Understanding Labor and Employment Law and Protecting Your Organization
The Goldstein Law Firm
September 2011 Newsletter
- I. Register Now for The Goldstein Firm 35th Annual Labor and Employment Law Seminar: “Back to Basics – Understanding Labor and Employment Law and Protecting Your Organization”
The Goldstein Law Firm will hold its 35th Annual Labor and Employment Law Seminar from 8 a.m. - 12 p.m. on Wednesday, October 19, 2011, at the Cerritos Center for the Performing Arts, located at 12700 Center Court Drive, Cerritos, California 90703.
Seminar Topics will include the following:
- Have economic conditions and the wide spread use of the Internet and Social Media changed the basics of hiring, firing, and the legal protections for business reputation and trade secrets?
- How to protect and defend your organization from Plaintiffs’ lawyers targeting your organization for a costly wage and hour class action lawsuit.
- New developments in federal and state labor and employment laws that you should be aware of, including how to defend your organization from an unwanted union organizing campaign that will use the National Labor Relations Board’s new rules to unionize your employees and harm your business.
To attend our firm’s October 19, 2011 Seminar, please complete the Attendance Form sent as a separate Attachment and fax the Attendance Form to The Goldstein Law Firm. Fax No. (310) 282-8070 or Email to cgoldstein@gpfirm.com
II. National Labor Relations Board Now Requires Every Private Sector Employer Who Purchases or Sells Directly or Indirectly Goods and Services Valued in excess of $50,000 in Interstate or Foreign Commerce To Post A Union Rights Poster
The National Labor Relations Board has recently issued a rule that will negatively impact each and every private sector employer in the United States. Ignoring the fact that Unions are not job creators, but instead are “job regulators” and according to many labor commentators “job killers of small business”, the NLRB has decided to issue a rule that effective November 14, 2011 will require employers within the jurisdiction of the NLRB to post a poster detailing employee rights to join and form Unions. The exact wording on the posters has not yet been determined by the NLRB. This new rule together with the “quick” election rules previously adopted by the NLRB are the Obama Administration’s political payoff to its labor allies and a response to the fact that in 2011 less than 7 % of private sector employees are members of Unions.
The NLRB must believe that union membership will increase if employees were aware of their right to join and form Unions. From my ½ century experience, today most employees are aware of their right to join and form unions, but choose a union-free work environment because they recognize that private sector unions do not provide real job security. Real job security comes from working for a successful company and/or public sector organization and building your individual skills and value to that organization. Employees also know that Unions in an anti-business climate have caused severe job losses in states, such as New York, Michigan, Ohio, Illinois and California, while states where there is a climate hospitable to business have seen their unemployment figures reduced over the past decade
What does the new NLRB poster rule require?
Every private sector employer under the jurisdiction of the NLRB must post a “Notice of Employee Rights” Under the National Labor Relations Act by posting a notice on and after November 14, 2011.
Where can you obtain a copy of the new poster?
Copies of the new notice will be available on and after November 1, 2011 on the NLRB Website and from the NLRB’s Regional Offices. The NLRB Regional Office in Los Angeles is located at 888 South Figueroa Street, 9th Floor, Los Angeles, CA 90017-5449. The NLRB Regional Office in San Francisco is located at 901 Market Street, Suite 400, San Francisco, CA 94103-1735.
What if your company is Non-Union, do you still have to post the new Notice?
Even if your company is non-union, if your business is within the jurisdiction of the NLRB, you will have to post the poster because the National Labor Relations Act applies to union and non-union workplaces.
What are the language requirements for the poster if I have a large non-English speaking workforce?
The Notice must be published in English and in another language if spoken by 20% or more of the workforce.
What if your personnel policies and employment notices are electronic – where do you post the NLRB poster?
You post the NLRB poster on-line in the same manner as you post other posters.
Are there any record keeping rules or reports the employer must submit to the NLRB?
No, the rule has no record keeping or reporting requirements.
How will the NLRB enforce its new posting rule?
The NLRB may treat any employer’s failure to post the NLRB notice of rights as an unfair labor practice.
What will the consequences be for failing to post the Notice?
The NLRB states that it “expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested to do so by the Board. In such cases, an unfair labor practice that has been filed by an employee or a union for the employer’s failure to post the notice will be closed without further action. However the NLRB may extend the 6 month statute of limitations for filing an unfair labor practice against an employer. If an employer knowingly and willfully fails to post the notice, the failure to post the notice will be considered evidence of unlawful motive in an unfair labor practice case involving other alleged violations of the National Labor Relations Act.”
Can you be fined for failing to post the Notice?
No, the NLRB does not have the authority to fine.
Important Tips for Living with the New NLRB Poster Requirements
- Secure the NLRB poster on or after November 1, 2011 either from the NLRB website, the NLRB Region Office in your area, or from the California Chamber of Commerce.
- Post a copy of the Notice Poster on at least one employee bulletin board where other workplace notices are posted.
- Do not assume that just because of the present economic climate that employees are happy to have jobs and will not engage in union activities.
- Train your supervisors and managers on how to maintain a union free work environment including but not limited to: (a) the effect of the new “quick election” NLRB rules; (b) the causes of unionization; (c) the early warning signs of union activity; (d) the rights of union members and management; and (e) what unions and employers can and cannot do and say during the union organizing drive.
