Celebrate the New Year

As we enter the new year, I want to thank my colleagues, clients, friends and family who made 2016 such a success. I opened my Pleasanton office a little more than a year ago. With your support and encouragement, I continue to help my clients resolve their workplace issues. It has been a great year, with lots of opportunities. I’m thankful I get to work with such a wide variety of clients in such diverse industries.

New Year, New Laws

We saw a lot of changes in 2016. New decisions regarding arbitration agreements continue to shape how employers and employees resolve their disputes. Legislative changes now make it more difficult for employers to force employees to use arbitration in California.

Employers must now separately track and report rest and recovery periods and non-productive time for piece-rate workers.

More cities and counties adopted higher minimum wage requirements. California followed suit increasing minimum wage to $10.50 per hour effective January 1, 2017, for employers with 26 or more employees. For employers with 25 or fewer employees, the minimum wage is still $10.00 per hour until 2018.

The Domestic Workers Bill of Rights became permanent, which secures the right to overtime for caregivers (aka personal attendants).

Workplaces with single-user restrooms must now be gender-neutral, and California’s Equal Pay Act saw a significant overhaul.

Companies cannot prohibit employees from discussing their wages, and security guards now have to be paid weekly. Employers also face tougher penalties if they fail to pay Labor Commissioner judgments.

Many will struggle with drug policies now that marijuana is legal for recreational purposes, and there are tougher restrictions regarding what employers can ask about criminal convictions.

State Disability and Paid Family Leave benefits were increased to make them more meaningful to low-wage workers.

I hope 2017 brings prosperity to you and yours. Remember to take the time to appreciate what you have. Wishing you a very Happy New Year.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Employers Cannot Control Rest Breaks

Rest Breaks – Controlled or Uncontrolled?

I previously wrote about  Augustus v. ABM Securities, where an appellate court said employers could require employees to remain “on-call” during paid rest breaks. I cautioned that the case was on appeal, and the Supreme Court could reach a different conclusion. It did. The California Supreme Court concluded:

state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

Employers Must Relinquish All Control During Rest Breaks

This is an important case for employers and employees because it provides clear guidance regarding required rest breaks. ABM Securities required its security guards to carry pagers, phones and/or radios. The security guards had to keep the pagers, radios or phones with them at all times; including mandatory paid rest breaks. If an emergency occurred during the rest break, the guard had to respond. Although infrequent, interruptions happened. The guards argued that because they were not relieved of all duty during the rest periods, the guards never actually received required rest periods. The trial court agreed, awarding $90 million to the entire class. The appellate court disagreed. The Supreme Court said the trial court got it right: “state law requires employers to provide their employees with rest periods that are free from duties or employer control.”

The court distinguished meal breaks from rest breaks. The wage orders allow for “on-duty” meal breaks in certain situations. There is no similar provision for rest breaks. The Supreme Court concluded that the IWC knew how to include a provision for on-duty breaks. Since no on-duty rest period provision exists, the IWC obviously did not intend to allow on-duty rest periods.

This case will pose a problem for situations where an employee cannot easily take required rest breaks. You can expect to see more “Be Back in 10 Minutes” signs in gas stations or stores where only one worker is on duty.

Exemptions from Rest Breaks?

A little known–and likely seldom used–option for employers is to request an exemption from the Labor Commissioner. For example, section 17 of Wage Order 5 states:

If, in the opinion of the Division after due investigation, it is found that the enforcement of any provision contained in Section 7, Records; Section 12, Rest Periods; Section 13, Change Rooms and Resting Facilities; Section 14, Seats; Section 15, Temperature; or Section 16, Elevators, would not materially affect the welfare or comfort of employees and would work an undue hardship on the employer, exemption may be made at the discretion of the Division. Such exemptions shall be in writing to be effective and may be revoked after reasonable notice is given in writing. Application for exemption shall be made by the employer or by the employee and/or the employee’s representative to the Division in writing. A copy of the application shall be posted at the place of employment at the time the application is filed with the Division.

