I would love to be able to tell my clients that the Internet and social media has created a very complex set of legal issues that requires them to hire me in order to help develop all new handbook policies, change the way they conduct background checks on applicants, and monitor their employees. However, unfortunately, this is not the case. Employers and employees need to calm down a bit. I cringe when I hear employment lawyers (and Facebook’s Chief Privacy Officer recent comments about employers asking to have employee’s Facebook passwords) advising people to refrain from using the Internet to do background checks on applicants because it may reveal that they are in a protected category, and then this could (possibly) be grounds for a discrimination case. Are these same lawyers advising their clients not to conduct interviews because during a face to face interview the employer will learn the same information? And just because the employer knows that an applicant or employee is in a protect class does not mean that discrimination occurred if it takes an adverse employment action against the applicant or employee. Sure, all employers are subject to frivolous legal actions. But, as I tell my clients, there are only two things my clients and I can control: (1) the advice I give them about how to act according to the law, and (2) whether my clients listen to my advice and act accordingly. The one thing we cannot control, no matter how hard we wish we could, is being able to stop people from filing a baseless lawsuit.

We’ve had the Internet since the 1970’s, and it became mainstream in the 1990’s. I would argue that most people (at least in the U.S.) have had experience on the Internet for at least a decade now. There has not been a lot of case law that has changed the way employment lawyers advise their clients on new human resources policies given the advent of the Internet and social media.

Have the courts simply not caught up with these "new" developments?

As typical lawyers always suggests at this point – courts are slow to deal with emerging technology issues, but I don’t think that is a play here. Courts are slow, but we’ve been actively using the Internet for a decade now. They are not that slow, and I think rather that the rules that were already in place and governed employer’s and employee’s activities were and still are sufficient in addressing the vast majority of the employment issues involving the Internet and social media. Sure, on the fringes there are a few technical items that may be the exception to this, but for the vast majority of employers the Internet and social media does not change much about how HR should conduct itself. The basic analysis regarding monitoring and employee’s off work conduct and right to privacy – the issues usually at play in these types of cases – is the same if the conduct at issue was done off the Internet. I would even argue that privacy cases usually are easier when it involves a posting on the Internet, as no one has any reasonable expectation of privacy in such a public disclosure.

What about social media policies?

That usually leads to the next question, “What about social media policies?” Again, most employers probably don’t need a specific social media policy.  And a basic policy (if you really think a social media policy is necessary) that the employer may terminate or discipline an employee for anything they do on the Internet if the employer could terminate or discipline the employee if the conduct at issue did not occur on the Internet would normally be sufficient.

Employers, lawyers, and employees need to take a step back and realize that even though we have these great new technological advances, the law developed before this technology does a pretty good job at resolving these issues in the employment context.

When faced with a hearing before the California Labor Commissioner in a Berman hearing, employers and employees alike expect to get a fair, consistent hearing to settle wage disputes. However, as Brian Sumers of the Daily Journal points out this is not always the case. His article (subscription required) provides an analysis of the inconsistencies that arise in holdings of cases heard by the Labor Commissioner’s office. It found that on average the deputy labor commissioners favor employees in about 80% of the cases they hear. In addition, the article analyzes how often specific deputy labor commissioners rule for employers or employees, and notes that the outcome varies drastically on the office and the deputy labor commissioner hearing the case. I’m quoted in the article as saying my experience has been consistent with this statistical analysis. The Labor Commissioner’s office states that it is focusing on additional training for the deputy labor commissioners to ensure a consistent enforcement of the wage laws.

Employers facing labor commissioner hearings need to ensure they are well prepared for the Berman hearings. Even though the same rules of evidence do not apply in Berman hearings as in civil court, the hearings are recorded and the parties testify under oath. Therefore, even if the deputy labor commissioner’s findings are against the employer, it is important to develop a record at this stage of litigation in order to establish the positions on appeal before a judge in superior court. For more information about hearings before the Labor Commissioner and how to prepare for them, see my previous posts here and here.
 

There are more reports of employers requiring applicants and employees to provide their passwords to their Facebook pages so that the employers can get a more accurate view of the employee’s character. I wrote about this issue a couple of years ago regarding the City of Bozeman requiring passwords from applicants. Apart from being a bad recruiting move, I believe it could arguably run afoul of California law as well.

Legality aside, employers that require this information will simply not get qualified applicants. I expect that most applicants or employees would simply refuse to provide this information. In addition, only people that don’t use social media much would have no problems with turning over their passwords. But companies need employees who understand social media these days, not someone who lacks initiative and some basic curiosity to at least log on to Facebook to see what the rest of the world is talking about.

