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Top Reasons to Mediate Employment Disputes

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Employment Contracts and Agreements, FMLA and Other Leaves of Absence, Harassment, Reductions in Force, Retaliation and Wrongful Termination, Trade Secrets and Competition, Wage & Hour

As an employment attorney and mediator, I believe mediation is a good alternative to protracted employment litigation.  Below are the top reasons why.

1. Mediation is a Voluntary Process.

Unlike litigation in which federal and state laws and court rules mandate the process (and often the outcome), mediation is a voluntary process. Thus, the parties choose to freely participate and are in control of – if and how – their dispute will be resolved.

2.  There is No Adjudicator to Determine Fault or Liability.

Mediation is about resolving disputes on terms the parties agree to.  Neither party admits fault or liability, nor is there a judge or jury who determines fault or liability.Beth-West-15_web

3.  Mediation Saves Money.

Employment cases can go on for years and even if the case is ultimately settled before trial, the parties will spend a significant amount of money on discovery, motion practice, and pre-trial expenses. This money will likely never be recovered by the employer and will only be recovered by the employee if he/she prevails. Alternatively, the cost of mediation is usually very reasonable; often a mere fraction of the costs of litigation.

4.  Mediation is Efficient and Saves Time.

Courts are impacted and trial dates are usually set out years into the future.  As such, parties will spend many years fighting their case before they ever get before a jury.  On the other hand, mediation can be scheduled at any time pre or post litigation and, when successful, can literally put the dispute to rest as soon as a settlement is reached and the mediation is concluded.

5.  Mediation is Confidential.

Civil lawsuits filed in federal and state courts are public record and, if a trial is ultimately held, it too will most likely be open to the public. However mediation is confidential and the information disclosed by the parties during mediation and any settlement reached, will not be made part of a public record.

6.  Mediation Allows for Candid Communication.

Because mediation is confidential and is held for the purpose of trying to reach a mutually acceptable resolution, the parties can openly discuss their views about the dispute.  They can also freely share their concerns (e.g. weaknesses) about their positions [in confidence with the mediator] without fear of making an admission against their interests.

7.  Mediation Allows for Creative Problem Solving.

Unlike a civil lawsuit where a judge or jury may be limited by applicable law in the types of remedies they can award a prevailing party, mediation allows the parties to engage in creative problem-solving so that they can structure unique settlement terms that may never be possible in court.

8.  Mediation Can Help Employers Avoid the Possibility of Paying the Employee’s Attorneys’ Fees.

In most federal and state employment law statutes, a prevailing party (but more often a prevailing plaintiff/employee) is entitled to reasonable attorneys’ fees.  Often the prevailing employee’s attorneys’ fees far exceed the monetary award received by the employee.  By submitting the dispute to mediation – earlier rather than later – employers can reduce the risk and uncertainty associated with these fees.

9.  Mediation is Final – No Appeals.

Unlike a jury verdict after trial which is subject to appeal and a further expenditure of time and resources, a settlement at mediation is final.

 

For more information, please visit my bio at http://www.weintraub.com/attorneys/lizbeth-beth-v-west.  For information on our Employment Mediation services, please visit our website at http://www.weintraub.com/practice-areas/labor-and-employment/mediation.

PAGA Amendments Not the Solution Employers Need

Posted in Labor Law, New Legislation and Regulations, Wage & Hour

California employers hoped for significant changes following Governor Brown’s budget proposal that called for the Labor and Workforce Development Agency (LWDA) to have more oversight of claims made under the Private Attorneys General Act of 2004 (PAGA).   The budget proposal noted that the departments tasked with investigation and enforcement of the Labor Code has never “had the staffing and resources to effectively review notices, or choose cases for further investigation.”  This is especially true given that the notices are currently being reviewed by a single employee.

Employers in California were optimistic that Governor Brown’s proposal to establish a PAGA unit and hire new employee would reduce unnecessary litigation and lower the cost of doing business.  Although such investigations may still lead to claims and the payment of civil penalties, employers in California were encouraged by the belief that the LWDA would refuse to impose frivolous actions.  Nor would employers be required to pay for attorneys’ fees anytime civil penalties are due.  Unfortunately, Governor Brown’s original proposals were not enacted.  The amendments to PAGA that were enacted do not alleviate most employers concerns with PAGA.  The amendments focus on the procedure rather than substance.  The amendments became effective June 27, 2016.  The amendments provide five primary changes.J. Schoendienst 20

First, an aggrieved employee must pay a $75.00 filing fee when providing the notice of claim to the LWDA.  Previously, an aggrieved employee was only required to provide notice of his or her claims by certified mail to the LWDA and employer. Employers responding to the claim notices with cure notices must also pay the $75.00 filing fee.  The aggrieved employee or employer may obtain a fee waiver by submitting a Confidential Request to Waive Court Fees (Judicial Council Court Form FW-001) or similar form and submit it online with the notice or response.

