University of California San Diego University of California San Diego

LAMP Program 2013LAMP Program 2013

Employment Law and Practice

Presented by:

Lonny M. Zilberman, Esq. Wilson Turner Kosmo LLP

lzilberman@wilsonturnerkosmo.comMay 7, 2013

What’s on the Menu?What’s on the Menu?

Laws regulating the California Workplace

Recurring employment risk issues: How to Spot Red Flags

Tips for “Rightful” Termination and Performance Management

ManagingWithout Fear

How the Law Changed HR – How the Law Changed HR – The Last 70 Years:The Last 70 Years:

1950s – Untamed Wilderness 1960s – Civil Rights Comes to Work 1970s – Sex, Safety & Class Actions 1980s – Layoffs & Individual Rights 1990s – Disability and Family Leave 2000s – Privacy Rights, Drug testing 2010s – Facebook, Twitter, social media

What’s Happening Out There?

Certain types of claims are on the riseFailure to Investigate or Prevent

HarassmentRetaliation Failure to AccommodateWage and hour mistakes Age Discrimination

Why Should I Care?

You might be liable: statutes (harassment, retaliation) common law (defamation, invasion of

privacy, interference, fraud) A happier team is a more productive team! The alternatives are not attractive

A Jury of Your Peers?

Hot Topic #1: Discrimination and Harassment

Title VII of the Civil Rights Act (1964) Age Discrimination in Employment Act (1967) The Americans with Disabilities Act (1990) California Fair Employment and Housing Act The California Labor Code

Title VII - Civil Rights Act of 1964

Protected characteristics:RaceNational OriginColorReligionSex

Title VII - Civil Rights Act of 1964

Prohibits employment discrimination in: Recruitment Hiring Advancement Decisions affecting pay and other terms and

conditions Discipline and termination

Prohibits harassment as well

California Government Code

FEHA (Gov’t Code Sec. 12940)race, color, sex, national origin, ancestry, disability (mental or physical), sexual orientation, gender identity (including transgender status) medical condition (cancer), pregnancy, childbirth (and related medical condition), religion, and marital status.

Title VII and Discrimination

2 Types :

Direct evidence of discrimination – Disparate treatment

Disparate impact“Neutral” policy that discriminates

in its application – the numbers tell the story

Age Discrimination

Prohibits discrimination: 40 or older

Protects Applicants and Employees

No discrimination in hiring, training, compensation, discharge and other terms and conditions of employment

Reid v. Google case – Cal. Sup. Crt.

Americans with Disabilities Act

An employer may not: Limit, segregate or classify

applicants or employees because of disability

Exclude or otherwise deny equal jobs because of disability

Refuse to make reasonable accommodations

Definition of a “Disability” A physical or mental condition

that substantially limits a major life activity*

A history of such a condition

Being regarded as having such a condition

* Under California Law = “merely” limits a major life activity

“Major Life Activities”

Talking, walking, seeing, hearing Performing manual tasks Learning Working Interacting with others Concentrating Pro-creation

Reasonable Accommodation

Employers must make reasonable accommodations to known disabilities of applicants and employees, unless the accommodation would cause “undue hardship”

The Interactive Process

Employer has an affirmative duty to engage in the interactive process to explore reasonable accommodations

Light Duty?

Top Disability-Related Mistakes:

Not engaging in the interactive process Demoting employees who take leave Denying an employee’s reasonable

accommodation request Denying that employee has a disability Discontinuing accommodation for no

reason Sandell v. Taylor-Listug, Inc. case

Harassment: Sex and Other Forms

A form of discrimination

2 Types: QPQ and HWE

QPQ examples

Personal liability for harassment

Who Can be a Harasser?

