No More Fair Employment and Housing Commission?

The California Governor just signed SB 1038.  This bill, among many other things, eliminates the California Fair Employment and Housing Commission, and transfers its duties to the California Department of Fair Employment and Housing.  The Commission was the agency that developed regulations and acted as the judicial body that heard claims of discrimination brought before the agency instead of court.  Those duties will be handled by the Department internally now.  Claims for damages currently before the Commission involving emotional distress will be heard in court rather than before the Commission.  Other claims may be heard before an administrative law judge rather than the Commission.

It's unclear how this new law will affect the workings of the DFEH or the Fair Employment and Housing Act. Stay tuned.

SB 1038 is here. But be warned - it's really long and only a small part of it has to do with the FEHC / DFEH piece.

NLRB - More on Protected Activity and Social Media

Tired of hearing about the National Labor Relations Board?  Unless your business is outside of the NLRB's jurisdiction (because it's too small for NLRB jurisdiction, or your business is a public sector employer, for example), I think it's important to watch what the Board is doing. That's because they are on FIRE.  They are not giving up, despite receiving some unfriendly receptions their new initiatives have received in court.

Remember the poster?  A couple of months ago, courts invalidated the NLRB's mandate that employers post a list of rights protected under the NLRA. No poster?  No problem!  The Board is back with a website for employees seeking to understand their rights to engage in protected concerted activity.  The web page defines protected activity and contains links to cases addressing the subject that the Board has handled. Here is the website.

Another Board development - they are still issuing white papers on "social media" and protected activity.  The NLRB counsel's third essay on the subject is here.   If your organization has policies or a handbook listing prohibited employee conduct that could lead to discipline, you should read this memorandum.  You may be surprised to learn that some policies you consider to be routine are illegal under the current Board's view of the NLRA.   The NLRB's Assistant General Counsel picked through policy after policy, opining on portions that are illegal because they might have something to do with unions or working condition (even though the text of the policies have nothing to do with those subjects).  Then, the AGC attaches a policy that the Board found completely, 100% legal.

Here it is:

Social Media Policy

At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in

making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]).

Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

GUIDELINES

In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules

Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include

discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful

Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate

Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered. Remember that the Internet archives almost everything; therefore, even deleted postings can be

searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

 Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.

 Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.

 Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.

 Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work

Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy. Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.

Retaliation is prohibited

[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in

an investigation will be subject to disciplinary action, up to and including termination.

Media contacts

Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.

For more information

If you have questions or need further guidance, please contact your HR representative.

Happy Anniversary to Us!

Shaw Valenza just celebrated its sixth anniversary on 6/19/06.  That means it's been six years since we started this blog. So, more than 500 posts after we began, we thank you once again for reading, commenting, and forwarding our posts.

Thanks and best wishes,

Greg

Supreme Court Clarifies California Public Sector Unions' Notice Requirements

Like many states, California permits unions to represent public sector employees. But employees may "opt out" of paying dues toward these unions' political activities.To permit the "opt out," the unions must issue what are known as "Hudson" notices at least annually, which advise employees of how much of their dues are spent on collective bargaining and how much on political and other non-representative activity.  The employees can opt-out of paying the fee not that are not allocated to collective bargaining -related activities. Unions are permitted to rely on the prior year's ratio to set the current year's dues.

This system exists because of the First Amendment.  The public sector employer would not be able to force employees to join an organization that  requires financing of viewpoints with which the employee does not agree.

So far so good?  Well,what if the union issues a Hudson notice, and then a few weeks after the "opt out" period, issues a special fees increase after issuing its Hudson notice?  Can it unilaterally do this without a new notice?  That was the issue the Supreme Court confronted in Knox v. SEIU, Local 1000.

The Supreme Court said, "no":

To respect the limits of the First Amendment, the union should have sent out a new notice allowing nonmembers to opt in to the special fee rather than requiring them to opt out. Our cases have tolerated a substantial impingement on First Amendment rights by allowing unions to impose an opt-out requirement at all. Even if this burden can be justified during the collection of regular dues on an annual basis, there is no way to justify the additional burden of imposing yet another opt-out requirement to collect special fees whenever the union desires.

