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Retaliation Claims Get Stronger

Governor Brown just signed SB-306, which significantly strengthens retaliation claims. Employers cannot discharge, discriminate, retaliate, or take adverse action against employees because they engaged in specified protected conduct. Aggrieved employees can seek reinstatement and reimbursement for lost wages and work benefits. Employees can file claims with the Labor Commissioner or pursue a case in court.

Retaliation Claims by Labor Commissioner

Under amdned Labor Code 98.7, the Labor Commissioner can pursue retaliation claims even if no one complains.

The division may, with or without receiving a complaint, commence investigating an employer, in accordance with this section, that it suspects to have discharged or otherwise discriminated against an individual in violation of any law under the jurisdiction of the Labor Commissioner.

The Labor Commissioner can petition the court for injunctive relief, including reinstatement. The court must order injunctive relief if “reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.” The court must consider the “chilling effect” on other employees when determining the appropriate injunctive relief.

An employer that refuses to comply with the injunctive relief can be fined “one hundred dollars ($100) per day for each day the employer continues to be in noncompliance with the court order, up to a maximum of twenty thousand dollars ($20,000)

Retaliation Claim Process

New Labor Code section 98.74 describes specific timelines and processes for retaliations claims by the Labor Commissioner. The Labor Commissioner issues a citation in writing, describing the nature of the violation and the amount of wages and penalties due. The citation must also include any and all appropriate relief, such as cease and desist orders, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.

Employers have 30 days to request  hearing, or the citation becomes final. The hearing must proceed within 90 days. There is no mechanism for conducting discovery before the hearing, and no limit on how short or how long a hearing can last. The decision must be issued within 90 days of the conclusion of the hearing. The decision must contain a statement of findings, conclusions of law, and an order.

Employers dissatisfied with the results can file a writ of mandate with the superior court within 45 days. Employers must also obtain a bond “equal to the total amount of any minimum wages, liquidated damages, and overtime compensation” owed.  The bond does not have to include penalties. The order becomes final when no writ is filed.

Employers refusing to comply with a final order are subject to penalties of $100 per day per employee, up to $20,000. The affected employees receive the penalties.

Retaliation Claims by Employees

SB-306 allows employees bringing retaliation claims to include requests for injunctive relief. Courts are directed to issue injunctive relief (i.e., reinstatement) when “reasonable cause exists to believe a violation has occurred.”

The court is must consider the “chilling effect” on other employees.

The new law will go into effect January 1, 2018. You can read the full text of the bill here.

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

New San Francisco Employment Laws

San Francisco tends to be on the forefront of passing new employment laws to protect San Francisco workers. The following are two new San Francisco Employment Laws that companies and workers in San Francisco need to consider.

New San Francisco Employment Laws No. 1:

Mayor Lee signed the “Lactation in the Workplace Ordinance” on July 30, 2017.  This “first of its kind in the country” ordinance establishes new standards to ensure employers accommodate lactation.

The ordinance amends the Police Code to require employers to provide employees lactation breaks and a location for lactation. Employers must have a policy regarding lactation in the workplace that specifies a process “by which an employee will make a request for accommodation.” The ordinance defines minimum standards for lactation accommodation spaces and requires that tenant improvements or renovated in buildings designated for certain uses include lactation rooms. The ordinance also outlines lactation accommodation best practices.

The ordinance becomes operative on January 1, 2018. 

You can review the full ordinance here.

New San Francisco Employment Laws No. 2:

On July 14, 2017, Mayor Lee signed the “Employer Consideration of Applicant’s Salary History Ordinance,” also known as the “Consideration of Salary History Ordinance“.  This ordinance (which also becomes operative on July 1, 2018, applies to employers in San Francisco and to the City and County of San Francisco’s contractors and subcontractors. The intention is to “ensure that an individual’s prior earnings, which may reflect widespread, longstanding, gender-based wage disparities in the labor market, do not continue to weigh down a woman’s salary throughout her career.”

The ordinance amends the Police and Administrative Codes and ban employers from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant. The ordinance prohibits employers from asking applicants about their current or past salary. Employers cannot disclose employee salary history without that authorization (unless the salary history is publicly available).

You can review the full ordinance here.

You can review some of my prior articles about some of the San Francisco Employment Laws passed over the years:

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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.

