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[VIDEO] BB&K Webinar: Annual Labor & Employment Update 2016

08 Dec 2016 00:00:00 -0800

BB&K Labor and Employment attorneys discussed new legislation and case law impacting California employers - private and public.

What was discussed:

New legislation
Wage and hour update
Harassment, discrimination and retaliation
Disability discrimination and medical leaves
Benefits update including discussion of the Affordable Care Act and the Flores case
Marijuana in the workplace
Public agency cases and updates

This activity has been approved for minimum continuing legal education by the State Bar of California in the amount of two (2) hours of General Participatory credit. Best Best & Krieger LLP certifies that this activity conforms to the standards of approved educational activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. Best Best & Krieger LLP is a State Bar of California Approved Provider, #1035.

When:
Thursday, Dec. 8
9:30 - 11:30 a.m. PT

Click here for questions.

Materials
Annual Labor & Employment Law Update
New Legislation and Case Summaries

To view a recording of the webinar, click here.

PIHRA 2016 Legal Year in Review

10 Nov 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Joseph Ortiz will present “2016 Legal Year in Review,” for the Professionals In Human Resources Association. This presentation focuses on the laws that the savvy HR practitioner should know about, and the significant changes that occurred in Human Resources in 2016. The presentation will include a roll call of the most recent employment-related laws passed by the California Legislature, as well as a "best of" summary of the five biggest legal changes that occurred in 2016. Included will be a discussion of the status of the new white collar exemption salary requirements, new gender protection issues, and much, much more.

When
Thursday, Nov. 10
11:30 a.m. - 1:30 p.m.

Where
Best Best Krieger
3390 University Ave.
5th Floor
Riverside, CA 92501

For more information or to register, click here.

MMBA Factfinding Applies to All Negotiations Resulting in Impasse

01 Apr 2016 00:00:00 -0800

The factfinding procedures required by the Meyers Milias Brown Act apply to all negotiations which reach impasse, not just those arising from negotiations for a comprehensive MOU, the California Court of Appeal has held in two opinions.

In San Diego Housing Commission v. Public Employment Relations Board, the Fourth District Court of Appeal found in favor of PERB, holding that factfinding under the MMBA applies to all impasses, not just those related to negotiations of a comprehensive MOU. The opinion overturned the trial court decision that held that the MMBA factfinding procedures did not apply to an impasse regarding the effects bargaining of a decision to layoff employees. The court reasoned that PERB’s interpretation of the MMBA should be given deference because PERB is a state agency with specialized knowledge and experience in interpreting these types of labor laws. The court, citing to PERB’s decision in this matter, determined that:

The MMBA does not contain any language that expressly limits its factfinding provisions to impasses related to negotiations of a comprehensive MOU.
PERB has consistently applied similar factfinding provisions in the Educational Employment Relations Act and the Higher Education Employer-Employee Relations Act to all types of bargaining disputes, not just those arising from negotiation for a comprehensive MOU.
PERB’s interpretation of the MMBA factfinding provisions is consistent with the legislative history of AB 646 (which added the mandatory factfinding provisions to the MMBA).
Interpreting the MMBA factfinding provisions to apply to all bargaining disputes is consistent with the parties’ obligation under the MMBA to negotiate over any bargainable issue, and prepare an MOU to memorialize that agreement.

The court applied the same reasoning to reach a similar holding in County of Riverside v. PERB, a case that involved the effects bargaining over a new background check policy for information technology employees.

These decisions by the Court of Appeal, issued Wednesday, are binding on public agencies throughout California unless another appellate district reaches a different conclusion, or the California Supreme Court decides to review and ultimately overturn the decision. Therefore, agencies subject to the provisions of the MMBA should prepare for bargaining on all issues with the understanding that the factfinding procedures could be invoked if impasse is reached.

For more information about these decisions and how they may impact your agency, contact the author of this Legal Alert listed at the right in the firm’s Labor & Employment practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

California Unions May Enter Public Sector Agency Shop Arrangements

30 Mar 2016 00:00:00 -0800

An equally divided United States Supreme Court means that public sector unions in California can still require employees to pay union fees, even if the employee is not a union member. Due to Justice Antonin Scalia’s recent death, the eight-justice Court ruled 4-4 in Friedrichs v. California Teachers Association, leaving the U.S. Ninth Circuit Court of Appeals’ judgment in the union’s favor in place.

