Employers Must Post Notice of Labor Rights Under NLRB Rule Taking Effect November 14, 2011

By Thomas A. Lenz

In an announcement dated August 25, 2011 the National Labor Relations Board confirmed the approval of a final rule which requires all employers under NLRB jurisdiction to post a Notice which will inform employees of their rights. Those rights include to form and join unions and to engage in concerted activities for mutual aid and protection, which may include group protests over working conditions or demands for workplace change through social media.  A fact sheet with additional information about the rule can be downloaded by clicking here.

 

Employers will be required to post a hard copy Notice which they can obtain from NLRB offices or by download from www.nlrb.gov when the Notice becomes available.  The NLRB indicates the Notice will be available "on or before November 1, 2011."  Where an employer communicates with its employees by electronic means, such as Internet or Intranet, the employer may have a duty to post the Notice electronically as well.

 

The NLRB intends to view an employer's failure to post the Notice as an unfair labor practice. This is an important point, as failure to post the Notice could put an employer at an immediate disadvantage if the employer faces a union organizing campaign and the union makes an issue of the Notice during the campaign. Charges are often used as leverage points to put a targeted employer under additional scrutiny and threat of prosecution while an election case is in progress.

 

Many employers who are unfamiliar with the NLRB or who have not dealt with it in many years may doubt that they are subject to NLRB jurisdiction. Those employers should consider carefully their course of action. NLRB has exercised a broad view of its jurisdiction, with dollar volume standards that have not changed in decades. Absent a detailed review with legal counsel establishing otherwise, the vast majority of private sector employers should consider themselves subject to NLRB and expect to have to comply with the rule.

 

The rule will parallel in large part a Department of Labor rule implemented for contractors who work with the federal government.

 

It is expected that the NLRB rule will face legal challenge in the courts.  Some employers may take the view that it is best not to post or educate a non-union workforce on the right to unionize. That approach will have risks. A safer approach may be to post the Notice pending an outcome on such challenges. Management retains its rights to educate employees, if and when it sees fit to do so, about union organizing and the pros and cons of doing so provided that the message does not violate NLRB standards through threats or coercion.

 

Private sector employers are encouraged to seek guidance on how this new NLRB rule will impact their business and communications with employees.

After Aquired Evidence Can Provide A Complete Defense To Claims For Wrongful Termination, For Refusal To Hire, And For Failing To Reasonably Accomodate An Alleged Disability

By Ronald W. Novotny and Christopher S. Andre

In Salas v. Sierra Chemical Co., the California Court of Appeal held that evidence of employee or job applicant wrongdoing discovered after an allegedly discriminatory termination or refusal to hire that would have caused the employer to terminate the employee or to refuse to hire the employee can be a complete defense to claims for alleged wrongful termination, to claims for alleged discriminatory refusal to hire, and to claims for alleged failure to reasonably accommodate an alleged disability. 

Vicente Salas began working for Sierra Chemical in 2003 as a seasonal production line worker.  After being laid off and recalled to work several times during his first three years of work there, Salas sustained a back injury in 2006 and filed a workers’ compensation claim.  After his supervisor allegedly told him he would have to be “100% healed” before being allowed to return to work, Salas filed suit "alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA) and denial of employment in violation of public policy."

During the litigation, Sierra Chemical discovered the social security number Salas repeatedly provided to Sierra Chemical belonged to a resident of North Carolina and not to Salas.  Based on evidence showing Salas not only used a social security number that did not belong to him but also submitted to Sierra Chemical a counterfeit social security card and on evidence showing Sierra Chemical would not have hired Salas to begin with had Sierra Chemical known of Salas' misrepresentations and would have terminated Salas' employment if Sierra Chemical had learned of those things while Salas was employed by Sierra Chemical, Sierra Chemical moved for summary judgment contending that the after-acquired-evidence doctrine and the unclean hands doctrine barred Salas' claims as a matter of law.  The trial court ultimately granted that motion.

On appeal, the Court of Appeal affirmed.  The court explained "[t]he after-acquired-evidence doctrine operates as a complete or partial defense where, after an allegedly discriminatory termination or refusal to hire, the employer discovers employee or applicant wrongdoing that would have resulted in the challenged termination or refusal to hire."   The court held Salas did not effectively rebut Sierra Chemical's showing it would not have hired Salas to begin with and would have terminated Salas' employment if Sierra Chemical had discovered Salas' use of a social security number that did not belong to him in order to obtain and maintain his employment by Sierra Chemical.  The court held, also, that the same facts also gave rise to a defense based on the unclean hands doctrine, which "demands that a plaintiff act fairly in the matters for which he seeks a remedy.  He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits of this claim."

