Laborsphere

Board Reverses 34-year Rule and Requires Employers to Give Unions Actual Witness Statements

Since 1978, the National Labor Relations Board has allowed employers to refuse to provide unions with copies of witness statements obtained during an investigation of employee misconduct. In Anheuser-Busch, 237 NLRB 982 (1978), the Board agreed with a U.S. Supreme Court ruling that disclosure of witness statements to a union would create a risk of coercion and intimidation and could well cause witnesses to be reluctant to provide truthful statements or participate in Board investigations. Recognizing that a union may have a legitimate need for information related to the investigation, the Board required employers to provide summaries of the witness statements to the union. This requirement balanced the confidentiality rights of the employees providing the statements with the union’s interest in relevant information.

The Board has rejected this “bright-line” rule and replaced it with a “balancing test” to decide when and under what circumstances an employer must give the union actual witness statements. Under this new approach, articulated in American Baptist Homes of the West, d/b/a Piedmont Gardens, 359 NLRB No. 46 (2012), employers must produce witness statements to a union upon request unless the employer can prove its confidentiality interest outweighs the union’s need for the information.

In Piedmont Gardens, the employer operated a continuing care facility that offered independent living, assisted living and skilled nursing care level options to its residents. In June 2011, a charge nurse informed the Human Resources Director that she had seen two certified nursing assistants sleeping on the job. The HR Director asked the charge nurse to prepare a written statement and assured her it would be kept confidential. Another charge nurse who witnessed the sleeping employees prepared a written statement after learning that her fellow charge nurse had done so, but without an assurance of confidentiality. Based on the witness statements, one of the sleeping employees was terminated.

The union requested all written statements relied on in making the termination decision and the names and job titles of everyone who was involved in the investigation. The employer refused to provide any of the requested information, but it offered to work with the union to reach an “accommodation to disclosure.” No information was provided to the union, and it filed an unfair labor practice charge.

The Board majority held that the employer was required to provide the witnesses’ names and job titles, along with the witness statement from the charge nurse who was not assured of confidentiality. However, the Board stated it would not apply its new standard in this case because it would cause a “manifest injustice” to the employer who was guided by the Anheuser-Busch standard. Thus, the employer did not have to provide the witness statements of employees who were told their statements would remain confidential.

The discarded Anheuser-Busch standard provided employers and unions certainty about their respective rights and obligations regarding disclosure of witness statements given during an employer’s investigation of possible wrongdoing. The new standard eviscerates certainty and creates a standard that is vague, subjective and outcomes will be unpredictable because each situation will be based on its unique and nuanced facts. As noted by dissenting Board Member Hayes, the new standard “will often put human relations officials…in the position of making a legal assessment whether their employer’s confidentiality interests are legitimate, substantial, and superior to the interest of the union requesting witness statements.”

This ruling follows another recent Board decision that ruled employers can no longer, as a matter of human resource practice or policy, require employees to maintain confidentiality of investigatory interviews. Banner Health System, d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012). Unionized employers now must consider when and how they can give confidentiality assurances to employees who provide witness statements and under what parameters the employer’s confidentiality interests are more important than the union’s right to obtain witness statements. Employers should analyze their investigatory practices and policies in light of these two rulings.

The likely real-world implications for unionized employers is that unions will demand witness statements with regularity and, if the employer refuses, file unfair labor practice charges. More frequent involvement of legal counsel may well be necessary because of the vague and fact-specific balancing act employers are now required to make.

Facebook Firings – An Old Approach to the New Issue of the Virtual Water Cooler

The National Labor Relations Board (“Board”) issued its second decision on a firing over Facebook posts on Wednesday, December 19, 2012. The Board, avowing its commitment to the idea that speech on a personal, non-work-related social media outlet should be treated the same way as discussions on work premises, ordered a non-profit organization to reinstate five employees who were fired over Facebook posts. In a 3-1 decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37, 12/14/12 [released 12/19/12], the Board affirmed the administrative law judge’s ruling that the employer violated the National Labor Relations Act (“NLRA”) when it terminated five employees for posting Facebook comments in response to a co-worker’s criticism of their job performance.

While noting that at issue was a novel mode of employee communication, the Board agreed with the ALJ that the appropriate analytical framework for resolving the discharge dispute had long been settled under Meyers Industries and its progeny.[1] Under the Meyers Industries analysis, an employee’s discipline or discharge is unlawful if it is motivated by an employee’s concerted, NLRA-protected activity and if the employer knows the activity was concerted. The underlying ALJ ruling in Ortiz v. Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (NLRB Sept. 2, 2011) issued a landmark decision when it marked the first time a Board judge had ruled on a social media-related employment decision.