Supervisors

Co-Workers

Customers

Vendors and

Contractors

Hostile Work Environment

Unwelcome Conduct, speech or action Of a sexual nature Touching the workplace So “severe or pervasive” That it affects the job or

creates HWE

Harassment is Broadly Defined

Same sex Sexual

orientation Sexual

“stereotyping” Disability

Religion Race National Origin Age

Harassment Prevention

Duty to prevent - Gov’t §12940(h)(i)

Individual liability

Prompt and reasonable investigation

The benefits of a good job: Cotran

Training obligations

Applies to third parties & vendors

Avoiding Harassment Claims

Set an example Intervene early -- be proactive Don’t punish the messenger Impose/support decisive corrective

action

6 Steps To Avoid Harassment Liability:

Train employees and managers regarding all forms of potential harassment – not just “sexual”Take all complaints of harassment seriously – even those involving “name calling” or “teasing”Conduct prompt and thorough investigationsState and restate policies at every opportunityDiscipline those who do not complyDocument the process!

Jury Verdicts: Believe It or Not! De La Cruz v. Cal-Pac Group, Inc. (2010): $2,500,000• Female minimum wage card dealer alleged her manager sexually harassed

her. She reported his unwanted advances to HR, but no investigation was conducted. She was terminated one week after the Casino learned she hired an attorney. Manager accused of telling plaintiff she had a nice “rack,” rating other women in discussions with plaintiff and bringing in an erectile dysfunction drug pen and showing her how the pen “grew” in length when a

button was pushed. Kell v. AutoZone, Inc. (2010): $1,468,675• Plaintiff was a District Manager and was terminated five months after

complaining of harassment. Kell reported to Division HR Director that local store managers were referring to employees and customers as “retards” and “lazy N-word.” At trial, Plaintiff relied on numerous witnesses who testified that HR Director failed to investigate harassment complaints and that Plaintiff complained of harassment by various store managers. AutoZone confronted Plaintiff with false resume he prepared post-termination claiming that he exaggerated his military rank and medical history because he falsely claimed that he was awarded a purple heart.

Wages & Hours: Hot Topic #2

3 Biggest Mistakes

Managers Make

and How to Avoid

Them

California’s Wage & Hour Laws

Meal periods

Breaks

Overtime

Off The Clock Time

The Rule: Meal Periods

Employee MUST take a 30 minute meal period for shifts more than 5 hours long;

Employee MUST take a 2nd 30 minute meal period for shifts longer than ten hours

Need not be paid Doesn’t count as “hours worked”

Restrictions on Meal Periods

Must be “duty-free” Employee free to leave work station Employee free to leave work premises

Meal Period Exceptions

6 hours or less, if voluntarily waived 12 hours or less, if 1st not waived “on duty” meal period, if required by

the nature of the job

Watch Out!

Don’t be too nice Most employees cannot waive

“duty-free” meal period Waivers must be voluntary Waiver restrictions

The Rule: Rest Periods

Employee must be AUTHORIZED AND PERMITTED to take a 10 minute break for every 4 hours of work

In middle of each work period “Duty-free” but can prohibit leaving Must be paid

Penalties & Other Costs

1 hour pay for EACH meal & rest period missed

Overtime “domino” effect $$$ Attorney’s fees

Recent Case Examples:Recent Case Examples:

Wren v. RGIS Inventory Specialists (2010): $27,000,000 Plaintiffs claimed they often performed duties while not “clocked-in” and managers knew that they were not compensated. Also claimed unpaid overtime, missed meal and rest breaks and inaccurate itemized wage statements and late payment of wages.

Counsel received $5,400,000 (20% of settlement)

More Recent Wage and Hour Class More Recent Wage and Hour Class Action Settlements From 2011:Action Settlements From 2011:

Lane v. Stewart Title (Sales Reps.) $10.8 million settlement for alleged OT

Williams v. Sun Microsystems (IT Writers) $5 million settlement for alleged OT (152)

Keefe v. Polo Ralph Lauren (Mgrs.) $4.5 million settlement for alleged OT

Burnham v. Kendal Floral Supply (Merch.) $3.6 million settlement for alleged OT (371)

West v. U.S. Foodservice (Sales Reps.) $14.5 million settlement for unpaid business

related mileage and cellular phone bills (687) Brunner v. Aon Insurance (Sales Reps.)

