Saturday, April 28, 2012

Court of Appeal Won't Enforce Botched Arbitration Agreement

Few lawyers, and even fewer non-lawyers, pay attention to legal-sounding mumbo jumbo in releases and employment agreements.  Until they matter.

Employer American Management Services had a broad arbitration provision that applicant Brandon Grey signed (called an issue resolution agreement or "IRA").  But Grey's offer letter contained a narrower arbitration clause, which the employee duly signed as well. That offer letter said it was "integrated," meaning that its provisions superseded all prior agreements.  Yep, the integration clause killed the prior, broader, arbitration provision in the IRA.

The contract contains an integration clause. It provides, in part: ?This Agreement is the entire agreement between the parties in connection with Employee‟s employment with [AMS], and supersedes all prior and contemporaneous discussions and understandings.
 Construing the clause as a whole, we interpret it to mean the contract is the final expression of the parties‟ agreement with respect to Grey‟s employment and it supersedes the IRA. * * *

Well, Grey arbitrated his claims and lost.  Then he petitioned the court vacate the arbitration award, presumably on the ground that he had not agreed to arbitrate.  Grey had sued for discrimination, harassment based on sexual orientation, and other claims not based on a breach of his employment contract per se.  Grey claimed the language of the offer letter was narrow and he was not required to arbitrate such claims.  The court of appeal agreed:
The scope of the arbitration clause in the employment contract only applies to claims arising from a breach of that contract and does not encompass all claims an employee may have against AMS. All of Grey‟s claims are for statutory violations, and none arises from a breach of the employment contract. We agree with both parties that Grey is not required to arbitrate his claims under these terms. 
 So, Grey gets another bite at the apple, but in court this time. 

The case is Grey v. American Management Services and the opinion is here.

Court of Appeal: Let Jury Decide Co-Worker Harassment Case

The Court of Appeal issued a "writ" of mandate, overturning a summary judgment order on a harassment claim.  Mustafa Rehmani worked for Ericsson in Silicon Valley.  He is Pakistani. Many of his co-workers are Indian. Rehmani claimed the Indian co-workers gave him a rough ride.  The court describes a series of incidents, over a few months, in which there were political jokes, terrorism jokes, and the like.  However, these jokes were pretty isolated, occurring about a month apart. 

The court decided that the allegations were enough to send the case to a jury and that the trial court should not have granted summary judgment.  The court also held that the company's management had sufficient notice of the conduct, and there was insufficient evidence of an adequate response to the conduct to justify summary resolution.

If you believe the plaintiff's version of events (which the court had to do), he told his manager repeatedly about his co-workers' anti-Pakistani / anti-Muslim jokes.  But she brushed them off.  So, a very thin case of national origin harassment will go to a jury, or a mediator.  A little management training (or better training) could have helped here.

The case is Rehmani v. Superior Court and the opinion is here.

Thursday, April 26, 2012

NLRB's General Counsel Issues New Guidance for "R" Cases

The NLRB revised its procedures for handling "representation" cases - the NLRB proceedings that relate to elections.  We recently wrote an article about the main revisions here. The NLRB's acting General Counsel issued a memorandum explaining how to implement the new procedures here. You can find some FAQs from the Board here.

Tuesday, April 17, 2012

NLRB Poster Takes Another Hit

The D.C. Circuit Court of Appeals enjoined the NLRB's implementation of the poster in an order  here.  What poster? See here.  What NLRB?  See here. Thanks, Cal Chamber.

Saturday, April 14, 2012

Ninth Circuit Holds Regular Attendance Is Essential Job Function for a Nurse

Some welcome, common sense ADA analysis.  When a job must be performed at the job site, and the employee is not a fungible member of a group of similar workers who can each replace each other, the employer can require regular attendance as a job requirement.

Monika Samper was a neo natal nurse at a Providence Hospital.  She claimed to have Fibromyalgia, which resulted in poor attendance. She violated the attendance policy and was fired.  She wanted essentially a waiver from the policy.

No sale.

It is a “rather common-sense idea . . . that if one is not able to be at work, one cannot be a qualified individual.” Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999). Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as “part of a team.” Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). Other jobs require face-to-face interaction with clients and other employees. Nowak v. St. Rita High Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994) (teacher). Yet other jobs require the employee to work with items and equipment that are on site. EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner, 169 F.3d 481 (production worker); Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer support); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) (computer consultant); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v.Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding clerk under the Rehabilitation Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Rehabilitation Act).

