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.

Continue Reading California Supreme Court Rejects Federal OT Formula; Requires More Expensive Calculation

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.

Continue Reading House Passes Reforms to Curb ADA Lawsuit Abuse

Following the recent wave of sexual harassment and assault allegations, a wake of news stories emerged about how HR departments have failed to conduct proper investigations into such complaints. Women claimed HR failed to write down their complaints or take any action; one woman claimed HR told her “We don’t want to get involved in this.” The stories asserted that HR “is supposed to protect the company’s interests,” not the employee’s.  But as any experienced employment lawyer or HR manager knows, HR cannot protect the company if it conducts a subpar investigation.

Two of the most common harassment investigation missteps include (1) using investigators that lack sufficient training about how to conduct an investigation, and (2) failing to involve legal counsel at the right time.

Continue Reading Reexamine Your Company’s Harassment Investigation Protocol in Light of #MeToo

Earlier this month, the Wage and Hour Division of the Department of Labor reissued 17 opinion letters from the Bush administration.  The letters provide employers important guidance on a wide-range of issues under the Fair Labor Standards Act.

The reinstatement marks the first publication of opinion letters since the DOL announced last June that it would bring back that form of guidance.  The Obama administration had eliminated the practice and withdrawn many existing opinion letters, including many of those reissued this month.

The reinstated letters do not upend any existing laws, but they provide important guidance and a possible safety net to employers facing similar situations. Many of the reinstated letters concerned application of Section 13(a)(1)’s overtime exemption for executive and administrative employees.  The letters also discussed whether certain bonuses must be included in the regular rate for purposes of calculating overtime and whether certain on-call time qualified as compensable working hours.

The letters contain a cover letter noting that someone had specifically asked the DOL to reissue that particular opinion letter.  Thus, employers who would like to rely on previously withdrawn opinion letters should consider asking the DOL to reissue them under its new policy.

The California Court of Appeals held late last week that a plaintiff does not have standing to pursue California Private Attorneys General Act (PAGA) claims on behalf of the state or other employees once he accepts an offer to settle his individual claims.  The court in Kim v. Reins International California, Inc. B278642 (Dec. 29, 2017), held that once the plaintiff accepted the settlement offer, he no longer qualified as an “aggrieved employee” within the meaning of the statute.  The case expands the potential impact of offers of judgment in California wage-hour class actions.

Continue Reading Cal. Court: No Standing to Continue PAGA Claim After Settlement

In its fifth major decision in five days, the Board overruled a 2016 decision that limited what changes to terms and conditions of employment that an employer can make without bargaining.  In so doing, the Board returned to a broader view of what it means to maintain the “status quo.”  In Raytheon Network Centric Systems, 365 NLRB No. 161 (Dec. 15, 2017), the Board held that employers do not need to bargain when “the employer takes actions that are not materially different from what it has done in the past.”  In Raytheon, that meant the employer lawfully modified employee medical benefit plans after the CBA expired because the employer had made similar modifications annually for 11 years.

Continue Reading NLRB: No Duty to Bargain Over Routine Changes to Health Plans

Late Friday evening, the NLRB overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), the decision that permitted unions to organize “micro-units” of employees.  In PCC Structurals, Inc., 365 NLRB No. 160, the Board returned to “the traditional community of interest standard” for evaluating the appropriateness of a petitioned-for bargaining unit.

Continue Reading NLRB Overrules Specialty Healthcare