MOU Review: How to Comply With the Law and Clean Up That Language!

Transcription

1 6033 WEST CENTURY BOULEVARD, 5 TH FLOOR LOS ANGELES, CALIFORNIA T: (310) F: (310) MAIN STREET, 7 TH FLOOR SAN FRANCISCO, CALIFORNIA T: (415) F: (415) NORTH PALM AVENUE, SUITE 310 FRESNO, CALIFORNIA T: (559) F: (559) WEST "C" STREET, SUITE 620 SAN DIEGO, CALIFORNIA T: (619) F: (619) CAPITOL MALL SUITE 1260 SACRAMENTO, CALIFORNIA T: (916) F: (916) CALIFORNIA PUBLIC EMPLOYER LABOR RELATIONS ASSOCIATION (CALPELRA) ANNUAL TRAINING CONFERENCE MOU Review: How to Comply With the Law and Clean Up That Language! 12/7/2017 PRESENTED BY: Peter J. Brown & T. Oliver Yee

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3 MOU Review: How To Comply With The Law And Clean Up That Language! California Public Employer Labor Relations Association (CALPELRA) Annual Training Conference December 7, 2017 Presented by: Peter J. Brown & T. Oliver Yee The Clean Up YOUR MOU CLEAN UP STARTS TODAY! 2 Agenda MOU Language Basics MOU Language Pitfalls Crafting Effective Contract Language The Good, The Bad, and The Ugly 3 1

4 MOU Language Basics MOU/Collective bargaining agreement is a contract between two parties It needs to: Comply with the law Be clear and unambiguous Reflect what has been authorized and ratified/adopted by the employee organization and the agency Be easy to understand and implement 4 Common MOU Language Pitfalls Ambiguous Terminology (improper use or undefined terms) Legalese Unnecessary/not operable Relinquishing management rights 5 Common MOU Language Pitfalls Contradictory statements References to date triggers in the past or things that have already happened So many words that you get lost Needing to refer to other documents or sections in order to understand what you are reading 6 2

5 How Did We End Up With This Language? Over time, multiple individuals wrote pieces of the contract When we are uncertain of what language means or its purpose, we leave it alone We are afraid we aren t qualified to review and/or write a contract It s hard work and time consuming to tackle this task 7 How do we Approach the Process? Plan ahead! Gather input and information from stakeholders Draft proposed modifications to the contract using Word & track changes Review with legal counsel Spend time at the table explaining language changes to the bargaining team 8 Keys to Effective Contract Language Be clear and concise Consider outline or bullet styles Try not to reference other sections Reorganize sections so like items are in the same section and in logical order Revise words so that regular people who need to implement and follow the contract can understand it 9 3

6 Use a Table of Contents Example of Chapters/Sections: General Provisions Compensation Benefits Leaves of Absence Work Schedule, Overtime Working Conditions Employer/Employee Relations Implementation of MOU Once the MOU is approved have an implementation plan Provide the final document to members, supervisors, managers, HR, Payroll Hold HR benefits and payroll meetings to review changes and ensure adjustments are made as they were agreed to Supervisor/Manager training Review the language and communicate with stakeholders The Good, The Bad and The Ugly 4

7 Work Schedules vs. Workweek Work schedules must comply with the FLSA. Work schedules are defined as an employee's regularly assigned hours of the day and days per week. Full-time regular employees covered by this Agreement may work either 9/80; 4/10; or 3/12 work schedules. Other alternative schedules may be developed. [THE BAD AND UGLY] 13 Work Schedules vs. Workweek Work schedules, workweek, and work period potato, potato. Can all of the work schedules have the same corresponding workweek? 14 Work Schedules vs. Workweek A. Unit members work a seven day FLSA workweek (168 recurring hours). B. Work schedule is defined as an employee s regularly assigned hours of the day and days per week and may include: 1. The 9/80 schedule (four nine hour days per work week and one alternating eight hour day/regular day off). Employees working the 9/80 have a FLSA workweek designated as beginning four hours into their alternating regular day off (eight hour day). 2. The 4/10 schedule (four ten hour days per work week). Employees working the 4/10 have a FLSA workweek designated as beginning at 12:00 a.m. on Monday through 11:59 p.m. Sunday. 3. The 3/12 schedule (three twelve hour days per work week and one alternating eight hour day every other week). Employees working the 3/12 schedule have a FLSA workweek designated as beginning four hours into their alternating eight hour work day. 15 5

8 Work Schedules vs. Workweek Lessons from Revised Language Work schedule workweek/work period yes there is a difference! Clearly state the FLSA workweek Beware of the 3/12 and 9/80 work schedules and the corresponding FLSA workweek 16 7(k) Work Period Police employees may work a 28-day work period. Overtime pay will be subject to the approval of the 28-work day period schedule. [THE BAD AND UGLY] 17 7(k) Work Period What is the applicable work period? Has the agency clearly established the 7(k) exemption under the FLSA? 18 6