Second, all notices, both notices of claims filed by the aggrieved employee and cure notices filed by the employer must be submitted to the LWDA online.  A copy of the employee’s notice or employer’s response must be sent by certified mail to the other party.

Third, the amendments extend the time limit for the LWDA to review the claim notice and notify the parties of its intent to investigate.  The LWDA now has 60 days to review the claim notice from the aggrieved employee, instead of the previous 30 days.  The amendments also allow the LWDA 65 days to notify the aggrieved employee and employer of its intent to investigate instead of the 33 days.  This means that if the LWDA does not provide notice of its intent to investigate within 65 days, the aggrieved employee may file his or her civil action.

Fourth, “any settlement of any civil action” filed under PAGA must be approved by the court.  Previously, the court was only required to approve “any penalties sought as part of the proposed settlement.”  Many courts in California interpreted the previous duty only to allow the court to approve of the amount of the penalties and gave them no authority to question any of the other aspects of the settlement agreement.  Now the statute clearly provides the court with the duty to approve the settlement in its entirety.  It is unclear whether this amendment will make obtaining settlement approval more difficult, but it certainly gives the court greater discretion in scrutinizing PAGA settlement agreements.

Fifth, the amendments require the aggrieved employee to provide a file-stamped copy of the complaint to the LWDA within ten (10) days of filing a PAGA action.  It also requires that a copy of a court judgment or any other order that provides for or denies civil penalties under PAGA be submitted to the LWDA within ten (10) days following entry of the judgment or order.

Overall the PAGA amendments will provide the LWDA with the information that it currently lacks – namely how much PAGA litigation is occurring and how much is being allocated for the settlement of these actions.  This will enable the LWDA and lawmakers to decide what, if any, substantive changes or increased funding would be beneficial to reduce unnecessary litigation under PAGA.  Time will tell whether PAGA will continue to be a substantial risk to California employers.  For now the amendments do not provide a solution for employers who hoped the amendments would result in less unnecessary litigation and lower costs of employing employees in California.

Beware – Reporting Wage & Hour Violations Just Got Easier

Posted in Disability Discrimination, Discrimination, Employee Privacy Rights, Harassment, Labor Law, New Legislation and Regulations, Retaliation and Wrongful Termination, Wage & Hour

The California Labor Commissioner Launches New On-Line Reporting System

On August 31st, the Department of Industrial Relations (Labor Commissioner) launched an online system allowing anyone to report a business’ alleged labor law violations. According to the Labor Commissioner’s Press Release, the new online reporting system is simple to use and enables the Labor Commissioner to receive real time leads on businesses that are breaking labor laws so that it’s Bureau of Field Enforcement can investigate and take enforcement action.

The Report of Labor Law Violations (“Report”) can be completed and submitted on-line or it can be printed out for completion and either mailed in or hand-delivered to the Labor Commissioner’s Office.  The Report asks a number of questions about: 1) the identity and location of the employer being reported; 2) the number of employees; 3) the employers’ business hours; 4) whether the employer has a union contract; 5) the designated workweek and normal/standard work schedule; 6) when meal and rest periods are scheduled; 7) whether the employer keeps time records; 8) the employer’s pay day and method of payment; 9) how employees are paid (hourly, salary, piece rate, etc.); and 10) what languages are spoken by employees at the company.Beth-West-15_web

The Types of Suspected Violations that Can Be Reported Include:

  • Failure to maintain workers’ compensation insurance
  • Child labor violations
  • Minimum wage violations
  • Overtime violations
  • Pay stub violations
  • Meal period violations
  • Rest break violations
  • Pay date violations
  • Business expense reimbursement violations
  • Recordkeeping violations
  • Other wage violations (e.g. failure to pay at a contract rate or pay premium pay for missed meal or rest breaks)
  • Mandatory posting violations
  • Misclassification violations (independent contractor v. employee, exempt v. non-exempt)
  • Licensing/registration violations
  • Lactation accommodation violations
  • Other violations

The Report seeks the name and contact information of the individual making the report but asks expressly if the individual wants his or her name to be used in the investigation or if he or she wants the Labor Commissioner to keep his or her name and contact information confidential.  As such, if a Report is made against a company for alleged labor law violations, it is possible that the company may never know who made it.

