California courts this year provided more lessons to employment lawyers than to employers. Still, there are some important lessons learned. We have captured those lessons for you here.
1. Social Media Policies: Lessons Learned from the NLRA. Each of you should have a Social Media Policy. But take heed! The National Labor Relations Act protects employee's rights to communicate about working conditions and terms of employment, and employers cannot implement rules that tend to chill employees' ability to speak about terms of their employment or working conditions. The National Labor Relations Board has some strong (and surprising) opinions on what employers may not include in their policies:
- The NLRB found unlawful a clause that prohibited the release of confidential guest, team member or Company information based on the NLRB concern that the clause could reasonably be construed as prohibiting employees from discussing/disclosing information regarding conditions of employment. A policy against breaching the Company's Confidentiality Agreement on social media should be enforceable.
- The NLRB found unlawful a social media clause that required employees to treat everyone with respect and that stated that "offensive, demeaning, abusive, or inappropriate remarks are as out of place online as they are offline, even if they are unintentional." The NLRB explanation was that the instruction related to "offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline" was too broad and could restrain conversation about working conditions.
- The NLRB held that the following prohibition: "don't comment on any legal matters, including pending litigation or disputes" was unlawful because it specifically restricted employees from discussing the otherwise protected subject of potential claims against the Company.
- The NLRB found a clause that prohibited the use of copyrighted material on social media to be unlawful because it included the requirement that employees "get permission before reusing others' content or images." The NLRB theory was that the provision would interfere with an employee's protected right to take and post photos of (for example) employees on a picket line or employees working in unsafe condition. Really, we can't make these up.
2. Same Sex Marriage and its Implications for the Workplace. The U.S. Supreme Court in United States v. Windsor Section 3 of the federal Defense of Marriage Act ("DOMA") (which defines marriage as a legal union between a man and a woman) to be unconstitutional as a deprivation of equal liberty under the Fifth Amendment of the US Constitution. The Court further held that "[t]he federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." Practical Effect: Employees who enter sex marriages in a state that recognizes same sex marriage are entitled to the same benefits as other legally recognized marriages (like time off under FMLA to care for a spouse or a spouse's child). Note that the DOL regulations currently look to where an employee resides, not where he or she works. For example, an employee who works in Illinois but lives in Iowa is eligible for benefits under FMLA if she is in a same-sex marriage. An employee who works in the same Illinois workplace would not receive FMLA benefits if she lives in Illinois.
3. Employers Who Pay "Piece Rate" or Commission Need to Audit Their Practices for Paying Non-Productive Time. Employees who are paid "piece rate" (in other words, paid for the number of pieces they produce or gather) must be paid at least minimum wage for the time that they wait between their piece rate tasks. The California Suprement Court in Gonzalez v. Downtown LA Motors confirmed that employees may not be paid less than the applicable minimum wage, whether the remuneration is measured by time, piece, commission or otherwise. This means that minimum wage must be paid for each hour, regardless how the non-exempt worker is paid. No longer may an employer rely on the average total compensation over the total hours worked in the pay period to argue that the minimum wage requirement was met. Practically, this means that minimum wage must be paid for an employee's non-productive time (for example, time spent waiting for piece-rate work to be available must be compensated at least at minimum wage).
4. Accurate Job Descriptions Can Help Employers Win in Disability Cases. As you know, a threshold question for demonstrating eligibility for accommodation for a certified disability is whether the employee/applicant is able to perform "the essential functions" of this position. This year, albeit outside California, several courts relied, at least in part, on the fact that the employer included the job function in the job description. For example, in one case the job description included that driving was an essential function of a case manager's job. The blind applicant was found "not qualified" for the position. In another case, a court found that full-time availability was essential for a customer service agent, based in part on the fact that the written job description stated that the position was full time.
5. Inaccurate Job Descriptions Can Hurt You. In contrast to the above cases, in several cases outside of California courts ruled that employers did not meet their burden of demonstrating that a job function was essential where the employer did not include the job function in the job description. For example, the court diregarded the employer's argument that overtime was an essential function because (in part) overtime was not listed in the job description.
6. The Ability to Handle Stress/Get Along with Others May Be An Essential Function. In several cases outside California, courts this year affirmed that the ability to handle workplace stress and get along with others will be required to perform many jobs. For example, in one case, the court held that the plaintiff, a supervisor, was not qualified for her job where her return-to-work note indicated that she could not have contact with any of her former subordinates and could only have little contact with any other co-workers or the public. The court relied on the fact that supervisors in this workplace "are required as a part of their job to have extensive contact with their subordinates."
7. Courts Continue to Find that Attendance is Essential For Most Jobs. For example, one court noted that "regular attendance" is generally "an essential job requirement," and an employer "need not accommodate erratic or unreliable attendance." In that case, the court held that the plaintiff, an employee with MS, could not show she was qualified for the position where she had no prescribed treatment and "no anticipated date by which she could have been expected to attend work regularly."