OCBJ Women in Business Awards
I recently found out that I have been nominated by the Orange County Business Journal for its 2012 Women in Business Awards. You can read about the nominees in this month’s OCBJ special supplement. The awards program is June 5th at the Hyatt Regency in Irvine.
California Transparency in Supply Chains Act
Recently, the State of California passed new legislation (the California Transparency in Supply Chains Act of 2010 – S.B. 657) which requires retailers and manufacturers who do business in California to disclose the steps they are taking to eradicate slavery and human trafficking from the supply and distribution chains for the products they sell. The new law took effect January 1, 2012. The law only applies to retail sellers or manufacturers having $100,000,000 or more in annual worldwide gross receipts.
The required disclosure shall, at a minimum, disclose to what extent, if any, that the retail seller or manufacturer does each of the following:
(1) Engages in verification of product supply chains to evaluate and address risks of human trafficking and slavery. The disclosure shall specify if the verification was not conducted by a third party.
(2) Conducts audits of suppliers to evaluate supplier compliance with company standards for trafficking and slavery in supply chains. The disclosure shall specify if the verification was not an independent, unannounced audit.
(3) Requires direct suppliers to certify that materials incorporated into the product comply with the laws regarding slavery and human trafficking of the country or countries in which they are doing business.
(4) Maintains internal accountability standards and procedures for employees or contractors failing to meet company standards regarding slavery and trafficking.
(5) Provides company employees and management, who have direct responsibility for supply chain management, training on human trafficking and slavery, particularly with respect to mitigating risks within the supply chains of products.
The exclusive remedy for a violation of this section shall be an action brought by the Attorney General for injunctive relief. However, the new law does not other remedies available for a violation of any other state or federal law.
OC Metro Magazine’s “40 Under 40″ Awards
Just found out that I have been selected by OC METRO Magazine for its 2012 “40 Under 40″ Awards. The honorees are young professionals making their mark in Orange County in a variety of industries, including fashion, technology, entertainment, medicine, law, public relations and business. The awards ceremony is May 16th at Pelican Hill Resort in Newport Coast.
Brinker Decision
Brinker is officially in. The following is reprinted from the California Supreme Court’s official press release regarding its landmark decision.
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Resolving uncertainty over the scope of an employer’s obligations to afford hourly employees meal and rest periods, the California Supreme Court concluded today that an employer’s obligation is to relieve its employees of all duty during meal periods, leaving the employees thereafter at liberty to use the period for whatever purpose they desire, but that an employer need not ensure no work is done.
On the related question concerning when meal periods must be provided, the court concluded a first meal break generally must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals throughout the shift.
These questions arose in Brinker Restaurant Corporation v. Superior Court, S166350, one of a number of meal and rest break class actions pending in the state. After the Brinker trial court certified classes of employees alleging the Brinker Restaurant Corporation had failed to provide meal and rest periods in the number and at the times required by state law, the Court of Appeal reversed and ordered each subclass vacated. The California Supreme Court accepted review and agreed to resolve lingering uncertainty over the nature of rest and meal period obligations and the suitability of such claims for class treatment.
In a unanimous opinion authored by Associate Justice Kathryn M. Werdegar, the court explained that neither state statutes nor the orders of the Industrial Welfare Commission (IWC) compel an employer to ensure employees cease all work during meal periods. Instead, under state law an employer must provide its employees an uninterrupted 30-minute duty-free period during which the employee is at liberty to come and go as he or she pleases. Absent a statutorily permissible waiver, a meal break must be afforded after no more than five hours of work, and a second meal period provided after no more than 10 hours of work.
On the question of rest periods, the court explained that under the IWC’s orders, employees are entitled to 10 minutes of rest for shifts from three and one-half to six hours in length, and to another 10 minutes rest for shifts from six hours to 10 hours in length. Rest periods need not be timed to fall specifically before or after any meal period.