Expensive Disability Accommodation Lesson

Caltrans in Nevada County learned the hard way that you cannot ignore an employee disability accommodation requests. More importantly, you can’t retaliate against an employee for requesting an accommodation. An article in the Sacramento Bee provides many of the details. I’ve written several articles regarding the importance of proper accommodation policies and procedures in the workplace.

Employee Awarded $3million in Disability Accommodation Lawsuit

John Barrie claimed his supervisors harassed him and ignored his requests for accommodations related to his allergies. Mr. Barrie has severe reactions to certain smells, such as chemical cleaners and perfumes. Although Nevada County Caltrans accommodated Mr. Barrie for years, Barrie alleged supervisors started harassing him and denying the disability accommodations in 2010. Barrie allegedly sought help internally through various channels, but the harassment continued. The jury believed Mr. Barrie, and awarded him $3million for the retaliation and harassment related to his allergies.

Allergies Can Constitute a Disability

State and federal laws broadly define “disability.” In short, a disability is any medical condition–psychological or physiological–that impairs one or more major life functions. Severe allergies can impair major life functions such as breathing. Some people experience severe skin rashes, headaches, nausea and vertigo from allergic reactions.

Disability discrimination laws require employers to provide reasonable accommodations for persons with disabilities. Failing to provide reasonable accommodations, and in some instances failing to engage in the interactive process of determining what disability accommodations are appropriate, is a violation of the law.

From the pleadings, it appears Caltrans HR department tried to accommodate Mr. Barrie. A regional administrator affirmed his allergies in 2011, and wrote an order compelling workplace accommodations. Barrie alleged his supervisors ignored the order, and retaliated against Barrie by giving him job duties outside his normal scope and moving him to less convenient job sites.

Every Disability Accommodation Request is Serious

Supervisors oftentimes fail to recognize they must treat every disability accommodation request seriously. While HR may know the requirements, ensuring supervisors comply with the law can be difficult. In Barrie’s case, an HR note revealed that Barrie’s supervisors wanted to discipline Barrie for going to HR because he went outside the “chain of command.” I suspect this factored heavily in the juries $3million award. Employers cannot retaliate against employees for requesting accommodations or raising complaints in the workplace.

If you require a workplace accommodation, or if your employee requests an accommodation, talk with an attorney familiar with disability accommodation and discrimination issues.

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.

Workplace Rules Violate the NLRA: Conduct Toward Other Employees

Over the last few weeks, we’ve been looking at a report by Richard F. Griffin, Jr., General Counsel for the NLRB regarding workplace rules.  First we looked at confidentiality rules that may violate the NLRA, then workplace rules regarding conduct toward management.  This week, we will see which workplace rules violate the NLRA regarding conduct toward other employees.  Employees have a right under the Act to argue and debate with each other about unions, management, and their terms and conditions of employment.  Employer attempts to curb employee fights could violate the NLRA.

According to the NLRB’s General Counsel when an employer bans “negative” or “inappropriate” discussions among its employees, without further clarification, employees reasonably will read those rules to prohibit discussions and interactions that are protected under Section 7. Citing Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at 7 (Aug. 22, 2014) and Hills & Dales General Hospital, 360 NLRB No. 70, slip op. at 1 (Apr. 1, 2014).

Let’s See Which Workplace Rules Violate the NLRA

Unlawful Workplace Rules That Violate the NLRA

  • “[D]on’t pick fights” online.
  • Do not make “insulting, embarrassing, hurtful or abusive comments about other company employees online,” and “avoid the use of offensive, derogatory, or prejudicial comments.”
  • “[S]how proper consideration for others’ privacy and for topics that may be considered objectionable or inflammatory, such as politics and religion.”
  • Do not send “unwanted, offensive, or inappropriate” e-mails.
  • “Material that is fraudulent, harassing, embarrassing, sexually explicit, profane, obscene, intimidating, defamatory, or otherwise unlawful or inappropriate may not be sent by e-mail. …”

Lawful Workplace Rules That Do Not Violate the NLRA

  • “Making inappropriate gestures, including visual staring.”
  • Any logos or graphics worn by employees “must not reflect any form of violent, discriminatory, abusive, offensive, demeaning, or otherwise unprofessional message.”
  • “[T]hreatening, intimidating, coercing, or otherwise interfering with the job performance of fellow employees or visitors.”
  • No “harassment of employees, patients or facility visitors.”
  • No “use of racial slurs, derogatory comments, or insults.”