Member Brian E. Hayes, the sole dissenter and Republican board member, disagreed with the majority view that the employees’ comments were made for mutual aid and protection. However, writing shortly before his term on the board ended Dec. 16, he agreed that the Meyers Industries framework was the right analysis to use for evaluating whether the activity on Facebook is protected and concerted. In light of this decision, it is clear that concerted activity is protected whether spoken in the workplace or via the virtual water cooler. Even with the difference in type and style of communication used in social media outlets, the Board is not adopting any new rules or framework within which to evaluate the speech.

Additionally, this decision serves as a warning to employers who have been using their policies to justify adverse employment actions when faced with potentially protected activity. The Board majority in this case rejected the employer’s defense that these five employees had violated its zero-tolerance policy on bullying and harassment when they disagreed with another co-worker that the company was not doing enough to help its clients. The Board held that the employees were taking a first step toward group action to defend themselves against another co-worker’s accusations made to management and hence, was protected, concerted activity. Employers who seek to discipline an employee for comments he or she makes on social media sources must therefore not merely rely on their policy, but they must also ensure that their policy is valid in that, among other things, it does not discourage protected, concerted activity.

[1] Meyers Industries, 268 NLRB 493 (1983), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir. 1985), cert denied 474 U.S. 948 (1985), supplemented 281 NLRB 882 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988).

New Year, New Laws for California Employers – Deposition Limits, San Francisco Ordinances and Meal Periods

In the final part of our series, “New Year, New Laws for California Employers,” we take a look at new deposition limits, San Francisco ordinances and meal periods. Prepared by Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Deposition Limits

AB 1875 limits a deposition of any person to seven hours of total testimony, similar to the requirement in federal courts. Excepted from this limitation are depositions in employment and complex cases, and of expert witnesses.

San Francisco City Ordinances

For an employer who directly or indirectly employs or exercises control over an employee’s wages, hours and working conditions in the city of San Francisco, Minimum Wage, Health Care Security (HCS) and Paid Sick Leave (PSL) Ordinances benefit those employees (http://sfgsa.org/index.aspx?page=430).

For 2013, hourly minimum wage for employees in San Francisco increases to $10.55 from $10.22, while the statewide minimum wage outside San Francisco remains at $8. The required 2013 “spend per employee,” under the HCS Ordinance for employers with 100 or more employees increases to $2.33 from $2.20 per hour. For employers of 20-99 employees, spend increases to $1.55 from $1.46. Exempt from the HCS Ordinance are employers with 19 or fewer employees, managers and supervisors salaried at $86,593 or more and nonprofit employers of less than 50 employees. So far, there is no change in the PSL Ordinance.

Meal Periods

Of the many court decisions this year affecting employers, perhaps none impact as many employers as the California Supreme Court’s meal period directive in Brinker Restaurant Corp. v. Superior Court.

Before Brinker, California employers were relegated to policing and disciplining employees to ensure they took at least one, 30-minute nonworking meal periods and, if employers did not, they stood to risk class-action and single-plaintiff litigation over regular wages, overtime wages, wage premium (an extra hour of pay for each meal period lost), interest and attorneys’ fees.

By contrast, Brinker ruled that an employer’s obligation is to relieve its employees of all duty, with employees then at liberty to use the meal period for whatever purpose, but the employer need not ensure that no work is done during the meal period. Likewise, an employee may not capitalize on premium pay by intentionally working through provided meal periods, and an employer may not “impede or discourage” a full, uninterrupted meal period. Finally, the court held that an employer must provide a reasonable opportunity to take meal periods of at least 30 uninterrupted minutes, within the proper time frame, and relieve employees of all duties.

While this case is welcome news, employee claims may still surface. For example, some employees may contend that they were impeded or discouraged from taking lunch or leaving their work area, thus triggering premium pay. Some employees may habitually decline to take a meal period to try to consume “regular rate” working time midday and assure that some overtime is worked, forcing the employer to pay overtime rates for those hours. Consequently, some employers may still prefer to require by their own policies that meal periods are actually taken, rather than made available.

Links to the other posts from this series are below.

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

New Year, New Laws for California Employers – Added Whistle-blower Protections, With Whom Will the EDD Share Employer Reports and Contracts with Commission Employees

New Year, New Laws for California Employers – Right to Inspect and Receive Employment Records and Right to Inspect and Copy Wage Records

Next in our series, “New Year, New Laws for California Employers,” we take a look at the rights of the right to inspect and receive employment records and the right to inspect and copy wage records. Prepared by Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Right to Inspect and Receive Employment Records

Under existing law, an employee has the right to inspect the personnel records relating to the employee’s performance or to any grievance concerning the employee, and has a right to copies of documents the employee has signed. AB 2674 requires employers to provide a current or former employee—or the employee’s representative authorized by the employee in writing—an opportunity to inspect and receive a copy of those records at reasonable intervals and at reasonable times. Deliverance of these papers is not to exceed 30 days of a written request, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter.