Takeaway:  Employers should regularly audit their wage and hour practices to ensure they are in compliance with California’s very strict – and very technical – wage and hour laws.  With the Labor Commissioner’s new on-line reporting system, it will be easier for current or former employees to report what they perceive to be systemic wage and hour violations, and for the Labor Commissioner’s Bureau of Field Enforcement to have more of what the Labor Commissioner refers to as “real time leads” on businesses that may be violating the law.

The attorneys in Weintraub Tobin’s Labor & Employment Group are experienced in assisting employers in conducting wage and hour audits.  Please feel free to contact any one of them if you need assistance with your audit.  http://www.weintraub.com/practice-areas/labor-and-employment.

Georgia Protects Small Businesses From Joint Employer Liability

Posted in Employment Contracts and Agreements

On May 3, 2016 the Governor of Georgia signed Senate Bill (SB) 277 to amend Chapter 1 of Title 34 of the Official Code of Georgia Annotated.  SB 277 is a very brief and succinct bill that adds the following Section 34-1-9 to Title 34:

Notwithstanding any order issued by the federal government or any agreement entered into with the federal government by a franchisor or a franchisee, neither a franchisee nor a franchisee’s employee shall be deemed to be an employee of the franchisor for any purpose.”

SB 277 becomes effective on January 1, 2017.

To read the rest of the blog, click here: http://blog.hrusa.com/blog/georgia-protects-small-businesses-from-joint-employer-liability/

The EEOC Is At It Again – New Enforcement Guidance On Retaliation Issued On August 29, 2016

Posted in Discrimination, Labor Law, New Legislation and Regulations

On August 29, 2016, the EEOC issued new Enforcement Guidance on Retaliation which replaces its 1998 Compliance Manual section on retaliation. The Guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.  According to the EEOC, retaliation is asserted in nearly 45 percent of all charges filed with the EEOC and is the most frequently alleged basis of discrimination.  EEOC Chair Jenny R. Yang said that “[t]he examples and promising practices included in the guidance are aimed at assisting all employers reduce the likelihood of retaliation.” Beth-West-15_web

The Guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).  Topics explained in the new Guidance include:

  • The scope of employee activity protected by the law.
  • Legal analysis to be used to determine if evidence supports a claim of retaliation.
  • Remedies available for retaliation.
  • Rules against interference with the exercise of rights under the ADA.
  • Detailed examples of employer actions that may constitute retaliation.

The EEOC has also issued two short user-friendly resource documents to accompany the new Guidance: a question-and-answer publication that summarizes the Guidance, and a short Small Business Fact Sheet that condenses the major points in the Guidance in non-legal language.  To obtain copies of the Guidance or the Q&A or Fact Sheet for Small Businesses, go to https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

OSHA’s Fact Sheet Providing Guidance to Employers To Protect Workers from Exposure to the Zika Virus

Posted in Labor Law, New Legislation and Regulations

OSHA’s Fact Sheet providing guidance for protecting workers from occupational exposure to the Zika virus explains that the Zika virus is primarily spread through the bites of infected mosquitoes and that mosquitoes can become infected when they bite infected persons and then spread the Zika virus to other persons they subsequently bite. According to OSHA, current science-based evidence suggests that approximately one out of five infected people develops symptoms of the Zika virus, usually beginning 2-7 days after the bite of an infected mosquito.  The most common symptoms of the Zika virus infection are fever, rash, joint pain, and red or pink eyes. Other symptoms can include myalgia (muscle pain) and headache.  More serous neurological and autoimmune complications are possible but have not been seen in the U.S.

There is no vaccine to prevent the Zika virus and there is no specific treatment for individuals who become infected. Although the Zika virus is generally spread by the bites of infected mosquitoes, exposure to an infected person’s blood or other body fluids (e.g. through sexual transmission) may also result in transmission. Employers should train workers about their risks of exposure to the Zika virus through various modes of transmission.Beth-West-15_web

OSHA points out that employees who work outside may be at the greatest risk of exposure to the Zika virus. Some workers, including those working with insecticides to control mosquitoes and healthcare workers who may be exposed to contaminated blood or other potentially infectious materials from individuals infected with the Zika virus, may require additional protections (e.g., certain types of personal protective equipment, PPE).

