Employment Update

April 17, 2012
U.S. Appeals Court Stops NLRB Notice-Posting Rule, For Now

A three-judge panel of the D.C. Circuit Court of Appeals today issued an injunction against implementation of the National Labor Relations Board's notice posting rule.
 
As we have previously advised employers and our clients, the NLRB has issued an unprecedented new rule that, if implemented, will require most private employers to display posters in the workplace informing workers of their rights to organize, bargain collectively, and engage in other union activities without retaliation from the employer. http://www.hillfarrer.com/highlights/NLRB-Proposes-New-Rule-Requiring-Employers-to-Notify-Employees-of-Right-to-Unionize
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April 12, 2012
California Supreme Court Clarifies Employers’ Meal And Rest Break Obligations In Long Awaited Brinker Decision

After three years, the California Supreme Court finally issued its much-anticipated decision on how employers must manage meal periods and rest breaks. The April 12, 2012 unanimous decision in Brinker Restaurant Corporation v. Superior Court clarifies California employers' obligations to "provide" meal periods and "authorize or permit" rest periods. The decision highlights that all California employers need to have lawful meal and rest break policies to minimize the risk of expensive class litigation. Brinker is generally favorable for employers. The major take-aways are summarized below.

Meal Periods: No Duty to Ensure Employees Do No Work
First, the California Supreme Court held that an employer's duty to "provide" meal periods is a duty to relieve employees of all duty, empowering employees to decide how to use the meal period. Importantly, the court rejected the plaintiffs' contention that employers have a duty to ensure that no work is done during a meal period.
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Summer/Fall 2011
U.S. Supreme Court Upholds Class Action Waivers
***Excerpt taken from the Summmer/Fall 2011 Management Newsletter
California employers may have been given a significant legal victory as the United States Supreme Court ended California’s judicial prohibition of class action waivers in arbitration agreements.
California’s Supreme Court had previously conditioned enforceability of arbitration agreements on the availability of class action procedures in arbitration, and California’s trial and appellate courts had generally refused to enforce arbitration agreements that expressly disallowed class action procedures in arbitration. In AT&T Mobility LLC v. Concepcion, however, the Supreme Court determined that the Federal Arbitration Act (“FAA”) prohibits such conditional enforceability and instead requires all courts to enforce arbitration agreements according to their terms, even if those terms prohibit class proceedings in arbitration.
The Concepcion Court addressed defendant AT&T Mobility’s motion to compel arbitration under a cell phone contract requiring arbitration to be pursued on an individual basis, not as a representative of a class of thousands of similar customers. In doing so, it comprehensively analyzed the 2005 decision of the California Supreme Court in Discover Bank v. Superior Court, which held that arbitration provisions precluding class-wide arbitration are unconscionable and unenforceable in “contracts of adhesion” (e.g., a “take it or leave it” consumer agreement in which the non-consumer party writes the contract to its decided advantage).
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Oct. 13, 2011
Summary Of New Employment Laws That Will Apply To California Employers In 2012

Let’s start with the good news. Governor Brown vetoed several unappealing employment bills, including (1) AB 267, which would have invalidated forum selection and choice of law provisions in employment contracts with California employees, (2) AB 325, which would have required California employers to provide bereavement leave, and (3) SB 931, which would have imposed new requirements for use of payroll cards. 
 
Now the bad news. 

Governor Brown signed the following employment related bills into law:
 
AB 469 (Notice of Pay Details):  This new law requires employers to provide each employee, at the time of hire, with a notice that specifies (1) the pay rate and the basis, whether hourly, salary, commission or otherwise, as well as any overtime rate, (2) allowances, if any, claimed as part of the minimum wage, including meals or lodging, (3) the regular payday, (4) the name of the employer, including any “doing business as” names used by the employer; (5) the physical address and telephone number of the employer’s main office or principal place of business, and a mailing address if different, and (6) the name, address and telephone number of the employer’s workers’ compensation carrier.  The employer must notify each employee in writing of any changes to the information set forth in the notice within 7 days of the changes, unless such changes are elsewhere reflected on a timely wage statement or other writing required by law to be provided. The law also significantly increases the penalties that can be imposed on an employer who fails to timely pay or appeal from a Labor Commissioner award of wages or penalties to an employee, including in some circumstances authorizing a temporary restraining order preventing the employer from doing business in California. 
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