Under California law, unions may establish “agency shop” arrangements with public agencies, requiring employees to either join the union or pay a fair share service fee. The fair share fee includes payments for both the union’s “chargeable” collective bargaining activities, and its “non-chargeable” political and ideological activities. If non-members do not want to support the union’s non-chargeable activities, they can receive a fee reduction, but must affirmatively opt-out each year.

Teacher Rebecca Friedrichs argued that teachers who decide not to join the union should not be required to pay union fees, which are often just as expensive as union dues. Friedrichs and other public school teachers claimed that even collective bargaining is a political activity. Therefore, they argued, California’s agency shop arrangements violate First Amendment rights to free speech and association. Both the trial court and the Ninth Circuit held that, under the U.S. Supreme Court’s decision in Abood v. Detroit Board of Education, agency shop agreements are clearly constitutional. Unions can compel employees to provide financial support, even where some of the union’s activities are political or ideological. The courts also found that an opt-out procedure for non-chargeable activities was sufficient to protect the teachers’ rights, in accordance with other precedential cases.

The Supreme Court agreed to hear the case last June. Before Scalia’s death in February left the Court with an even panel, the Court was expected to side with the teachers and overturn Abood. The tie vote, however, leaves the Ninth Circuit’s decision undisturbed and the union right intact. While this issue may be considered again by the Supreme Court after appointment of a new justice, for now agency shop arrangements are permitted in public agencies.

For more information about this decision and how it may impact your agency, contact the authors of this Legal Alert listed at right in the firm’s Labor & Employment practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Best in Law: New Joint-Employer Standards Pose Threat to Businesses

21 Feb 2016 00:00:00 -0800

By Roger Crawford and Thomas O’Connell

For decades, business owners throughout the country have run through a checklist of labor laws and regulations they need to follow to maintain a productive workplace and avoid liability.

Now, through the coordinated actions of several federal agencies, many law-abiding business owners are facing a new reality – they may be held liable as a “joint employer” for lawsuits involving employees that they do not directly control.

The sweeping revisions to the various “joint employer” standards began in the National Labor Relations Board’s matter of Browning-Ferris Industries of California Inc. Previously, the board only considered an employer to be a joint employer under the National Labor Relations Act if there was evidence of a significant or substantial degree of direct and immediate control over the hiring, firing, discipline, supervision and direction of employment of another company’s employees. Claiming that a new, broader standard was needed to encourage collective bargaining, the board abandoned that old standard. Specifically, the board held that an employer may now be jointly responsible, even if it only has the unexercised ability to indirectly control – even through an intermediary – any terms and conditions of employment of another company’s employees.

Around the same time as the Browning-Ferris decision, an internal memo from the Occupational Safety and Health Administration surfaced. According to that memo, OSHA directed its inspectors to vet the relationships between companies and franchises to find evidence of joint employer standing under a broader interpretation of their own joint employer standard.

Most recently, on Jan. 20, the Wage and Hour Division of the U.S. Department of Labor issued an administrator interpretation to construe joint employment under the Fair Labor Standards Act, the federal law establishing minimum wage and overtime requirements, among other things, “as broad as possible.” To that end, the division will now consider the prospect of joint employment where:

The employee works for two employers who are associated or related in some way with respect to the employee (horizontal joint employment) or,
Where the employee has an employment relationship with one employer and the economic realities show that he or she is economically dependent on, and thus employed by, another entity involved in the work (vertical joint employment).

Significantly, in analyzing whether a joint employment relationship exists, the relationship agreed upon by the potential joint employers is not relevant to the division’s determination of joint employment status.

What Does This Mean For Employers?

Going forward, employers should expect to see a trend of federal agencies pursuing a greater number of companies with allegations under a theory of joint employer. Indeed, the Browning-Ferris decision and Wage and Hour Division’s administrative interpretation mention employers in construction, agriculture, janitorial, warehouse and logistics, staffing and hospitality industries, among others, as potential joint employers.

In response to these joint employer standards, all employers should review their business-to-business relationships and practices to assess and minimize their risks in this area. Some concrete steps for businesses to take immediately are:

Review existing written contracts with other businesses to see whether one party reserves any right to control the working conditions of the other party’s employees, even if that authority is never exercised.
Determine whether it makes sense to include an express disavowal of any control over another party’s employees in that written contract.
Review the actual relationships between the parties to see whether one is exercising control over the working conditions of the other’s employees, keeping in mind that, under the new standards, a suggestion that one party take certain actions could be viewed as a requirement that the party must take those actions.

