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Dynamic Case Presentations

I am excited to be moderating a presentation hosted by the Santa Clara County Bar Association regarding using technology to enhance your case. Lisa Peck and Lisa Mak will be the presenters.

The presentation is scheduled for Nov 18th at 12:00pm – 1:30pm at the SCCBA’s conference center, but you can also attend online.

The Lisa’s will introduce and demo certain digital tools such as:

  • Trialpad for iPad
  • Powerpoint
  • Keynote
  • CaseMap
  • Airtable
  • DropBox
  • Clio
  • RocketMatter
  • Sanction
  • TimeLine 3D

Attorneys not using technology to advance their cases are at a distinct disadvantage. I’m excited to learn more about the tools I already use, and some insights into additional tools that will help me advocate for my client.

Regardless of whether you are presenting to a judge, jury, arbitrator, mediator, or opposing counsel, the “dynamic” of your case and presenting your case in a “dynamic” manner are imperatives in this digital age. Yet, for many of us, becoming a tech-savvy litigator can seem a daunting, if not prohibitively expensive (both time and money) endeavor. Join us as we explore how to boost your practice with commonly available and (mostly) easy to use apps, cloud-based subscriptions, and software for laptops and iPads and help you learn to get the wins with these high-tech boosts on an every-day budget.

Hope to see you there!

Information provided by Robert Nuddleman of the 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 on this blog.

The Nuddleman Law Firm, P.C. represents employers and employees in a wide range of employment law matters. Much of his practice focuses on wage and hour issues, such as unpaid overtime, meal and rest break violations, designing or enforcing commission plans, and other wage-related claims. He also advises employers on how to avoid harassment and wrongful termination claims and represents employees who have been victims of unlawful discrimination, retaliation or harassment. The Nuddleman Law Firm, P.C. helps employers develop good employment policies, and helps employers and employees with disability accommodation issues.

Wage and Hour Workshop

Wage and Hour Workshop

I am pleased to announce that I am co-presenting a Wage and Hour Workshop on May 12, 2017, hosted by The Labor & Employment Law Section of the Santa Clara County Bar Association. My panel topic: In Today’s Mobile World, What Hours Really Count as Work? Richard Schramm and I will explore:

  • Which hours are “hours worked”
  • Handling On-Call time issues
  • Controlled and uncontrolled stand-by and break time
  • Non-Productive Time for Commissioned and Piece-Rate Workers
  • Concealed Hours
  • De Minimus Time
  • Travel Time

Other presenters for the wage and hour workshop will cover expense reimbursements, ethical issues in wage and hour litigation, and the best ways to gather evidence for your case. The workshop includes many distinguished panelists.

The workshop is designed for attorneys, HR professionals, and businesses. We will provide an in-depth look at some of the more confusing wage and hour issues employers and employees face in today’s workforce. And, yes, ethics credit is available for part of the workshop.

You can find more information and register here. Seats can fill up quickly, so register early.

Wage and Hour Workshop Program

Panel 1: “In Today’s Mobile World, What Hours Really Count as Work?”

Richard Schramm, Employment Rights Attorneys, LLP
Robert Nuddleman, Nuddleman Law Firm, P.C.
Panel 2: “To Reimburse or Not Reimburse? That is the Question: A  Discussion Re: Compliance with Expense Reimbursements.”

John McIntyre, Shea & McIntyre
Tyler M. Paetkau, Hartnett, Smith & Paetkau

Keynote Speaker:

Honorable Roberta Hayashi, Superior Court of California, County of Santa Clara

 

Panel 3: “The Art of Wage War: Ethical Issues in Wage and Hour Litigation.”

Tom Duckworth, Duckworth, Peters, Lebowitz Olivier LLP
Robert (“Bob”) Jones, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Panel 4: “Getting Creative With Discovery: What Are the Best Ways to Gather Your Evidence Formally or Informally in a Wage & Hour Case?”

Eleanor (“Ellie”) Schuermann, Kastner Kim LLP
Jay J. Wang, Fox, Wang & Morgan P.C.

Moderator:

Jennifer Leung, Juniper Networks and SCCBA Chair of Labor & Employment Section

I hope to see you there.