As to the suitability of rest and meal period claims for class treatment, the court reversed in part, remanded in part, and affirmed in part the Court of Appeal’s rejection of class treatment. With respect to rest period claims, the court concluded plaintiffs had identified a theory of recovery suitable for class treatment. With respect to meal period claims, the Supreme Court remanded to the trial court for reconsideration of class certification in light of its clarification of the substantive law governing meal period claims. Finally, with respect to a third subclass—for claims that Brinker required off-the-clock work—the court affirmed vacation of class certification.
The principal opinion by Justice Werdegar was signed by Chief Justice Tani G. Cantil-Sakauye and Associate Justices Joyce L. Kennard, Marvin R. Baxter, Ming W. Chin, Carol A. Corrigan, and Goodwin Liu.
Justice Werdegar also issued a separate concurring opinion, joined by Justice Liu, addressing meal period class certification issues confronting the trial court on remand. The concurring opinion discussed considerations relevant to the suitability of the plaintiffs’ meal period claims for certification.
The court’s opinion in Brinker Restaurant Corporation v. Superior Court, S166350, is available on the California Courts Web site in two formats: Word (http://www.courtinfo.ca.gov/opinions/documents/S166350.DOC ) and Acrobat (http://www.courtinfo.ca.gov/opinions/documents/S166350.PDF. Hard copies of the opinion are available in the Supreme Court’s Clerk’s Office, 350 McAllister Street, San Francisco. Legal briefs filed in the case are online at http://www.courts.ca.gov/15713.htm
Waiting for Brinker…
Employment lawyers are waiting with baited breath for the all-important Brinker case to come out this week. The California Supreme Court’s decision is expected to come down on Thursday, April 12th.
What’s Brinker about? It has to do with whether employers must ensure employees take breaks or must simply provide breaks. The California appeals court found that rest breaks only need to be provided, and that they do not always need to be taken in the middle of the four-hour work period. The Court also held that meal periods must be provided, rather than ensured. This decision, however, was appealed to the California Supreme Court.
Both plaintiff and defense lawyers have anxiously waited for guidance from the California Supreme Court on this issue for quite some time now. The Supreme Court’s ruling will have a dramatic effect on how meal and rest break cases are litigated. Meal and rest break violation cases can be extremely costly, and form a significant portion of all employment litigation in California. I will let you know the Court’s ruling as soon as it comes out.
Kring & Chung April Newsletter
Firing for Facebook Posts
The National Labor Relations Board (“NLRB”) recently ruled that a non-profit organization violated federal law when it fired employees for messages they posted on Facebook. The issue concerns the National Labor Relations Act (“NLRA,”) Section 7, which requires employers to allow employees to discuss the terms and conditions of their employment without fear of retaliation. This rule applies regardless of whether the employees are unionized.
In this case, the non-profit fired five employees that had a Facebook discussion about a co-worker’s criticism of their work performance. The non-profit took the position that the Facebook discussion constituted bullying and harassment, and was therefore grounds for termination.
One of the employees filed a wrongful termination charge with the NLRB, claiming his Facebook posts were a protected activity. The employer argued the employees were merely griping about their co-worker. The employer claimed the activity was not protected, because the employees were not trying to change their work conditions and did not bring their complaint to management. The NLRB judge ruled that the employer violated federal law by terminating the employees. It found that, if the employees have a protected right to discuss their wages and other terms of their employment, then the employer violated the NLRA by firing the employees for discussing their co-worker’s criticism on Facebook, regardless of whether the employees’ discussion had the object of inducing group action.
The NLRB appears to take a two-pronged analysis in determining whether the activity is protected. An employee’s social media use is protected if the comments: 1) relate to the terms and conditions of employment, and 2) can reasonably be interpreted as acting with, or on behalf of, other employees. The activity is not protected if the comments are just personal gripes or comments that have no real connection to work conditions.
According the NLRB, the mere fact that an employer has an overly broad social media policy can expose the employer to liability for unfair labor practices charge, even if it takes no disciplinary action based on that policy. An overly broad social media policy is unlawful if it is designed to chill a protected activity.
