Kate

The Californian 2023 Q2: Confidentiality of Settlement Agreements Obliterated by the NLRB

Confidentiality of Settlement Agreements Obliterated by the NLRB

For decades, employers have comfortably included confidentiality provisions in settlement and severance agreements. This allowed employers to keep the terms of the agreement and the sum paid to a former employee confidential. Employers were even allowed to require the employee to keep information regarding their employment with the Company confidential. Recently, however, this has begun to change. 

Effective January 1, 2022, Senate Bill 331 placed significant restrictions on confidentiality and non-disparagement provisions in settlement agreements related to sexual harassment and assault cases. More recently, the National Labor Relations Board (“NLRB”) imposed further restrictions on confidentiality provisions in severance and settlement agreements. In short, the NLRB opined in McLaren Macomb  (07-CA-263041; 372 NLRB No. 58) that if a confidentiality provision is too overboard, it restricts the employee from exercising their rights under Section 8(a)(1) of the National Labor Relations Act. Surprise: that’s most confidentiality provisions!

McLaren Macomb, a teaching hospital was forced to lay-off a portion of its staff during COVID-19. The staff were offered a severance agreement that included both a non-disparagement provision disallowing the staff to speak negatively about McLaren Macomb and a confidentiality provision that disallowed the staff from disclosing the terms of the severance agreement. 

The staff challenged the provisions (even though these are ordinarily included in severance agreements). McLaren Macomb contended that the provisions were lawful because McLaren Macomb did not separately violate any other portion of the NLRA and were unrelated to any union or protected activity. The NLRB disagreed. 

The NLRB decided that the non-disparagement and confidentiality provisions had a chilling effect on workers and interfered with their Section 7 rights under the NLRA to organize even though these workers were no longer going to be employed by McLaren Macomb. 

Though this case dealt with union employees, the implications of this opinion are far reaching as even non-union employees have rights to organize under Section 7. As a result of this opinion, Employers should carefully review and revise any severance or settlement agreement that they offer to employees. Otherwise, depending on the language of the severance agreement the entire agreement or the confidentiality and/or non-disparagement agreement could be deemed invalid. The attorneys at Bradley, Gmelich & Wellerstein LLP are here to help!

Gentle Reminders

  • Pursuant to Labor Code section 201.3, security companies must pay security officers weekly. Paying these employee bi-weekly or monthly will lead to individual and PAGA penalties.
  • Naranjo v. Spectrum Security Services, Inc. threw a curve ball at employers when the Court decided that premium pay for missed meal periods and rest breaks should be paid at an employee’s regular rate of pay rather than the employee’s regular rate of compensation which for decades was interpreted to be the employee’s hourly rate. If employers do not already, they should pay premium pay based on the employee’s regular rate of pay. 

Saba Zafar is Special Counsel in Bradley, Gmelich & Wellerstein LLP’s Employment Law Department. Ms. Zafar has over a decade of experience as an attorney, primarily in employment law. Ms. Zafar focuses her practice of providing strategic advice and counsel in all aspects of employment law and workplace matters, including drafting and implementation of HR policies and procedures, Employment Handbooks, providing advice to clients on personnel issues as well as general business matters.

About Bradley, Gmelich & Wellerstein LLP

Founded in 2000, Bradley, Gmelich & Wellerstein, LLP is dedicated to providing sound advice and exceptional results for our clients. Our twenty-five plus skilled, dedicated and diverse attorneys represent individuals and businesses of all sizes in a wide variety of business, employment law and litigation matters.  www.bgwlawyers.com.

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Aley Moyer

The Californian Q1 2023 – NEW CALIFORNIA LAWS FOR 2023 STRESS SAFETY, MORE REGULATIONS, AND ADDRESS WORKPLACE DISPARITY

NEW CALIFORNIA LAWS FOR 2023 STRESS SAFETY, MORE REGULATIONS, AND ADDRESS WORKPLACE DISPARITY

Barry A. Bradley, Esq., Managing Partner, Bradley, Gmelich + Wellerstein, CALSAGA Legal Advisor

California’s Governor Newsom signed 997 bills last year (and vetoed 169).  While there was a flurry of laws that protect women’s reproductive rights as a result of the overturning of Roe v. Wade by the U.S. Supreme Court, January 1st marks the enforcement of many other laws about which you should be aware.

Some will impact how you maneuver on the streets and sidewalks, some will impact employers as well as their employees and even job applicants, while another will protect the hides of some of our non-human animals.  Many that are noteworthy, or just plain interesting, are summed-up below.

