Hispanics United of Buffalo -- Protecting Pre-Concerted Activity

On December 14, 2012, the NLRB issued a Decision and Order in Hispanics United of Buffalo, Inc. and Carlos Ortiz, Case 03-CA-027872.  It affects an employer's right to take action against employees based on their social media posts. 

Ms. Cruz-Moore worked at a domestic violence shelter in Buffalo.  She texted to her co-worker, Ms. Cole-Rivera, that co-workers did not do their jobs.  In fact, the two employees texted and telephoned one another frequently, both during and after work.  Eventually, Ms. Cruz-Moore told Ms. Cole-Rivera that she was going to tell the boss about the lack of work.  Ms. Cruz-Moore did not welcome a complaint about her work.  She told workers, via Facebook, that Ms. Cruz-Moore complained about them, and asked, "My fellow coworkers how do u feel?" 

Co-workers responded to the Facebook post.  They defended their work efforts. 

Ms. Cruz-Moore claimed the workers lied about her and caused her a heart attack.  She took a copy of the Facebook posts to the boss who fired the employees for bullying and harassment.  The shelter had a "zero tolerance" for such conduct.  Thus, the co-workers were fired. 

At this stage of the proceeding, the question was whether the postings constituted concerted activity protected by the NLRA. 

Concerted activity is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself."  Moreover, it includes those "circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management." 

The NLRB concluded that the acts of the co-workers was protected under these definitions of concerted activity.  Ms. Cole-Rivera alerted co-workers about the complaint, said she was tired of the criticism, and asked co-workers for their views.  The employees were taking the first steps toward group action to defend themselves against the accusations. 

It did not matter that Ms. Cole-Rivera did not tell co-workers that Ms. Cruz-Moore planned to tell management.  It was the objective of Ms. Cole-Rivera to develop a group defense to the allegations.  According to the NLRB, the law protects discussions about job performance. 

I don't know if Ms. Cruz-Moore is still at the shelter.  I don't think she had enough work to do with all of the complaining she did.  And it doesn't appear that she suffered a heart attack either.  Perhaps she should quit whining and started working. 

The supervisor wasn't the brightest bulb in the chandelier either.  Firing employees for objecting to a co-worker's gossip about their performance is a bit over the top.  And zero tolerance policies are, in my opinion, zero intelligence policies.  It eliminates any common sense.  It is an attempt to avoid examining facts and resolving issues. 

In the end, the court protected Facebook posts between feuding co-workers, even where the employer had not yet contemplated taking any action. 

I hope your social media policies are up-to-date. 

The Price IS Right for Brandi Cochran!

The media is reporting that a jury awarded Brandi Cochran $8.5 million for pregnancy discrimination related to her position with the TV show, "The Price is Right."  $601,944 was for lost wages and future earnings.  I suspect an additional amount was awarded for emotional distress.  However, the majority of the verdict -- in excess of $7 million -- appears to be in the form of punitive damages. 

Cochran worked for six years as a model on the show.  She then took 10 months off as "maternity leave" before seeking reinstatement.  The show was satisfied with the models then working.  Thus, it did not reinstate Cochran. 

There is no maternity leave in California.  We have pregnancy disability leave (PDL) but no maternity leave.  PDL is during the period of the woman's disability caused by pregnancy, not to exceed four months.  Even if Cochran took CFRA (California Family Rights Act) leave after PDL, she would be entitled to only 7 months of leave. 

An employee on PDL is entitled to reinstatement.  An employee is entitled to reinstatement after a CFRA leave too.  So it is interesting to see that Cochran was absent for 10 months and called it maternity leave.  I would have advised my clients not to extend PDL or CFRA (absent a disability pursuant to the Americans with Disabilities Act).  Thus, after the four, or seven months elapsed, Cochran would not have been entitled to reinstatement.  A claim of discrimination based on pregnancy disability would not have been successful. 

The show has decided to "spin the wheel" and appeal the case.  We'll see if it wins the showcase or loses because it overbid. 

Leaves are tricky, especially in California.  You need to make sure you understand the leave requirements and the reinstatement obligation.  Let us know if you need help navigating your way.

Hourly Rate of Pay for Computer Software Professionals and for Physicians

When it comes to wage and hour law, most employees are eligible for overtime compensation.  However, some employees are "exempt" from accruing overtime pay.  We generally think of exempt employees as professionals, managers or administrators who are paid a salary. 

There are other exemptions under the law.  In California, computer software professionals and also physicians and surgeons can be exempt from accruing overtime even if they earn an hourly rate of pay instead of a salary. 

