California’s law regarding employer use of social media precludes an employer from requiring or requesting an employee or applicant to:

(1) Disclose a username or password for the purpose of accessing personal social media;

(2) Access personal social media in the presence of the employer; or

(3) Divulge any personal social media, except an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

California law does not limit an employer’s right to require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Retaliation against a California employee or applicant for not complying with a request or demand by the employer that violates this section is prohibited. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Oregon recently adopted a similar law. On May 22, 2013, Oregon Governor John Kitzhaber signed into law House Bill 2654, making Oregon the tenth state to prohibit employers from accessing employees’ private social media sites. The new law goes into effect on January 1, 2014, and makes it an unlawful employment practice for employers to compel employees or applicants for employment to provide access to their personal social media accounts.

The definition of “social media” includes such standard social media venues as Facebook, Twitter and LinkedIn, as well as newer sites like Pinterest and Instagram, and personal email accounts are also included. In fact, “electronic medium that allows users to create, share and view user-generated content, including, but not limited to, uploading or downloading videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or Internet website profiles or locations” is covered under the new law.

Under the new law, employers, including employment agencies (i.e., temp services, etc) are prohibited from “requir[ing] or request[ing] an employee or an applicant for employment to disclose or to provide access through the employee’s or applicant’s user name and password, password or other means of authentication that provides access to a personal social media account.” Passwords and other forms of identification used to provide access to employees’ social media sites are now beyond the reach of employers or prospective employers in Oregon.

In addition to precluding the compelled access to social media accounts, Oregon employers are prohibited from “compel[ing] an employee or applicant . . . to add the employer . . . to the employee’s . . . list of contacts associated with a social media website.” In other words, employers cannot gain access to social media sites by requiring employees and/or applicants to “friend” them or to make them a contact on their social media accounts.

Oregon employers are also precluded from requiring or demanding that “an employee . . . access a personal social media account in the presence of the employer,” thus preventing the employer from viewing an employee’s content by having the employee log on to the site for the employer.

The law also prevents employers from retaliating or threatening to retaliate against employees or otherwise penalizing employees or applicants with any adverse employment action, including failure to hire, because the employee or applicant failed to provide the employer with access to the site by any of the means prohibited by the statute.

There are some limited exceptions to the new law. If the employer provided the social media account, or if the account was provided on behalf of the employer to be used for the employer, then the employee must disclose the user name and password he or she uses to access the account.

The new law does not prohibit an employer from complying with state and federal laws, rules and regulations, or conducting a legitimate employment investigation “for the purpose of ensuring compliance with applicable laws, regulatory requirements or prohibitions against work-related employee misconduct,” if the employer has reason to believe, based on specific information, that content of an employee’s personal online account or service is implicated or otherwise involved. The investigating employer may also require an employee to share social media content reported to the employer if it is necessary for the employer to make a factual determination about alleged unlawful work-related misconduct. Even so, the employer is prohibited from requiring an employee to disclose a username, password or other form of access to his or her social media accounts.

Of course, employers may access information and content posted by or about an employee or applicant that is publicly available – for example, the public information on a Facebook account and any content not designated as private by the account holder.

Numerous states have placed social media related laws on their agendas. Washington state recently passed a law similar to Oregon’s statute. And, at the federal level, Rep. Ed Perlmutter (D-CO) introduced the Password Protection Act of 2013 in the U.S. House of Representatives. The federal House bill would amend the Computer Fraud and Abuse Act and make it unlawful for employers to require employees to authorize access to a computer that the employer does not own or operate. Further, the federal House bill provides no exception allowing employers to obtain password-protected social media content that reasonably relates to a workplace investigation into allegations of harassment.

Obama administration continues moving forward to implement health care law by releasing final rules on employment-based wellness programs

WASHINGTON — The U.S.  Departments of Health and Human Services, Labor and the Treasury today issued  final rules on employment-based wellness programs. The final rules support  workplace health promotion and prevention as a means to reduce the burden of  chronic illness, improve health and limit growth of health care costs, while  ensuring that individuals are protected from unfair underwriting practices that  could otherwise reduce benefits based on health status.

The final rules  continue to support participatory wellness programs, which generally are  available without regard to an individual’s health status. These include  programs that reimburse for the cost of membership in a fitness center; that  provide a reward to employees for attending a monthly, no-cost health education  seminar; or that reward employees who complete a health risk assessment,  without requiring them to take further action.

The rules also  outline standards for nondiscriminatory health-contingent wellness programs,  which generally reward individuals who meet a specific standard related to  their health. Examples of health-contingent wellness programs include programs  that provide a reward to those who do not use, or decrease their use of,  tobacco, or programs that reward those who achieve a specified health-related  goal, such as a specified cholesterol level, weight, or body mass index, as  well as those who fail to meet such goals but take certain other healthy  actions.

