*By Patrick J. Hoban
This morning, the Federal Circuit Court for the District of Columbia issued an injunction which prevents the National Labor Relations Board (“NLRB”) from enforcing its rule requiring Employers to post the NLRB-mandated “Employee Rights” notice by April 30, 2012. The injunction means that employers do not have to post the NLRB Employee Rights notice by April 30. Z&R discussed the posting requirement and its implications for employers in previous alerts: October 2011, September 2011 and August 2011.
In March, 2012, in response to a challenge by two employer organizations, the Federal District Court for the District of Columbia, ruled that the NLRB was authorized to compel private employers to post notices informing employees of their rights under the National Labor Relations Act (“NLRA”) – including their right to form a union and file unfair labor practice charges. See Nat’l Assoc. of Manufacturers v. Nat’l Labor Relations Bd., et al., No. 1:11-cv-01629-ABJ (D.C. Sept. 8, 2011) The employer groups appealed the decision to the D.C. Circuit Court of Appeals and filed a Motion to Stay enforcement of the rule pending appeal. The NLRB opposed this motion; however, the Circuit Court issued the requested injunction this morning. The Court of Appeals’ injunction recognizes the “uncertainty about enforcement” of the rule and requires preserving the “status quo” (i.e., no notice posting requirement) pending resolution of the challenges to the rule on appeal. The Circuit Court has scheduled oral arguments in the case for September 2012 which means that employers will not be required to post the “Employee Rights” notice until the Court issues its decision sometime after that.
In another challenge to the posting rule brought by the U.S. Chamber of Commerce, on Friday, April 13, 2012, the United States District Court in Charleston, South Carolina rejected the NLRB’s argument that the posting requirement was “necessary” to carry out the mission of the NLRA. Further, Judge Norton also rejected the NLRB’s argument that Congress had delegated authority to the NLRB to order the posting of these notices. The Court held that the NLRB lacked authority to issue the posting rule, that, as a result, the rule was unlawful and granted summary judgment to the U.S. Chamber of Commerce. Chamber of Commerce of the United States, et al. v. National Labor Relations Board, et al., No. 2:11-cv-02516-DCN (D.S.C. Apr. 13, 2012). This decision rendered the posting rule unenforceable in the State of South Carolina, but left the NLRB free to enforce it in other parts of the country. However, today’s injunction from the D.C. Circuit Court prohibits the NLRB from enforcing the rule anywhere.
The ultimate fate of the “Employee Rights” poster remains unclear and may ultimately rest with the U.S. Supreme Court. Z&R will keep you updated on any changes in the posting requirement.
Election Rule Amendments Take Effect April 30
The election rule amendments, passed in December, 2011, reduce the time between the filing of a union election petition and an election by virtually eliminating pre-election litigation. As a result, employers will have less time to present the case against unionization to their employees and rebut union propagandizing that has been underway for months. The new election rules drastically undermine an employer’s ability to defend itself and its employees against a union organizing campaign. (See our previous alert discussing the amendments in more detail).
If you have not updated your employee handbook or workplace policies in light of these NLRB rules changes, you should do so immediately. Specifically, your confidentiality, social media, code of conduct, non-harassment, related investigations, discipline, electronic communications and solicitation/distribution polices should be reviewed and revised to ensure that they comply with the NLRA and give you the tools to counter union organizing in your workplace. If you have any questions about the posting requirement, the election rules changes, revising your employee handbook to comply with the NLRA, contact Pat Hoban at 216-696-4441 or pjh@zrlaw.com.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the NLRB’s election amendments, NLRB’s posting requirement, or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.
Tuesday, April 17, 2012
Friday, April 13, 2012
California Supreme Court: Employers Need Not “Police” Meal Breaks To Ensure They Are Taken
*By B. Jason Rossiter
In California, it is now (finally) clear what an employer’s responsibility is concerning meal breaks.
California Courts have been befuddled for some time concerning meal breaks. Specifically, what happened if a boss told an employee to take a meal break, but the employee got busy and forgot and worked through all or part of the break? Does the mere fact that the boss told the employee to go on break mean that the company satisfied whatever obligation it might have had to provide the employee with a break (assuming, of course, that the boss did not pester the employee to keep working during the break)?
