ACCA San Diego Labor & Employment Law Update. November 17, 2011

Transcription

1 ACCA San Diego Labor & Employment Law Update November 17, 2011 Sheppard Mullin Richter & Hampton LLP 2011

2 Agenda: How to handle threats of violence caused by an employee s mental disability NLRB s new requirements for ALL employers Social media issues that might arise in the workplace Wage and hour update 2

3 THREATS OF VIOLENCE IN THE WORKPLACE FROM DISABLED INDIVIDUALS Sheppard Mullin Richter & Hampton LLP 2011

4 Threats of Violence in the Workplace Wills v. Superior Court: How should an employer respond to an employee s threats of violence when the employee s behavior stems from that employee s disability? 4

5 Threats of Violence in the Workplace Wills was a court clerk in Orange County diagnosed with bipolar disorder During her employment, she took numerous medical leaves but never told her employer she had bipolar disorder 5

6 Threats of Violence in the Workplace One day, Wills was assigned to work at the Police Department, and had to wait outside for several minutes before gaining admission Wills angrily cursed at the department employees and accused them of deliberately leaving her outside the building Wills also told a police officer that she had added him and another employee to her Kill Bill list, which was interpreted as a list of people she intended to kill 6

7 Threats of Violence in the Workplace A few days after these incidents, Wills doctor placed her on medical leave. During her leave, Wills sent a ringtone to a coworker that stated: I m going to blow this b***ch up if you don t check your messages right now!... F*** you! Needless to say, these threats and behavior made her coworkers feel threatened, and they complained 7

8 Threats of Violence in the Workplace When Wills returned to work, her employer put her on administrative leave and began an investigation into her behavior. During the investigation, Wills doctor for the first time sent a letter to the employer explaining Wills bipolar disorder The employer decided to terminate Wills for threatening police, inappropriate communications with co-workers, misuse of resources, and poor judgment 8

9 Threats of Violence in the Workplace Wills sued, arguing she had been unlawfully terminated based on her disability, and that these outbursts were a result of her bipolar disorder The appellate court disagreed, stating that FEHA allows an employer to distinguish between disability-caused misconduct and the disability itself in the narrow context of threats or violence against coworkers. 9

10 Threats of Violence in the Workplace Although Wills had a right not to be discriminated against on the basis of her bipolar disorder, this right was trumped by the need to provide all employees with a safe work environment Wills supports the position that if an employer has a policy against threats of violence towards coworkers, it may terminate an employee who violates this policy, even if the behavior was caused by a disability 10

11 NLRB s New Requirements For ALL Employers Sheppard Mullin Richter & Hampton LLP 2011

12 NLRB s New Requirements For ALL Employers On August 25, 2011, the NLRB posted its final rule on its new posting requirements Originally set to go into effect on November 14, 2011, but pushed back to January 31, 2012 because of the high volume of feedback received by the NLRB These new requirements are seen by many as paving the way for easy employee unionization of workplaces The U.S. Chamber of Commerce called these rules a gift to unionized labor 12

13 NLRB s New Requirements For ALL Employers Under the new regulations, businesses must post notices on their bulletin boards informing employees of their rights under the National Labor Relations Act Applies to all employers, not just unionized employers (and not just large employers either)! The NLRB notice must be posted in conspicuous places where other notices are posted 13

14 NLRB s New Requirements For ALL Employers 14

15 NLRB s New Requirements For ALL Employers 15

16 NLRB s New Requirements For ALL Employers The Notice will not merely summarize employee rights under the NLRA, because that would not effectively inform employees of their rights Instead, the Notice contains a detailed description of employee rights based on Board decisions, provides examples of general circumstances that constitute NLRA violations, and provides Board contact information and enforcement procedures 16