Why?

Public sector unions have the right under the First Amendment to express their views on political and social issues without government interference. . . .But employees who choose not to join a union have the same rights. The First Amendment creates a forum in which all may seek, without hindrance or aid from the State, to move public opinion and achieve their political goals. “First Amendment values [would be] at serious risk if the government [could] compel a particular citizen, or a discrete group of citizens, to pay special subsidies for speech on the side that [the government] favors.” ...  Therefore, when a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice and may not exact any funds from nonmembers without their affirmative consent.

5 justices joined the majority opinion.  2 justices concurred in the judgment, agreeing the union needs to secure consent from the non-members.  2 justices dissented, and would hold that the union gets to set its non-member contribution rate based on the prior year's expenses, even if the union imposes a special assessment immediately thereafter.

The case is Knox v. SEIU, Local 1000 and the opinion is here.

U.S. Supreme Court: Pharmaceutical Sales Reps are FLSA Exempt

The Supreme Court resolved a split between circuit courts and held that pharmaceutical sales representatives engage in "sales" and therefore are exempt under the Fair Labor Standards Act.

Under the FLSA and California law (and other states' laws), "outside salespersons" are exempt from minimum wage and over time law.

The issue for the Supreme Court was that pharmaceutical reps do not really "sell" drugs to doctors. They "sell" to the doctor that the doctor should promise to prescribe the pharma company's medicine.  Plaintiffs argued that because the rep makes no "sale" he or she should not be considered a salesperson.  Rather, they are non-exempt "promoters."

The Department of Labor took the position that Pharmaceutical reps were non-exempt beginning in 2009.  But the DOL's reasoning apparently evolved as to "why."  According to the Court, the Agency argued:

“[a]n employee does not make a ‘sale’ for purposes of the ‘outside salesman’ exemption unless he actually transfers title to the property at issue.” Brief for United States as Amicus Curiae 1213 (hereinafter U. S. Brief).13 .

That would seem to remove from the exempt a whole lot of sales persons who previously were exempt, and it was much narrower than regulations and prior case law.  So, the Court refused to defer to the DOL interpretation.

The decision was 5-4.  The dissent agreed that the government's own interpretation was not worth much.  But the dissent's opinion was that the duties performed do not amount to "sales" but rather were promotion activities and non-exempt.

This decision may not directly affect California's outside sales exemption. But it should, because California law does not go into any level of detail regarding what is an "outside salesman."  Therefore, the courts and agencies may will follow the Supreme Court's opinion regarding what counts as a sale.

The case is Christopher v. Smithkline Beecham and the opinion is here.

Court of Appeal: "Refusing to Sign" Is Insubordination(!)

When you present an employee a warning (or a review, etc.), and you ask the employee to sign the document to acknowledge receipt of a copy, and the employee refuses to do so, that is called "insubordination" and is a legitimate reason to fire an employee.  Better, still:  it's "misconduct" and the employee may be disqualified from unemployment benefits.

The employer does not have to discharge the employee, but it could.  I have no idea where this "refuse to sign" notation came from, or when employees gained the power to tell employers what they will and will not sign. Perhaps this decision will change things a bit.

In Paratransit v. UIAB, the employee was in a union. The union contract required employer to obtain the signature of the employee on disciplinary action notices, but the notices had to have a disclaimer that says the employee is only acknowledging receipt of the document.  So, employee Craig Medeiros was rude to a customer, the employer tried to give him a disciplinary notice. Employee refused because he feared it would be deemed an admission of guilt, despite the clear disclaimer.  He was told he would be fired if he did not sign the document, and he refused.  Paratransit fired him.