I’ve never gone through the exemption request process, so I don’t know how likely the Division will grant the exemptions, but ABM Securities had such an exemption for two years. I don’t know if they forgot to renew the exemption, or if the Division refused to extend the exemption. If you are an employer struggling with how to relieve employees of all duties for required rest periods, you may want to consider applying for an exemption.

If you have any questions about your meal or rest break policies, feel free to contact the Nuddleman Law Firm, P.C.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Using this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog to communicate with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

PAGA Lawsuits Not Subject to Arbitration

PAGA Lawsuits

The Labor Code Private Attorneys General Act (PAGA) authorizes aggrieved employees to file PAGA lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. Employees pursuing PAGA claims must follow specified requirements. Labor Code Sections 2698 – 2699.5.

Courts enforce employer-mandated arbitration agreements more often than before. Attorneys representing employees generally view arbitration as a less-favorable place for resolving disputes. They usually prefer to be in court. A recent California Court of Appeals decision held that a PAGA lawsuit is not subject to arbitration. The court opened with:

Bernadette Tanguilig, an employee at Bloomingdale’s, Inc. (Bloomingdale’s), filed a representative action on behalf of herself and fellow employees pursuant to the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), alleging several Labor Code violations by the company. Bloomingdale’s moved to compel arbitration of Tanguilig’s “individual PAGA claim” and stay or dismiss the remainder of the complaint. The trial court denied the motion. We affirm. Under Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) and consistent with the Federal Arbitration Act (FAA) (9 U.S.C. et seq.), a PAGA representative claim is nonwaivable by a plaintiff-employee via a predispute arbitration agreement with an employer, and a PAGA claim (whether individual or representative) cannot be ordered to arbitration without the state’s consent.

Iskanian and PAGA Lawsuits

Bloomingdale’s argued Iskanian was wrong under more recent U.S. Supreme Court decisions. On appeal, the company dropped it’s argument that it was distinguishable from Iskanian because the employee had the ability to opt out of the arbitration process. The court disagreed.

[W]e are bound by the Iskanian court’s interpretation of the pre-Iskanian United States Supreme Court decisions cited by Bloomingdale’s. Finally, we note that the Ninth Circuit has ruled that Iskanian correctly decided the federal question, thus superseding conflicting prior federal district court decisions cited by Bloomingdale’s. (See Sakkab v. Luxottica Retail North America, Inc., supra, 803 F.3d at p. 427.)

An essential point in Iskanian and Tanguilig is that PAGA lawsuits are not a dispute between an employer and an employee arising out of their contractual relationship. “It is a dispute between an employer and the state.” The employee is merely acting as a “deputized” agent of the state. Since the state did not sign an arbitration agreement with the employer, the company cannot force the state’s agent–e.g., the employee–into arbitration.

I can think of a couple of different unintended consequences of this analysis. For now, however, I’m keeping those close to my chest as I have a couple of ongoing cases where I may need to use the arguments. No sense giving away all my trade secrets.

Employers wishing to use arbitration agreements should review the agreements with counsel. Not all arbitration agreements are alike, and employees may be able to void an arbitration agreement as unconscionable. I anticipate seeing many more arbitration cases in the upcoming years. If you have an arbitration agreement you would like reviewed, or if you are considering using an arbitration agreement, feel free to contact the Nuddleman Law Firm, P.C.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.

The Nuddleman Law Firm, P.C. represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Pleasanton, Oakland, San Ramon, Hayward, Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

 

Heavy Burden On Employers to Reasonably Accommodate Employees

Employer’s Duty to Reasonably Accommodate Employees

Alan Foster of the Foster Law Group is one of my trusted colleagues. He is an excellent attorney and works with a number of my employer clients assisting them with corporate formation issues, general business transaction work and even some employment law. He wrote an article regarding an employer’s duty to reasonably accommodate employees. I asked his permission to share it on my blog.

The article talks about an employer’s duty to reasonably accommodate employees, and what can happen when an employer fails to adequately engage in the interactive process of determining what, if any, accommodations will enable the employee to perform the essential functions of the job.

