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

NEW LAWS IMPACTING ALL OR MOST CALIFORNIA EMPLOYERS

The Legislature’s Production in 2012

876 bills signed into law

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

Discrimination Language Change

10 Codes Amended: "intellectual disability" for "mental retardation"

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

Significant Cases From 2012 To Act On in 2013

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

SOCIAL MEDIA or

How the NLRB Plans to Stay Relevant

Seven Tips for

Drafting Social

Media Policies

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

Questions & Answers

Thank You Bob Conti

949.705.3034 RConti@Littler.com

Michael Gregg 949.705.3002 MGregg@Littler.com