2023 Is The Year Of The Jaywalker

It’s true!  You no longer have to cross streets only within crosswalks, only on green signals, only when the “Walk” sign is green, and only at corners.  Thanks to Assembly Bill (AB) 2147, peace officers can no longer stop a pedestrian for jaywalking violations UNLESS “a reasonably careful person would realize there is an immediate danger of a collision with a moving vehicle or other device moving exclusively by human power.”

While cars must always yield to pedestrians, you should always look out for your own safety and use reasonable care when crossing.

Bikers Rule!

In an effort to encourage more cycling and also to protect cyclists on the road, the legislature passed the OmniBike Bill, AB 1909 that will make life a little safer and protected for our two-wheeler friends and family members.

Autos Must Change Lanes to Pass a Bike.  It is no longer okay to pass bicyclists with just 3-feet of space between the biker and your car.  Where possible, motorists must treat bikers as if they are any other car, including signaling, going around them into another lane to pass, and provide adequate room.  This will hopefully reduce the hundreds of “near misses” that occur every day, not to mention serious accidents.

E-Bikes Allowed on All Bikeways

Move over, Tesla!  The electric bike is here to stay.  This bill outlaws municipalities from limiting access on bike lanes and bike paths.  This will allow e-bike riders to make use of the designated bike lanes and trails as an added measure of safety.  (For those concerned about our environmental impact, the e-bikes are still not allowed on equestrian and hiking trails.)

Bikes Can Cross on WALK signals

Pedestrians, look out!  Bikes can make use of the crosswalks and enjoy the safety that pedestrians have.

No More Bicycle Licensing Ordinances

And lastly, cities can no longer charge a fee or require registration of bicycles.  (However, bicyclists can still voluntarily register their bikes so they can be located in the case of theft.)

Pay Data Reporting and Pay Scale Disclosures 

As of January 1st, companies with 15 or more employees in California are now required to list salary ranges for all job postings. Senate Bill (SB) 1162 requires an employer to provide pay scale to an applicant or to an employee upon request. 

This new law complements previous legislation, SB 973, signed into law in 2020, which requires employers with more than 100 employees to submit wage data to the state’s Department of Fair Employment and Housing.

Failure to disclose the pay scale can result in stiff penalties for violators, and could also lead to a complaint with the Labor Commissioner or a civil action for an injunction against the company.

FAMILY LEAVE FOR MOURNING AND FOR CARING FOR NON-FAMILY MEMBERS

The California Family Rights Act (“CFRA”) has been amended to include bereavement leave.  Under AB 1949 all employers with 5 or more employees must now provide any employee who has worked for them for at least 30 days the right to take 5-days of unpaid bereavement leave for the death of a family member. 

Who Says You Can’t Pick Your Family?

Your close friend who’s “just like a brother to you” may now qualify as a “Designated Person” for whom you can take an unpaid leave of absence to care for.  Under AB 1041, the CFRA is expanded to allow employees to add to the list one extended family member or a person they consider to be family for whom the employee needs to provide care.  

With the close cross-over between CFRA and the Family Medical Leave Act (“FMLA”), a qualified employee under FMLA may now possibly be able to take up to 24-weeks of unpaid leave over a 12-month period, and still have their job protected!  (Work is overrated anyway!)

PRACTICE POINTER: Update your employee handbooks and policies to reflect the new law.

STATE HOLIDAYS: JUNETEENTH And the LUNAR NEW YEAR 

California now recognizes two new holidays as State Holidays.

Juneteenth commemorates the end of slavery in the United States.  Juneteenth (short for “June Nineteenth”) marks the arrival of federal troops in Galveston, Texas in 1865 to ensure that all enslaved people be freed.  This holiday is now codified in AB 1655.

This year also marks the Lunar New Year as an official state holiday. AB 2596 describes the calculation date. This is a moving target each year as it falls on “the second new moon following the winter solstice, or the third new moon following the winter solstice should an intercalary month intervene.” (Got that?)

While Juneteenth is a judicial holiday, the Lunar New Year is not yet federally recognized and will result in our state and federal courts remaining open. Other non-judicial State Holidays include Genocide Remembrance Day and Native American Day.

PRACTICE POINTER: Update your Employee Handbooks to include these new holidays!

New Laws Impacting “Proprietary” (In-House) Security Forces

While most of us know that licensed private security guard companies provide guards to patrol businesses, buildings and residences, there is another side to security that has been largely unregulated.

“Proprietary Security” is that which is provided by a business or school where the uniformed guards are directly employed by the business or school and not by a licensed security company.  (Think shopping malls, theme parks, certain department stores, many jewelry stores, bar bouncers, and most community college campus security forces.  These are “Proprietary Security.”)