* This article first appeared in The Press-Enterprise on Feb. 21, 2016 Republished with permission.

Limitations of Labor Negotiations Exception to Brown Act

12 Nov 2015 00:00:00 -0800

The labor negotiations exception to the open-meeting requirements of the Ralph M. Brown Act does not permit a community college district’s governing board to meet in closed session to discuss the negotiation of a project labor agreement, the California Attorney General said in a recently issued opinion. The narrowly tailored exception does not apply because the contractors and laborers covered by such an agreement are not district employees.

The Brown Act generally requires legislative bodies to deliberate in open session, but there is an exception for discussion of labor negotiations. The labor negotiations exception allows a legislative body to meet in closed session with its negotiating representative to discuss salaries and benefits of the body’s employees.

The board of trustees of a community college district that is undertaking a construction project sought to meet in closed session with its negotiator to discuss the terms of a proposed project labor agreement. A project labor agreement is a pre-hire collective bargaining agreement between the owner of a construction project and one or more labor organizations, designed to set terms and conditions of employment for the construction. Once a public entity enters a project labor agreement with a labor organization, any contractors the public entity selects to do the construction work (and their subcontractors) are bound by the terms and conditions of the agreement in employing the project’s workers.

The Attorney General concluded that the board could not hold the discussion in closed session because the labor negotiations exception does not include discussions of a project labor agreement where the construction workers covered by the agreement are not district employees.

To determine whether a worker is an employee, courts look to whether the purported employer has the right to control not only the result of the work, but the manner and means of accomplishing the desired result, and whether the employer could fire the employee without cause. In this case, the Attorney General concluded that, because the district and its board would not hire, manage, pay, discipline, or fire the construction workers who are covered by the labor agreement, those workers are not employees of the district. Accordingly, the labor negotiations exception did not apply.

For more information about this opinion and how it may relate to your public agency, contact the attorney author of this Legal Alert listed at right in the Public Policy & Ethics Compliance practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

National Labor Relations Board Rewrites Decades-Old Joint Employer Standard

14 Sep 2015 00:00:00 -0800

The National Labor Relations Board recently made sweeping revisions to the standard for determining if two or more entities are joint employers under the National Labor Relations Act. The revisions came in the closely watched matter of Browning Ferris Industries of California, Inc., which was decided by a 3-2 vote on Aug. 27. Every company should evaluate whether this new joint employer standard poses a risk to its operations.

Please note that this decision only applies to those private sector employers that are subject to NLRB jurisdiction. It does not directly govern contracts entered into by state and local government employers.

Prior to this decision, the Board only considered a putative employer to be a joint employer under the Act if there was evidence of a significant or substantial degree of direct and immediate control over the hiring, firing, discipline, supervision and direction of employment of another company’s employees. This long held standard provided employees, unions and employers with a predictable and finite bargaining process.

Nevertheless, the majority determined that the old joint employer standard was more narrow than statutorily necessary and a new, broader standard was needed to encourage the practice and procedure of collective bargaining in the current economic landscape. Relying on the stated purpose of the Act, the Board held that it “may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.”

At first, this new standard seems only slightly different than the old standard. However, the Board spent several paragraphs clarifying the expansiveness of its new standard. The following are among the most notable changes:

Explicitly overruling several cases, the Board found that it will “no longer require that a joint employer not only possess the authority to control employees’ terms and conditions of employment, but must also exercise that authority, and do so directly, immediately, and not in a ‘limited and routine’ manner. Consequently, the ability to indirectly — even though an intermediary — control employees’ terms and conditions of employment may now result in the Board finding that a putative employer is a joint employer. Further, a reserved right to control, even though unexercised, may in itself be dispositive of a joint employer relationship.

The Board will no longer limit its analysis of whether a putative employer has control over the hiring, firing, discipline, supervision and direction of employment of another company’s employees. Instead, the Board will utilize an “inclusive approach” and will analyze whether the putative employer has control over any terms and conditions of employment of another company’s employees that could be part of the bargaining process including, but not limited to, the following: hiring, firing, discipline, supervision, direction, wages and hours, dictating number of workers, scheduling, seniority, overtime, assigning work, and determining the manner and method of work performance.