You can read the report to see the General Counsel’s justifications regarding why some rules are unlawful and other very similar rules are not.

It is usually a bad idea to copy and paste another company’s workplace policies.  The policies may not fit your work environment, and the policies may violate the NLRA or other employee rights.  Be careful when drafting workplace conduct policies. Employers should not interfere with employees’ rights to complain about their workplace and share their experiences and opinions regarding management, the company or other workers.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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.

Workplace Rules that Violate the NLRA: Conduct Toward Management

Last week I wrote about workplace confidentiality rules that the NLRB’s General Counsel says violate the NLRA (National Labor Relations Act).  This week, we are looking at the same report and what it has to say about workplace rules regarding conduct toward management.

Employees have Section 7 right to criticize or protest their employer’s labor policies or treatment of employees.  According to the General Counsel,” rules that can reasonably be read to prohibit protected concerted criticism of the employer will be found unlawfully overbroad.”  The GC goes on to say:

a rule that prohibits employees from engaging in. “disrespectful,” “negative,” “inappropriate,” or “rude” conduct towards the employer or management, absent sufficient clarification or context, will usually be found unlawful.

Citing Casino San Pablo, 361 NLRB No. 148, slip op. at 3 (Dec. 16, 2014).

As with the confidentiality rules, the General gives several examples of rules regarding conduct toward management that he believes violate the NLRA and examples of rules that do not violate the NLRA.

Rules that Violate the NLRA

  • “Be respectful to the company, other employees, customers, partners, and competitors.”
  • Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
  • “Be respectful of others and the Company.”
  • No “[d]efamatory, libelous, slanderous or discriminatory comments about [the Company], its customers and/or competitors, its employees or management.
  • “Disrespectful conduct or insubordination, including, but not limited to, refusing to follow orders from a supervisor or a designated representative.”
  • “Chronic resistance to proper work-related orders or discipline, even though not “Refrain from any action that would harm persons or property or cause damage to the Company’s business or reputation.”
  • overt insubordination” will result in discipline.
  • “[I]t is important that employees practice caution and discretion when posting content [on social media] that could affect [the Employer’s] business operation or reputation.”
  • Do not make “[s]tatements “that damage the company or the company’s reputation or that disrupt or damage the company’s business relationships.”
  • “Never engage in behavior that would undermine the reputation of [the Employer], your peers or yourself.”

Rules that Do Not Violate the NLRA:

  • No “rudeness or unprofessional behavior toward a customer, or anyone in contact with” the company.
  • “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of [company] business.”
  • “Each employee is expected to work in a cooperative manner with management/supervision, coworkers, customers and vendors.”
  • “Each employee is expected to abide by Company policies and to cooperate fully in any investigation that the Company may undertake.”
  • “Being insubordinate, threatening, intimidating, disrespectful or assaulting a manager/supervisor, coworker, customer or vendor will result in” discipline.

Confused yet?  Does it seem that some of the lawful rules are extremely close to the unlawful rules? You’re not alone.  It’s difficult to tell the difference in many examples.

When drafting workplace conduct policies, employers should be mindful that employees have the right to complain about their workplace and share their experiences and opinions regarding management and the company.  Limiting an employee’s right to complain about management will likely violate the NLRA.  Employers have to consider the impact of workplace rules on employee rights and find an appropriate balance.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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.

 

Confidentiality Obligations Interfere with Protected Rights

Many employers, particularly those in Silicon Valley, prohibit employees from using or disclosing “confidential information.”  Many employee handbooks have policies limiting employee discussions regarding confidential business information outside the workplace.  Employers typically use very broad definitions of “confidential information,” and, according to the General Counsel for the National Labor Relations Board, the confidentiality obligations may interfere with protected rights.

On March 18, 2015, Richard F. Griffin, Jr., General Counsel for the NLRB issued a report concerning recent employer rule cases.  The report discusses different policies and workplace rules that the NLRB determined violated employee Section 7 rights.  According to the General Counsel, “Under the Board’s decision in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004), the mere maintenance of a work rule may violate Section 8(a)(1) of the Act if the rule has a chilling effect on employees’ Section 7 activity.”

Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as with nonemployees, such as union representatives. Thus, according to the General Counsel,

an employer’s confidentiality policy that either specifically prohibits employee discussions of terms and conditions of employment— such as wages, hours, or workplace complaints—or that employees would reasonably understand to prohibit such discussions, violates the Act. Similarly, a confidentiality rule that broadly encompasses “employee” or “personnel” information, without further clarification, will reasonably be construed by employees to restrict Section 7-protected communications.

Citing Flamingo-Hilton Laughlin, 330 NLRB 287, 288 n.3, 291-92 (1999).

In contrast, broad prohibitions on disclosing “confidential” information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, employers have a substantial and legitimate interest in maintaining the privacy of certain business information.

Citing Lafayette Park Hotel, 326 NLRB 824, 826 (1998), enforced, 203 F.3d 52 (D.C. Cir. 1999); Super K-Mart, 330 NLRB 263, 263 (1999).

The report covers several areas, but for today’s article I wanted to point out a few of the rules regarding confidentiality discussed by the General Counsel.  You can review the entire report here.

Rules That Interfere with Protected Rights

The General Counsel found the following rules regarding confidentiality would unlawfully interfere with protected rights:

  • Do not discuss “customer or employee information” outside of work, including “phone numbers [and] addresses.”
  • “Never publish or disclose [the Employer’s] or another’s confidential or other proprietary information. Never publish or report on conversations that are meant to be private or internal to [the Employer].”
  • “Discuss work matters only with other [Employer] employees who have a specific business reason to know or have access to such information.. .. Do not discuss work matters in public places.”

Rules That Do Not Interfere with Protected Rights

The General Counsel found the following rules regarding confidentiality would not unlawfully interfere with protected rights:

  • No unauthorized disclosure of “business ‘secrets’ or other confidential information.”
  • “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [Employer] is cause for disciplinary action, including termination.”
  • “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”
  • Prohibition on disclosure of all “information acquired in the course of one’s work” when “nested among rules relating to conflicts of interest and compliance with SEC regulations and state and federal laws” such that employees would reasonably understand the information described as encompassing customer credit cards, contracts, and trade secrets, and not Section 7-protected activity.

California employers should also be aware that California’s revised Equal Pay Act now prohibits employers from interfering with employees’ right to discuss their own wages as well as other employee wages.

Employers should carefully review their existing confidentiality agreements and workplace rules to ensure they do not interfere with protected rights.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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.

HR Director Can Sue When Fired for Retaliation

 

The FLSA provides that it is unlawful for an employer to: “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]”  29 U.S.C. § 215(a)(3).  Employees fired for retaliation in violation of the FLSA can sue their employer.

But what if the employee’s job is to report violations of the company to the employer so the employer can decide whether to fix the problem?  Has the employee “filed a complaint,” or just done the employee’s job?  In Rosenfield v. Globaltranz Enterprises, the Ninth Circuit held an HR Director can state a claim that she was fired for retaliation when she reported violations of the FLSA to the employer.

Alla Rosenfield was the Director of Human Resources for Globaltranz. Throughout her employment, Plaintiff reported to her superiors that the company was not compliant with the FLSA, and she repeatedly sought changes to attain statutory compliance.  After GlobalTranz fired Plaintiff, she filed a lawsuit alleging that she was fired for retaliation in violation of the FLSA.  Plaintiff claimed GlobalTranz fired her for complaining to other managers and to executives that GlobalTranz was failing to comply with the FLSA.  The court had to decide whether an HR Director can state a claim for retaliation under the FLSA when it was her job to bring FLSA violations to the employer’s attention.

HR Directors and Managers Can Sue when Fired for Retaliation

Even though the district court recognized that Plaintiff had “advocated consistently and vigorously on behalf of . . . GlobalTranz’s employees whose FLSA rights Plaintiff thought were being violated,” the district court held that she nevertheless was not entitled to the protections of § 215(a)(3) because she had not “filed any complaint” for purposes of the FLSA.

Unlike some laws, congress did not create a detailed federal supervision system or process requiring government payroll inspections. Rather, it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. The FLSA is not supposed to be a “gotcha” statute and “seeks to establish an enforcement system that is fair to employers.” “To do so, the employer must have fair notice that an employee is making a complaint that could subject the employer to a later claim of retaliation.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 131 S. Ct. 1325, 1334 (2011).