9 7(k) Work Period Pursuant to Section 7(k) of the FLSA, the parties agree that the City has adopted a 28-day work period for its police employees who engage in law enforcement activities. [continued on next slide] 19 7(k) Work Period The parties agree that overtime required to be paid under the FLSA shall be defined as actual time worked in excess of 171 hours in the 28-day work period. Any other overtime provided for in this MOU (e.g., for working hours outside of an employee s regular scheduled hours but which do not cause the employee to exceed 171 actual hours worked in the 28-day work period) is MOU overtime. MOU overtime is overtime paid by this MOU which does not qualify as overtime under the FLSA. 20 7(k) Work Period Lessons from Revised Language Understand the 7(k) exemption work period options for public safety - both police and fire Make sure the 7(k) exemption has been clearly established Clearly state the overtime threshold 21 7

10 Regular Rate of Pay Employees shall be paid time and onehalf their regular rate of pay for hours worked in excess of the regularly scheduled work shift. [THE BAD AND UGLY] 22 Regular Rate of Pay Regular rate of pay? Hourly rate of pay? Is there a difference? FLSA overtime? MOU/Contract overtime? What does this language apply to? 23 Regular Rate of Pay Employees shall be paid time and one-half their base hourly rate for overtime provided for in this MOU, MOU overtime, which are hours worked in excess of the employee s regularly scheduled work shift hours which do not qualify as overtime under the FLSA, i.e. do not cause the employee to exceed 40 hours worked in a workweek. 24 8

11 Regular Rate of Pay Lessons from Revised Language How do you calculate your regular rate of pay? Be careful when referring to regular rate of pay and potential MOU/contract overtime implications Understand your standard for MOU/contract overtime 25 To Exceed or Not Exceed Vacation Accumulation: The vacation time bank balance shall not be maintained over four hundred (400) hours. When an employee s current annual accrual results in the employee having a balance in excess of four hundred (400) hours, the employee will be paid as of June 30 each year for all excess hours over four hundred (400) hours. [THE BAD AND UGLY] 26 To Exceed or Not Exceed Is there contradictory language in this provision? If the vacation time bank cannot have over 400 hours (first sentence), then how can an employee have in excess of 400 hours to cash out (second sentence)? 27 9

12 To Exceed or Not Exceed Vacation Accrual: With the pay period that includes June 30 th of each year, vacation hours in excess of four hundred (400) will be paid as cash to employees at the employee s base hourly rate of pay at the time of cash out. 28 To Exceed or Not Exceed Lessons from Revised Language Beware of too much wordiness Sometimes simple and straight to the point is best so long as it is clear 29 Doctor s Note After the third day of used sick leave for a health condition, employees shall submit to Human Resources a physician s certificate stating the employee s medical issue so that the City can determine the ADA reasonable accommodation necessary. [THE BAD AND UGLY] 30 10

13 Doctor s Note Do you need to know the medical issue in order to provide a reasonable accommodation? ADA, FEHA- which one should we refer to? Does sick leave only apply for employees condition? 31 Doctor s Note Should the City suspect that there is an abuse of sick leave by the employee, the City may require that the employee submit to Human Resources a physician s certificate to support the absence. 32 Doctor s Note Lessons from Revised Language Don t forget the Paid Sick Leave law Is there a corresponding definition of covered family member? Insistence on physician certification for any paid sick leave carries some risk 33 11

14 Never Say Never Again Employees may never access Department s or texts while off duty. The only exception is if the employee believes communication is necessary. If an employee communicates with a supervisor while off duty, he or she may report overtime when it is convenient. [THE BAD AND UGLY] 34 Never Say Never Again Never? Or just sometimes never? Necessary? Necessary to whom? Convenient? Convenient to whom? 35 Never Say Never Again Employees who have access to Department s (including texts or any other type of electronic communications) from any personal device and/or e- mail account shall not access Department s while off-duty unless there is an immediate operational necessity, or access has been previously approved by the employee s supervisor. If the employee accesses Department s while off-duty and performs overtime work as a result, the employee must submit for the overtime pursuant to the City s overtime reporting procedure

15 Never Say Never Again Lessons from Revised Language Be sure the agency s overtime reporting procedure is sound. Do employees understand operational necessity? If not, then this term should be clarified. 37 Do You Speak Legalese? Notwithstanding the above mentioned paragraph or any provision of this subsection Any agreement, alteration, understanding, variation, waiver, or modification of any of the terms or provisions contained herein shall not in any manner be binding upon the parties hereto unless made and executed in writing by all parties hereto, approved and implemented by the City Council, and ratification by AFSCME Local 123. [THE BAD AND UGLY] 38 Do You Speak Legalese? Notwithstanding, herein, hereto Huh??? 39 13

16 Why Is This Even Here? The provisions of the MOU shall be applied equally to all employees without unlawful discrimination as to age, sex, marital status, race, color, ancestry, physical handicap, national origin, or political affiliation. Any violation of this provision by the City shall be subject to immediate correction; any violation by the recognized employee organization shall also be subject to immediate correction. [THE BAD AND UGLY] 40 Why Is This Even Here? Why is this even here??? 41 The Clean Up Don t forget, your MOU clean up starts today! 42 14

17 Thank You! Peter Brown Partner Los Angeles Office T. Oliver Yee Partner Los Angeles Office