Employers are also required to create a records request form, but information requestors are not required to use it. Current and former employees can bring legal action to recover a $750 penalty from the employer and their attorney’s fees, and obtain court orders compelling compliance.

This new law also adds some employer protections. Employers are not required to comply with more than 50 requests from a representative in one calendar month, may redact names of non-supervisory employees before producing records, and may charge no more than the actual cost of reproduction and, if mailed, postage. The new law generally does not apply to employees covered by a valid collective bargaining agreement. And it does not apply to: “(1) Records relating to the investigation of a possible criminal offense. (2) Letters of reference. (3) Ratings, reports or records that were: (A) Obtained prior to the employee’s employment; (B) Prepared by identifiable examination committee members; (C) Obtained in connection with a promotional examination.”

Right to Inspect and Copy Wage Records

Labor Code Sec. 226(a) continues to require employers to provide an itemized statement or paystub with timely wage payment that states gross wages, total hours worked and rates of pay for the hours of a nonexempt employee, all deductions, net wages earned, payroll period dates and other mandatory information. (See, paystub requirements: http://leginfo.legislature.ca.gov/faces/codes.xhtml, click on “LAB” and “226”).

Employers are required to keep a copy of these wage records for at least three years at the place of employment, or at a central location within California. Current or former employees may inspect or copy these records upon 21 days written or oral notice. An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with its Labor Code Sec. 226(a) paystub requirements is entitled to recover the greater of all actual damages or a specified sum, not exceeding an aggregate penalty of $4,000, and is entitled to an award of costs and reasonable attorney’s fees.

AB 2674 clarifies that the term “copy,” for purposes of wage record retention, includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information existing law requires to be included in the itemized statement.

SB 1255 makes it easier to pursue penalties against employers by presuming injury when wage statements do not have all required information. Under the new law, an employee is deemed to suffer injury if the employer fails to provide:

1. A wage statement; or

2. Accurate and complete information required (the employee cannot promptly and easily determine from the wage statement alone the amount of the gross or net wages paid to the employee during the pay period or other specified information, the deductions the employer made from the gross wages to determine the net wages paid to the employee during the pay period, the name and address of the employer or legal entity that secured the services of the employer and other specified information).

Links to the other posts from this series are below.

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

New Year, New Laws for California Employers – Added Whistle-blower Protections, With Whom Will the EDD Share Employer Reports and Contracts with Commission Employees

Continuing with our series “New Year, New Laws for California Employers,” we take a look at newly added whistle-blower protections, with whom the EDD will share employer reports and contracts with commission employees. Prepared by Mark Terman, partner in the Los Angeles office, this series looks at some of the significant new regulations becoming law in 2013 affecting private employers doing business in California.

Added Whistle-blower Protections

The California False Claims Act prohibits submission to the government of a false claim for money, property or services, and authorizes actions for treble damages and penalties. An example could be charging a government entity for goods or services that were not provided.

Employees, as “relators,” can inform the government or law enforcement, participate in these actions after satisfying certain requirements and share in the recovery. Employers cannot prevent employees from disclosing information to the government or law enforcement agency, or from acting in furtherance of a false claims action. There are similar statutes under federal law.

AB 2492 provides that contractors and agents can also be whistle-blowers under Cal-FCA. The new law also makes clear that retaliation for trying to prevent a false claim is prohibited, and that relief in a whistleblower or “Qui Tam” action can include reinstatement, double back-pay, interest on the back pay, special damages, punitive damages and attorneys’ fees.

With Whom Will the EDD Share Employer Reports?

Existing law requires employers to provide employee wage information, new employee information and new independent contractor information to the Employment Development Department for use in the administration of tax and unemployment insurance.

We are entering an era of enhanced information sharing designed to make government agencies more effective in enforcing tax and other laws, including billions of dollars that state agencies believe are lost in tax revenue due to improper classification of independent contractors. AB 1794 now permits the EDD to share employer and employee information with the Joint Enforcement Strike Force on the Underground Economy for the purposes of auditing, investigating and prosecuting violations of tax and cash-pay reporting laws and other agencies.