17 NLRB s New Requirements For ALL Employers Interestingly, the Notice does not reference the rights of non-unionized employees in right-towork states to refuse to pay union dues On September 7, 2011, Rep. Benjamin Quayle (R-AZ) introduced a bill to repeal this posting requirement. The new bill also seeks to prohibit the NLRB from promulgating or enforcing any rule that requires employers to post notices relating to the NLRA 17

18 NLRB s New Requirements For ALL Employers Takeaway: Be prepared for increased union activity after the posting Consider a possible response to the posting Check with a labor lawyer to ensure you do not run afoul of the NLRA or free speech rights 18

19 NLRB s New Requirements For ALL Employers Reminder! Federal contractors and subcontractors are already subject to certain posting requirements that went into effect in June 2010 Pursuant to this regulation, all contracts resulting from solicitations issued on or after June 21, 2010, must contain provisions requiring the federal contractor to display a notice to employees explaining their rights under federal labor laws during the term of the contract 19

20 NLRB s New Requirements For ALL Employers Notice must be displayed for duration of the federal contract and in conspicuous places in and about the contractor s plants and offices at all locations where employees engage in activities relating to the performance of the contract. Federal contractors must insert specific language into their subcontracts requiring their subcontractors to adhere to the same notification requirements. 20

21 NLRB s New Requirements For ALL Employers This regulation was drafted so as to have broad application to most entities entering into contracts to provide products or services to the federal government Limited Exceptions: Contracts below simplified acquisition threshold of $100,000 Where work performed entirely outside the U.S. Subcontracts for amounts under $10,000 21

22 SOCIAL MEDIA Sheppard Mullin Richter & Hampton LLP 2011

23 Social Media 84% of companies think they should have a Social Media Policy 35% of companies actually have a policy Majority of social media related complaints to the National Labor Relations Board concern overbroad social media policies that chill concerted protected activity 23

24 What a Basic Social Media Policy Should Look Like DO S Stop and think how your post will reflect on your company and its clients or potential clients Assume your posts may become public Be transparent. Do not associate your opinions with the company Use privacy settings Maintain business confidences 24

25 What a Basic Social Media Policy Should Look Like DON TS: Do not make discriminatory or harassing posts Do not divulge any non-public or private information Do not endorse the company s products without having it reviewed by the company s marketing department and approved for content and legal disclosures 25

26 Social Media One key provision that every employer should have is something to the effect of blogging, social networking, and other personal internet activity may not be done on company time or with the use of company computers. May be too strict for some so tailor accordingly. Want to be able to take action against employee for making negative statements on companytime. Technology policy should also state that network and equipment use is subject to employer monitoring and search 26

27 Policies that Have Been Found to Be Overbroad: Prohibiting employees from making disparaging comments when discussing the company, work conditions, compensation and benefits, and superiors and co-workers on social networking sites Encroaches into Section 7 protected activity Prohibiting use of language or action that was inappropriate or of a general offensive nature, and rude or discourteous behavior to a client and co-worker Because it did not include limiting language to remove any ambiguity that it prohibited Section 7 activity 27

28 Social Media and the NLRB Recently, the Acting General Counsel of the NLRB released a report concerning 14 social media cases in the last year The cases were split 8 in favor of the employers and 6 in favor of the employees Can you guess which cases were decided in favor of the employers? Let s try a few: 28

29 Social Media and the NLRB Scenario 1: A car salesman posts several pictures and comments on his Facebook page criticizing the inexpensive food his employer served at promotional event Along with the pictures, the employee writes about how happy he was to see that his employer went all out by providing small bags of chips, inexpensive cookies from the warehouse club, semi-fresh fruit, and a hot dog cart where clients could get overcooked hot dogs and stale buns 29

30 Social Media and the NLRB The employer found out about the Facebook postings from another car dealership and an employee who was Facebook friends with the posting employee Shortly thereafter, the employee was terminated Who won? Employer or employee? 30