In addition, there may be some real challenges against employers in California who require this information. First off, in California, Article I, Section I of the California Constitution guarantees citizens a right of privacy:

All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.

This right to privacy carries over to the workplace, but is even more protected when the employee is conducting personal activities during non-working hours. A person’s privacy expectation in their Facebook posts is very low since it is on the Internet. But one could argue that off-work conduct (which includes Facebook activity) is part of the employee’s privacy right recognized in the California Constitution.

Furthermore, section 96(k) of the Labor Code provides that the California Labor Commissioner may assert on behalf of employees:

Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer’s premises.

For example, in Barbee v. Household Automotive Finance Corp. (2003), a court provided some guidance about the ramifications of section 96(k). Barbee was dating a subordinate at work, which violated the company’s policy and created a conflict of interest. The company gave Barbee and the employee with whom he was involved the option that one of them had to resign or to end the relationship. Barbee refused to resign, and they did not end the relationship, so the company terminated Barbee. Barbee sued, arguing that the company violated Labor Code section 96(k) in that his employer was regulating his lawful conduct during personal time. The court rejected Barbee’s argument in stating:

We conclude that Labor Code section 96, subdivision (k) does not set forth an independent public policy that provides employees with any substantive rights, but, rather, merely establishes a procedure by which the Labor Commissioner may assert, on behalf of employees, recognized constitutional rights. Therefore, in order to prevail on his wrongful termination claim, Barbee must establish that his employment was terminated because he asserted civil rights guaranteed by
article I of the California Constitution. We conclude that Barbee cannot make this showing and therefore he cannot establish the first necessary element of his wrongful termination claim.

While the court held that the company’s actions in that case did not violate section 96(k), the facts were very favorable to the employer, and there are other arguments available to employees. For example, an employee may also argue violation of Labor Code Section 98.6 which states in part that “no person shall discharge any employee … because the employee … engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96 ….”
Unfortunately, there are not many reported cases dealing with these issues. However, with the ubiquity of Facebook and other social medial sites, legislatures and courts will undoubtedly need to weight into these issues.

The National Labor Relations Board (NLRB) recently held in D.R. Horton, 357 NLRB No. 184, that a class action waiver in an arbitration agreement was unenforceable as it violates employees’ rights under the National Labor Relations Act (NLRA). Specifically, it held that employees have “the right ‘to engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection…” under section 7 of the NLRA and therefore any waiver to participate in class actions violates this right.

However, since the D.R. Horton decision courts have upheld class action waivers in the employment context and have rejected the NLRB’s reasoning in D.R. Horton as inconsistent with the United States Supreme Court’s holding in AT&T Mobility v. Concepcion, which permitted class action waivers in arbitration agreements. For example, in LaVoice v. UBS Financial Services, Inc. (S.D.N.Y.), the plaintiff brought a putative class action alleging various wage and hour violations of the Fair Labor Standards Act and New York labor laws. In rejecting the reasoning of D.R. Horton, the court held that:

Given that the Supreme Court held in AT&T Mobility that ‘[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA,’ this Court must read AT&T Mobility as standing against any argument that an absolute right to collective action is consistent with the FAA’s ‘overarching purpose’ of ‘ensur[ing] the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings. To the extent that [plaintiff] relies…on the recent decision of the National Labor Relations Board (‘NLRB’) in D.R. Horton, Inc. and Michael Cuda, Case 12-CA-25764, January 2, 2012, as authority to support a conflicting reading of AT&T Mobility, this Court declines to follow [that] decision[].

As I’ve written about previously, this area of the law is quickly changing. There is no doubt that new decisions this year will continue to add to the development of this area of the law.

Apple is announcing the iPad 3 today, and given that it’s probably going to dominate the news cycle, I decided I should join in the hype. Don’t get me wrong, the iPad is great, and I use mine very day. People use iPads to fly airplanes, play instruments, avoid getting lost by using the sun as a compass, helps doctors care for patients. Did I mention that you can use it to fly an airplane?

The iPad can also lend the HR professional a helping hand. Here are some apps I recommend for HR professionals to assist them in their day-to-day jobs:

1. Evernote [Free (upgrade to premium account for $5.00 per month or $45 per year)]

This is a very popular app generally speaking. It is a great app to organize all types of data – notes, documents, even business cards. For HR managers, I could easily see this app being used to set up a folder for each employee, and uploading information regarding employees’ personnel file, disciplinary actions, and notes for day-to-day employee counseling. All content on Evernote is searchable – even PDFs. I use it to help me keep my personal items organized as well.  In fact, I’m using Evernote to write this article. All data is stored on the cloud, and can be synced with your computer also.

