An Employee Fails to Return from Leave As Originally Scheduled—Has That Employee “Voluntarily Resigned”?

The California Court of Appeal has issued a new ruling that reminds employers to scrutinize all communications received from employees about their leaves and their own attempts at follow-up before considering an employee to be, “voluntarily resigned.”

Click here to read the full article about this ruling on our Disability, Leave & Heath Management Blog.

 

California Division of Industrial Relations Overview of New California Laws Available

Jackson Lewis recently completed a series of seminars throughout California on many of the key California workplace law updates. On December 28, 2016, the California Department of Industrial Relations (DIR) released its own 2016 Legislative Digest summarizing new laws that impact employees. The DIR Legislative Digest is the DIR’s summary of key laws and is helpful for employers to see their focus.

Highlights include:

  • SB 3 on the annual increases to the state minimum wage on January 1, 2017.
  • AB 1066 on overtime pay for farmworkers.
  • SB 1015 on the Domestic Workers Bill of Rights.

If you have questions, please feel free to contact the Jackson Lewis attorney you normally work with.

Are You Ready? City of Santa Monica’s Sick Leave Provisions Become Effective January 1, 2017

Are you sick of sick leave yet? Beginning on January 1, 2017, the new paid sick leave provisions under Santa Monica City’s recently adopted Minimum Wage and Sick Leave law will go into effect.   

Click here to read the full article and find out more on our Disability, Leave & Heath Management Blog.

 

California Supreme Court Denies Review of Castro-Ramirez Decision — California Employers Must Consider Leave Accommodation for Employees Caring for Disabled Family Members

In Castro Ramirez v. Dependable Highway Express, Inc., the employee alleged that he was terminated from employment after he made complaints about changes to his work schedule which impacted his ability to be at home during his disabled son’s dialysis treatments. On the surface, this seemed like a claim for reasonable accommodation (i.e., a modified work schedule) by a non-disabled employee and we all know that only disabled folks are entitled to receive reasonable accommodations.  Easy decision, right?  Wrong.

Click here to read the full article and find out why on our Disability, Leave & Heath Management Blog.

As Charter School Union Organizing Increases, Employers Must be Vigilant in Opposing Organizing Efforts

In recent years, there has been an uptick in union organizing focusing on California charter schools.   Traditionally, education related labor groups focused on organizing large public school districts, but with over 1,200 charter schools in California, groups like the California Teachers Association have shifted gears to try to bring unions into charter schools. Such organizing efforts often occur surreptitiously, and relatively quickly; if charter schools are not vigilant in their approach to labor groups, they can quickly be entangled in lengthy union negotiations which can divert attention from curriculum development and student growth. 

Under the Educational Employment Relations Act (the “EERA”), which governs labor relations in public and charter schools in California, a labor organization may be certified as an exclusive bargaining representative simply by proof of majority support. Unless the school disputes the bargaining unit sought by the union, the school is obligated to recognize the union, generally without an election. Once a showing of majority support is made, the Public Employment Relations Board (“PERB”) will certify a union and require the employer to begin bargaining in good faith with the union. From that point forward, the school must meet and negotiate in good faith with the union over all terms and conditions of employment, and is generally unable to make changes to these matters pending the exhaustion of negotiations.  

In addition, and even prior to full negotiations with an “exclusive representative,” the EERA requires the school employer to “meet and confer” with an “employee organization” over fundamental employment matters. While this latter obligation is less onerous that full-fledged traditional bargaining, it is important and may be used by a group of teachers as a precursor to full bargaining prior to the time the Union gains majority support.  In either case, failure to recognize the bargaining obligation conferred under the EERA may subject the public school employer to an Unfair Practice Charge to be litigated before the PERB; the predominate agency which adjudicates cases brought under the EERA.  

