The Recession Continues to Force Employers to Make Hard Decisions; Paying for Email and Texting After Hours
The Goldstein Law Firm
August 2010 Newsletter
“The Recession Continues to Force Employers to Make Hard Decisions; Paying for Email and Texting After Hours – The New Frontier for Wage and Hour Lawsuits; Why Do I Need to Have an Updated Employee Handbook; and the Court of Appeal Finds The Moscone Act – Which Effectively Prevents Injunctions From Being Issued Against Picketing on Private Property – Unconstitutional”
By: Charles H. Goldstein, Esq.
- I. The Recession Continues to Force Employers to Make Hard Employment Decisions
The U.S. and California economies are faltering and what little recovery there is has been a jobless recovery. Some economists are predicting a “double dip recession”. In order for your business to survive and prosper when a recovery finally comes, you must continue to make the difficult decisions to reduce staff and streamline your organization. You will have to continue to reduce overhead by reducing benefits and opting for addition efficiency measures such as removing employees who are the least productive employees, but who may be your most senior employees.
How To Avoid Triggering Costly Employment Lawsuits When You Layoff Employees
- Make certain that you document the economic and operational reasons for the staff reduction and the reason you selected the particular employee or employees for layoff.
- Consider any alternatives to layoff, such as a reduction of hours or shifting the person to a lower position for which they are qualified or can qualify with minimal training.
- Establish criteria that you will use for making layoff decisions in advance of layoffs.
- Make certain that your managers and supervisors are made fully aware of the criteria that you are using to make layoff decisions.
- Consistently apply the criteria you are using for the layoff and document your consistent application of the layoff criteria.
- Make certain the layoff axe does not fall disproportionately on employees in a protected class, such as employees who are 40 years of age or older, unless there is a legitimate non-discriminatory reason for this to happen. E.g. all of the positions that the company is considering eliminating are held by persons who are 40 and over.
- When laying-off employees, clearly communicate the reason or reasons for the layoff to the employee and confirm those reasons in writing to the employee.
- If financially possible, provide employees you are laying off with some form of severance or continued health benefits for a brief period of time.
- Have a recall policy in place before any layoffs limiting the duration of the time when a laid employee will be entitled to be recalled.
- Make certain to pay a laid off employee all monies owed the employee, including their final paycheck, accrued but unused vacation, any bonuses and/or commissions due and notify the employee that they are entitled to receive the right to continued health care benefits under COBRA or CALCOBRA as the case may be and to convert other insurance, such as group life insurance, in accordance with law.
- Have your labor and employment attorney review your layoff decisions before they are implemented. Such preventive legal advice can pay large dividends in avoiding costly and unnecessary lawsuits.
- Make certain that you have Employment Practices Insurance Policy in place that will provide coverage for claims of wrongful termination involving your layoff decisions and discrimination, preferably a policy that has selected The Goldstein Law Firm as designated counsel.
II. Paying for Email and Texting After Hours – The New Frontier for Wage and Hour Lawsuits
Employers who provide their non-exempt hourly employees with mobile technology for sending and receiving emails and text messaging could be in for a surprise when they find themselves being named as defendants in wage and hour lawsuits for unpaid wages. Non-Exempt employees can sue their employers for time they spend after work hours sending and receiving business related emails and text messages. Some employment lawyers consider this type of lawsuit the new frontier for wage and hour class actions. If you have employees who are on call after normal working hours you can become liable for unpaid wages for the time these employees spend performing work after hours.
Remember, an employee is entitled to be paid for all time that the employer “suffers or permits the employee to perform work.” If you provide your employees with Blackberries, iphones and other personal digital assistants such as cell phones and personal computers, there is a clear inference that you intended to have them use these devises for business purposes. If the employee takes these devices home after-hours, there is also a clear inference that you intended the employee to conduct business after-hours. These personal electronic devices create a 24 hour workplace that exposes employers who do not have rules that limit the use of these devices during non- work hours, to wage and hour liability.