AB 2515 has made some massive changes to the security industry, many of which directly impact this previous minimally regulated side of the security.

Registration Required

Proprietary Security Officers must be registered with the California Bureau of Security & Investigative Services (BSIS), and produce their registration upon demand to any law enforcement officer.  All officers must undergo a criminal background check and receive some training on the laws of the state.

Self-Reporting All Uses of Force

Riding the wave of reigning-in the use of force by police agencies, existing law was imposed on the licensed private security companies to ensure each guard received training, background checks and had to report all uses of force during an altercation. (See, AB 229.)

Under the new law, AB 2515, Proprietary Security Guards and their employers must report any physical altercation with a member of the public while on duty to (BSIS) within 7-business days.  This now imposes the same reporting requirements that the licensed security companies have complied with for years. The goal is to enhance the safety of the public.

The bill also requires actual training in the de-escalation of a situation and use of force training.  (Although not nearly as robust as the training required of the licensed private security guard companies and their security officers, it is a good start.)  

No More Weapons of Any Kind

Under AB 2515, Proprietary (In-House) Security officers are no longer allowed to carry any type of weapons.  This includes batons, pepper spray, Tasers, & of course, firearms. 

The law took effect on January 1st, and violators could face stiff fines and even misdemeanor charges. (The use of force training won’t go into effect until July 1st.) 

Another Year, Another Rose to Minimum Wage

Beginning January 1, 2023, the statewide minimum was supposed to increase to only $15.00 for employees with less than 26 employees and to $15.50 for employees with 26 or more employees.

However, due to inflation, the statewide minimum wage has increased to $15.50 for ALL employees.  (Remember that some local jurisdictions impose a higher minimum wage.)  This also means that exempt employees in California must be paid a minimum annual salary of $64,480.

Furless California

Finally, Animals throughout the state are ringing in the New Year with glee.  Following California’s concern and compassion for our four-legged friends, California is the first state to ban and outlaw the sale and production of animal fur products.  The landmark law, AB 44, went into effect on January 1st, 2023, making it illegal to sell new items made from the fur of undomesticated animals, including mink, rabbit and coyote. The law passed in 2019 and went into effect on January 1st, 2023. 

The law, sponsored by the Humane Society of the United States, reflects the evolving attitudes of compassionate Californians who reject fashion made from animals, and paves the way for other states to follow suit. It carries hefty fines for violators. (The bill excludes the use of fur for religious and cultural purposes.)

Barry A. Bradley is the managing partner of Bradley, Gmelich & Wellerstein LLP where he oversees the firm’s Business and Employment Department and heads up the firm’s Private Security Litigation Team.  A former Deputy District Attorney, Barry’s practice concentrates on licensing, employment and business related issues, defending cases involving negligent security, as well as assisting clients in avoiding liability through proactive, preventative measures. 

The firm acts as general counsel for many security companies in California.  Barry is a Legal Advisor to The California Association of Licensed Security Agencies, Guards & Associates (CALSAGA) and other non-profits.

He has been conferred an AV-Preeminent Peer Rating by Martindale Hubbell, the highest rating attainable, and has been named a Southern California Super Lawyer for the past 16 consecutive years in the area of Business Litigation.  Barry is also the recipient of CALSAGA’s Security Professional Lifetime Achievement Award. bbradley@bgwlawyers.com  818-243-5200.

About Bradley, Gmelich & Wellerstein LLP

Founded in 2000, Bradley, Gmelich & Wellerstein, LLP is dedicated to providing sound advice and exceptional results for our clients. Our twenty-five plus skilled, dedicated and diverse attorneys represent individuals and businesses of all sizes in a wide variety of business, employment law and litigation matters.  www.bgwlawyers.com.

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Aley Moyer

The Californian 2022 Q3 – “Sit Down And Be Counted!” – Court Reiterates Duty To Provide Suitable Seating

“SIT DOWN AND BE COUNTED!” – Court Reiterates Duty To Provide Suitable Seating

Barry A. Bradley, Esq., Managing Partner, Bradley, Gmelich + Wellerstein, CALSAGA Legal Advisor

In California, an employee is entitled to use a seat while working if the nature of the work reasonably permits the use of a seat. An employer is required, in that circumstance, to provide the employee with a suitable seat.  

In the recently decided case of Meda vs. AutoZone, Inc., et. al. (7/19/2022), the California Court of Appeal reversed summary judgment in favor of the employer and sent the case back to the trial court level for trial on the issue of whether the employer “provided” suitable seating.  Although this case takes place in a retail store setting, the same rules apply to the security industry.

