Brinker Announcement Tomorrow 10am PST

After 3 years, the highly anticipated Brinker decision will be announced tomorrow.

http://calchamber.typepad.com/hrwatchdog/2012/04/brinker-is-coming-brinker-is-coming.html

Workplace Litigation Trends Report

This is the 7th year that Fulbright & Jaworski has surveyed senior corporate counsel regarding litigation.  I'm focusing on the responses that affect businesses - and selecting those answers.  The results are illuminating!

In which area is there the most litigation pending in the U.S.?

Contacts: 53%
Labor & Employment: 49%
Personal Injury: 27%
(participants could pick more than one type)

In which area has there been the greatest increase in multi-plaintiff cases whether they be class, collective action, or significant multiple plaintiff action?
Wage & Hour: 46%
Labor Union: 13%
Age: 11%
ERISA: 10%


[What types of cases] will see the greatest increase in 2011?
Discrimination: 39%
Wage & Hour:35%
Labor Union: 17%

ERISA: 5%

FMLA Could Become More Complicated

The Department of Labor will be conducting a comprehensive survey on how employees in the United States use their Family and Medical Leaves.  The Obama administration has made a committment to improving work-life and work-family balance, and the results of this survey are likely to influence changes in FMLA.

For now, nothing to take action on - but keep your eyes/ears open.

Here's an article from the Chicago law firm of Franczek and Radelet.

Quarterly Newsletter and a Sage Cartoonist

I hope you'll checkout our HR & Management Newsletter by clicking here.

Also, I note with interest David Horsey's editorial cartoon from July 21.  Mr. Horsey is a talented cartoonist who's published through the Hearst Newspaper chain.  (You can see all his stuff here).  After I've been writing and speaking so much on this topic - that businesses are finding ways of doing more with fewer employers - a client saw this in the San Francisco Chronicle and gave it to me:

David Horsey - Hearst Newspapers

Overtime Gets A Little More Complicated in California

An employee makes a false claim for overtime. He says it's a mistake, but you believe otherwise, so you fire him.

That's OK, right?

Uh..not so fast. A new court decision, Barbosa v. Impco Technologies, makes that a wrongful termination.

Here's the recap and implications from Christopher W. Olmsted of Barker Olmsted & Barnier.

Social Media and the Workplace

I will be writing extensively in the upcoming weeks about Social Media and the Workplace.  Actually, not so much about social media (there are experts in that area all over the place), but the impact it has on employers and businesses.

So let's start off with an excellent article written by Maria Greco Danaher of Ogletree Deakins on the potential liability employers have when an employee uses social media.  Here's an important excerpt:

"...an employee who uses electronic media, including e-mail, blogs, or social networking sites, to make comments about a product made by his or her employer, and who fails to disclose his or her relationship with that manufacturer may create legal liability under the FTC guidelines.  Further, should a consumers rely on a particular comment in that posting to his or her detriment, any ensuing damage could be attributed to the manufacturer/company."

It's pretty apparent that social media has a place in the workplace.  Most experts (including me) agree that it's not practical to ban social media in the workplace.  So what do you do?

More to come...

California Alternative Workweek Schedules

One of the best ways of improving morale without costs is to consider Alternative Workweek schedules.  Up until January 1, it has been most difficult to implement.  However, California law regarding alternative workweek schedules have been eased somewhat as a result of AB 5.

Alternative workweek schedules allow non-exempt employees in a “work unit” to work in excess of 8 hours per day without incurring overtime. (California law includes a daily overtime requirement.) Generally, an employer may propose AWS work schedules of up to ten hours per day (12 for healthcare workers). Hours in excess of 10 per day, or 40 per week are overtime. Typically employers propose schedules consisting of four ten hour days or a “9/80” schedule. Special procedures describe advance disclosure and a secret ballot election prior to implementation of the AWS.

The AWS can apply to a “work unit” within a company, rather than to all employees. Previously, the Labor Code did not define “work unit,” although state regulations included a definition. The new law defines a work unit as “a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof.” The amendment also clarifies that even a single employee may qualify as a work unit as long as his job function meets the definition.

In setting up an AWS, an employer may propose a single work schedule, or it may propose a menu of work schedule options for workers to select. Can the “menu” include a traditional 5 day week for those employees who do not want to work longer days? The amended law clarifies that the menu options may indeed include a regular schedule of five eight-hour days in a workweek. Consequently, employees who do not wish to work an AWS schedule may still vote in favor of the AWS by choosing to work the regular 8 hour day. This change greatly increases the odds of achieving the 2/3 employee supporting vote need to implement an AWS.

Additionally, the new law specifies how often employees may move from one schedule option to another on the menu. For example, if an employee opts to work four 10 hour days, how frequently can he opt to go back to regular 8 hour days? As amended, Labor Code § 511 allows employees to move from one schedule option to another on a weekly basis.

Independent Contractor or Employee? Better Be Sure, And Fast!

