Monday, October 29, 2012

NLRB Prohibits Confidentiality in Harassment Investigations

Here goes the NLRB again, trying to make itself relevant in today’s modern, non-unionized workforce.  In the case of Banner Health System, 358 NLRB No. 93 (July 30, 2012), the NLRB determined that an employer’s instructions to employees not to discuss the investigation with co-workers violated the NLRA. 

Pursuant to section 8(a)(1) of the NLRA, it is unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  Section 7 allows employees to engage in concerted activities for collective bargaining or other mutual aid or protection.  The NLRB concluded that instructing employees not to discuss the investigation with co-workers "had a reasonable tendency to coerce employees in the exercise of their [NLRA] rights." 

Personally, it is important for me to conduct investigations that are not tainted by a “collective memory” created by employees conversing among themselves.  When employees converse, one perception is created.  Other perceptions or understandings are forgotten or ignored.  Of course, this occurrence can prevent an investigator from getting at the truth of the situation. 

In addition, the parties may be prejudiced by false or even true, but unkind, words about them.  Rumor may become fact.  Even the mere allegation, even without substantiation, can cause great harm.  Thus, I appreciate it when employees don’t discuss the merits of an investigation, at least until I have concluded my work. 

The NLRB does not seem to share my concern.  A generalized need to protect the integrity of the investigation is not sufficient to justify confidentiality.  What an investigator must show is:  (1) The need to protect witnesses; (2) a likelihood that evidence will be destroyed; (3) a threat that other testimony will be falsified; or (4) the need to prevent a cover-up.  Frankly, I think these four elements are a given in every case.  Witnesses should be protected, not just against retaliation, but also against potentially wrong (or false) allegations.  Evidence will be destroyed, or redefined, as employees discuss the incidents more frequently. 

I have to believe that a professor somewhere in this country has done a study on the effects of employee communications on the investigation process.  If not, I’m going to ask my buddy, Jim Schmidtke, a professor at Fresno State who has done some very good research on issues of harassment, to look into the matter.  This is a serious matter that the NLRB waded into without, in my opinion, much thought. 

I understand maybe if an employer threatens jobs we might have a different situation.  But the NLRB thinks its rule should apply whether or not an employer threatens discipline.  Wow!  Get real people. 

So what do you do?  Make sure your investigators understand this ruling.  Make sure you have competent investigators who know how to conduct investigations, get information from witnesses, and make witnesses feel comfortable with them and with the process. 

I would also vote for Romney.  I doubt the NLRB would be so assertive had it not been for the Obama Administration and its chumminess with unions. 

Friday, October 26, 2012

A New California Law Affecting Commissioned Employees

Labor Code section 2751 has been on the books for several years.  Historically, it required out-of-state companies to document, in writing, the commission structure for employees.  The court invalidated the provision because it treated out-of-state companies differently than California employers, and therefore was a violation of the Interstate Commerce Clause. 

Section 2751 has been amended to apply to all employers, including California employers.  It goes into effect on January 1, 2013.  According to this provision, the contract providing commissions must be in writing and must set forth the method by which the commissions are computed and paid.  (Labor Code section 2751(a).)  In addition, the employer must give a signed copy of the contract to every employee who is paid the commission.  The employer must also obtain a signed receipt for the contract from each employee.  (Labor Code section 2751(b).)  Thus, the commissions should be:  (1) in writing; (2) signed by employer; (3) setting forth the computation of wages; and (4) acknowledged by the employee in a receipt. 

Employers should also be aware that AB 469 went into effect last January (2012).  It requires employers to provide a "Notice" to all employees with certain information.  Here's a link to the Department of Industrial Relations that has the Notice for employers. 

Employers can probably comply with the two laws by providing commissioned employees with a Notice and an attached wage agreement setting forth the commission structure.  If you need help, email me. 

Wednesday, October 24, 2012

Tulare County Spends $300,000 On A Meritless Claim -- Why???

News media in the Central Valley has widely reported on Tulare County spending $300,000 to settle a lawsuit brought by a deputy district attorney, Todd Zocchi.  He claims that he lost his job after complaining that his boss, Shani Jenkins, sexually harassed him. 

Tulare County indicates that the Ms. Jenkins complained that Mr. Zocchi harassed her and engaged in threatening behavior in November 2011.   The County also claims that Mr. Zocchi was fired for non-discriminatory reasons, presumably after an investigation. 

After he was fired, Mr. Zocchi filed a lawsuit claiming Ms. Jenkins sexually harassed him.  The County says that Mr. Zocchi's allegation was not made known until after the termination decision was made.  However, apparently, Mr. Zocchi claims he was fired because he earlier made the allegation. 

The County hired an investigator who evaluated the claims of both Zocchi and Jenkins.  Apparently, the investigator sided with Jenkins and did not find Zocchi to have a viable claim. 

An attorney took the case of Mr. Zocchi anyway.  Now the attorney and his client are walking away with $300,000. 

So why did the County pay $300,000 to settle what it claims is a baseless claim -- as recognized by an independent expert?  County Counsel indicated there are many reasons to settle a lawsuit.  She mentioned expense, disruption of business, and the consumption of time.  I might add the cost of Mr. Zocchi's attorneys' fees if he were to prevail. 

So what happened?  Your guess is as good as mine.  Perhaps the investigator did not perform a competent investigation.  Perhaps new witnesses surfaced corroborating Mr. Zocchi's position.  Perhaps the County knows more than it is telling the public.  Perhaps the termination came after Mr. Zocchi complained. 