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.

Cal Chamber Updates Employee Handbook Creator

California Chamber of Commerce Employee Handbook Creator

Employers looking to create an inexpensive employee handbook oftentimes use the California Chamber of Commerce’s Employee Handbook Creator. It is a good resource for obtaining up-to-date, compliant policies. Although not customized solely for your company, it contains the policies you need. It also tells you why the policies are in place.  The Employee Handbook Creator asks a series of questions, and includes policies appropriate for the number of employees.  It also identifies required policies versus recommended policies. The software now asks questions about where your employees work, so you can comply with local ordinances. For around $250, it’s an affordable and reasonable solution for smaller employers.

The Chamber recently updated its standard policies to include city- and county-specific policies regarding paid sick leave and minimum wage laws. With the ever-growing number of local ordinances imposing new obligations on employers, the policies are very helpful.

The Chamber also has a chart of local minimum wage laws and paid sick leave ordinances. The chart identifies whether there are specific posting requirements, which employers must comply with the local laws, and links to the ordinances and FAQs. This is a very helpful resource, and I’ve just bookmarked it.

In conjunction with Fox Rothschild, LLP, the Chamber also published a comparison of California State and local paid sick leave laws. You guessed it, I’ve bookmarked this one as well.

The California Chamber of Commerce has not paid me to provide this information. After creating, reviewing and revising scores of handbooks over the years, I’m just a fan of low-cost ways to help employers comply with the law.

Have Your Employee Handbook Reviewed by an Expert

Using the Chamber’s Employee Handbook Creator is not an excuse to avoid having an knowledgable professional review the handbook. The Chamber uses some language in its policies that I like to change, and the resulting handbook won’t necessarily express the culture of your business. Additionally, as good as it is, I’m always reluctant to rely entirely on a computer-generated document. I like to read and edit the employee handbook to make sure it actually fits the employment. The Chamber handbook is a lot better than copying the handbook from your competitor or your last employer, but I still recommend having it reviewed by counsel or knowledgeable HR professional before implementation.

Most employers should update their handbook every one to two years. Sometimes changes in the will require more frequent updates. For example, in the middle of last year the Fair Employment and Housing Commission implemented updated regulations requiring all employers to have a written sexual harassment prevention policy in place and distributed to all employees. I wrote about some of the new requirements here.

If you have a question about your employee handbook, 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.

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.

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.

Employer Cannot Fire Employees for Reporting Theft at Work

Rosa Lee Cardenas worked for M. Fanaian, D.D.S., Inc. as a dental hygienist.  When Ms. Cardenas could not locate her wedding ring—she typically took it off while performing her job duties—she called the local police and reported that a coworker may have stolen her ring.  After the police came to the workplace on two separate occasions, the employer pulled Ms. Cardenas aside and told her that “the situation was causing great tension and discomfort among the staff, and that he was going to have to let her go.” Cardenas filed a lawsuit alleging she was fired for reporting theft of her wedding ring. A jury agreed and awarded her $117,768 in damages. The lesson: Don’t fire employees for reporting theft at work.

Don’t Fire Employees for Reporting Theft

Fanaian appealed claiming the real reason Cardenas filed a police report was to serve her private interest, not a public purpose, and a termination in violation of public policy does not exist when the employee reports a purely personal issue (e.g., not something related to the employment).  Cardenas claimed that Labor Code section 1102.5 stands alone, and does not require a separate showing that the employee’s subjective motivation and/or the particular crime he or she reported concerned a fundamental public policy.  Cardenas pointed out that section 1102.5 embodies a sufficient public policy for purposes of permitting an award of damages.

The court of appeals agreed, and affirmed the judgment. “[T]he plain and unambiguous language of section 1102.5(b) creates a cause of action for damages against an employer who retaliates against an employee for reporting to law enforcement a theft of her property at the workplace.”

Anytime an employee reports a suspected crime to the police, he or she is possibly engaging in protected activity.  Employers should be mindful that Labor Code section 1102.5 is very broad, and terminating an employee because the employee complained or made know his or her intention to complain to a government agency is unlawful.  Fanaian learned the hard way not to fire employees for reporting theft of personal items at work.