Today’s final  rules ensure flexibility for employers by increasing the maximum reward that  may be offered under appropriately designed wellness programs, including  outcome-based programs. The final rules also protect consumers by requiring  that health-contingent wellness programs be reasonably designed, are uniformly  available to all similarly situated individuals and accommodate recommendations  made at any time by an individual’s physician, based on medical  appropriateness.

The final rules  will be effective for plan years beginning on or after Jan. 1, 2014.

Hollingsworth v. Perry (Docket Number: 12-144)

Date Argued:03/26/13

For those of you following the same-sex marriage debate, the oral argument heard by the Supreme Court can be downloaded or played by clicking one of the below:

Media Formats:

mp3  MP3 Download Play
Windows Media  Windows Media Download Play
RealAudio  RealAudio 10 Download
PDF Transcript (PDF) View
To download file:
  • From Windows XP/Vista/7 – Right click the “Download” link and select “Save Target As…” or “Save Link As…”
  • From Mac – Press Ctrl key while clicking the “Download” link, or just right click the link if you have a double button mouse, and select “Save Linked File As…”

A Los Angeles jury has returned a verdict of $3.5 million against drug store chain Rite Aid Corporation in a recent disability discrimination case.

According to the complaint filed, Martha Palma had worked for Rite Aid for years and had been a store manager at one of its stores in Los Angeles. She was fired months after being diagnosed with a “non-work related serious disability” in late 2010.

Ms. Palma filed claims for disability discrimination, retaliation for complaining of discrimination and harassment, and failure to engage in the interactive process, according to the statement. A jury in Los Angeles Superior Court found in her favor on each of these claims.

At trial, Ms. Palma testified that Rite Aid “treated her differently and terminated her because of the stigma related to employees with disabilities,” Shegerian said in a public statement. “She testified that despite being able to perform her job duties, the defendant never tried to discuss accommodations with her, instead manufacturing a false reason to terminate her[] and then fired her.”

 

While no attorney or law firm can guarantee that your case will be successful or that these results will be seen in your case, results in three key lawsuits in California reveal that employee rights claims remain a viable means to address discrimination, harassment and retaliation at work:

  • Retailer Abercrombie & Fitch recently agreed to  resolve a class-action discrimination lawsuit for approximately $50 million.

  • A jury award of $820,700 for harassing blog posts written by managers was upheld by the California Court of Appeals.

  • Go Daddy was found liable for retaliation when it ignored an employee’s complaint of bias and later terminated him without conducting an investigation into his complaint. The Go Daddy jury awarded Plaintiff over $350,000 for damages related to retaliation, even though it did not find that any discrimination had occurred.

Court Decides Employers Must Relieve
Employees of All Duty During Meal Periods
But Need Not Ensure They Perform No Work

The California Supreme Court concluded today that an employer’s obligation is to relieve its employees of all duty during meal periods, leaving the employees thereafter at liberty to use the period for whatever purpose they desire, but that an employer need not ensure no work is done.

The court also concluded that a first meal break generally must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals throughout the shift.

These questions arose in a case filed nearly eight years ago – Brinker Restaurant Corporation v. Superior Court, S166350, one of a number of meal and rest break class actions pending in the state. After the Brinker trial court certified classes of employees alleging the Brinker Restaurant Corporation had failed to provide meal and rest periods in the number and at the times required by state law, the Court of Appeal reversed and ordered each subclass vacated. The California Supreme Court accepted review and agreed to resolve lingering uncertainty over the nature of rest and meal period obligations and the suitability of such claims for class treatment.

In a unanimous opinion authored by Associate Justice Kathryn M. Werdegar, the court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods. Instead, under state law an employer must provide its employees an uninterrupted 30-minute duty-free period during which the employee is at liberty to come and go as he or she pleases. Absent a statutorily permissible waiver, a meal break must be afforded after no more than five hours of work, and a second meal period provided after no more than 10 hours of work.

On the question of rest periods, the court explained that under the IWC’s orders, employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length. Rest periods need not be timed to fall specifically before or after any meal period.

As to the suitability of rest and meal period claims for class treatment, the court reversed in part, remanded in part, and affirmed in part the Court of Appeal’s rejection of class treatment. With respect to rest period claims, the court concluded plaintiffs had identified a theory of recovery suitable for class treatment. With respect to meal period claims, the Supreme Court remanded to the trial court for reconsideration of class certification in light of its clarification of the substantive law governing meal period claims. Finally, with respect to a third subclass—for claims that Brinker required off-the-clock work—the court affirmed vacation of class certification.

