It's Here! The Supreme Court Issues The Brinker Decision

At 10 am today, the California Supreme Court issued its 54 page decision in Brinker.  The case was filed in 2004 by employees who challenged the company's meal and rest period practices.  The case presented a number of legal issues.  However, foremost among the issues is whether or not an employer is required to provide and ensure compliance with meal and rest periods, or whether the employer is required only to make them available to employees. 

Here is a link to the Supreme Court's decision:  http://www.courts.ca.gov/opinions-slip.htm  Paste this website into your browser to take you to the opinion. 

You will be happy with the Court's decision!  Here is a quick summary of the Court's opinion: 

1.  An employer is obligated to provide an uninterrupted 30-minute meal period to employees.  This obligation is satisfied if it relieves employees of all duties, relinquishes control over activities and permits a reasonable opportunity to take the meal period without impediment or discouragement.  The employer is not obligated to police meal periods and ensure that no work is performed.  An employee can waive the meal period by continuing to work.  Further, proof that an employer had knowledge of employees working through a meal period does not alone subject the employer to liability for premium pay.  The employee must show employer interference with that right. 

2.  Rest periods must be provided to employees as follows:  10 minutes for shifts of 3.5 to 6 hours; 20 minutes for shifts from 6 to 10 hours; 30 minutes for shifts from 10 to 14 hours, etc.

3.  An employer is not required to provide a rest period before a meal period.  However, an employer must make a good faith effort to permit rest periods in the middle of each work period unless practical considerations render it infeasible.  

4.  The meal period must be provide no later than the start of the employee's sixth hour of work.  The second meal period must be provided no later than the start of the employee's eleventh hour of work (unless waived). 


We hope you will join FLGZ at its Legal Beagle Bagel Breakfast this month discussing the impact of the Brinker decision on your operations.  The workshop will be held on Wednesday, April 25th at 8 am in my office.  Please register to attend in person, or by telephone, by contacting our receptionist, Danielle, at receptionist@flgz.net or by calling 559.256.5000. 

Accessibility and Swimming Pools

Periodically over the past 10 years businesses along the Highway 99 corridor have been fleeced for allegedly violating public accommodation statutes designed to assist those with disabilities.  The lawyers who file these actions -- typically thousands of lawsuits -- seek $4,000 per alleged violation.  And these violations can be as minor as a mirror that is an inch too high off of the floor. 

Get ready for another round of access lawsuits.  The United States Department of Justice has finalized swimming pool access regulations.  For pools without sloping access, this will mean the purchase and installation of a permanent pool lift. 

California businesses have been subject to pool access regulations since 1982, as part of the California Building Code.  But as one lawyer stated, "many [businesses] either don't know ... or care and, a large number of them have been sued for this violation of California law and paid large sums of money." 

I advise businesses open to the public to contact a certified access specialist and analyze access issues.  In our representation of businesses, it is not uncommon even on small cases to defend against 10 or more claims of alleged violations.  At $4,000 per violation, you are already at $40,000.  Then, of course, there are attorneys' fees.  Isn't the law wonderful! 

Settling is Like Kissing Your Sister!

I just spent the last nine hours in a mediation.  A disgruntled former employee claimed unlawful discrimination and harassment.  The company of course denied any wrongful behavior.  And thus the argument ensued. 

In the end, the parties settled their dispute.  And to the extent that settlement brings finality to fees, frayed nerves and extra work, a settlement is a good thing.  But in the end, it's like kissing your sister.  There's no real satisfaction in that! 

So what are a company's choices?  One is to litigate -- and hopefully prevail.  Otherwise, the company will be paying its attorneys, the plaintiff and the plaintiff's attorneys.  There's absolutely no satisfaction in that outcome. 

The other choice is to avoid the claim in its entirety.  In this case, some good HR practices could have avoided the claim.  It's really true -- an employer needs to spend a few bucks now to avoid paying lots of bucks later. 

One thing I will say, this employer used an arbitration provision.  The plaintiff's attorney fought hard to get out of the agreement.  But she lost.  (Good job on winning that round Travis!)  Being forced into arbitration took some steam out of the plaintiff's sails.  It's much different to present a case to a legally-trained arbitrator as opposed to a sympathetic jury.  (Ahhhh, a subject for another blog.) 

Bottom line:  Spend the time and money to avoid claims.  It is the most satisfying option available to an employer. 

Politicians with Their Knickers in a Wad

Senators Chuck Schumer and Richard Blumenthal have asked Eric Holder whether employers can ask employees for their social media passwords. As federal representatives their only real concern is whether the practice violates a federal law. However, state Senator Leland Yee wants to make it illegal for an employer to ask for social media passwords or ask for a printout of social media activities. Why the big deal? I can't imagine an employer spending time on social media sites unless there is a problem in the workplace. HR professionals are too busy for such activities. We are told it is because an employer might see a protected characteristic of an employee. Sure, that could happen. But by the time you see an employee once, you know most of their protected classes such as age, race, gender and ethnicity. The less obvious protected classes are medical condition, religion and sexual preferences. Avoiding a claim that a workplace decision was made based upon information about a protected class otherwise unknown is another reason an employer would not review social media sites. But there are plenty of reasons to look as well. This world is full of very strange people who do very strange things. They seem to relish in these behaviors so long as they are not publicly known. But if these activities or blogs or postings shed light on a person's character, competencies or judgment, why shouldn't an employer know about them? I doubt any of us will have an opportunity to debate these issues. In California's one party state, whatever an influential Democrat wants (s)he gets. Makes for bad laws! Let's see how long it will take California to enact a "progressive" law prohibiting employers from using relevant Internet information in making employment decisions.