Your Best Defense:
Your best defense to avoid creating unanticipated and unfunded liabilities for unpaid wages to hourly employees who are issued personal electronic devices, are the following actions:
1. Have a uniform policy contained in your Employee Handbook that managers are not permitted to direct hourly employees to check their email and/or text messages or send email or text messages after-hours and employees are not permitted to work after hours using personal electronic devices provided by the company;
2. Hourly employees are required to immediately report any time that they spend working after-hours using their electronic devices for business so that the company can determine whether the time spent should be paid as work time and pay for the time if it is in fact work time;
3. Create a clear employment policy contained in your Employee Handbook that defines what off duty work an employee will be paid for that involves the use of Blackberries; iphones, and other personal digital assistants and the reporting requirement to receive pay for off duty work; and
4. Make a decision to avoid liability for after-hours use of personal electric devices by not issuing hourly personal electronic devises to non exempt employees and directing these employees not to use their personal electronic devices for business related matters after work.
III. 10 Reasons Why You Need to Have an Updated Employee Handbook
Many years ago, I was told by my Client, a large, nationally recognized cosmetic company (that was ultimately purchased by Johnson & Johnson) that having an Employee Handbook stifled management creativity. I thought that was wrong headed at the time and still do. Employee Handbooks are essential to protecting an Employer’s actions in an age when management personnel decisions are routinely under attack and being second guessed by federal/state administrative agencies, disgruntled former employees, their contingency fee based lawyers, unsympathetic juries, courts and arbitrators.
These are the 10 basic reasons why I believe that all employers should have up to date Employee Handbooks.
- To avoid lawsuits based on the inconsistent application of your company policies.
- To meet your obligations under federal and state law to put your employees on notice of their rights and responsibilities, such as notifying employees about their rights under the Family Medical Leave Act, California Family Right Act, Pregnancy Disability Act, California Wage Orders, Fair Employment and Housing Act and other laws.
- To articulate critical policies relating to at-will status of all employees.
- To articulate discipline policies.
- To articulate policies relating to benefits.
- To articulate policies that relate to wage and hour laws, meal periods, rest periods, and uniforms.
- To articulate policies regarding the use of electronic devices, cell phones, computers, and other electronic devices.
- To articulate policies relating to the reasonable expectation of privacy in the work place and confidentiality.
- To articulate policies relating to when and how the employer evaluates the performance of employees.
- Clear employment policies that are understood by your managers and employees, in my experience, lead to fewer complaints, disputes and ultimately to fewer lawsuits.
IV. Court of Appeal The Moscone Act - Which Effectively Prevents Injunctions From Being Issued Against Picketing on Private Property – Unconstitutional
For many years, California Code of Civil Procedure Section 527. 3 (“The Moscone Act”) and California Labor Code Section 1138.1 made it almost impossible to secure an injunction to prevent labor dispute picketers from picketing on private property. Under the Moscone Act, courts were required to treat picketers engaged in a labor dispute differently and to ignore private property rights and the trespass laws. However, the California Third District Court of Appeal in Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8 recently concluded that both of these laws are unconstitutional. The Court held that the picketers picketing outside the store were on store property, and were trespassers. The Court further held that Ralphs could secure injunctive relief to remove the picketers from its private property. The Union and its picketers had ignored Ralphs’ request that they relocate their picket line off private property and onto a public area.
The purpose of picketing is to pressure a business through the threat of a loss of customers to give into the Union’s demand. The Ralphs Grocery Co. decision is important because it gives Employers the right to secure injunctions to remove picketers – from private property in front of their stores – to public areas. This decision also allows customers to choose or not to choose to do business with the Employer without fear of confrontation and undue pressure from pickets close to the entrance to the store.
This decision does not prevent picketers from picketing in public areas and exercising their rights to freedom of speech, but it does balance the scales and give Employers a legitimate course of action to protect their customers and businesses during a labor dispute.
V. The Goldstein Law Firm’s 34th Annual Labor & Employment Law Seminar
The Goldstein Law Firm will hold its 34th Annual Labor & Employment Law Seminar on Thursday, October 7, 2010 at the Cerritos Center for the Performing Arts from 8:00 am to noon. Breakfast will be served before we discuss the legal issues facing employers and the cost effective ways that employers can successfully minimize their chances of being sued, and/or successfully defend themselves against employment lawsuits and/or administrative complaints.
We are sending a separate Seminar Bulletins and Registration Forms. If you wish to attend and bring guests, please fill out the Registration Form and fax it back to our office.
The Goldstein Law Firm
8912 Burton Way
Beverly Hills, California 90211
Telephone: (310) 553-4746
Facsimile: (310) 282-8070