2. Sugar Sync [5GB free, additional storage plans start at $4.99 per month or $49.99 per year]

This app is great for syncing various work computers so that a document you created on your laptop is accessible on your desktop. It also stores your documents in the cloud, so if you are at a remote location or at home, you can still access your documents.

3. UPad  [$4.99]

I use this app to take notes on PDFs. It has great functionality. It can also be used as a memo pad to take hand written notes. If you are giving presentations through your iPad (see #10 below) it could also be incorporated into your presentation to highlight relevant portions of policies or documents you are discussing.

4. Holiday Plus [$0.99]

List of US holidays. Provides week number and number of days until the next holiday. 

5. Calendar Card [Free]

List of holidays in 123 countries for HR managers with an international workforce.

6. LinkedIn [Free]

Manage your LinkedIn account on your iPad.  By the way, you also need to join the California HR Network group.

7. Interview Questions Pro [Free]

This is primarily for employees preparing for an interview. However, it provides some good questions to use in interviews. Has sample questions for: candidate issues, behavior issues, work history, and critical thinking. Oh, did I mention the price – free.

8. Employee Tracker Pro [$5.99]

I always tell my clients to document, document, document. When facing the business of the workday, documenting employees’ accomplishments and infractions often goes undone. This app can be used to solve that issue. Enter employees’ names, and then the app allows the user to document good or bad behavior, date and time, supervisor on duty, and a description. The records can then be sent by email.

9. Direct Report: Employee Feedback Tracker for iPad [$4.99]

Another app to record employee feedback. Now there are no excuses for failing to document employee conduct!

10. Keynote [$9.99]

Apple’s alternative to PowerPoint. Great app for presentations. Connect your iPad to an external display or projector, and you can leave your laptop in the office.

Bonus: 11.  GoToMeeting [Free]

Keep up with your continuing education credits by attending webinars and meetings through GoToMeeting.com on your iPad.  Interested in testing this app out?  Drop me an email to attend my next webinar on policies California employers need to have in their handbooks.

So what are you waiting for? Get your company to buy you that new iPad3.

Have any additional recommendations for apps you like to use?  Add them to the comments section.

 

What is an arbitration agreement?

            Employers can agree that they and any employees who enter into an arbitration agreement will resolve their differences before a private arbitrator instead of civil court. There are many different arbitration companies to choose from, but the American Arbitration Association and JAMS are two of the larger ones that are routinely appointed in arbitration agreements. 

Are they enforceable in California?

            Generally speaking, if the agreement is drafted and implemented properly, they are. However, arbitration agreements are routinely struck down by courts if they are not properly drafted. For example, recently a California court held in Ajamian v. CantorCO2e, that an arbitration agreement was not enforceable because it required the employee to waive statutory damages and remedies and only allowed the employer to recover its attorney’s fees if successful, not the employee. 

Why would an employer want to implement arbitration agreements?

            There are a number of reasons. The arbitration process can proceed more quickly than civil litigation, saving a lot of time and attorney’s fees in the process.  For example, often times the discovery process moves more quickly, and if there are any disputes, the parties can raise them with the arbitrator telephonically, instead of the lengthy motion process required to resolve disputes in civil court. The arbitration process is also confidential, so if there are private issues that must be litigated, these issues are not filed in the public records of the courts. The parties also have a say in deciding which arbitrator to use in deciding the case, whereas in civil court the parties are simply assigned a judge without any input into the decision. This is very helpful in employment cases, which often times involve more complex issues, and it is beneficial to the parties to select an arbitrator that has experience in resolving employment cases.   

Are class action waivers enforceable in arbitration agreements?

            Yes. Two recent U.S. Supreme Court cases, AT&T Mobility v. Concepcion and Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp. have established that class action waivers in arbitration agreements are enforceable. However, Plaintiffs continually challenge class action waivers on numerous grounds, and it is critical employers’ agreements are properly drafted and up-to-date. 

Should every employer implement arbitration agreements?

            No. The decision to implement an arbitration agreement should be reviewed with an employment lawyer to discuss the positives as well as the negatives of arbitration agreements. As discussed above, there are a lot of benefits of having an arbitration agreement in place, but it does not come without a few drawbacks. The primary drawback is that in California, the employer must pay all of the arbitrator’s fees in employment cases. Arbitration fees can easily be tens of thousands of dollars – a cost that employers do not need to pay in civil cases. However, if the company values the confidentiality and speed of process provided in arbitration, this extra cost may well be worth it.

 

It may come as a surprise, but Stephen Colbert is human, and like the rest of us, has a mother. He has taken a leave of absence from his show to apparently spend time with his ailing mother. An article I read recently notes how Colbert’s leave could trigger family medical leave. I thought the article does fine explaining family and medical leave, but given Colbert’s importance to The Colbert Report, it is also a good reminder about a narrow exemption to an employee’s reinstatement rights if they are a “key employee.”