The strike force includes the EDD; Department of Industrial Relations, Division of Labor Standards Enforcement and Division of Occupational Safety and Health; Contractors’ State License Board; Department of Insurance, State Compensation Insurance Fund; and Department of Justice (see www.edd.ca.gov/payroll_taxes). Information sharing is also permitted with the California Department of Health Care Services, the California Health Benefit Exchange, the Managed Risk Medical Insurance Board, county departments and agencies, the Agricultural Labor Relations Board, the Franchise Tax Board and the State Board of Equalization.

Contracts with Commission Employees

Enacted in 2011, Labor Code Sec. 2751 becomes effective Jan. 1, 2013. It requires an employer, when entering into a contract of employment calling for commissions as a method of payment, to create a contract that must be in writing and that describes the method of computation and payment of commissions. The employer must give a signed copy of the contract to the employee and obtain a signed receipt for the contract from the employee. If the contract expires and the parties nevertheless continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party.

“Commissions” generally mean the same as in Labor Code Sec. 204.1: “Compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.”

Commissions do not include: short-term productivity bonuses (such as are paid to retail clerks) and bonus and profit-sharing plans— unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed. AB 2675 adds that temporary, variable incentive payments that increase commissions but do not decrease payment are not covered.

Links to the other posts from this series are below.

New Year, New Laws for California Employers – Employer Access to Social Media

New Year, New Laws for California Employers – Religious Dress and Grooming Protected and Breastfeeding Further Protected

Court of Appeals Refuses to Enforce NLRB Ban on Offensive Employee Clothing

Many employers have dress codes that regulate what employees can wear, particularly employees who have contact with customers, clients, patients and business partners, in order to convey the organization’s image, brand, values and mission. The National Labor Relations Board issued a decision striking down an employer’s discipline of an employee for wearing a t-shirt that ridiculed its employee recognition program. On appeal, the U.S. Court of Appeals for the D.C. Circuit took the Board to task for its ruling. According to the Court, the Board held this employer to a higher standard than it imposed on employers in the past and the Board provided no justification for the new standard. Medco Health Solutions of Las Vegas, Inc., v. NLRB, No. 11-1282 (D.C. Cir. Dec. 14, 2012)

To encourage excellent performance by employees, the employer introduced an employee recognition program—the WOW program. The program did not offer monetary rewards nor did they influence promotions or wage increases. The employer believed the program showed its commitment to excellence, and customers were regularly shown the wall of recognition when they came to the employer’s facility.

One day an employee wore a t-shirt to work that had the union logo on the front and on the back it read: “I don’t need a WOW to do my job.” That same day representatives of a customer were scheduled to tour the facility and the employee was instructed to remove the “insulting” t-shirt. The employee was told that if he did not feel he could support the WOW program, “there are plenty of jobs out there.” The employee changed shirts before the customers arrived, and he did not wear the t-shirt again.

The union filed an unfair labor practice charge alleging that the employer’s dress code policy was too broad and that instructing the employee not to wear the t-shirt violated the National Labor Relations Act.

The Board ruled that the employee had the right to wear the t-shirt and the employer’s ban on “phrases, words, statements, pictures, cartoons or drawings that are confrontational, slanderous, insulting or provocative” was too broad and interfered with employee rights to engage in protected concerted activity, which includes the right to criticize work rules and working conditions.

The Court of Appeals disagreed. The Court was troubled by the fact that in the past the Board upheld discipline of union employees at a grocery store for wearing shirts that read “Don’t Cheat About the Meat!” or bagel shop employees’ shirts that stated “If its not Union, its not Kosher.” (grammatical error was in the slogan). In neither case did the employer provide, nor did the Board require, evidence that the slogan “reasonably raised the genuine possibility of harm to the customer relationship.” In the Court’s view, the Board failed to offer any explanation as to why the slogan about the WOW program was different from these other two cases.

The Court noted that Board decisions are entitled to deference and that the Board has a “fund of knowledge and expertise all its own.” But the Court further observed that “this expertise is surely not at its peak in the realm of employer-customer relations.” In chastising the Board for its ban on “provocative and confrontational” slogans worn by an employee in a workplace visited by customers, the Court stated that “such expressions are seldom found in civil and decent places of employment.” The Court sent the case back to the Board to reconsider its ruling in light of the flaws cited by the Court.

On remand, the Board may be able to explain to the Court’s satisfaction why it has ignored its own prior rulings on provocative and confrontational anti-employer statements on clothing worn at work. The Court’s opinion conveys skepticism that the Board will be able to do so. In the meantime, employers should recognize that the Board is likely to continue to substantially limit an employer’s ability to prohibit employees from wearing clothing to work with provocative or confrontational messages that could harm customer or client relationships.