disclaimer: This policy will not be construed or applied in a way that improperly interferes with (A) employees’ exercise of their rights under the NLRA or any other law, or (B) employees’ legally protected social media discussions regarding wages, hours, or working conditions.
Note: January 2011 Report calls disclaimers into question