Basic Medical Leave Rights
The Family Medical Leave Act (FMLA), and the California Family Rights Act (CFRA) both provide employees the opportunity to take up to 12 weeks of unpaid leave for certain “qualified” events. Employers with 50 or more employees (part-time employees are counted to make this determination) are covered by the FMLA and CFRA. Employees who have worked for at least 12 months and at least 1,250 hours in the immediately preceding 12 months are covered by the laws. However, employers do not need to provide the leave if the employee works at a location with fewer than 50 employees within a 75-mile radius.

“Key Employee” Exception
If the employee is covered by the FMLA or CFRA the employee is entitled to return to his or her former position, or a position that is equivalent to the previous position held with equivalent benefits, pay, and conditions of employment. The small exception to this is for “key employees.” A key employee is defined as a salaried employee who is the highest paid 10% of employees within a 75-mile radius. If the key employee’s reinstatement would cause “substantial and grievous economic injury” to the employer, then the key employee may be denied reinstatement. However, when the employee takes the leave of absence, the employer must provide notice to the employee that he or she is a “key employee” and explain their reinstatement rights. If the employer fails to do so at the time the employee goes on the leave of absence, it loses the ability to deny reinstatement to the employee under the “key employee” exception.

No need to worry about Colbert though. It is being reported that Colbert will be returning to our televisions tonight.

California’s new labor code provision severely restricts an employer’s ability to conduct credit checks on employees. Labor Code 1024.5, which took effect on January 1, 2012, only allows employers to conduct credit checks for employees who meet one of the following categories:

    • A managerial position.

    • A position in the state Department of Justice.

    • That of a sworn peace officer or other law enforcement position.

    • A position for which the information contained in the report is required by law to be disclosed or obtained.

    • A position that involves regular access, for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, to all of the following types of information of any one person: (A) Bank or credit card account information. (B) Social security number. (C) Date of birth.

    • A position in which the person is, or would be, any of the following: (A) A named signatory on the bank or credit card account of the employer. (B) Authorized to transfer money on behalf of the employer. (C) Authorized to enter into financial contracts on behalf of the employer.

    • A position that involves access to confidential or proprietary information, including a formula, pattern, compilation, program, device, method, technique, process or trade secret that (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who may obtain economic value from the disclosure or use of the information, and (ii) is the subject of an effort that is reasonable under the circumstances to maintain secrecy of the information.

    • A position that involves regular access to cash totaling ten thousand dollars ($10,000) or more of the employer, a customer, or client, during the workday.

A “managerial position” is defined as an employee who qualifies for the executive exemption set forth in the Industrial Welfare Commission’s Wage Orders. The test of who qualifies as an exempt executive is very detailed, and it is determined by the amount of pay and actual duties the employee performs. So employers need to approach this prong with caution and obtain guidance to ensure the employee actually qualifies as an exempt executive.

The new law also added the requirement under California Civil Code section 1785.20.5 that employers must notify the employee in writing of the basis in Labor Code section 1024.5 as set forth above that applies to permit the employer to perform the credit check. The new law does not change the other obligations already in effect that employers had to comply with prior to conduct a credit check. These obligations include informing the employee in writing that a credit check would be performed, the source of the credit check, and that the employee may receive a free copy of the credit check. Finally, if an adverse employment action is taken by the employer based on the report, the employee must be notified of the name and address of the reporting agency making the report.

That’s right, my firm, Van Vleck Turner & Zaller LLP is growing, and we are looking for an employment lawyer with at least seven years of California employment litigation experience.  If you or someone you may know is interested, more information about the position can be found here.  The ideal attorney should be able to work in an entrepreneurial setting, enjoy the practice of law, and enjoy working with every size of client.   Cover letters and resumes can be submitted to me. 

 

2012 Requirement

Source

 

California Minimum Wage

 

 

$8.00 per hour (unchanged from previous years)

 

California’s Industrial Welfare Commission

 

San Francisco Minimum Wage

 

 

$10.24 per hour

 

City of San Francisco

Computer Professional Exempt Salary Rate

 

 

 

$38.89 or annual salary of not less than $81,026.25 for full-time employment, and paid not less than $6,752.19 per month

 

 

Division of Labor Statistics and Research

 

Hourly Physicians Exempt Hourly Rate

 

 

$70.86 per hour

 

Division of Labor Statistics and Research

 

IRS Mileage Rate

 

 

 

55.5 cents per mile for business miles driven

 

 

Internal Revenue Service