Human Resource and Labor Relations professionals (HR/LR) normally take the lead on workplace investigations of employee misconduct. Given that, they may also bear the blame for investigations that result in adverse employment actions that do not withstand litigation scrutiny. If a current or former employee challenges an adverse employment action via an EEOC or NLRB charge, a DOL complaint, a CBA grievance, or court action, the employer incurs significant expense and disruption simply defending the action. The employer’s exposure increases exponentially if the employer loses the case on the merits before a regulator or court. Consequently, HR/LR should devote sufficient time and attention to workplace investigations to avoid challenge in the first place, where possible, and to ensure the best chance of winning on the merits if a challenge does take place. But where to look for guidance? This blog answers that question and provides a checklist for HR/LR to follow to conduct employee misconduct investigations that will withstand litigation scrutiny.
On April 30, 2018, the California Supreme Court substantially narrowed the class of individuals who qualify as independent contractors under California wage-hour law and paved the way for a new wave of class actions. In Dynamex Operations West, Inc., the Court adopted the restrictive “ABC test” used in other jurisdictions for determining when a worker qualifies as an independent contractor under California’s Industrial Wage Orders.
Under that test, the court presumes all workers qualify as employees. A hiring entity can prove that the worker qualifies as an independent contractor only if it can show that the worker:
A) is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
B) performs work that is outside the usual course of the hiring entity’s business; and
C) is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
On April 18, the Securities and Exchange Commission voted 4-to-1 to propose a set of new rules that would affect broker-dealers’ and advisers’ relationships with retail investor customers, including retirement investors. We have just published an alert discussing the Commission’s proposals, available here.
On May 3, 2018, at our 15th Annual Labor Relations Conference, both the current and immediate-past Chairmen of the National Labor Relations Board will provide in-house counsel and human resources and labor relations professionals a special opportunity to see “behind the curtain.” Hear direct from these Presidential-appointees about where the NLRB has been and where it is going. Co-hosted with the Arizona Society for Human Resources Management at the Phoenician in Scottsdale, this full-day program features speakers from Steptoe’s Labor & Employment group, as well as:
- Marvin Kaplan, NLRB Chair
- Philip A. Miscimarra, NLRB Immediate-Past Chair
- Rosemary Ellis, EngenderHealth Interim President and CEO
- John Nelson, Republic Services Labor Relations Director, West Region
Click here for more information, the agenda, and to register. We hope to see you there.
On Monday, April 2, 2018, the Supreme Court of the United States ruled that car dealerships do not have to pay service advisors overtime under federal law. In a 5-4 decision, the Supreme Court held that service advisors, like auto salespersons, partspersons, and mechanics, are exempt from the Fair Labor Standards Act’s overtime requirements.
In Part 1 of the series reexamining harassment policies and procedures, we looked at common harassment investigation missteps and how to correct them. In Part 2, we examine confidentiality policies.
Employers often defend Title VII harassment claims by showing that they exercised reasonable care to prevent and correct harassing behavior. A key aspect of reasonable care requires an employer to have an anti-harassment policy that, according to the EEOC, “should contain, at a minimum” six elements including an “assurance that the employer will protect the confidentiality of harassment complaints to the extent possible.”
At the same time, the NLRA prohibits employers from maintaining blanket confidentiality rules that prohibit employees from discussing workplace investigations. In Banner Estrella Medical Center, 358 NLRB 809 (2012), the NLRB found that an HR consultant violated the NLRA by routinely asking employees not discuss ongoing investigations with their coworkers. To lawfully require confidentiality of employees, an employer must show a legitimate business justification specific to the investigation at issue, such as the need to protect witnesses or prevent tampering with evidence. That remains the law today, despite the NLRB’s recent shift on employer policies.
So how’s an employer to reconcile those seemingly conflicting laws? Continue Reading Confidentiality Policies that Survive EEOC and NLRB Scrutiny: Reexamining Harassment Investigation Protocol Part 2
Two California district court decisions, the most recent issued in January, have set the stage for the Ninth Circuit to rule on when courts may require plaintiffs to arbitrate ERISA fiduciary breach claims. In March 2017, the Central District of California held in Munro v. University of Southern California that plaintiffs who had signed employment agreements requiring arbitration could nevertheless pursue their claims in court. The court reasoned that the plaintiffs, all ERISA plan participants, brought the claims on behalf of plans, which had not consented to arbitration. Weeks ago, in Dorman v. Charles Schwab & Co., Inc., the Northern District of California concluded that it would not compel arbitration even where an arbitration provision was written into the plan itself. Continue Reading Ninth Circuit Set to Weigh in on Whether Defendants May Compel Arbitration of ERISA Claims
On March 5, 2018, the California Supreme Court changed the test for factoring flat sum bonuses into the overtime rate in Alvarado v. Dart Container Corporation of California, ordering a calculation that will increase the costs of overtime for employers who pay such bonuses. Under the federal formula, an employer must divide an employee’s total weekly pay (including non-discretionary bonuses) by the total number of hours the employee worked in a week to get the regular rate; the employer then must pay time-and-a-half that rate for all overtime hours. But under the Alvarado court’s formula, the employer must divide the total weekly pay by only “the number of nonovertime hours the employee [actually] worked during the pay period.” That smaller divisor will lead to higher overtime rates.
Yesterday, the National Labor Relations Board vacated Hy-Brand Industrial Contractors amidst controversy surrounding Member Bill Emanuel’s participation in the decision. That decision leaves intact the Obama-board’s expanded joint employer standard from Browning-Ferris Industries of California, at least until the Board finds another vehicle to overturn the case.
The NLRB’s Office of Inspector General issued a report finding that Member Emanuel should have recused himself from the Hy-Brand decision in light of the close connection between his prior law firm, which represented one of the parties in Browning-Ferris, and the issues in Hy-Brand. The Board noted that report when it issued its Order vacating the decision.
On February 15, 2018, the U.S. House of Representatives passed the ADA Education and Reform Act, HR 620, by a vote of 225 to 192. The bill aims to curb “drive by” public accommodation suits by requiring that potential plaintiffs first give notice to the allegedly offending business – along with the opportunity to fix the problem – before filing an ADA suit.