 

In Kasten, the Supreme Court established a “fair notice” test for deciding whether an employee has “filed any complaint” under the anti-retaliation provision of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 215(a)(3): “[A] complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

 

If an entry-level employee reported that someone is underpaid in violation of the FLSA and requested that the employee be compensated in compliance with the Act, a reasonable employer almost certainly would understand that report as a “complaint.” But if the identical report were made by a manager tasked with ensuring the company’s compliance with the FLSA, a reasonable employer may not understand that report as a “complaint.” Rather, the employer think the manager was just carrying out his or her duties. Therefore, when determining whether an employee has “filed any complaint,” the employee’s role as a manager often is an important contextual element.

According the Ninth Circuit:

The employee’s job title and responsibilities—in particular, whether he or she is a manager—form an important part of that “context.” Generally speaking, managers are in a different position vis-a-vis the employer than are other employees because (as relevant here) their employer expects them to voice work-related concerns and to suggest changes in policy to their superiors. That may be particularly true with respect to upper-level managers who are responsible for ensuring compliance with the FLSA.

The Ninth Circuit held that a complaining employee’s position as a manager is an important part of the “context” that the fact-finder must consider, and a jury reasonably could find that Plaintiff, a managerial employee, filed such a complaint. Because Kasten requires consideration of the content and context of an alleged FLSA complaint, the question of fair notice must be resolved on a case-by-case basis. An employee’s managerial position is only one consideration.

The court declined to formulate or adopt a special bright-line rule to apply when considering whether a manager has “filed any complaint” within the meaning of the FLSA.

Even if an employee is responsible for reporting violations of the law to the employer, such reports can constitute “filing a complaint,” and serve as the basis for a retaliation complaint.  Employers must carefully consider a number of factors before terminating an employee (even and at-will employee).  Employers may need to take particular care when terminating HR employees or other managers whose job requires them to report violations of the law.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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 Must Provide Written Offer Before Using E-Verify

This year, Governor Brown signed AB 622, expanding the definition of “unlawful business practices” for employers using E-Verify.  The federal E-Verify system is administered by three different federal agencies, enables participating employers to use the system, on a voluntary basis, to verify that the employees are authorized to work in the United States.

Existing law prohibits state entities from requiring an employer—other than those government entities—to use an electronic employment verification system, including E-Verify, except when required by federal law or as a condition of receiving federal funds. Employers cannot use E-Verify to retaliate against employees.  For example, if you have an employee that makes an complaint about a violation of the law, and you want to terminate that employee, you cannot use E-Verify to determine the employee’s immigration status and use that as a basis for termination.

AB 622 adds Labor Code 2814 expanding the definition of an unlawful employment practice.  The new law prohibits an employer or any other person or entity from using the E-Verify to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment.  There are exceptions when federal law requires E-Verify.

The new law is intended to prevent discrimination in employment rather than to sanction hiring persons who are not authorized to work in the United States.

Employers Must Provide Written Offers Before Using E-Verify

Does this mean employers cannot use E-Verify?  No.  It just means, unless specifically required by federal law, employers must provide written offers before using E-Verify.

If an employer using E-Verify receives a “nonconfirmation notice”—i.e., E-Verify cannot confirm the employee is authorized to work in the United States or the employee is potentially using someone else’s social security number—the employer must provide the employee any notifications issued by the Social Security Administration or the United States Department of Homeland Security regarding the nonconfirmation notice.

Employers violating Labor Code 2814 could face civil penalties of up to $10,000 for each violation.

Employers should never retaliate against an individual for engaging in protected activity.  Newly enacted Labor Code 2814 adds additional penalties against employers misusing the E-Verify or similar systems.  Employers must provide written offers before using E-Verify.  The offer letters should state the offer is contingent upon the employee passing required background checks and proof the employee is authorized to work in the United States.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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, Berkeley, San Ramon, Concord, 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.

 

Don’t Retaliate Against Desperate Housewives

OK. I admit it.  For a short-time I watched Desperate Housewives.  I’d like to say I only watched it because my wife made me, but the truth is, I liked the show.  I also learned you don’t retaliate against desperate housewives.  So, when I heard that actress Nicolleta Sheridan—who played my favorite character, Edie Britt—was suing Touchstone Television Productions, it piqued my interest.