Notably, in so holding, the court expressly rejected Salas' contention that Senate Bill 1818, enacted in 2002, precluded application of the after-acquired-evidence doctrine and the unclean hands doctrine.  Senate Bill 1818, which is codified at Labor Code 1171.5 and elsewhere, states, among other things, that "[f]or purposes of enforcing state labor, employment, civil rights and employee housing laws, a person's immigration status is irrelevant to the issue of liability."  Salas argued Senate Bill 1818 "must allow him to recover backpay for the allegedly discriminatory failure to hire regardless of whether the after-acquired-evidence or unclean hands doctrines would otherwise preclude him from bringing claims tied to the failure to hire."  The court rejected this argument and explained that application of the after-acquired-evidence doctrine and the unclean hands doctrine to Salas' case based on Salas' misrepresentation of his immigration status would not frustrate the purpose of Senate Bill 1818 because it would still allow "undocumented immigrants to bring a wide variety of claims against their employers as long as these claims are not tied to the wrongful discharge or failure to hire" a person who was not eligible for employment in the United States to begin with.  

This case serves as an important reminder that misrepresentations by employees or by unsuccessful job applicants can prove to be an effective defense to claims for wrongful termination and for claims for or related to a refusal to hire if the employer can effectively show it would not have hired the person to begin with or would have terminated the person had the employer known the true facts.  In this case, the employer's defense was based in part on its ability to establish it had a policy that precluded the hiring of an applicant prohibited from working in the United States and a policy that precluded the hiring of applicants who submit false information or false documents. We think one of the best ways for an employer to make such showings is to have in place lawful written policies to that effect and to follow those policies consistently. 

Court of Appeal Holds Employers Prevailing On Claims For Allegedly Unpaid Minimum Wages Or Overtime Are Entitled To Recover Their Costs

By Christopher S. Andre and Scott K. Dauscher

Over ten years ago, in Earley v. Superior Court (2000) 79 Cal.App.4th 1420, the California Court of Appeal held that employers who defeat claims for allegedly unpaid overtime wages or minimum wages are not entitled to recover their attorneys fees.  The court reasoned that Labor Code section 1194 is a one-way attorney's fees statute that permits prevailing employees but not prevailing employers to recover their attorney's fees.  In that case, the court further held that permitting prevailing employers to recover their attorney's fees would be contrary to public policy in that it would have a chilling effect on the right of employees to sue for allegedly unpaid overtime wages or minimum wages.  

On August 11, 2011, in Plancich v. United Parcel Service, Inc., the Court of Appeal held that Labor Code section 1194 does not bar an employer prevailing on a claim for allegedly unpaid overtime wages or minimum wages from recovering its costs (i.e., certain litigation expenses) pursuant to Code of Civil Procedure section 1032(b), which states: "Except as expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." The court explained that "the plain language of the statutes is unambiguous--Code of Civil Procedure section 1032, subdivision (b) requires express statutory language exempting a prevailing party from recovering his costs, and section 1194 does not contain language barring a prevailing employer from collecting his costs."

Although the deck remains stacked against California employers in many ways, this new decision provides employers with at least some welcome recourse when an employer is able to defeat a meritless claim for allegedly unpaid overtime wages or minimum wages, and it might discourage some employee litigants from needlessly running up an employer defendant's litigation costs in the pursuit of doubtful claims for allegedly unpaid overtime wages or minimum wages.  Every little bit helps.

Governor Brown Approves Amendments Clarifying Provisions of Bone Marrow and Organ Donation Leave Law

By Jonathan Judge

Last year the California Legislature passed SB 1304, providing employees an opportunity to take paid leaves of absence from work for bone marrow and organ donation, as previously reported here. The law took effect January 1, 2011 and applies to employers with 15 or more employees. The law allows for leaves for organ donation of up to 30 days and bone marrow donation of up to five days in a one-year period. The law also allows employers to require an employee take up to five days of earned but unused sick or vacation leave for bone marrow donation, and up to two weeks of earned but unused sick or vacation leave for organ donation as a condition of receiving such leave.

This year, the Legislature passed SB 272 (DeSaulnier), and on August 1, Governor Brown approved the bill, which clarified key provisions of the law. SB 272 clarifies that for purposes of this law, the days of leave shall be business days rather than calendar days. The bill also clarifies that the one-year period is measured from the date the employee’s leave begins and consists of 12 consecutive months. Finally, the law was amended to include a reference to “paid time off” along with sick and vacation leave, which allows employers to require employees to take paid time off prior to taking the leave provided by the law, under the same conditions for sick and vacation leave outlined above.

SB 272 specifies that the amendments are declaratory of existing law. Accordingly, employers administering such leaves should apply the amendments as if they took effect January 1, 2011.

Please check back regularly for updates on California bills as we track legislation in 2011.