The common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse. This at-risk patient population cries out for constant vigilance, team coordination and continuity. As a NICU nurse, Samper’s job unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, faceto-face interaction with patients and their families, and working with medical equipment face interaction with patients and their families, and working with medical equipment. Samper herself admits that her absences sometimes affected “teamwork and cause[d] a hardship for [her] coworkers who must cover for [her].” Similarly, once at work, Samper’s tasks required her to “lift babies, push cribs and isolettes.” More critically, she had to “get up at a moment’s notice to answer alarms [and] . . . [o]ften . . . run to codes.”
Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.

Zing. The case is Samper v. Providence St. Vincent Med. Ctr. and the opinion is here.

Friday, April 13, 2012

The California Labor Commissioner Updates Its Wage Theft Forms

Effective 4/12/12, the DLSE updated its templates and FAQs to help employers comply with the Wage Theft Prevention Act.  You can find the page of forms here.   I guess they couldn't wait until the Brinker hoopla died down a little?

There are clarifications such as related to who is responsible for the notice when an employer hires a temp from a staffing agency (the agency), etc.  Fortunately, the DLSE also says that employers don't have to distribute new notices every time the DLSE issues an update.  Whew!


District Court Kills the NLRB Poster?

Our friends at the California Chamber of Commerce just let me know that the U.S. District Court for the District of South Carolina held in Chamber of Commerce v. NLRB (opinion here) that the NLRB did not have authority to require employers to post a poster informing employees of their rights under the National Labor Relations Act. (Poster information here and here.)  A district court previously held the NLRB did have the authority to require the poster, but did not have the power to create a new "unfair labor practice" when employers do not comply.   See National Ass’n of Manufacturers v. NLRB, No. 11-1629, 2012 WL 691535 (D.D.C. Mar. 2, 2012) (opinion here).

So, this is going to shake out in the Courts of Appeals or the U.S. Supreme Court.  Perhaps the Board will "delay" the implementation date again. Stay tuned.

Random Post-Brinker Thoughts

I have taken more time to read Brinker.  Here are some thoughts to add on to yesterday's post.

1.  The Supreme Court tried to clarify when class actions should be certified.  The trial court will have a  lot of latitude to decide certification, as it has been since 2004's Sav-on decision.  But this opinion will give trial courts more encouragement to certify class actions. The Court limited the trial court's examinations of whether a case has legal merit at the class action stage to resolving a legal issue that affects common issues so much that class certification would be improper. The trial courts will still wrestle with this issue and class action practice is likely safe under this analysis.  As explained below, the Court's application of class action rules means that class actions based on common policies (such as rest periods) may be authorized more freely than courts have been allowing up to now.

1.5 The summary judgment motion will be a very important part of class action defense and should be considered early in the process to avoid class certification of claims that are based on a common policy, but have no merit.

2.  Rest period law:  The Court precisely explained to employers the rest period rules.  Policies must be drafted in accordance with this formula:  "the rest time that must be permitted as the number of hours worked divided by four, rounded down if the fractional part is half or less than half and up if it is more (a “major fraction”), times 10 minutes."

You don't like math?  Well they explain it even better here, because they incorporate the fact that employees with shifts of fewer than 3.5 hours in length are not entitled to any rest period: "Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.... an employee would receive no rest break time for shifts of two hours or less, 10 minutes for shifts lasting more than two hours up to six hours, 20 minutes for shifts lasting more than six hours up to 10 hours, and so on." 

Caveat re scheduling:  although the court added up the rest-period minutes above, the law requires paid, 10-minute rest periods during each four hour work period.  So, the employer should draft its policies such that the rest periods fall somewhere in the middle of each four-hour work period.  Here is the rule regarding timing:
Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. ....
in the context of an eight-hour shift, “[a]s a general matter,” one rest break should fall on either side of the meal break. (Ibid.)
3. The Court then held that the trial court properly certified a rest-period class because Brinker's rest-period policy was uniformly applied and was vague enough to permit the argument that it violated the law because it did not specifically authorize rest periods when employees work "major fractions" of four-hour periods.  Here is the policy:
Under the written policy, employees receive one 10-minute rest break per four hours worked: “If I work over 3.5 hours during my shift, I understand that I am eligible for one ten minute rest break for each four hours that I work.”