So, without further ado, here is Alan’s article:

Heavy Burden On Employers to Reasonably Accommodate Employee Disabilities

By Alan Foster

Reprinted with permission

In the recent California Federal District Court action of Thomsen v. Georgia-Pacific Corrugated, LLC the Court held that an employer might violate their obligations under California’s Fair Employment and Housing Act (“FEHA”) simply by requesting that an employee return to his doctor to obtain a note to outline additional work restrictions before the employee can return to work.

In Thomsen an employee went on worker’s compensation after injuring his shoulder and underwent surgery. He returned to work eight months later with a 30-pound lifting work restriction. Through an interactive process with the employer, the employee was assigned to a different job that was believed to satisfy the work restriction. However, after performing at the new job the employee complained to the employer that the long hours and manual operation of an overhead lever required by the job were exacerbating his condition. The employer’s Human Resources Department told the employee to return to his doctor to obtain a note so the employer could determine whether additional restrictions were needed beyond the 30-pound lifting restriction. The employee never returned to his doctor to obtain the note and the employer never followed up with the employee about it.

The employee ultimately refused to work an overtime shift and the employer terminated the employee when he failed to do so. The employee thereafter sued his former employer for disability discrimination and other related claims.

The Court rejected the employer’s argument that, because the employee failed to obtain an additional doctor’s note, his claims for failure to accommodate and failure to engage in interactive process should be dismissed. The Court determined that it was unclear whether the employee’s new position had met all of the employee’s work restrictions since the position still required occasional lifting beyond 30 pounds. The Court found the Company should have had a conversation with the employee in response to his concerns about the overhead lever and overtime hours, before it decided the employee had to
return to his doctor.

In addition, while the employee was fired for allegedly “abandoning his shift,” he presented evidence that employment termination was more severe for these infractions than the consequences provided for such conduct set forth in the Company’s written attendance policy. Consequently, the Court permitted the employee’s claims to go to trial.

The Thomsen decision distinctly shows that employers must follow up to solve many employment issues. A common sense request for additional medical information about an employee’s restrictions was found not to satisfy an employer’s duty to engage in the interactive process because the employer did not follow up on its request. The decision acknowledges that employers’ discharge their duty to engage in the interactive process is highly fact-intensive.

The Thomsen decision clearly indicates that courts expect that employers must take the lead role in the interactive process and cannot place additional burdens on employees to prove the need for reasonable disability accommodations for employees who return to work with work-related disability restrictions. Thus, before an employer decides to terminate an employee with a known disability it is imperative that the employer work with competent legal counsel to determine whether the employer’s proposed accommodations are reasonable under the circumstances.

Foster Law Group is a full-service business law firm dedicated to providing its clients with personal, responsive and cost-effective legal services. Its clients consist primarily of entrepreneurs, investors, emerging and middle market companies. Their services include strategic business planning, entity formation and ongoing counsel on operational issues, corporate finance and securities, intellectual property protection and counseling, employment and compensation, mergers and acquisitions, and real estate transactions.

Provided by Robert Nuddleman of the Nuddleman Law Firm, P.C.

The Nuddleman Law Firm protects the workplace. Our experienced and knowledgeable attorneys bring the highest level of advocacy to attain the results our clients deserve. We represent employers and employees, giving us an advantage over firms that only focus on one side or the other. Our experienced Northern California attorneys handle workplace discrimination, sexual harassment, wrongful termination, unpaid wages, disability discrimination, retaliation and other employment disputes.

If you have questions or need assistance with how to reasonably accommodate employees contact the Nuddleman Law Firm. We represent clients throughout Oakland, Berkeley, Pleasanton, Concord, San Jose, Alameda County, Contra Costa County, Santa Clara County and the Silicon Valley in California.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law. We cannot answer questions about specific situations or provide legal advice over the Internet. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Nuddleman Law Firm, P.C. Using the Internet or this blog for communication with the firm does not establish an attorney-client relationship. Do not post confidential or time-sensitive information in this blog. The Nuddleman Law Firm, P.C. cannot guarantee the confidentiality of anything posted to this blog.