Many employers incorrectly classify an employee as an independent contractor.  Some employers do it intentionally (to avoid workers' compensation and payroll taxes); but most are unaware of what the difference in classification actually is.

If you use Independent Contractors (also known as 1099's), you better audit all of them at once.  The IRS is about to launch comprehensive audits of 6,000 businesses.  The focus is - you guessed it - properly classifying employees.

Please take a moment to review the criteria the IRS uses to determine whether a person should be classified as an employee or Independent Contractor.  It's about control.  I've had clients insist a person is classified as a 1099 simply because that person requested classification that way! (That's wrong as well, by the way).

Get a qualified consultant or employment attorney to audit your practices and procedures as soon as possible.

Courtesy Baker Hostetler

Small Business Planning for H1N1

The Small Business Administration recently published “Planning for 2009 H1N1 Influenza Season Preparedness Guide for Small Business.”

Here are seven H1N1 preparedness steps that the government recommends you review and apply as appropriate to your place of business:

1. Identify a Workplace Coordinator -This person would be the single point of contact for all issues relating to H1N1 and be responsible for reaching out to community health providers and implementing protocols for dealing with ill employees - in advance of any outbreak or impact on the business.
2. Examine Policies for Leave, Telework and Employee Compensation - Obviously this will vary by business, but the emphasis here is on refreshing yourself and your employees about what your company's health care plans cover in the event of sick leave as a result of H1N1. You should also re-evaluate leave policies to ensure a flexible non-punitive plan that allows for impacted individuals to stay at home. Employees may also need to stay at home to care for sick children or telework in the event of school closures - so be prepared for this by implementing appropriate teleworking infrastructures in advance.
3. Determine who will be Responsible for Assisting - Appoint an individual or individuals who will be on-hand to assist ill personnel at your workplace - essentially a "go-to" person, who may be the same as the person chosen as your workplace coordinator.
4. Identify Essential Employees, Essential Business Functions, and Other Critical Inputs - Make plans to maintain communication and ensure clear work direction with critical personnel and vendors (and even customers) in the event that the supply chain is broken or other unpredictable disruptions occur.
5. Share your Pandemic Plans with Employees and Clearly Communicate Expectations - Consider posting a bi-lingual version of your preparedness plan, leave information, health tips, and other H1N1 awareness resources across all your work locations and online if you operate an Intranet.
6. Prepare Business Continuity Plans - Absenteeism or other work place changes need to be addressed early on so you can maintain business operations. Get tips on common sense measures your business can take from Business.gov here.
7. Establish an Emergency Communication Plan - Hopefully your business already has some form of emergency communication plan. If not, document your key business contacts (with back-ups), the chain of communications (including suppliers and customers), and processes for tracking and communicating business and employee status.

Managing Social Media in the Workplace

The impact of social media in the workplace is growing.  Time is being wasted, employees are 'friending' each other and liability for these issues is a litigation attorney's dream come true.

RSJ/Swenson has prepared a special report on Managing Social Media in the Workplace, based on Eric Swenson's recent presentation at the CalCPA Employment Practices Conference.  You can download the report here.

And bosses & managers: Don't "friend" your employees!

Retaliation Claims on the Rise

It's always been easier for lawyers to prove retaliation in the workplace than harassment, discrimination, or even wrongful termination.

With so many people now out of work, it's natural that retaliation claims against employers is now on the rise - 23% this year over last.

The classic example of retaliation comes from an employee who did the right thing - a whistleblower notification, a complaint against a supervisor or fellow employee - and that was terminated, transferred or had other repercussions from their employer.

A good article on this trend is from the Wall Street Journal.

Managing Swine Flu in the Workplace

RSJ/Swenson has prepared a special report on managing swine flu in the workplace.

Click here to receive your free copy.

USCIS Conducting H-1B Site Inspections

The United States Customs and Immigration Service (USCIS) is now conducting more than 20,000 random on-site inspections in 28 cities of businesses that employ H-1B nonimmigrant workers.


The purpose of the inspections is to verify that the H-1B employees are being paid prevailing wages and that they are employed in their positions of record.

Many of the visits - which are unannounced - are being conducted by contract USCIS employees, but at the very least affected employers must ensure that they have maintained proper documentary files for their H-1B employees, in addition to paying them prevailing wages and keeping them in the positions for which they originally petitioned the USCIS.

Why You Should Never Include A "Discipline Policy" In Your Employee Handbook

If your business is in an "at-will" state (and you are, unless you're in Montana), you should never ever include disciplinary steps in an employee handbook.

Latest case in point: Buttrick v. Intercity Alarms, LLC.  This company, located in Massachusetts, had a section in their employee handbook called "Disciplinary Policy"which indicated the severity of any disciplinary action taken by the company would “in accordance with the following: Verbal Counseling . . . Written Counseling . . . Suspension.”.

Guess what?  An employee was terminated after one verbal counseling, but not written counseling or suspension.  That is a business owner's right - unless it's in writing in the employee handbook!

So, the employee sued, and won $41,888 from Intercity Alarms.  (To say nothing of the legal fees incurred by Intercity).