Based upon growing union interest in gaining new membership, the battle for unionizing charter school teachers has increased dramatically in recent years. With over 1,200 charter schools in California, and only a small fraction of those schools being represented by a labor union, unions have increased focus on targeting charter schools to increase union membership.  Recently, CTA targeted California Virtual Academies (“CAVA”), a group of eleven separately managed and operated online charter schools spanning across California. PERB, in an unprecedented decision, granted CTA’s petition to represent all CAVA schools as a collective group, even though each CAVA charter is demonstrably a separate public school employer under the EERA. PERB’s landmark decision makes it much easier for the CTA or other education union to organize certificated teachers who work for charter schools which are commonly branded or within a charter network. The CAVA decision will have far-reaching impact as UTLA is engaged in ongoing organizing efforts in Los Angeles on Alliance College Ready Schools, a group of twenty-six different charter schools.  

PERB’s recent decisions affecting union and employee rights to organize have been decidedly pro-union, and there is no reason to expect this trend to reverse. Therefore, it is critical that charter schools be vigilant of employee rights and nascent union organizing. Under the EERA, a public school employer may not threaten, interfere, coerce, or discriminate against employees because they have exercised their rights to join a union or otherwise engage in union organizing activities. However school management also has countervailing rights to non-coercive and non-threatening statements of facts and opinions about unions and union activities; such messaging should be done with the advice of counsel. Moreover, under the EERA, teacher unions may access employee work areas, bulletin boards, mailboxes and other means of communicating with teachers they seek to represent. PERB has taken a liberal view of union access rights, and has held that, in its efforts to organize and represent teachers, a union may have  employee email addresses and disseminate its message and literature over the school’s email server. It is also recommended that any access restrictions policies, or other rules or policies which may affect union organizing rights under the EERA be in writing, and narrowly constructed under the guidance of knowledgeable legal counsel. We further recommend that any such rules be formally adopted by the charter school’s governing body prior to the discovery of a union organizing campaign.

 Finally, in the event of union organizing,  the charter school employer should consider whether to seek jurisdiction under the National Labor Relations Board (“NLRB”) under the National Labor Relations Act (“NLRA”), which is the private-sector analog to the EERA. In some cases,  charter schools have done so successfully to gain advantage of the NLRB’s election procedures prior to union certification. Deferral to NLRB jurisdiction and election procedures may give teachers a second chance to reject union representation after having signed a union card or petition without full information about union dues and fees, and the uncertainty of union representation and negotiations.

Unfortunately, for charter school management and teachers alike, union organizing may come quickly, and in stealth, making it difficult or impossible to get all the information out before it is too late. Vigilance and knowledge are the key and it is never too early to air out the issues so that teachers may know what they are getting into before they sign union cards or petitions. If you believe your charter school may be a union target, or that union organizing may be underway, please call us immediately so that you may know your rights and obligations under all applicable laws and regulations.

CA Revives Former DJ’s Disability and Leave Claims Against Univision Radio

What is a disability under the Fair Employment and Housing Act? When are employers on notice to provide employees leave under the California Family Rights Act?  These were some of the questions addressed in the California Court of Appeals (Second Appellate District) November 15, 2016 decision, Soria v. Univision Radio Los Angeles, Inc. 

Click here to read the full article about this decision on our Disability, Leave & Heath Management Blog.

Soto v. Motel 6 Operating, L.P.: Employees’ Wage Statements Need Not Include Accrued Vacation Time Prior to Termination

All California employers should know by now that if they have a paid vacation policy, the vacation benefits constitute a form of “wages” under California law. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103; Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 784.)  California employers are also likely readily familiar with the requirements of Labor Code section 226(a), which require employees’ wage statements to contain certain information, including gross wages earned.

But absent a vacation pay-out upon the termination of the employment relationship, are employers required to include the monetary value of accrued vacation time in employees’ wage statements under Section 226(a)? The answer is no, as held by the Court of Appeal on October 20, 2016 in Soto v. Motel 6 Operating, L.P.

In so holding, the Court of Appeal found that neither the statutory language of section 226 nor its statutory purpose supported the position that employers are required to list the monetary amount of earned vacation pay on each itemized wage statement.

The court first noted that despite the fact that section 226(a) was highly detailed and contained nine separate categories of information that must be included on wage statements, the section did not identify accrued paid vacation as one of these categories. It rejected the argument that an accrued vacation benefit fell within the definition of “gross wages earned” and “net wages earned” categorized in section 226(a), because courts recognized that although vested vacation time vested as labor was provided, unused vacation time did not become a quantifiable vacation wage until the employee separated from employment.  (Church v. Jamison (2006) 143 Cal.App.4th 1568, 1576-1577.)

