The National Labor Relations Board (NLRB) Regulation Requiring All Private Sector Employers to Post Official Notice of Employee
The Goldstein Law Firm
January 2012 Newsletter
By: Charles H. Goldstein, Esq.
“The National Labor Relations Board (NLRB) Regulation Requiring All Private Sector Employers to Post Official Notice of Employee Union Rights Is Put on Hold; Employers Are Acting Immediately to Trim Their Payroll and Are Not Waiting for the First Quarter of 2012 to End – How to Manage the Legal Pitfalls; When Is Sexually Harassing Conduct Severe Enough or Sufficiently Pervasive to Warrant A Monetary Recovery?; and Some Important New California Labor Laws that You Should be Aware of for 2012”
I. The National Labor Relations Board (“NLRB”) Regulation Requiring All Private Sector Employers to Post Official Notice of Employee Union Rights Is Put on Hold:
All private sector employees were required by a regulation adopted by the National Labor Relations Board to post a poster created by the NLRB, whether or not their employees were union members advising all employees of their rights under the National Labor Relations Act, as amended. The posters would have set out the rights to unionize or to refrain from unionizing. Employer organizations have challenged this requirement and for the time being employers are not required to post notice until the court acts.
II. Employers Are Acting Immediately to Trim Their Payroll and Are Not Waiting for the First Quarter of 2012 to End – How to Manage the Legal Pitfalls”:
The euphoria of the holidays is now over, and employers are faced with the reality that although this is a new year, the sales and revenues of most businesses are not predicted to improve soon enough to maintain their existing staffing levels. Even mainstream economists are predicting that 2012 will be a tough year for businesses. Many of our clients are not waiting to see “what happens” during the first quarter, but are immediately moving forward to trim their payrolls. After three years of a no growth economy with high unemployment continuing into 2012, many of our clients, including public agencies, will have to markedly reduce their workforce to deal with the economic reality facing them in 2012.
Employers are going to have to make more tough choices to stay in business until the economy turns around and we have a President and Congress that understand the importance of creating an environment for private sector job creators to invest and hire employees.
Regardless of the sound economic justification that you may have for laying off senior employees who believe that you owe them lifetime employment for their loyalty, your layoff decision, to these employees, will still seem unfair and unjustified. They will attack your decision as being based on their age if they are 40 and over. Senior laid off employees may also attempt to delay the layoff by claiming some form of medical disability; requesting some form of federal and/ or state mandated leave of absence, file a workers’ compensation claim, and/or file a harassment and/or discrimination claim internally with your organization or with federal and/or state administrative agencies so that they can claim retaliation when they are laid off. The key to successfully avoiding the costly legal actions that arise when you lay off senior employees is to clearly document the legitimate business reasons for your actions, and why you selected the particular employee for layoff and not someone else.
Ten important tips for avoiding legal challenges in 2012 to your layoff decisions:
- Document the reason or reasons for your decision to lay off employees and why you are making that decision now as opposed to six months ago.
- Document why you selected the employee or employees for layoff and why you did not select other employees.
- Use a uniform standard to determine who is being laid off that should include some credit for length of service, but should not be based solely on length of service. For instance, an employer who lays off a 10 year employee, and who keeps someone in the same job classification that has been on the job for 2 or 3 years, will have a great deal of explaining to do to a court, jury, administrative agency or an arbitrator.
- If your layoff decision is based on performance, you should have written performance evaluations to support your decision rather than the unsupported opinions of managers and supervisors.
- Do not layoff a disproportionate number of employees who are 40 and older.
- Never use salary savings as the sole basis for your layoff decision where your decisions disproportionately affect employees who are 40 and older.
- Offer severance to employees being laid off only if this makes economic sense and condition the severance on the laid off employee signing a properly drafted and legally enforceable release of all claims.
- Make certain to pay all laid off employees all monies due, including all accrued, but unpaid vacation.
- If you employ 75 or more employees and lay off 50 or more employees in a 30 day period, you have to follow the provisions of the so-called “baby WARN Act”, California Labor Code Section 1400 et. seq.
- Have your layoff decisions vetted by your employment lawyers to ensure that they pass legal muster. No one, even an experienced employment lawyer, can prevent an employee from challenging the legality of their lay off, but in my experience having your layoff decisions vetted and reviewed before they take place minimizes the risk that your decisions will be successfully challenged.
III. When Is Sexually Harassing Conduct “Severe Enough” or “Sufficiently Pervasive” to Warrant A Monetary Recovery?
In Fuentes v. AutoZone, Fuentes based her claim that AutoZone supervisors had created a sexually harassing hostile environment; a jury awarded Fuentes $160,000 in damages, $23,898.76 in costs and $677,025 in attorneys’ fees.
In a case such as Fuentes, the plaintiff had the burden of showing “that the harassing conduct was severe and or pervasive enough to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.” There is no recovery for harassment that is occasional, isolated, sporadic, or trivial. The conduct alleged to be sexually harassing must be objectively and subjectively offensive. An employee who subjectively perceives the workplace as hostile or abusive will not prevail if a reasonable person considering all the circumstances would not share the same perception.
Whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency of the discriminatory conduct; its severity; and whether it unreasonably interfered with an employee’s work performance.
The following events took place during the period of May 27 through June 19:
Fuentes was humiliated by her manager Garcia in front of customers by directing her to spin around showing her butt to customers. Her manager, Mr. Garcia grabbed her hand and pushed her back to spin her around and said “Show your butt to the customers and that way you sell more.” The customers laughed and giggled in response to Garcia’s action. Fuentes walked away, but Garcia called her back to finish the transaction with the customer. Later that same day, two of the same customers, who were present during the first incident, returned to the store. As they were walking towards the parts counter, Garcia told Fuentes “Get ready for them. Get ready to turn around for them.” Fuentes said “No”. On another occasion, Garcia told Fuentes that if “she and he owned the store, they would be rich because all Fuentes had to do [to sell product] was [to] turn around and show them [her] butt.”
Garcia and another supervisor Carrillo spread a rumor that Fuentes had herpes because she had a fever blister on her lip and was directed to come to work even though she was sick. When Fuentes confronted Garcia about spreading the rumor that she had herpes, Garcia told Fuentes he had a photograph of her kissing a co-worker, Jimenez, and would use that as grounds to fire her. Fuentes told Garcia that this was impossible because she and Jimenez were not involved in a relationship at that time. The store carried magazines Jimenez described as “low rider magazines: depicting women in bikinis. Garcia told Jimenez that Fuentes was in the wrong profession and should be working for strip joints or poising for a low rider magazine.” Garcia repeatedly asked other employees whether Fuentes and Jimenez were dating. Another supervisor Carrillo asked Jimenez if he was having sex with Fuentes and Fuentes was in the manager’s office and Carrillo grabbed a magazine depicting women in bikinis from the top of the safe and asked her why she did not work at a strip club or pose for a magazine to make more money.
The Court found that demands by Garcia that Fuentes display her body to customers as a means of increasing sales and the herpes rumors, was offensive conduct that was specifically aimed at Fuentes because of her sex, female. The Court concluded that based on the conduct of Garcia and Carrillo, Fuentes was subjected to unlawful verbal abuse and harassment. The Court concluded that Garcia and Carrillo created a workplace “permeated with discriminatory intimidation, ridicule and insult.”
Tips for Employers to Prevent Costly Sexual Harassment Claims and Lawsuits:
- Take all complaints of sexual harassment seriously regardless of the source of the complaint.
- Immediately investigate any claim of sexual harassment.
- Take immediate actions to prevent the sexual harassment from continuing, including discipline up to and including discharge of anyone who engages in sexually harassing conduct depending on the severity of the conduct.
- Train your supervisors in what constitutes sexual harassment and how to prevent sexual harassment in the workplace. The Goldstein Law Firm conducts comprehensive sexual harassment training programs that are tailored to the individual needs of clients.
- If you are a chain store operation, such as AutoZone, make certain that employees have a way to register their complaints in confidentiality above the store level.
- 6. Seek immediate advice and counsel from your employment lawyers when you learn about a complaint of sexual harassment.
IV. Some Important New California Labor Laws that You Should be Aware of for 2012
Credit Check
AB 22 - prohibits all employers and prospective employers, not including certain financial institutions from obtaining and using consumer credit reports about applicants or employees. The prohibition does not apply to “managerial positions,” defined as those who qualified for the executive exemption from overtime.
Pregnancy Disability Leave - previously discussed in the December 2011 Newsletter
SB 459 - requires all employers with five (5) or more employees to continue to maintain and pay for health coverage under a group health plan for an eligible female employee who takes Pregnancy Disability Leave up to a maximum of four months in a 12 month period.
Willful Misclassification of Independent Contractors
SB 459 - provides penalties for misclassification of independent contractors of between $5000 to $25,000.
Written Commission Agreements - Effective January 2013
AB 1396 - requires employers who have commission pay arrangements with employees to put those agreements into a signed written agreement.
Notice of Pay Details
AB 469 - requires employers to provide non exempt employees at the time of hire a notice that specifies: The rate of pay and the basis, whether hourly, salary, piece work, commission or otherwise, including any overtime rate. Allowances, if any, claimed as part of the minimum wage, including meal and lodging allowances. The regular pay day designated by the employer; the name of the employer including any doing business as named. The physical address of the employer’s main office, principal place of business and any mailing address, if different. The telephone number of the employer and the name, address, and telephone number of the employer’s worker’s compensation carrier.
Interference with Rights under Leave Laws
AB 592 - adds language to the California Family Rights Act and the Pregnancy Disability Leave law that makes it unlawful to interfere with or in any way restrain the exercise of rights under these leave laws.
Liquidated Damages for Minimum Wage Violations
AB 240 - allows an employee that alleges a minimum wage violation to recover liquidated damages pursuant to any complaint brought before the Division of Labor Standards Enforcement. Employees would be entitled to recover an amount equal to the wages unlawfully unpaid, plus interest.
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The Goldstein Law Firm
8912 Burton Way
Beverly Hills, California 90211
Telephone: (310) 553-4746
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