Facts:

Plaintiff and appellant Monica Meda (plaintiff) worked as a sales associate for about six months at an AutoZone auto parts store (store) operated by defendant and respondent AutoZoners, a Limited Liability Company (AutoZoners). After she resigned from her position, plaintiff filed a lawsuit alleging one claim under the California Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2699 et seq.) (PAGA). She asserted that AutoZoners failed to provide suitable seating to employees at the cashier and parts counter workstations, and that some or all of the required work could be performed while sitting.

About 40% of plaintiff’s duties were performed at the cashier’s station, another 40% at the parts counter, and the remainder around the floor.  Plaintiff asserted that her time at the cashier’s station could have been performed while seated on a stool, and about half of her work at the parts counter could, likewise, have been performed while seated.  

California Wage Orders:

As a refresher, the court stated that “’wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the [Industrial Welfare Commission (IWC)].” [Citation.] The IWC, a state agency, was empowered to issue wage orders, which are legislative regulations specifying minimum requirements with respect to wages, hours, and working conditions.’ ” [citations omitted.]

Although this case addresses wage order No. 7, the identical requirement is listed in Wage Order No. 4, applicable to security guards.  Specifically, it states:

“14. SEATS 

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. 

(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

AutoZoners claimed that it satisfied the Wage Order requirement by providing two stools by the manager’s office, located around the corner (and out of sight) from the parts counter and the cashier stations.  Unfortunately, it did not provide any seating at these workstations nor did it advise any of the employees that they had a right to carry the stools to their workstations.  The court pointed out that even if the employees used the two stools, there were five to nine employees working at any given time, so there would have been a shortage if more than two wanted to use them at once.

Totality of the Job Duties:

Although the court did not focus on the issue as to whether an employer has an obligation to place a seat at every location (such as in an office setting where desks are located), it did provide some guidance. Citing to a Supreme Court decision, the court restated:  

“[W]hen evaluating whether the ‘nature of the work reasonably permits the use of seats,’ courts must examine subsets of an employee’s total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated. Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles, or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.” (Kilby, supra, 63 Cal.4th at p. 18, 201 Cal.Rptr.3d 1, 368 P.3d 554.)

Result:

In reversing the summary judgment (which would have ended the case in favor of AutoZoners without the need for a trial), the court held:

“We conclude that where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry as to whether an employer has “provided” suitable seating may be fact-intensive and may involve a multitude of job-and workplace-specific factors.”

Lessons Learned For Security Employers:

In order to try to avoid PAGA or class action lawsuits based on suitable seating claims, employers should remember that each security post and assignment will be different and should be evaluated separately. Your employee handbook should make it clear that seats are available where the nature of the work would allow for their use. Employers should make the seats available where appropriate and notify employees of the same. This would satisfy the “providing suitable seating” requirement of the Wage Order according to this court. You can accomplish this analysis by incorporating suitable seating as part of your Post Site Survey performed at each of your accounts. 

Barry A. Bradley is the Managing Partner of Bradley, Gmelich & Wellerstein LLP located in Glendale, California, where he oversees the Employment and Business Teams at the firm.  A former Deputy District Attorney, Barry’s practice concentrates on representing business owners in employment, business and licensing issues, as well as defending litigated cases involving negligent security, employment and business related issues.  The firm acts as general counsel for many security companies in California.  Barry is a volunteer Legal Advisor to the California Association of Licensed Agencies, Guards, & Associates (CALSAGA), and multiple other non-profits.  

He has been conferred an AV-Preeminent Peer Rating by Martindale Hubbell, the highest rating attainable, and has been named a Southern California Super Lawyer for the past 16 consecutive years in the area of Business Litigation. Barry can be reached at bbradley@bgwlawyers.com / 818-243-5200.

About Bradley, Gmelich & Wellerstein LLP

Founded in 2000, Bradley, Gmelich & Wellerstein, LLP is dedicated to providing sound advice and exceptional results for our clients. Our twenty-five plus skilled, dedicated and diverse attorneys represent individuals and businesses of all sizes in a wide variety of business, employment law and litigation matters.  www.bgwlawyers.com.

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Kate

The Californian 2022 Q1 -SCOTUS TO DECIDE THE FATE OF PAGA WAIVERS IN ARBITRATION AGREEMENTS IN CALIFORNIA

SCOTUS TO DECIDE THE FATE OF PAGA WAIVERS IN ARBITRATION AGREEMENTS IN CALIFORNIA

Martin P. Vigodnier, Esq. and Jaimee K. Wellerstein, Esq. Bradley, Gmelich & Wellerstein, CALSAGA Legal Advisor

In what could be a seminal ruling for California employers in the fight over out-of-control wage and hour litigation, the Supreme Court of the United States (“SCOTUS”) has recently granted certiorari in Viking River Cruise, Inc., v. Moriana to decide whether federal law permits employers and employees to agree to arbitrate claims individually and waive not just class and representative claims, but California Private Attorneys General Act (“PAGA”) claims, too.