$6.8 million settlement for unpaid business related expenses associated with mileage (100)

Failure to Pay Business Expenses:

Spotting The Problem

Busy, high-stress workplace Employees eating at their work areas Traveling employees No break area Laid back timekeeping system

The Problem: “Off The Clock” Time

Pre-work activities Work from home On-call Travel time Key: difficult to disprove

What is “work time” anyway?

“Suffered or permitted to work” Employer control If employer knows or has reason to

know

Review wage statements State and restate policies Discipline those who do not comply

(and Document this!) Provide complaint mechanism

Steps You Can Take To Protect The Company

Wage & Hour FAQ No. 1:

Question: If the employee chooses to work through both of his rest periods, is the employer required to let him leave work 20 minutes early?

Answer: No, working through a rest period does not entitle an employee to leave work early or arrive late.

Wage & Hour FAQ No. 2:

Question: Are employers required to keep records of employee breaks?

Answer: No, because the break time is time that the employee is required to be compensated.

Wage & Hour FAQ No. 3:

Question: When an employee needs to use the toilet facilities during his work period does that time count towards his ten (10) minute rest break?

Answer: No, Allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest periods as required by the IWC’s wage orders.

Wage & Hour FAQ No. 4:

Question: Can an employee choose to work through her meal period so that she can leave work 30 minutes early?

Answer: Yes, so long as the employee is relieved of all duty and may take a lunch break if she wants.

Wage & Hour FAQ No. 5:

Question: Can an employee combine his meal break with his rest period breaks?

Answer: No, meal and rest period time cannot be combined.

Wage & Hour FAQ No. 6:

Question: Once a month we provide a training session for our employees during lunch where we provide them with food and drinks. Do we have to pay these employees for that time?

Answer: Yes, the DLSE has concluded that this is an on-duty meal period that must be paid at the employee’s regular rate of pay.

Wage & Hour FAQ No. 7:

Question: Are employers required to keep a record of employee meal periods, and if so, for how long?

Answer: Yes, section 7 in each of the IWC’s Wage Orders requires that these records be maintained for at least three (3) years.

Wage & Hour FAQ No. 8:

Question: If an employee works unauthorized overtime is the employer obligated to pay for it?

Answer: Yes, California law requires that employers pay overtime, whether authorized or not. An employer can, however, discipline an employee if he violates the company’s policy of working overtime without the required authorization.

Wage & Hour FAQ No. 9:

Question: Can an employee waive her right to overtime compensation?

Answer: No, California law requires that an employee be paid all overtime compensation notwithstanding any agreement to work for a lesser wage.

Performance Reviews

Issues of performance are almost always central to a discrimination or termination claim

Usually “Exhibit A” to the complaint Don’t “sugar coat” the review; it will

come back to haunt you Remember -- Juries hold companies

to what they say in the reviews

Effective Performance Management

Communicate goals and expectations clearly

Don’t wait for formal “reviews” Be fair, honest, and consistent Fair criticism takes time and thought

• Praise the good and criticize the bad• Don’t just criticize -- provide the tools and

the time to foster improvement

Wrongful Termination: 4 Types

Refusing to violate a statute Performing a statutory obligation Exercising a statutory right or privilege Reporting an alleged violation of a

statute of public importance

Tips for “Rightful” Termination:

Termination should never be a surprise Never act hastily Always get both sides of the story Always document the basis for the decision Always take steps to preserve dignity Always strive for consistency Always involve HR

Current Trends

With new interest in corporate transparency, more “whistleblower” laws will get attention like SOX.

Class discrimination claims increasing, e.g. gender, age and disability (Dukes v. Wal-Mart)

More class action claims—failure to pay OT, misclassification and meal and rest period claims

Managers sued individually, along with Company Cost of defense is significant – more arbitration

agreements and alternative dispute resolution

► Perceived or actual lack of due process► Company didn’t follow it’s own policies► Company was not consistent in disciplining► No “good reason” for decision► Two words: “No Documentation”► Employer perceived as untruthful or unfair

6 Reasons Why Juries Award Big $:

Thank You!

Lonny Zilberman, Esq. Wilson Turner Kosmo LLP

550 West C Street, Suite 1050San Diego, California 92101

Tel: (619) 236-9600lzilberman@wilsonturnerkosmo.com