The court also found support for this principle in the language of Labor Code section 227.3, which required all vested vacation to be paid to the employee “as wages” at his final rate upon termination, which lead to the reasonable inference that prior to termination, accrued vacation pay was not a “wage.” The court further observed that before separation, the amount of vacation pay to which the employee might be entitled was not ascertainable, since the amount of unused vacation and an employee’s final rate may change.

Additionally, the court looked at the provisions of section 226(a) as a whole, instead of focusing solely on the statutory term “wages.” These provisions stated that at the time of each payment of wages, the employer must furnish an accurate itemized statement of these earned wages.  Since unused vacation pay was not paid to the employee until the termination of the relationship, and the monetary value of the unused vacation pay could not be determined until the termination date, the court found it illogical to extend the requirement that an employer identify earned “wages” to accrued vacation benefits.

Finally, the court reviewed the statutory purpose of section 226(a), which was to document the paid wages to ensure the employee was fully informed regarding the payment of those wages.  Requiring the employer to identify items that were not part of the employee’s current monetary compensation did not further this legislative purpose.

California Supreme Court Asked to Consider Associational Disability Discrimination Case

On October 7, 2016, Dependable Highway Express filed a petition asking the California Supreme Court to review a decision to allow a non-disabled employee to pursue his claim of association based disability discrimination.

Click here to read the full article and implications of the case at our Disability, Leave & Heath Management Blog.

Senate Bill 1241: New Legislation Requiring Employment Disputes to be Adjudicated in California Under California Law

It is common practice for employers to utilize forum selection and choice of law provisions in employment agreements in order to require employees to have employment-related disputes adjudicated outside of California and/or under the law of a state other than California. There are a myriad of compelling reasons an employer would seek to include such provisions in its employment law contracts, such as the desire to have disputes adjudicated in a state with laws that are more favorable to employers or a preference to litigate in the state where an employer’s principal place of business is located.

However, starting January 1, 2017, Senate Bill 1241 (“SB 1241”) will prohibit employers from requiring an employee who resides and works in California to agree, as a pre-requisite to employment, to adjudicate disputes outside the state and/or under the law of a state other than California. Accordingly, any provisions in contracts entered into, modified or extended on or after January 1, 2017 that violate SB 1241 are voidable at the request of the employee and any dispute regarding a voided provision must be adjudicated in California under California law. What’s more, if an employee elects to enforce his rights under Labor Code Section 925, the statute provides a basis from which the employee can be awarded attorneys’ fees.  The goal of SB 1241 is to ensure that employees working in California are not deprived of the “substantive protection of California law with respect to a controversy arising in California.” SB 1241.

Notably, SB 1241 does not apply to contracts entered into with an employee who is individually represented by legal counsel in negotiating the terms of an agreement containing forum selection and choice of law provisions.

In advance of 2017, employers who have contracts with employees who live and work in California should audit their employment agreements in order to ensure they do not contain provisions that would violate SB 1241.

Impacts of Proposition 64 on California Employers

California voters have decided on a number of important Propositions yesterday. Of the Propositions receiving majority support, California employers may particularly wonder about the potential impacts of Proposition 64, which will legalize the recreational use of marijuana.  Below are some potential impacts of Prop 64 on Employers in California:

  • Proposition 64 is not expected to affect an employer’s workplace drug policies. Proposition 64’s primary component is the decriminalization of recreational marijuana use, not banning or restricting an employer’s ability to regulate marijuana usage in the workplace.
  • Proposition 64 explicitly allows public and private employers to enact and enforce workplace policies pertaining to marijuana.
  • Proposition 64 explicitly provides it does not amend, repeal, affect, restrict, or preempt “the rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”
  • Under the Controlled Substances Act, Marijuana remains a Schedule I drug (a designation for controlled substances prone to abuse and psychological/physical dependence). Hence, employers can still rely on federal law to refuse to hire applicants who tested positive for marijuana use.
  • In the meantime, employers should review their drug policies to ensure that potential applicants and employees clearly understand the expectations on marijuana use.
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