III. The Collateral Source Rule does not allow an Injured Plaintiff to recover additional monies that were never expended by Plaintiff or by Plaintiff’s Insurance Company for Plaintiff’s Benefit
In Howell v. Hamilton Meats & Provisions, Inc., Case No S179115, the California Supreme Court upheld a trial court’s ruling denying payment of $130,286.90 to an injured Plaintiff as additional damages, based on the fact that this amount was never paid by Plaintiff or paid by Plaintiff’s insurance company on behalf of Plaintiff and therefore was not a damage suffered by Plaintiff.
Plaintiff Rebecca Howell was seriously injured in an automobile accident negligently caused by a driver for the Defendant, Hamilton Meats & Provisions, Inc. (“Hamilton”). At trial, Hamilton conceded liability and the necessity of the medical treatment that Howell had received, contesting only the amounts of Howell’s economic and noneconomic damages.
Following the trial, Hamilton moved to exclude evidence of medical bills that neither Howell nor her health insurer, PacifiCare, had paid. Hamilton asserted that the payment records for Howell’s insurance company, PacifiCare, indicated that significant amounts of the bills from the physicians who treated Howell and the bills from Scripps Memorial Hospital Encinitas where Howell was treated had been “written off” and therefore were irrelevant to establishing Howell’s true economic and noneconomic damages and should be excluded.
In support of its motion, Hamilton submitted Declarations containing billing and payment records from Scripps Memorial Hospital Encinitas and the Core Orthopaedic Medical Center where Howell’s doctors were employed that stated the following: (a) the Scripps Declaration stated that of the $122,841.00 billed for Howell’s surgeries, PacifiCare paid $24,380.00, while Howell paid only $3,566.00, and the remaining $94,894.00 was “’written off’ or waived by [Scripps] pursuant to the agreement between [Scripps] and the patient’s private healthcare insurer, in this case Pacificare PPO”; and (b) the CORE Declaration stated that of the Surgeon’s bill for $52,915.00, PacifiCare paid $9,665.00, and $35,392.00 was “waived or written off” pursuant to CORE’s agreement with PacifiCare. In total, Hamilton was seeking a reduction of $130,286.90, which was the amount “written off” by Howell’s medical care providers, Scripps Memorial Hospital Encinitas (Scripps) and CORE Orthopaedic Medical Center (CORE).
The trial court granted Hamilton’s motion, reducing the past medical damages award “to reflect the amount the medical providers accepted as payment in full.” Accordingly, the court reduced the judgment by $130,286.90. However, the Court of Appeal reversed the reduction order, holding that it violated the “collateral source rule.”
The “collateral source rule” prevents unfair deduction of injury compensation because the injured individual received injury compensation from sources independent of the person or entity causing the injury, such as monies received from an insurance company. The “collateral source rule” is intended to ensure that any plaintiff may recover in damages the amounts the plaintiff’s insurer paid for the plaintiff’s medical care on behalf of its insured.
The California Supreme Court reversed the Court of Appeals and upheld the trial court’s order reducing the amount of damages by $130,286.90. The Court held that the collateral source rule “has no bearing on amounts that were included in a provider’s bill but for which the plaintiff never incurred liability because the provider, by prior agreement, accepted a lesser amount as full payment.”(emphasis added) The Court reasoned that the amounts on the provider’s invoices were neither paid to the providers on Howell’s behalf nor paid to Howell in indemnity of her expenses. Therefore, no such recovery is allowed under California Civil Code Section 3281 and 3282 for the simple reason that the injured plaintiff did not suffer any economic loss in the amount of $130,286.90.
IV. NLRB lacks the authority to award back-pay to undocumented workers where the employer, not the employees, violated the Immigration Reform and Control Act
Several employees worked for Mezonos Maven Bakery, Inc. (“Mezonos”) for periods ranging from 5 months to 8 years. They never presented work-authorization documents, and Mezonos did not ask for documentation when it hired these employees.
On February 12, 2003, Mezonos discharged these employees after they concertedly complained about the treatment they were receiving from a supervisor. Unfair labor practice charges were filed, the parties settled, and the NLRB issued an unpublished Decision and Order pursuant to a formal settlement stipulation. The NLRB ordered Mezonos to offer the discharged employees reinstatement and to make them whole for lost wages and benefits. The Order also provided that at compliance, Mezonos could seek to establish that the employees were not entitled to offers of reinstatement and could dispute the amount of back-pay due. On March 15, 2005, the Board’s consent Order was enforced by the United States Court of Appeals for the Second Circuit.
Thereafter, the NLRB’s General Counsel issued a compliance specification to the Consent Order. Mezonos answered the compliance specification to the Consent Order, stating that pursuant to the U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB 535 U.S. 137 (2002)(Denying an award of back-pay to an undocumented worker who had been laid-off for his part in a union organizing drive), Mezonos could not offer the employees reinstatement or pay them back-pay because they were not legally authorized to work or be present in the United States. At the compliance hearing, Mezonos attempted to question the employees about their work-authorization status. The employees refused to answer, on 5th Amendment grounds. The Administrative Law Judge (“ALJ”) adjourned the hearing and filed with the NLRB a recommendation that the employees be ordered to testify on this issue. While the recommendation was pending, the General Counsel agreed to proceed on the assumption that the employees were undocumented.
On November 1, 2006, the ALJ issued his decision concluding that the employees were entitled to back-pay notwithstanding their undocumented status. Mezonos filed exceptions to the Judge’s decision contending that because the employees were unauthorized to work in the United States, back-pay was foreclosed by the Hoffman decision.
The NLRB reversed the ALJ and concluded that the U.S. Supreme Court’s Hoffman decision broadly precludes back-pay awards to undocumented workers regardless of whether workers or their employers violated the Immigration Reform and Control Act.
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