Without elaborating more, the Board found that “it is certainly possible that in a particular case, a putative joint employer’s control, might extend only to terms and conditions of employment too limited in scope or significance to permit meaningful collective bargaining. Moreover, as a rule, a joint employer will be required to bargain only with respect to such terms and conditions which it possesses the authority to control.”

As stated by the dissent, “This change will subject countless entities to unprecedented new joint-bargaining obligations that most do not even know they have, to potential joint liability for unfair labor practices and breaches of collective-bargaining agreements, and to economic protest activity, including what have heretofore been unlawful secondary strikes, boycotts, and picketing….” Indeed, for almost 30 pages, the dissent identified again and again how the new joint employer standard provides neither employees, unions, nor employers with any predictability and instead puts at risk entities that are only tenuously connected to another company’s employees. Specifically, among the entities the dissent identified that are now at risk are insurers, franchisors, banks, lenders, contractors with subcontractors, any company that negotiates specific quality or product requirements, any company that grants access to its facilities for a contractor to perform services, and consumers or small businesses who dictate the times, manner and methods of performance of contractors.

For more information on these revisions and how they may impact your organization, please contact one of the authors of this legal alert listed at the right in the Labor & Employment practice group, or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Uber Employee Classification Class Action Could Impact All Employers

10 Sep 2015 00:00:00 -0800

A federal judge’s decision last week to certify a class of California Uber drivers in their lawsuit claiming Uber has misclassified them as independent contractors rather than employees has numerous potential impacts on both private and public employers. The decision is a big win for Uber drivers, allowing them to proceed with the class action on their core claims, which provides them much greater leverage in any efforts to settle the case. There is also the possibility that regulatory considerations for the sharing economy will be affected based on this case.

An ultimate finding that drivers are employees rather than independent contractors would have massive effects on Uber’s business model, forcing it to comply with minimum wage, overtime and meal and rest break laws, to pay payroll taxes, to obtain workers’ compensation coverage, and to potentially provide benefits. A decision that drivers are employees would also grant the employees the right to unionize, as well as the right to seek reimbursement for both mileage and tips. The decision follows the June ruling by a California labor commissioner that a single Uber driver was an employee.

Beyond its implications for Uber itself, this decision highlights the potential for other class actions based on independent contractor misclassifications throughout the sharing economy. Many sharing economy businesses rely on workers that they classify as independent contractors, to keep costs low and valuations high. While no company has done this to the same extent as Uber (which is currently valued at $50 billion), the fact remains that the cost of doing business in the sharing economy will greatly increase if these companies are required to treat their workers as employees. A classification of the workers as employees would also extend additional protections and benefits, including protection under antidiscrimination statutes, application of the full scope of state and federal labor laws, and even a requirement to provide paid sick leave under California’s new sick leave law.

For more information about this decision and how it may relate to your agency or business, contact the attorney authors of this Legal Alert listed at right in the Labor and Employment and Municipal Law practice groups, or your BB&K attorney.

AB 646 Requires Fact Finding by Public Employers Prior to Declaration of Labor Impasse

28 Oct 2011 00:00:00 -0800

Governor Brown recently signed Assembly Bill 646, which amends the Meyers-Milias-Brown Act (MMBA) to essentially repeal the right of California governmental bodies to unilaterally impose a last, best and final offer upon reaching impasse with relevant employee organizations. AB 646 requires fact-finding following mediation and prior to imposition of a last, best and final offer. Notably, under the new law, charter cities and counties that have impasse procedures which include, at a minimum, a process for binding arbitration are not subject to the fact-finding procedures. Given significant ambiguities in AB 646, there will likely be litigation in the near future regarding its impact. Public agencies should consult with legal counsel regarding their specific impasse procedures and any request for fact-finding pursuant to AB 646 after it becomes effective on January 1, 2012.

As background, the MMBA generally governs public sector collective bargaining with local represented employees and gives jurisdiction over disputes and duties under that law to the Public Employment Relations Board (PERB). Among other things, the MMBA requires the governing body of a public agency to meet and confer in good faith with a recognized employee organization before implementing changes regarding items within the “scope of representation.” (State of California (Dept. of Personnel Admin.) (2004) PERB No. 1601-S, 166 CPER 68.) Failure to comply with the duty to bargain is one of the most common unfair practice charges.