As you can see, this policy permits the argument that employees who worked 6.5 hours were not given a second rest period, even under the policy.  So, the Court's holding re class certification re-opens the door for rest period class actions. Therefore, employers must have a more detailed rest-period policy that spells out rest periods are authorized and permitted in accordance with the formula above, or a class action lawyer can argue that the vague, common policy is applied contrary to law.  Additionally, management must be educated to enforce rest period policies in accordance with their terms when they schedule. Make with the drafting!

4.  Meal periods.   I pulled the quotes in my post yesterday.  Here are some more thoughts.
- Meal period policies should emphasize they are "duty free," meaning the employee can come and go and leave the premises as desired.
the wage order’s meal period requirement is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.
Under the class action rule the Court developed, a vague policy is subject to an argument that the common policy violates the law.  So, policies should be explicit.

- Employers will be liable for regular straight time or overtime pay when the know or should have known that employees work through meal periods.  That's normal, because you have to pay employees when you "suffer or permit" them to work.  So, if employees don't punch out for meals, you cannot "auto-deduct" meal period time. As we have said before, the remedy for employees who do not comply with policies is discipline, not docking pay.

- Managers who prevent employees from taking meal periods per policy (such as discouraging meal periods) may expose the company to liability for meal period premiums.  When there is a "corporate culture" of discouraging the meal period, look for class actions based on a "common de facto policy."

- The legally compliant policy must provide that a meal period must start before the sixth hour of work begins.  That means, an employee who starts at 9 must be given a meal break by 2 pm.  Again, employers do not have to police the requirement, but the policy should be explicit to avoid the argument that the policy allows for illegal lunches.

- The legally compliant policy also should provide for a second meal period that starts before the eleventh hour of work begins.  There is a waiver of the second meal period allowed upon certain conditions, and that can be included as well.

- Caveat:  Know your business's wage order!  I am going over the general rules here (Wage Order 4, 5, 7 - the biggies).  There are different meal period provisions in some of the lesser used wage orders, such as Wage Order 12, applicable in the film industry. That Wage Order requires meals at six-hour intervals, not before the sixth hour and before the eleventh hour.

5.  Off the clock.  The Supreme Court decided that no "off the clock" work class would be allowed because (1) Brinker had an express and specific policy prohibiting off the clock work and (2) the only evidence in support of class certification was anecdotes about specific instances.  The Court noted the absence of a "de facto" policy requiring workers to work off the clock.  So, it pays to have a policy barring off the clock work.  We also like sign offs on time cards / time sheets certifying that employees reported all time worked, and verifying they know not to work off the clock.

Well, that's it for now.  I'm sure we'll have more down the road.  I hope this has been helpful.


Thursday, April 12, 2012

Brinker: Employers Need Not Force Meal Periods

I will digest the Court's unanimous Brinker opinion a bit later. Those of you waiting to read it, it is here.

There is a long discussion of class certification in wage hour cases, which I will analyze later.  But
here are the money quotes on rest periods / meal periods.  At first read, this is total victory for the employer's position:

Rest periods:
Employees are entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.* * * 

Hohnbaum asserts employers have a legal duty to permit their employees a rest period before any meal period. Construing the plain language of the operative wage order, we find no such requirement and agree with the Court of Appeal, which likewise rejected this contention.
* * *

in the context of an eight-hour shift, “[a]s a general matter,” one rest break should fall on either side of the meal break. (Ibid.) Shorter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.

Meal Periods:

Hohnbaum contends that an employer has one additional obligation: to ensure that employees do no work during meal periods. . . . We are not persuaded. The difficulty with the view that an employer must ensure no work is done—i.e., prohibit work—is that it lacks any textual basis in the wage order or statute.
* * *
If work does continue, the employer will not be liable for premium pay. At most, it will be liable for straight pay, and then only when it “knew or reasonably should have known that the worker was working through the authorized meal period.”

Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability. On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.
* * *
To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.

On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).

And finally - no "rolling 5 hour" meal periods.
We conclude that, absent waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10th hour of work. We conclude further that, contrary to Hohnbaum’s argument, Wage Order No. 5 does not impose additional timing requirements.


Wednesday, April 11, 2012

Brinker Meal Period Opinion To Be Released Thursday 4/12

I think we're finally going to find out what the law is on meal periods in California.  But I have no idea if employers are going to like it or not.  

Here's the Supreme Court's announcement.
Case: S166350, Supreme Court of California
Event Description:   Notice of forthcoming opinion posted
To be filed on Thursday, April 12, 2012 at 10 a.m.

Our announcement is that Shaw Valenza will be conducting a webinar on Brinker on April 25.  Find out about it here.