Apparently, Sheridan sued Touchstone under Labor Code section 6310, alleging that Touchstone fired her in retaliation for her complaint about a battery allegedly committed on her by the show’s creator, Marc Cherry.  Touchstone claimed Sheridan failed to “exhaust her administrative remedies” by filing a claim with the Labor Commissioner.  Although the trial court agreed with Touchstone, the appellate court made it clear you don’t retaliate against desperate housewives.

Don’t Retaliate Against Desperate Housewives

Sheridan alleged that “during a September 24, 2008 rehearsal, Sheridan attempted to question Cherry about the script, and he struck her in response. Sheridan complained about the alleged battery to Touchstone.”  When Touchstone did not renew Sheridan’s contract for the 6th season—I had stopped watching by then—she sued Touchstone for wrongful termination in violation of public policy.  In true Hollywood fashion, the jury deadlocked and the court declared a mistrial.  Sheridan filed a second amended complaint, alleging that Touchstone “retaliated against her in violation of section 6310 for complaining about Cherry’s alleged battery.”

Touchstone argued that Sheridan had to first file a claim with the Labor Commissioner under sections 98.7 and 6312.  Touchstone’s position had some merit, since a depublished case said employees had to exhaust their administrative remedies before filing a retaliation claim.  But in 2013, the legislature amended the Labor Code to specifically state “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.”

The appellate court, which was not bound by the previously depublished decision, found that the plain language of sections 6312 and 98.7 before the 2013 amendments allowed filing a Labor Commissioner complaint, but did not require exhaustion. The court went on to find that the 2013 amendment to the Labor Code “merely clarified existing law.”

So, Sheridan will get another day in court and we get to find out if Touchstone should have headed my advice: Don’t retaliate against desperate housewives.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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.

Wrongful Termination After Nurse Repeatedly Refused to Perform Nurse-Led Stress Tests

Nurse-Led Stress Tests

The Nursing Practice Act (Bus. & Prof. Code, § 2700 et seq.) regulates the practice of nursing in California.  The Nursing Practice Act permits nurses to perform certain functions that would otherwise be considered the illegal practice of medicine, when such functions are performed pursuant to a hospital’s “standardized procedures.”  (Bus. & Prof. Code, § 2725, subd. (c).)  The Nursing Practice Act Title 16 of the California Code of Regulations contains the guidelines promulgated implementing the NPA.  (See Cal. Code Regs., tit. 16, § 1470-1474)

In Nosal-Tabor v. Sharp Chula Vista Medical Ctr.Karen, a registered nurse repeatedly refused to perform nurse-led stress tests and made numerous complaints concerning the testing to Sharp’s management.  The nurse complained that stress testing constitutes the practice of medicine and that Sharp had not adopted sufficient procedures to allow nurses to perform such tests.  Sharp’s management disagreed and told the nurse to conduct the stress testing.  After the nurse continued to refuse to perform nurse-led stress testing and to complain about its implementation, Sharp disciplined her and eventually terminated her employment.

Wrongful Termination

Nosal-Tabor sued Sharp, alleging wrongful termination and two causes of action premised on claims of improper workplace retaliation.  Sharp filed a motion for summary judgment.  The trial court granted the motion, ruling that Nosal-Tabor presented “no credible evidence that the Standardized Procedures in place at the time of her termination were insufficient.”

On appeal, Nosal-Tabor claimed that the trial court erred in granting Sharp’s motion for summary judgment.  Her primary contention is that the trial court erred in concluding that there was no evidence upon which a reasonable juror could find that Sharp had failed to adopt standardized procedures that comply with the guidelines.  Nosal-Tabor contended that this error caused the court to improperly conclude that she would be unable to establish any of her causes of action.

The appellate court determined that the documents that Sharp maintained for its standardized procedures did not contain several elements required by the regulations.  “In light of these deficiencies, a reasonable juror could find that Sharp improperly retaliated against, and wrongfully terminated, Nosal-Tabor when she complained about, and refused to perform, nurse-led stress testing pursuant to Sharp’s legally deficient procedures.”

Employers should be cautious when disciplining or terminating an employee for complaining about potential violations of the law.  Even when the company believes it has fully complied with the law, an employee may still be able to allege a claim for wrongful termination or retaliation.  If you have questions about your termination or if you are considering terminating an employee for potentially protected conduct, contact a knowledgeable wrongful termination lawyer.

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, but we cannot answer questions about specific situations or provide legal advice. 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. Confidential or time-sensitive information should not be posted in this blog and 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.