31 Social Media and the NLRB The employee The NLRB found that the employee s comments were related to the employee s previous conversations with his co-workers regarding how the cheap food would send the wrong message to clients and negatively affect sales and commissions Significant that employees had discussed the effect of the inexpensive food at a prior sales meeting 31

32 Social Media and the NLRB Scenario 2: Employer, a hospital, issued a social media policy that was later incorporated into the employee handbook Rule 4 of the policy prohibited employees from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity 32

33 Social Media and the NLRB Rule 5 prohibited any communication or post that constitutes embarrassment, harassment, or defamation of the hospital or of any hospital employee, officer, board member, representative, or staff member Rule 6 contained a similar prohibition against statements that lack truthfulness or that might damage the reputation or goodwill of the hospital, its staff, or employees 33

34 Social Media and the NLRB An employee posted on her Facebook page commenting on her co-worker s pattern of calling out and complained that the co-worker had disrupted work that weekend. The post ended with the posting employee asking anyone with additional details to contact her One of the posting employee s Facebook friends gave a printout of the page to the employer 34

35 Social Media and the NLRB The posting employee was subsequently terminated for violating the social media policy Who won? The employer or the employee? 35

36 Social Media and the NLRB The employee The NLRB found that the employer s social media policy, under which the employee was fired, was overly broad The NLRB concluded that employees could reasonably construe the policy as prohibiting protected conduct 36

37 Social Media and the NLRB Scenario 3: Employer operates a restaurant and a bar. It maintains an unwritten policy that waitresses do not share their tips with the bartenders even though the bartenders help the waitresses serve food In the fall of 2010, employee, a bartender, has a conversation with a fellow bartender about the tipping policy. The issue is never raised with management 37

38 Social Media and the NLRB In February 2011, in response to a family member s Facebook posting asking employee how work went that night, employee responds by saying that he hasn t had a raise in 5 years and that he was doing waitresses work without tips. Also called the employer s customers rednecks and stated that he hoped they choked on glass and drove home drunk Employee did not discuss these remarks with any co-workers and no co-workers responded to the post 38

39 Social Media and the NLRB About one month later, employee received a Facebook message from the employer s owner informing him that his services were no longer required The next day, the employer s manager left him a voice message informing employee that he was fired for his Facebook posting about the employer s customers Who won? Employer or employee? 39

40 Social Media and the NLRB The employer The NLRB found that although the employee s Facebook posting addressed his terms and conditions of employment, the employee did not discuss the posting with his co-workers, and none of them responded to his posting. There had been no employee meetings on the issue or any attempt to talk to management about the tipping policy NLRB also found that the post had not grown out of the conversation with the employee s coworker months earlier 40

41 Social Media and the NLRB Scenario 4: Employee for a non-profit group constantly criticizes the performance of her co-workers. At one point, this employee tells one of her coworkers that she is going complain to the Executive Director about her fellow employees lack of customer service The co-worker posts the following on Facebook: Employee, a coworker feels that we don t help our clients enough at HUB I about had it! My fellow coworkers, how do u feel? 41

42 Social Media and the NLRB Five different co-workers commented on the post each one disagreeing with Employee s sentiments. Finally, Employee posted, Stop with your lies about me. I ll be [at work] on Tuesday. Employee then complained to the Executive Director saying that the other employees were bullying and harassing her by way of the Facebook posts The Executive Director responded by terminating the five employees for violating the company harassment policy. The five employees sue Who won? Employer or employees? 42

43 Social Media and the NLRB The employees It was irrelevant that the employees were not trying to change their working conditions and they had not communicated their concerns to their employer Explicit or implicit criticism by a co-worker of the manner in which [employees] are performing their jobs is protected discussion. Especially true when there is a belief that the criticizing employee might take the complaints to management 43

44 Social Media and the NLRB Significant that none of the Facebook postings occurred on work computers or during work hours Lastly, the Court noted that the employer s contention that the employees had violated the harassment policy was without merit 44

