On May 15, 2012, the National Labor Relations Board suspended the new union representation election rules in response to an adverse Court order issued by a U.S. District Court for the D.C. Circuit.  The Court issued its Order in response to a lawsuit filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace.

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NLRB suspends implementation of representation case amendments based on court ruling

May 15, 2012

Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today. 

About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.

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NLRB POSTPONES POSTER RULE, AGAIN

As we previously reported here, the National Labor Relations Board had postponed the implementation of the employee rights notice-posting requirement until April 20, 2012.

Yesterday, the NLRB decided not to implement the rule pending the resolution of conflicting federal court cases. Specifically, a District of Columbia Court of Appeals issued a temporary injunction to stop the implementation of the rule and a District Court in South Carolina had concluded that the NLRB did not have the authority to issue the poster rule.

As soon as a Court decision becomes final, and the NLRB decides to implement the new poster rule, we will let you know in advance so you can plan accordingly.

Should the NLRB’s decision is found to be a reasonable exercise of delegated executive power, employers would have to publish a 11 x 17 inches poster or two 8.5 by 11 inches poster to inform employees of their rights under the National Labor Relations Act. The official poster can be found here.                                                                                 

On April 12, 2012, the California Supreme Court issued the long awaited decision in the case of Brinker Restaurant Corporation, et al. v. The Superior Court of San Diego County.

The main issue in the Brinker case was the question of whether an employer merely has to provide a meal period to employees or whether an employer had to ensure that employee took a meal period. The California Supreme Court essentially decided that an employer’s obligation is to provide a meal period but not to ensure that the meal period is actually enjoyed or taken by the employee.

The Meal Period Obligation

The Supreme Court concluded that ” … an employer’s obligation is to relieve its employees of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.” As further explained by the Court, “[a]n employer’s duty with respect to meal breaks … is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.” “… On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations …”

The Timing of the Meal Period

The Court also concluded that a meal period must begin before the end of the 6^th and 10^th hour of work, respectively. “We conclude that, absent a waiver, section 512 requires a first meal period no later than the end of an employee’s fifth hour of work, and a second meal period no later than the end of an employee’s 10^th hour of work.” The fact that the Court has “clarified” that a first meal period must start prior to the end of the 6^th hour of work may bring forth more litigation than the appealing employers hoped to avoid.

Under the Commissioned Employees Exemption, Cal. Code Regs., T. 8, §11070(3)(D), employers are not required to pay overtime wages to employees “whose earnings exceed one and one half (1 ½) times the minimum wage if more than half of that employee’s compensation represents commissions.” Labor Code §204.1 defines Commission Wages as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount of value thereof.” That is, the employee must be involved in the selling of a product or service, not making the product or rendering the service. The commissions have to be sufficiently related to the price of services sold or the value of the items sold to constitute a commission for purposes of the exemption. Areso v. CarMax, Inc. (2011) 195 Cal.App.4th 996; Harris v. Investor’s Business Daily, Inc. (2006) 138 Cal.App.4th 28; Keyes Motors, Inc. v. Division of Labor Standards Enforcement (1987) 197 Cal.App.3d 557.

California Labor Code §2802(a) requires for employers to reimburse employees for all business related expenses incurred in performing their duties, such as driving for the benefit of the employer.  The Labor Code does not specify when the payment must be made to the employee, however, the California Code of Regulations requires for mileage reimbursement to be paid when wages are paid or at least one paid month.  Specifically, the regulations state that:

“[e]mployers shall compute and pay mileage reimbursement when wages are paid, or at least once per calendar month as determined by the employer.  All such payments must be made not later than the end of the calendar month following the calendar month in which the expenses were incurred, unless the employee fails to provide the employer with the records of the number of miles driven for the reimbursement period, in which case, the reimbursement must be made no later than the month following the month in which the employee provides the employer with the records for the mileage claimed.”  Title 8 of the California Code of Regulations, Section 13701(g).

The National Labor Relations Board announced on December 23, 2011, that it has postponed the implementation of the “employee rights notice-posting requirement” until April 30, 2012. The new poster is available from the Board’s website in English, Spanish, Albanian, Amharic, Arabic, Bengali, Bosnian, Portuguese, Chinese, Farsi, French, Creole, Hindi, Italian, Japanese, Korean, Lao, Pashto, Polish, Russian, Samoan, Somali, Thai, Urdu and Vietnamese, which looks like this:

Employee Rights

Under the National Labor Relations Act

The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their

employers, and to engage in other protected concerted activity or to refrain from engaging in any of the above activity. Employees

covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information

about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board

(NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied

below, if you have any questions about specific rights that may apply in your particular workplace.

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions

of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages,

benefits, hours, and other working conditions.

• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers

or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related

complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the

NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations

without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by

the employee directly affected by the violation. The NLRB may order an employer to rehire a worker fired in violation of the law and

to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance

from the nearest regional NLRB office, which can be found on the Agency’s Web site: http://www.nlrb.gov.

You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572)

for hearing impaired.

If you do not speak or understand English well, you may obtain a translation of this notice from the NLRB’s Web site or by calling

the toll-free numbers listed above.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union

during non-work time, such as before or after work or

during break times; or from distributing union literature

during non-work time, in non-work areas, such as parking

lots or break rooms.

• Question you about your union support or activities in a

manner that discourages you from engaging in that activity.

• Fire, demote, or transfer you, or reduce your hours or

change your shift, or otherwise take adverse action against

you, or threaten to take any of these actions, because

you join or support a union, or because you engage

in concerted activity for mutual aid and protection, or

because you choose not to engage in any such activity.

• Threaten to close your workplace if workers choose a

union to represent them.

• Promise or grant promotions, pay raises, or other benefits

to discourage or encourage union support.

• Prohibit you from wearing union hats, buttons, t-shirts, and

pins in the workplace except under special circumstances.

• Spy on or videotape peaceful union activities and

gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the

union that represents you in bargaining with your

employer to:

• Threaten or coerce you in order to gain your support

for the union.

• Refuse to process a grievance because you have

criticized union officials or because you are not a

member of the union.

• Use or maintain discriminatory standards or procedures

in making job referrals from a hiring hall.

• Cause or attempt to cause an employer to discriminate

against you because of your union-related activity.

• Take adverse action against you because you have not

joined or do not support the union.

If you and your co-workers select a union to act as your

collective bargaining representative, your employer

and the union are required to bargain in good faith in

a genuine effort to reach a written, binding agreement

setting your terms and conditions of employment. The

union is required to fairly represent you in bargaining

and enforcing the agreement.

* The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural

and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor

Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the NLRA may be covered).

This is an official Government Notice and must not be defaced by anyone.

September 2011

Employment discrimination has been typically defined as unequal treatment at work, without justification, and based on a prohibited reason.

In California, the Fair Employment and Housing Act (FEHA) prohibits discrimination on the basis of race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, marital status, sex, age and sexual orientation, and also discrimination on the basis that a person is perceived to have a protected characteristic, or on the basis that a person is associated with someone who has or is perceived to have a protected characteristic. Employers may not retaliate against employees for exercising their rights under the FEHA.

Protected Categories

1. Age Discrimination (over age 40)
   
2. Disability Discrimination (physical or mental)
   
3. Race/Color Discrimination
   
4. National Origin
   
5. Ancestry
   
6. Religious Discrimination
   
7. Sex (Gender) Discrimination
   
8. Pregnancy Discrimination
   
9. Marital Status
   
10. Sexual Orientation
    
11. Medical Condition
    
12. Genetic Information
    
13. Military Status
    
14. Whistleblower