Employers should recognize that a claim of retaliation may be viable even though a harassment claim is not viable.  Timing can be everything with retaliation claims. 

What should you do to prevent these types of claims?  First, have a functioning policy and procedure protecting against unlawful discrimination and harassment.  Conduct training.  Follow through on implementation of the policy. 

Second, investigate properly and promptly.  Hire a good investigator.  Make sure the investigation is thorough. 

Third, consider the timing of any adverse action.  If it is after a complaint is made, then you could face a retaliation complaint. 

Fourth, consider an arbitration provision taking these types of cases out of the public eye and away from a jury. 

At the end of the day, we are left without answers as to this case.  $300,000 is a big settlement for a "meritless" claim.   There is a story here and I would love to learn more about it. 

Tuesday, October 9, 2012

It Couldn't Happen To A Nicer Group -- The SEIU

I hope I am not the only one to see the irony in this case -- Batarse v. SEIU, 2012 DJDAR 13523. 

Mr. Batarse interviewed for the position as a union rep for the SEIU.  In interviews he was asked why he was no longer practicing law.  He responded by saying he resigned due to personal matters and due to issues with his law partners.  I don't know about you, but that response is like waiving a red flag.  Doesn't anyone at SEIU have a clue?  They hired him anyway.

His boss, Ms. Sanchez, swore like a sailor. Batarse complained about Sanchez.  Seriously, didn't he know that vulgarity is common fare in the union world?  In fact, there are plenty of court cases that make reference to vulgarity used by union thugs (... oops did I really say that?  I meant to write representatives) and how vulgarity is not sufficient cause to terminate the employment of a union member.  He complained that Sanchez was discriminating against him due to his race and gender. 

After complaining the SEIU fired him and was replaced by a Hispanic worker.  Can you imagine the complaints that would come from the union if an employer fired a union member after he complained of unlawful discrimination?  Funny how the SEIU sings another song when the shoe is on the other foot! 

Turns out someone at the SEIU did some snooping.  The union determined that Batarse didn't have law partners, and therefore lied in the recruiting process.  He made other false statements.  Turns out Batarse was in some hot water with the state bar, and had disciplinary charges pending against him.  So he resigned.  He did not disclose any of this to the SEIU.  (Did the SEIU even ask?  Looks like the SEIU could use some HR help.) 

Batarse eventually lost the case.  He failed to comply with the legal process.  And he failed to provide the evidence necessary to show that the SEIU decision to terminate was not credible. 

I learn a lot from this case.  First and foremost is to hire right.  Conduct background checks.  Ask specific questions.  Verify answers. 

Second, don't fire someone soon after (s)he complains of discrimination.  SEIU won this case.  I wonder, however, whether the result would have been different had a lawyer represented him.  (Batarse handled the case himself.  Probably prime evidence of why he had trouble with the state bar.) 

Third, keep vulgarities and other offensive words out of the workplace.  While the employer might win a case involving vulgarity, it gives rise to a claim and litigation. 

You gotta love this case.  Union.  Swearing.  Inability to get along.  And a lawsuit.  It couldn't have happened to a nicer group of people!

Tuesday, October 2, 2012

Employee Handbooks -- Updates for 2013

I think I got your attention with yesterday's post.  I hope so.  Now give me two more minutes of your time. 

California is a difficult place to do business as an employer.  We have too many laws governing the workplace.  The volume of laws, as well as the complexity of these laws, spurs litigation. 

Litigation is expensive.  I use a case against Ruiz Food, a large Central Valley employer, as an example.  A former employee sued the company for perceived disability discrimination.  The employee did not have a substantial wage loss.  The case took about two years to get to trial.  At the end of the trial, the jury awarded the plaintiff about $42,000.  That is not a lot of money after two years of litigation.  I suspect Ruiz could say it "won" the case, with such a small award. 

However, the plaintiff's attorney made a motion for attorneys' fees.  The court awarded the attorney $428,000 in fees.  (That doesn't even take into consideration what Ruiz Food paid its own lawyers.) 


My focus is to help employers comply with the laws governing California workplaces, whether created by legislation, regulation or court opinion.  I don't want my clients to face litigation, potentially large verdicts and even larger awards for attorneys' fees. 

We are coming up on the end of 2012.  New laws go into effect in 2013.  Many court cases have made an impact on how employers manage their workplaces.  Regulatory agencies, such as the NLRB, have made an imprint on how we manage the workforce. 

Your handbook should reflect those changes in the law.  The handbook should be a tool managers can use as a guide to handle personnel issues when they arise on the job. 

Our handbooks do just that.  And I will be developing new policies and procedures for use in handbooks in 2013.  If you have a handbook that has not been updated for a few years, now is the time to get it done.  Be ready for the new laws in 2013.  Send me an email or give me a call. 

Monday, October 1, 2012

California Gives Two Thumbs Up For Breasts

Breastfeeding, not really breasts, got the two thumbs up this past week.  Governor Brown signed an employment-related bill -- AB 2386 -- making "breastfeeding or medical conditions related to breastfeeding" part of the Fair Employment and Housing Act definition of "sex."  In other words, an employer cannot discriminate against an employee because she is breastfeeding. 

I don't think the law was needed.  A few years ago, the Fair Employment and Housing Commission ruled in DFEH v. Acosta Tacos that an employer violated the law by discriminating against his employee for breastfeeding while on lunch or break.  Whether or not needed, the law is now codified and becomes effective in 2013.