California Roadmap: Employment Law Update

Presented by: Bob Conti, Esq. Littler Mendelson, P.C. Orange County Office Shareholder 949.705.3034 RConti@Littler.com 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

Workplace Religious Freedom Act FEHA Amendments Gov t Code 12926, 12940 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

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

Personnel File Access Amended Labor Code section 1198.5 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 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 Practical Steps 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

Wage Statement Compliance Amended Labor Code 226 Injury is effectively presumed for noncompliant 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?

See s Candy Shops v. Superior Court California Court of Appeal October 2012 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

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 nonpublic 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