Each year, the Department of Industrial Relations establishes the minimum hourly figure a computer software professional and a physician must be paid to be considered exempt.  The hourly pay that must be provided to a computer professional to maintain the exemption is $39.90 which works out to annual compensation of $83, 132.93.  The hourly pay that must be provided to a physician or surgeon to maintain the exemption is $72.70. 

Exemptions can be difficult issues.  Email me if you have questions about whether or not your employees are exempt. 

California Workplace Law -- Year in Review

Each year I update clients' handbooks based on the new laws, regulations and judicial opinions affecting California employers.  It has been an incredible year.  Employers have a lot of work to do to comply with the new laws. 

Our office has compiled nearly 200 new laws and cases in preparing changes for our clients' handbooks.  To help them understand their obligations, we also provide a training course. 

The training courses are Tuesday and Wednesday.  We still have a couple of seats left.  It is a three-hour course, from 9 am to noon.  Cost is $350.  Join us if you can. Call 559.256.5000 or contact receptionist@flgz.net to register. 

If you are worried about the cost, don't be.  One lawsuit can easily cost you $250,000 in attorneys' fees.  Even a simple DFEH or EEOC complaint can cost you $5,000.  So the $350 is a drop in the bucket compared to what could happen if an employee files a claim against you. 

And if you are still worried, don't attend.  I'm ok with that too.  One day, you will be sued and need a lawyer.  I will make a lot more money if you are sued instead of prepared.   

Shoes Reveal the Woman

My closet contains four pairs of shoes.  I have two pair for work (black and brown), one for casual events, and a pair of tennis shoes.  In contrast, my wife has lots of shoes.  So do my daughters.  Women love shoes!  It's all good. 

As it turns out shoes often reveal the true character (and physical agility) of women. 

Many news outlets are reporting a story about Modupe Adunni Martin.  She claimed an ankle injury as a result of a work-related incident.  a custodian in San Mateo, she claims she was unable to walk for six months without the aid of crutches.  After medical assessments did not substantiate her claim, the workers' compensation insurer videotaped a day in the life of Ms. Martin. 

As it turns out, the insurer picked a good day to videotape Ms. Martin.  She met a boyfriend in a public park.  She ran to him wearing high heels.  She then knelt down and performed a sex act on him.  (I guess it was a good day for him too.)  Doctors say Ms. Martin could not have engaged in those activities had she really sustained an ankle injury. 

Ms. Martin pled guilty to workers' compensation fraud.  She is spending 9 months in jail, is on probation for 3 years, and must repay $79,000. 

My question is why she wasn't also convicted of engaging in lewd acts in public places? 

And just what did those high heels look like?  Perhaps you will find out when you google Ms. Martin. 

Can AutoZone Fire Its Employee for Stopping an Armed Robbery?

An AutoZone in Virginia was held up by a man who police say is responsible for 30 robberies in the area.  He came in as the store manager and an associate, Devin McClean, were closing the store. 

The assailant put McClean in a restroom, and then took the manager to the safe.  He was armed with a handgun. 

McClean was able to exit out a side door of the building.  He ran to his car, pulled out his Glock and ran back into the store.  McClean pointed the gun at the assailant and told him to freeze and drop the weapon.  The assailant took off.  McClean stopped the robbery and potentially saved the manager from physical harm or death. 

A couple days later AutoZone fired McClean for bringing a gun into a store.  It's a "zero-tolerance" policy the company maintains.  Of course, most who hear the story think the policy is a 100 percent stupid policy and that AutoZone should hail McClean as a hero rather than a rule-breaker. 

What if this had happened in California?  Could AutoZone fire an employee for stopping an armed robbery?  I think the answer is probably yes. 

I assume AutoZone does not enter into employment contracts with its associates.  Thus, a termination would not breach a contract.  Thus, the only question is whether firing the employee violates public policy. 

California law prevents an employer from retaliating against an employee for making a complaint of unsafe working conditions.  But this is not the situation with AutoZone.  In essence, AutoZone fired McClean for doing something good, heroic and against company rules. 

The law allows an employer to fire an employee for a stupid reason, or for no reason at all.  An employer is permitted to make errors in judgment and to exercise discretion, so long as public policy is not jeopardized. 

Mr. McClean would probably be out of a job in California without a lawsuit.  He could probably get unemployment benefits.  And I suspect another employer would quickly hire him.  But he probably would not have a viable lawsuit against AutoZone. 

So much for justice.