45 What about Researching Employees and Applicants on the Internet? 45% of employers research prospective employees on the internet 70% have rejected candidates based on their research 35% said based on membership in certain groups 45

46 What about Researching Employees and Applicants on the Internet? This practice is ripe for employment discrimination cases Make HR/managers aware of the problems with searching the internet concerning candidates and employees Rules that apply to interviews, also apply to use of social media If you would not ask it, you don t want to know it! HR department training on interview skills and managing employees should include discussion on risks of social media research 46

47 Suggestions: Only do internet searches for the top tier of candidates Internet searches done by people who are removed from employment decisions so they can filter information that can be considered If using an outside service to perform background checks using the internet, you need to comply with the Fair Credit Reporting Act and similar state laws Information considered a bona fide occupational qualification should be run by legal counsel 47

48 WAGE AND HOUR LAW UPDATE Sheppard Mullin Richter & Hampton LLP 2011

49 DOL Timesheet Application In May, 2011, the federal Department of Labor launched a smart-phone application designed to enable employees to track their hours worked, as well as meal and rest breaks (in English and Spanish) The application is currently only available for the iphone and ipad 49

50 DOL Timesheet Application 50

51 DOL Timesheet Application The application has a number of flaws data can be entered after the fact, and the application does not allow for entry of data regarding tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest Other, private companies offer similar products that are much more comprehensive 51

52 DOL Timesheet Application Be aware that your employees could be using this application to record their hours (incorrectly, or even fraudulently) for use in a lawsuit Remember to keep good time records separate and apart from these smartphone apps. Do not allow employees to use this as their primary timekeeping tool 52

53 Reporting Time Payment Price v. Starbucks Corp.: Price was a barista who worked only 13 shifts before being fired Starbucks called him in to be fired, on a day when he was not scheduled to work. The firing took less than one minute 53

54 Reporting Time Payment Price was paid two hours of reporting time pay for the day he was fired, per section 5(A) of Wage Order the minimum required payment Price claimed he was entitled to over three hours of reporting time pay half of the average length of his 13 shifts 54

55 Reporting Time Payment Section 5(A) of Wage Order states: Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee s usual or scheduled day s work, the employee shall be paid for half the usual or scheduled day s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee s regular rate of pay, which shall not be less than the minimum wage. 55

56 Reporting Time Payment The court agreed that Starbucks did the right thing. When the employee is not scheduled to work, but is called in for a meeting and works less than two hours, the employee only gets paid the minimum two hours not half the average length of his shift 56

57 Split Shift Premiums Galvez v. Federal Express: Class action brought by several couriers and drivers for FedEx Employees argued that employees who worked a split shift were entitled to receive their regular wages for the hours they worked plus a premium of one hour's pay at the minimum wage Employer argued that employees who work a split shift are not entitled to an additional hour of pay when the wages received for all hours worked equal at least the minimum wage for all hours worked plus one hour at minimum wage 57

58 Split Shift Premiums Section 4 of the IWC Wage Orders discuss the payment of minimum wages and provides, "when an employee works a split shift, one (1) hour's pay at the minimum wage shall be paid in addition to the minimum wage for that workday, except when the employee resides at the place of employment." The parties disagreed on whether this provision is satisfied by paying the employee at least minimum wage for all hours worked plus one hour of minimum wage 58

59 Split Shift Premiums Court found for FedEx Employers satisfy California's split shift regulation if they pay employees who work split shifts at least the minimum wage for the actual time spent working plus one additional hour at the minimum wage rate Takeaway: Split shift employee pay (# hours worked on split shift + 1) x ($8/hour) If paid more, Section 4 does not require an employer to pay any additional amounts 59

60 Applicability of California s Overtime Laws to Out-of-State Employees Sullivan v. Oracle: Oracle Corporation is headquartered in California, but employs instructors in 20 states, including CA The court addressed the question of whether out-of-state instructors who worked in California for a day or week at a time were owed overtime under California law for the hours over 8 in a day or 40 in a week that they worked in state 60