Or, on the other hand, is it the company’s duty to actually make sure the employee takes a meal break when he or she is supposed to? If this is the case, then legions of employees in various industries, who performed a spot of work here and there during meal breaks, might have claims against their employers. One wonders what a company must do to fulfill such a requirement, if it indeed were a requirement. Should companies tail their employees to the In-N-Out Burger?
After years of waiting, the California Supreme Court has finally answered this question in Brinker Restaurant Corp. v. Superior Court. The Court summarized its key holding at the very beginning of the 54-page opinion:
This holding creates a few new issues, however. California employers who have handbook policies that limit what employees can do during meal breaks might want to rethink those policies, since tying the employee’s hands and requiring them to take all breaks in the breakroom, etc., may no longer be wise, since it might not satisfy the “at liberty to use the meal period for whatever purpose he or she desires” requirement. California employers might also want to think about whether they should direct supervisors and managers to simply stay out of the breakroom (unless they are on breaks themselves), since a rather glaring hole in this holding is the possibility that employees might allege that their bosses coerced or pressured them into working, and those allegations become more feasible the more often supervisors visit the breakroom. The court even mentioned this possibility by stating that “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”
In its opinion, the Brinker court also addressed various issues regarding class certification, how to calculate when rest and meal breaks must be given, etc., but the issue above was what everyone was waiting to see resolved.
*Jason Rossiter practices in all areas of labor and employment law and has extensive experience handling employee break issues. He is licensed to practice law in California, Pennsylvania and Ohio. For more information about this and other changes to California law, contact Zashin & Rich at (216) 696-4441.
In California, it is now (finally) clear what an employer’s responsibility is concerning meal breaks.
California Courts have been befuddled for some time concerning meal breaks. Specifically, what happened if a boss told an employee to take a meal break, but the employee got busy and forgot and worked through all or part of the break? Does the mere fact that the boss told the employee to go on break mean that the company satisfied whatever obligation it might have had to provide the employee with a break (assuming, of course, that the boss did not pester the employee to keep working during the break)?
Or, on the other hand, is it the company’s duty to actually make sure the employee takes a meal break when he or she is supposed to? If this is the case, then legions of employees in various industries, who performed a spot of work here and there during meal breaks, might have claims against their employers. One wonders what a company must do to fulfill such a requirement, if it indeed were a requirement. Should companies tail their employees to the In-N-Out Burger?
After years of waiting, the California Supreme Court has finally answered this question in Brinker Restaurant Corp. v. Superior Court. The Court summarized its key holding at the very beginning of the 54-page opinion:
an employer’s obligation [to provide a meal break] is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.The Court elaborated upon this holding a little later in its opinion (at pp. 36-37):
An employer’s duty with respect to meal breaks under both [Labor Code] section 512, subdivision (a) and [IWC] Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.
On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay under Wage Order No. 5, subdivision 11(B) and Labor Code section 226.7, subdivision (b).(Emphasis added). The underlined language is key and is what most California employers likely will focus on. So long as an employer gives its employees meal breaks when required, and legitimately relieves them of all responsibility and lets them do essentially whatever they want (the employee must be “at liberty to use the meal period for whatever purpose he or she desires”), the employer is not at risk of a meal break penalty merely because its employees might start working to some degree during their breaks. As the Court put it, “Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.”
This holding creates a few new issues, however. California employers who have handbook policies that limit what employees can do during meal breaks might want to rethink those policies, since tying the employee’s hands and requiring them to take all breaks in the breakroom, etc., may no longer be wise, since it might not satisfy the “at liberty to use the meal period for whatever purpose he or she desires” requirement. California employers might also want to think about whether they should direct supervisors and managers to simply stay out of the breakroom (unless they are on breaks themselves), since a rather glaring hole in this holding is the possibility that employees might allege that their bosses coerced or pressured them into working, and those allegations become more feasible the more often supervisors visit the breakroom. The court even mentioned this possibility by stating that “an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”
In its opinion, the Brinker court also addressed various issues regarding class certification, how to calculate when rest and meal breaks must be given, etc., but the issue above was what everyone was waiting to see resolved.
*Jason Rossiter practices in all areas of labor and employment law and has extensive experience handling employee break issues. He is licensed to practice law in California, Pennsylvania and Ohio. For more information about this and other changes to California law, contact Zashin & Rich at (216) 696-4441.
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