OSHA provides the following recommendations to employers who have employees that work outside:

  • Check the CDC Zika website to find Zika-affected areas.
  • Inform employees about their risks of exposure to Zika virus through mosquito bites and train them how to protect themselves.
  • Provide insect repellents and encourage their use.
  • Provide employees with, and encourage them to wear, clothing that covers their hands, arms, legs, and other exposed skin. Consider providing employees with hats with mosquito netting to protect the face and neck.
  • In warm weather, encourage employees to wear lightweight, loose-fitting clothing. This type of clothing protects employees against the sun’s harmful rays and provides a barrier to mosquitoes.
  • Always provide employees with adequate water, rest and shade, and monitor them for signs and symptoms of heat illness.
  • Get rid of sources of standing water (e.g., tires, buckets, cans, bottles, barrels) whenever

possible to reduce or eliminate mosquito breeding areas. Train employees about the importance of eliminating areas where mosquitos can breed at the worksite.

  • If requested by an employee, consider reassigning anyone who indicates she is or may become pregnant, or who is male and has a sexual partner who is or may become pregnant, to indoor tasks to reduce their risk of mosquito bites.

OSHA explains that its guidance is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. To obtain a copy of the Fact Sheet, go to https://www.osha.gov/Publications/OSHA3855.pdf.

 

The EEOC’s Final Rules On Employer Wellness Programs

Posted in Employee Privacy Rights, Employment Contracts and Agreements

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued two final rules confirming that employers can offer limited incentives (in the form of a reward or avoidance of a penalty) to encourage employees and their spouses to participate in workplace wellness programs.  Under these new rules, employers who offer wellness programs will be allowed to provide such limited incentives to employees or their spouses to induce them to provide information about their current or past health status.  The new rules modify regulations that pertain to Genetic Information Nondiscrimination Act (“GINA”) while creating new regulations that pertain to the Americans with Disabilities Act (“ADA”).

To read the rest of the blog, click here: http://blog.hrusa.com/blog/eeocs-final-rules-employer-wellness-programs/

The Life Span of the Employment Relationship: Hiring, Disciplining and Firing

Posted in Employment Contracts and Agreements, Labor Law, Retaliation and Wrongful Termination

Summary of Program
The Labor and Employment Group at Weintraub Tobin is pleased to offer this informative seminar that will discuss recent cases to help business owners, human resource professionals, and managers avoid liability and effectively hire employees as well as carry out disciplines and terminations. This seminar will cover:

• Lawful and effective job postings and interview questions.L&E2015
• Tips for an effective and meaningful discipline process.
• Effective policies, training and documentation to reduce liability.
• “Progressive Discipline” – Beware!
• Conduct that may constitute “retaliation” and the laws that apply.
• Properly responding to “whistleblowers”.
• Voluntary quits versus “constructive” termination.
• What constitutes “wrongful termination” and what that means for at-will employment.

Date:  September 15, 2016
Time:  9:30 a.m. – 11:30 a.m.

Seminar
9:00 am – 9:30 am – Registration & Breakfast
9:30 am – 11:30am – Seminar

Webinar: This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar.

Location
Weintraub Tobin Office
400 Capitol Mall, 11th Floor | Sacramento, CA 95814

Parking Validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street. Please bring your parking ticket with you to the 11th floor.

Approved for two (2) hours MCLE. This program will be submitted to the HR Certification Institute for review. Certificates will be provided upon verification of attendance for the entirety of the webcast.

There is cost for this seminar.

*This seminar will be limited to 75 in-person attendees.

DOL Issued Updated Employment Law Posters – Be Sure You Post Them In Your Workplace

Posted in Employee Privacy Rights, FMLA and Other Leaves of Absence, Labor Law, New Legislation and Regulations

In July 2016, the federal Department of Labor (DOL) updated two posters that employers are required to post in the workplace.

  1. The “Employee Rights under the Fair Labor Standards Act” poster; andBeth-West-15_web
  1. The “Employee Rights – Employee Polygraph Protection Act” poster.

According to the DOL, every employer subject to the federal Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA) must post and keep posted on its premises the amended posters after August 1, 2016.  The posters must be posted in a prominent and conspicuous place in every establishment of the employer where it can readily be observed by employees and applicants for employment.

Copies of the posters can be obtained on the DOL website at: https://www.dol.gov/whd/resources/posters.htm.

Restaurant’s Fee Deduction Program Violates FLSA

Posted in Employment Contracts and Agreements, Wage & Hour

Employers whose workers earn most of their compensation through tips, such as restaurant employees, know that they walk a fine line to ensure compliance with the Fair Labor Standards Act (“FLSA”) and numerous other laws.  Last month the Fifth Circuit rejected a program instituted by a restaurant operator in Texas that deducted certain fees before paying tips to its restaurant workers that were earned by customers using credit cards. While the ruling does not close the door on such arrangements, employers who utilize such programs will be under scrutiny to ensure strict compliance with the FLSA.

Read more on it here: http://blog.hrusa.com/blog/restaurants-fee-deduction-program-violates-flsa/