61 Applicability of California s Overtime Laws to Out-of-State Employees The court held that California s overtime laws apply to anyone who performs work in the State of California, even if based elsewhere However, the court noted that it would analyze other states interests to determine whether other states laws would trump California s. In this instance, when it came to overtime, California s interests won For example, it would not be clear that California could impose its laws on vacation pay or paystubs on out-of-state workers 61

62 Applicability of California s Overtime Laws to Out-of-State Employees Further, the court indicated the same rule might not apply if the employer is based in another state Sullivan stands for a relatively narrow rule that California employers must pay for any overtime worked in the State of California by out-of-state employees Whether this will be extended, and how far remains to be seen, but for now, ensure that any employees coming to California from another state receive any and all overtime owed in accordance with California law An open question remains regarding employees who cross in and out of California over the course of one day 62

63 Mutual Wage Agreements / Labor Code section 515(d) Arechiga v. Dolores Press: Janitor sued his former employer for allegedly unpaid overtime wages Arechiga verbally agreed to a set salary of $880 per week for 66 hours of work (11 hours per day, 6 days per week) Arechiga later entered into a written salary agreement that provided he would be paid a "salary" of $880 per week 63

64 Mutual Wage Agreements / Labor Code section 515(d) Employee Arguments: Labor Code section 515(d) states: "for the purpose of computing the overtime rate of compensation required to be paid to a nonexempt fulltime salaried employee, the employee's regular hourly rate shall be 1/40th of the employee's weekly salary 64

65 Mutual Wage Agreements / Labor Code section 515(d) Employee Arguments: Employee argued that his salary of $880 only compensated him for a regular 40-hour work week at a base rate of $22 per hour ($880 per week/40 hours); his salary did not include, nor did his written agreement contemplate, payment for overtime hours Employee argued he was entitled to 26 hours of unpaid overtime per week at an overtime premium of $33 per hour ($22 per hour x 1.5 = $33 per hour premium rate) 65

66 Mutual Wage Agreements / Labor Code section 515(d) Employer Arguments: Employer argued Labor Code section 515(d) did not prohibit an explicit mutual wage agreement between an employee and employer Employer argued it had entered into an explicit wage agreement with the plaintiff whereby the $880 compensated him for both his regular and overtime work (40 regular hours paid at $11.14 per hour and 26 overtime hours paid at $16.71 per hour) 66

67 Mutual Wage Agreements / Labor Code section 515(d) Court found that Section 515(d) did not prohibit mutual wage agreements 67

68 Mutual Wage Agreements / Labor Code section 515(d) California's overtime requirements can be satisfied by: 1) an "explicit mutual wage agreement" pursuant to which a "guaranteed fixed salary" is set, 2) provided the salary equates to 40 hours per week at an identified hourly rate and 3) time worked in excess of 40 hours is paid at oneand-one half times that rate 4) the agreement is reached before any work is performed 68

69 Mutual Wage Agreements / Labor Code section 515(d) Pros: Consistent wages paid to non-exempt employees (base plus overtime pre-determined and paid in one lump sum) Cons: Significant potential liability if wage agreement deemed impermissible (does not satisfy all requirements) Uncertainty in the Law: Decision expressly rejected a provision in the DLSE Manual stating that wage agreements are not permissible Not clear whether other California courts will follow 69

70 Mutual Wage Agreements / Labor Code section 515(d) As a practical matter... Although permissible, be careful! Written wage agreements should clearly and unambiguously explain all components of pay Employers should still require all non-exempt employees to document all hours worked, including meal periods 70

71 Questions? For additional information, please contact: Samantha D. Hardy 501 West Broadway, 19 th Floor San Diego, CA direct fax David B. Chidlaw 501 West Broadway, 19 th Floor San Diego, CA direct fax 71