The principal opinion by Justice Werdegar was signed by Chief Justice Tani G. Cantil-Sakauye and Associate Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, Carol A. Corrigan, and Goodwin Liu.

Justice Werdegar also issued a separate concurring opinion, joined by Justice Liu, addressing meal period class certification issues confronting the trial court on remand. The concurring opinion discussed considerations relevant to the suitability of the plaintiffs’ meal period claims for certification.

The court’s opinion in Brinker Restaurant Corporation v. Superior Court, S166350, is available on the California Courts Website in two formats:
Word (http://www.courtinfo.ca.gov/opinions/documents/S166350.DOC); and
Acrobat (http://www.courtinfo.ca.gov/opinions/documents/S166350.PDF).

(From Reuters)
Part of a class-action lawsuit against Brinker International Inc can proceed, the California Supreme Court ruled on Thursday, in a closely watched case about employee meal and rest breaks at the company’s restaurants.

The California high court authorized a class of workers in the state to proceed with claims that they were denied proper rest breaks by Brinker. With respect to the meal break claims, the court ruled that employers only have to provide meal periods to workers, not make sure employees actually take them.

“An employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work,” Associate Justice Kathryn Werdegar wrote for the unanimous court. Workers first sued Brinker, which owns Chili’s and Romano’s Macaroni Grills, in 2004 on behalf of a proposed class of around 60,000 non-unionized, hourly employees. They claimed that managers pressured them to skip their breaks by failing to adequately staff the restaurants or by threatening to cut or change their hours. Brinker’s attorneys argued that employees should have flexibility in choosing whether to take their scheduled breaks.

A California appeals court sided with Brinker in 2008, finding that the restaurant company only had to “make available” the meal and rest breaks, but not “ensure” they were taken. The state’s Supreme Court agreed that employers do not have to police meal breaks but do need to relieve workers of duties at those times.

The court also resolved uncertainty over whether employers need to enforce a “rolling five-hour” rule, which gives workers a right to an uninterrupted meal break after five consecutive hours of work. The first meal break must fall no later than five hours into an employee’s shift, but employers do not have to schedule additional meal breaks every five hours, the court ruled. The court also set out clear guidelines for the number and timing of rest breaks, upholding a lower court’s decision to authorize a class action on those claims.

Tracee Lorens, a lawyer for the plaintiffs, welcomed the opinion as a win for low-wage workers across the state.
“We never argued employers had to police breaks. We just argued that they had an affirmative obligation to relieve the employees of duty so that they could take their lunch break if they wanted to,” she said. She said the case would now go back to the trial court to determine whether the meal break claims can remain part of the class action. A spokeswoman for Brinker said the company was still reviewing the ruling and could not immediately comment.

California employers and labor lawyers have waited for three years for the high court to clarify ambiguities in the state’s wage laws, which require extra pay for meal and rest break violations. “We had an epidemic of meal and rest-break cases where virtually every employer in the state was being sued,” said Scott Witlin, a Los Angeles employment lawyer at Barnes & Thornburg who is not involved in the case. The lawsuits have continued to flow in, claiming millions in damages. Many have resulted seven-figure settlements due to uncertainty in the law, he said, adding that the ruling helps businesses by clarifying the law. Joseph Liburt, an employment lawyer at Orrick in Silicon Valley, said most businesses have been taking a conservative approach, paying the extra penalty whenever an employee’s timecard shows a potential meal break issue. Many employers have also tried to make sure workers actually take their breaks, he said. The case is Brinker Restaurant Corp v. Superior Court (Hohnbaum), California Supreme Court, No. S166350. —-End Report

If you have not been given the opportunity to take your legally required meal or rest breaks, give us a call today to discuss whether your legal rights have been violated.

Significant changes to California employment laws may have an effect on your job or your business. New employment laws in California for 2012 include:

• Employers subject to the pregnancy disability leave law must maintain and pay for group health insurance during the leave, up to 4 months in a 12-month period.

• Employers are now generally prohibited from using consumer credit reports to screen candidates for employment. Exceptions exist for employees with access to trade secrets or $10,000+ of cash of the employer, or to confidential information or $10,000+ of cash of others, executive employees, etc.

• Upon hire, an employer must now provide the employee with a written notice specifying certain information about the employer and the employee’s job, including workers’ compensation insurance carrier information.

• Penalties for willfully misclassifying workers as independent contractors instead of employees are increased (a new civil penalty of $5,000 to $15,000 per violation is added to existing penalties).

• The minimum salary for exempt computer professionals increases, as does the minimum hourly rate for physicians paid hourly.