So, the employee then applied for unemployment, which Paratransit contested.  The Unemployment Ins. Appeals Board granted benefits, overturning the decision of an Administrative Law Judge.  Paratransit then sought relief in court.  The Superior Court agreed with Paratransit, and the employee appealed to the Court of Appeal.

If you're fired for "misconduct" you are disqualified from receiving unemployment.  What is misconduct?  Unemployment Ins. Code Section 1256 has the answer, as explained by the court:

Section 1256 provides in relevant part: ?An individual is disqualified for unemployment compensation benefits if . . . he or she has been discharged for misconduct connected with his or her most recent work.? Misconduct within the meaning of section 1256 is limited to "conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer‟s interests or the employee‟s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed "misconduct" within the meaning of the statute . . .

The Court of Appeal held that refusing to sign an acknowledgment, in violation of a direct order to do so, was insubordination and, therefore, misconduct:

Under the circumstances presented, we conclude Claimant‟s failure to sign the disciplinary memo violated his obligations to Employer under Labor Code section 2856. (See Lacy v. California Unemployment Ins. Appeals Bd., supra, 17 Cal.App.3d at p. 1133 [employee must comply unless the employer‟s directive imposes a duty that is both new and unreasonable].) The remaining question is whether such insubordination was misconduct under section 1256 or a good faith error in judgment. ***

As described above, an intentional refusal to obey an employer‟s lawful and reasonable directive qualifies as misconduct. But where an employee, in good faith, fails to recognize the employer‟s directive is reasonable and lawful or otherwise reasonably believes he is not required to comply, one might conclude his refusal to obey is no more than a good faith error in judgment. ***

***Claimant was told to sign the disciplinary memo and that, if he did not, he would be subject to termination. Instead, Claimant requested union representation. He was then told he had no right to union representation at the meeting. Claimant was then instructed to sign the memorandum without union representation. By refusing to do so, Claimant was not seeking redress by other means. He was directly disobeying the employer‟s command.

So, employers have the right to obtain an employee acknowledgment of a disciplinary action. Why is this a big deal?  Because employees may later claim that the action notice was "inserted" in the file, or that the employee did not have prior notice that his or her performance was unsatisfactory, or that the employee did not get a chance to see a disciplinary warning.  That "refused to sign" language that employers write on unsigned notices is worth nothing in court.  The employee's signed acknowledgment is worth a lot. That's why.

To be sure, an employer is not required to fire someone who does not follow directions, or who does not want to sign a disciplinary notice.  But then again, there are employers who may wish to impose consequences for employees' who refuse to follow directions.  Even in 2012, it's nice to know the employer still has a fundamental management right to ask an employee to obey a legal instruction.  Important caveat:  it's a good idea for the warning notice to include an express disclaimer, such as: "Signature is only an acknowlegement that the employee received a copy of this notice and does not signify agreement with the contents."  Or somethjing like that.  Remember: Nothing in this blog is legal advice. 

This case is Paratransit Inc. v. Unemployment Ins. Appeals Bd. and the opinion is here.

SV Makes Some Law: No Section 1983 Claims Based on ADA

It's nice to blog about one of your own cases, and even better when it's a victory.  So, Josephine Okwu was a Caltrans employee, who agreed to disability retirement status.  She then wanted to be reinstated from disability retirement status to her former job. Denied, she was unsuccessful under civil service procedure. She then sued CalPERS and Caltrans officials in federal court under 42 U.S.C. Section 1983 for violation of her civil rights.

She had to rely on Section 1983, she believed, because she could not sue her employer, Caltrans, under the Eleventh Amendment.  She could not sue CalPERS, either.  She could not use the ADA to sue the individuals in any court, because individuals cannot be held liable under the ADA.

The district court dismissed the case because Section 1983 cannot be used as a substitute claim for ADA claims that are not viable in federal court. The Ninth Circuit affirmed:

We conclude that Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights. We also conclude that Okwu’s allegations of fact do not state a claim under the Equal Protection Clause. We therefore affirm.

The case is Okwu v. McKim and the opinion is here.