Don't put a discipline policy in your handbook.  Train your management team in appropriate steps and anytime an employee needs to be disciplined, run it by your HR department or your HR Consultant.

A great write-up on the case is here from Ogletree Deakins.

Nevada Wage & Hour Lawsuits

We've been warning employers for several months that wage & hour compliance issues will result in numerous lawsuits this year - especially in Nevada.

It's starting to happen.

Wells Fargo & AutoZone have been sued (class-action status is currently pending) for mis-classifying employees.

With Wells Fargo, business banking specialists were allegedly mis-classified as exempt (from overtime, meal and rest breaks) when they were required to be 'on-call' on certain evenings.

In AutoZone's case, Assistant Managers were not compensated for working overtime (this is a case very reminiscent of the Long's Drugstore case in 2004).

The federal government is taking Wage & Hour violations seriously: Labor Secretary Hilda Solis recently announced plans to add 250 field investigators, increasing staff by 33%. The DOL believes 7 out of 10 businesses are not in compliance with Wage & Hour laws.

Garry Mathiason of Littler recently wrote:

No employment-law trend is more certain, universal or important than the total wage-and-hour compliance initiative and stopping the epidemic of wage-and-hour class-action (lawsuits)...

More ominous and prescient are these words from Mathiason (and, I believe, completely true):

With thousands of plaintiffs' attorneys examining every aspect of the payroll process, employers must expect maximum scrutiny..."Every employee who is terminated or demoted, or who experiences an unpleasant workplace event, is encouraged by Internet and television advertising to seek the advice of counsel. In almost every intake interview, the attorney's questioning turns to wage-and-hour issues in an attempt to find additional claims. Inspired by the prospect of turning a small individual claim into a multimillion-dollar class-action, the organization's wage-and-hour compliance goes under the microscope."

Thanks to Las Vegas Sun.

Businesses Taking Action Against E-mails, Linkedin, Facebook

In its 6th annual survey, the security firm Proofpoint reveals some new information regarding social media and e-mails by employees - and it's almost always resulting in bad news for the employees:

• 43 percent of US companies surveyed have investigated an email-based leak of confidential or proprietary information in the past 12 months. Nearly a third of them, 31 percent, terminated an employee for violating email policies in the same period (up from 26percent in 2008).
• US companies are also experiencing more exposure incidents involving sites like Facebook and LinkedIn as compared to 2008 (17 percent versus 12 percent). US companies are taking a much more forceful approach with offending employees -- eight percent reported terminating an employee for such a violation as compared to only four percent in 2008.
• Even short message services like SMS texts and Twitter pose a risk. 13 percent of US companies investigated an exposure event involving mobile or Web-based short message services in the past 12 months.

Read the entire survey here.

Krispy Kreme Fined for hiring illegal workers

If Krispy Kreme didn't have enough problems already - here comes news they've been fined by the EEOC for hiring illegal (undocumented) workers in their Cincinnati factory. The fine amounts to $40,000.

What is remarkable about this fine is how easily it could have been prevented. The paperwork is easy - you just download an I-9 form off the internet. If there is any doubt about the documentation a candidate provides, just login to e-verify that's provided by the Department of Homeland Security. That would have been much cheaper than $40,000 and the embarassment caused by the resulting publicity.

And in case you think it might not happen to you - ICE has announced audits of 652 other businesses in the coming months (and we're sure there are more to follow!). The Obama administration has changed the focus from illegal employees to the employers that employ them.

American Apparel and a Big Immigration Problem

American Apparel has been accused by ICE of employing 1,800 people in Los Angeles who are not authorized to work in the United States.

It begs the question - is your I-9 house in order?

One of the biggest mistakes we see when conducting HR Audits is when businesses screw up their I-9 process.

We've seen I-9's unsigned, misfiled, lost - and - in many cases - business owners who never used I-9's in the first place!

Get an audit completed today - you may be next...

Why Health Care Reform Is Necessary

It's a deliberately provocative title. And this is not an article about which reform is best for our country.

But...

The Department of Labor just came out with their statistics regarding benefits paid by employers.

The cost of medical benefits to private employers has doubled in the past 10 years.

In March 1999, employers paid an average of $1.03 per employee per hour for medical benefits (about 5.4% of total compensation)

In March 2009, employers paid an average of $2.00 per employee per hour for medical (about 7.3% of total comp).

And based on my work with small and medium-sized businesses, the quality of those benefits has declined dramatically in the past 10 years (along with huge increases in deductibles, co-pays, etc.).

Twice the cost with half the benefits. All underwritten by private businesses.

Something must be done.

Nevada Expands Parental Leave Requirements

Effective August 15, Nevada has expanded its parental leave entitlements for employees who wish to attend or participate in school activities of their children.

AB 243 allows parents, guardians and custodians of children in private or public schools up to 4 hours of unpaid leave per school year for each child.

The law requires employers who have 50 or more employees to grant that unpaid leave.

More detailed information from Rick Roskelley of Littler Mendelson.