• California now prohibits state and local governments in most instances from requiring employers to use the federal E-Verify system to ensure candidates are legally permitted to work in the United States. California employers may voluntarily choose to use E-Verify, however, and must do so if it’s a condition of the receipt of federal funds or federal law.

• If you are a San Francisco employee, your minimum wage was increased. San Francisco is the first city in the nation mandating a minimum wage greater than $10 per hour. The law was passed several years ago, but includes a mandatory adjustment each year to keep pace with inflation. The minimum wage for most California cities without a higher local rate remains at $8.00 per hour for 2012.

If you have a question regarding how these new laws impact your job or your business, give us a call.

From CalCoastNews.com

Another Arroyo Grande sex harassment claim

December 28, 2011

By KAREN VELIE

Another Arroyo Grande police officer says she was sexually harassed and discriminated against, and that department and city officials ignored reports of illegal acts.

Michelle Cota is suing the city, the police department, Chief Steven Annibali and former Commander John Hough for lost wages and damages.

Cota’s ability to advance in the department ended in 2007, under the leadership of Annibali, according to a lawsuit filed Dec. 22. In the suit penned by Santa Barbara based attorney Christine Adams, Cota accuses Annibali and Hough of retaliating against her and two other women who complained that former Sergeant Barry Bridge sexually harassed them.

“Ms. Cota has been subjected to severe discrimination and harassment at the Arroyo Grande police department under the command and direction of Chief Annibali,” Adams said in an email to CalCoastNews. “Chief Annibali’s statements make clear that he is not at all happy that women stand shoulder to shoulder with men on the police force.”

For example, the lawsuit says Annibali ordered a male officer to enter the lady’s locker-room and remove all personal items and pictures the women had posted on their lockers. The women said Annibali enacted a new policy that prohibited the posting of items on the outside of lockers belonging to women while allowing male officers to post photos on their lockers.

In addition, Cota’s suit says Annibali overloaded her with calls, refused to allow female officers overtime, gave men the more desirable shifts and promoted men over more qualified female officers.

“Annibali and Commander Hough have withheld mentoring, training and promotional opportunities to female police officers who have dedicated their careers to protecting Arroyo Grande and its citizens,” Adams said in the email.

Annibali did not return requests for comment.

Social Media pervades our lives – including the workplace. Recently, the National Labor Relations Board (“NLRB”) has sought to define the parameters of an employee’s right to engage in “protected concerted activity” given the role that Facebook, Twitter, LinkedIn and other such social media and internet based forums play in our lives. The NLRB issued three Advice Memorandums on the topic in July 2011. Those agency memorandums reveal an effort to establish a more consistent approach to evaluating whether social media communications constitute “protected concerted activity.” In each, the NLRB recognized that “circumstances where individual employees seek to initiate or to induce or to prepare for group action,” or where “truly group complaints” are being brought to management’s attention constitute or implicate “protected concerted activity.” Engaging in a protected concerted activity is necessary to find protection under the relevant law. In each of the three cases the NLRB looked at, it found that no protected concerted activity existed.

In the first case, a bartender complained on Facebook to a relative about his employer’s tip policy and other compensation issues and referred to his employer’s customers as “rednecks” and other offensive terms. In the second case, a Walmart employee’s Facebook wall contained his comment, “Wuck Falmart” and other more profane comments. The third case the NLRB examined involved an employee of a homeless shelter who logged into his Facebook account during work hours and made inappropriate comments about the shelter’s residents. In each of the three cases, the NLRB found that there was no protected concerted activity because each employee was voicing purely individual concerns.

For employees terminated for making comments on Facebook and other social media, an attorney can analyze whether the employee was protected from termination or discipline for the comments made by examining whether the employee is noting a purely personal concern or airing a personal grievance, or whether they are raising complaints designed to persuade others to bring about change through group action. One significant factor to consider is whether the employee’s coworkers also made comments agreeing with the posts. If they did, the termination may have been wrongful. It must be noted, however, that even if you have engaged in protected activity, if you used Facebook during company time, while “on the clock” or included profane or otherwise inappropriate comments, you could lose the protection afforded under the law.

If you have been terminated or disciplined within the last year for comments made on Facebook, Twitter, or other social media websites, we can analyze whether you were wrongfully terminated or disciplined.

If you are an employer considering terminating or disciplining an employee for such comments, you may need to exercise caution if the employee was posting a comment that concerns the terms and conditions of employment. We would be happy to analyze whether an employee’s comments constitute protected activity.

If you would like to read the full text of the Advice Memoranda, please go to http://www.laborrelationstoday.com


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