That Music Isn't Free!

Do you play music in your business?  Maybe you own a restaurant and play music from CDs or perhaps even hire a live band.  Be careful.  Due to a recent case, Range Road Music, Inc. v. East Coast Foods, Inc., playing that music may cost you a bundle. 

Roscoe's House of Chicken and Waffles played music that was copyrighted by the American Society of Composers, Authors and Publishers ("ASCAP").  Roscoe's would not pay the licensing fee so ASCAP sent in an investigator to listen to the music played in the restaurant.  He heard eight songs licensed by ASCAP played from a CD player and by a live band.  This led to a lawsuit for copyright infringement. 

The defendants (the company and shareholder) were found liable of copyright infringement and statutory damages of $36,000 were imposed.  On top of that the defendants were hit with attorneys' fees and costs in the amount of $162,728.22. 

Ouch!  That is a substantial penalty for playing eight lousy songs! 

Arbitration Clauses: What to do When Current Employees Won’t Sign

My colleague, Travis Stokes, prepared this blog on arbitration agreements.  We often recommend that our clients use arbitration agreements with employees.  You can avoid a jury and the process is quicker and streamlined.  You can also stay out of the public eye. 

California courts often try to limit the scope, value or effectiveness of arbitration agreements.  In my opinion, courts "create" an issue so that an employee can stay in the court system.  This blog describes how one court prevented an employer from arguing that the employee's behavior constituted an acceptance of an arbitration agreement. 

Recently, employees working for our clients have asserted claims, and filed complaints in court.  Travis has been successful in removing those cases out of the courts and into arbitration.  Arbitration agreements must be carefully drafted.  Please, don't do it on your own.  Call Travis! 

Many employers recognize the value of implementing an arbitration policy for workplace disputes.  Requiring new hires to sign an arbitration agreement before beginning employment usually presents no problems.  The more difficult question is what to do when an employer implements a new policy requiring all employment disputes to be submitted to binding arbitration and current employees refuse to sign.  Is the arbitration agreement valid if the employee continues to work for the company after being presented with the arbitration agreement?  More specifically, does it matter if the employee simply remains on the job and says nothing (and signs nothing) as opposed to an employee who actually objects to the arbitration agreement and states that (s)he has no intention of arbitrating any claims?  Although recent case law sheds some light on these questions, the answer is far from clear.

   

Courts have acknowledged that when an employer changes a condition of employment such as imposing an arbitration clause, and the employee remains on the job, the employee has impliedly agreed to the changed terms.  (Craig v. Brown & Root (2000) 84 Cal.App.4^th 416.)  To be sure, the Craig court concluded that because the employer mailed the already working employee a brochure that contained the arbitration agreement, and because the employee continued to work for the company for approximately another four years thereafter, an “implied-in-fact” contract was created and the employee was bound by the terms of the arbitration agreement.  Thus, the employee was compelled to submit her claims to arbitration. 

Nevertheless, in the more recent decision of Bayer v. Neiman Marcus Holdings, Inc. (N.D. Cal. Nov. 8, 2011) No. CV 11-3705 MEJ, 2011 U.S. Dist. LEXIS 129277, 2011 WL 5416173, the opposite conclusion was reached based on some different facts.  In Bayer, the already-working employee actually advised the company (verbally and in writing) that he did not accept the newly proposed arbitration agreement.  Although the employee continued to work for the company for another four years after the implementation of the arbitration policy, the Bayer court distinguished the Craig decision by explaining that when an employee expressly rejects the new contract term no implied-in-fact agreement is reached.  Thus, the Bayer court rejected the precedent set in Craig and refused to compel arbitration. 

Bayer is currently on appeal to the Ninth Circuit, and it will be interesting to see if the appellate court clarifies this issue of implied-in-fact agreements versus express rejection of a contract.  For now, employers should realize that implied acceptance of a newly implemented arbitration agreement (such as remaining in employment) may not be sufficient to compel the employee to arbitration and, consequently, the company will be forced to litigate the employee’s claim.

What Does March Madness Cost You?

I am a BYU alumnus.  My team played Tuesday at 6 pm California time, after the workday.  By the way, BYU overcame the biggest deficit in NCAA tournament history -- 25 points and won. 

BYU is on TV, and the Internet (CBS Sports if you are interested) right now -- smack in the middle of the workday.  62 other teams play today and tomorrow and I guarantee your company has a few alums of the schools in the tournament.  But they won't be watching, right???  Wrong!

I am told 8.4 million hours will be lost from workplaces this month due to the Madness.  This equates to $192 million lost. 

What do you do?  Do you monitor employees computer use?  Do you tolerate it?  Perhaps you go one step further -- to create camaraderie at work you sponsor a pool and bet on the games. 

I hope you don't sponsor betting pools.  But you can be sure your employees are part of a few of them!  You certainly have a few things to consider.