If bargaining does not result in agreement between the public employer and the employee organization, the parties are said to have reached “impasse” and relevant impasse resolution procedures come into play. The MMBA allows governmental agencies to adopt their own local impasse procedures. (Cal. Gov. Code § 3507.) Many, if not most of these local impasse procedures provide for mediation. Some even provide for their own fact-finding prior to moving forward with a last, best and final offer. However, many agencies simply impose their last, best and final offers immediately upon impasse.

AB 646 significantly alters this framework. The new law repeals Section 3505.4 of the Government Code, which previously permitted the affected agency to impose its last, best and final offer following the exhaustion of any applicable local impasse procedures. The new Section 3505.4 requires fact finding if a mediator is unable to effect a settlement within 30 days of his or her appointment and if the union requests the fact finding. AB 646 also adds a new provision which states that after “any applicable mediation and factfinding procedures have been exhausted . . . a public agency that is not required to proceed to interest arbitration may, after holding a public hearing regarding the impasse, implement its last, best and final offer.” (Cal. Gov. Code § 3505.7.)

Perplexingly, AB 646 does not explicitly amend that provision of the MMBA that makes mediation discretionary within local impasse procedures. (See Cal. Gov. Code § 3505.2.) Thus, it is unclear whether a local agency can avoid AB 646’s mandatory fact-finding provisions simply by choosing not to mediate at all. Nevertheless, starting on January 1, 2012, a public employee organization may utilize AB 646 to request fact finding following an unsuccessful mediation regarding impasse. The parties each select a single member on a fact-finding panel, with the chairperson of the panel either agreed-to or appointed by PERB.

BB&K’s Labor and Employment practice group assists its employer clients in labor negotiations and developing and administering employment policies designed to avoid liability in the workplace. For more information on this new law and its potential impact on your organization, please contact your BB&K attorney or Joseph Sanchez and Joseph Ortiz in the firm’s Labor & Employment practice group. BB&K will also be hosting a webinar on AB 646 and related labor topics in December. Check our website soon for registration.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Public Employee ‘Bumping’ Rights Cannot be Impaired Without Meet and Confer

11 Mar 2011 00:00:00 -0800

The Court of Appeal issued an opinion this week that reminds public employers that while the decision to layoff employees is not negotiable, the effects, including bumping rights, are negotiable. In Alameda County Management Employees Association v. Superior Court the Court of Appeal held that where personnel policies confer bumping rights, a public employer is obligated to meet and confer with the employee association representing potentially affected employees prior to instituting changes that would affect those rights.

Facing a dramatic reduction in funding, the Superior Court of Alameda County (Alameda) implemented layoffs which included members of the Alameda County Management Employees Association (ACMEA). After being notified of the proposed layoffs, some of the affected ACMEA members requested to use their bumping rights to positions in which they had tenure (previously-held, lower-paying clerical positions) in accordance with Alameda’s personnel policies. Alameda, however, denied most of the requests. Alameda asserted that the employees lost seniority and tenure in those positions once they vacated the position for longer than six months along with the right to bump other employees, based on the definition of seniority that had been negotiated with the union representing the clerical positions, not the ACMEA.

ACMEA filed a court action arguing – among other things – that Alameda had failed to meet and confer with ACMEA before changing the bumping rights of ACMEA members. The trial court rejected ACMEA’s argument, holding that the clerical union’s definition of seniority “abrogated” the affected ACMEA members’ seniority with respect to bumping workers in those clerical positions, relying in part on a statement in the personnel rules which provided that MOUs would control over inconsistent personnel rules.

On appeal, however, the Court of Appeal noted that the laws addressing labor-relations for superior court workers include meet-and-confer provisions modeled after the Meyers-Milias-Brown Act. The Court of Appeal held that the seniority and bumping rights provided by the personnel policy were a “matter within the scope of representation. Therefore, the Court of Appeal concluded that Alameda was obligated to meet and confer with ACMEA, as the exclusive representative for its members, before adopting the definition of seniority with the clerical workers’ union that affected the bumping rights of ACMEA members.

BB&K’s Labor & Employment practice group assists its employer clients in labor negotiations and developing and administering employment policies designed to avoid liability in the workplace. For more information on this case and its potential impact on your organization’s policies, please contact your BB&K attorney, Alison Alpert, Joseph Ortiz, or an attorney in the firm’s Labor & Employment practice group.

Disclaimer: BB&K e-Bulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.