Category: Uncategorized

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
    

Individuals who receive “no remuneration for [their] services other than meals, transportation, or reimbursement for incidental expenses” are generally excluded from the definition of employees, and as such not covered by Workers’ Compensation Insurance. California Labor Code §3352(i). However, public agencies may declare volunteers to be employees for purposes of workers’ compensation coverage. §3363.5

It is often difficult for employer to obtain a meaningful reference from the former employer of a candidate because most employers will simply provide the “name, rank and serial number” of their former employees. In California, however, communications between former and prospective employers are privileged and the former employer would be protected from liability for defamation. The Civil Code even allows current and/or former employers to answer, if asked, whether the employer would rehire a current or former employee.

The California Court of Appeals in Los Angeles recently ruled that employers are required to pay employees an additional hour of pay – as premium payment – for each work day that a meal or rest period is not provided. The Court reasoned that this means that, if an employee fails to provide an employee with both a meal and rest period, the employer is required to pay two premium payments per day – one for failure to provide a meal period and one for failure to provide a rest break. UPS v. The Superior Court of Los Angeles
The Court gave a broad interpretation to Labor Code and applicable wage order “in favor of protecting employees…”

The California Court of Appeals ruled, on July 7, 2011, that the definition of “workday” is not necessarily related to the definition of “work schedule.” A work schedule means a designated period of work, while a workday is any consecutive 24-hour period beginning at the same time each calendar day. The Court noted that a “split shift” happens when a “work schedule” in interrupted by a non-paid non-working period established by the employer, other than a rest or meal period. For that reason, the Court held that an overnight shift what overlaps a workday is not a split-shift because the shift is continuous and is not interrupted by a non-working break established by the employer. See: Securitas Security Services USA, Inc. v. Superior Court.

The California legislature is currently considering the Domestic Workers’ Bill of Rights (AB 889). According the Assembly Bill’s authors, there are 200,000 domestic workers in California that would be benefited by a clarification in the applicable employment laws. The CDWBR would guarantee overtime pay, meal and rest breaks and paid vacation for in-home care givers. The bill is pending passage in the Senate and would have to survive a veto by the Governor, however, the State of New York last year approved a similar bill and California is not likely to “stay behind.”

The Ninth Circuit Court of Appeals has ruled that an “unlicensed junior accountant” may not be exempt from wage and hour law under the professional or administrative exemptions. The Court also ruled, in revoking the trial court’s summary judgment for the accountant, that the Defendant in this case had enough evidence for a jury to decide if the accountant was an exempt employee. Campbell v. PricewaterhouseCoopers LLP (2011) 642 F.3d 820.