PAGA Refresher

As a brief refresher, PAGA authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. Employees act as “private attorneys general.” Employees can pursue civil penalties as if they were a state agency. Each initial Labor Code violation carries a civil penalty of $100 per employee, per pay period. Subsequent violations are $200 per employee, per pay period. 75% of the penalties go to the State, and 25% of the penalties go to the aggrieved employees. These penalties add up very quickly and employers can face hundreds of thousands or even millions in penalties for technical errors or other unintentional violations!

 

Background of PAGA Waivers

In 2014, in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 (2014), the California Supreme Court held that waivers of employees’ right to pursue PAGA actions are unenforceable as they violate California public policy. The California Supreme Court also stated that the FAA does not preempt California state law prohibiting PAGA waivers because a PAGA dispute is between the State and the employee, rather than between the employer and the employee.

 

Viking River Cruise, Inc. v. Moriana

In Viking River Cruise, Inc., v. Moriana, the plaintiff worked for Viking River as a sales representative. She sued under PAGA, alleging the employer violated several wage and hour laws under the California Labor Code. Viking River moved to compel arbitration in California state court. The trial court denied the company’s motion to compel and the Court of Appeal affirmed. The California Supreme Court denied Viking River’s petition for review.

Viking River petitioned for certiorari to the United States Supreme Court, arguing that the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), and Epic Systems Corp. v. Lewis, 138 S.Ct. 612 (2018) support the conclusion that the FAA preempts California law, and requires enforcement of arbitration agreements in PAGA actions. In those cases, the Supreme Court held that bilateral arbitration agreements must be enforced, including terms that prohibit class or collective arbitrations.

 

Employer Takeaway:

It is unclear why SCOTUS granted review at this time, but a favorable ruling would be monumental. In short, if SCOTUS rules in favor of Viking River, employers could expand waivers in employment arbitration agreements to include waiver of class and PAGA claims. A decision is expected from SCOTUS in the summer of 2022. Employers are therefore advised to consult with their employment counsel and consider updating their arbitration agreements, as necessary.

If you have questions about the impact this case will have on your business, or have any employment-related questions, please contact the attorneys at Bradley, Gmelich & Wellerstein LLP. We’re here to help.

 

Martin P. Vigodnier, Esq. is a Senior Associate in Bradley, Gmelich & Wellerstein LLP’s Employment Law Department. Martin focuses his practice on labor and employment litigation, class actions, and Private Attorney General Act (PAGA) actions, including wage and hour claims, discrimination, leaves of absence, reasonable accommodation, defamation, trade secrets, retaliation, harassment, wrongful termination, breach of contract, and fraud. Martin also drafts, in both English and Spanish, contracts, regulatory compliance materials, agreements, and policies such as anti-harassment, discrimination, and retaliation policies, OSHA safety policies, employee reimbursement policies, employee stock purchase plans, independent contractor agreements, arbitration agreements, settlement agreements, cross-purchase buy sell agreements, and employee handbooks.

Prior to joining the firm, Martin was President and Founder of his solo law practice handling various employment matters. Prior to practicing law, he was an extern for the Equal Employment Opportunity Commission (EEOC) and awarded the prestigious Peggy Browning Fellowship to work for the Federal Labor Relations Authority (FLRA), assisting the Office of General Counsel analyze unfair labor practice charges against government agencies.

Martin is a native Spanish speaker and writer, and a former amateur boxer.
mvigodnier@bgwlawyers.com

Jaimee K. Wellerstein, Esq. is a Partner at Bradley, Gmelich & Wellerstein LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.

Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale-Hubbell, the highest peer rating available. jwellerstein@bgwlawyers.com

 

About Bradley, Gmelich & Wellerstein LLP

Founded in 2000, Bradley, Gmelich & Wellerstein, LLP is dedicated to providing sound advice and exceptional results for our clients. Our twenty-five plus skilled, dedicated and diverse attorneys represent individuals and businesses of all sizes in a wide variety of business, employment law and litigation matters.
Our firm is very pleased to announce the promotion of Jaimee K. Wellerstein as a named equity partner and our name change to Bradley, Gmelich & Wellerstein, LLP. Jaimee will continue to serve as Employment Law Team Head and work with us to shape the future of the firm. Please note our updated email addresses and website URL in your records!

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