While the official start of the summer season is still nine days away, many areas of California are already experiencing high temperatures. Did you know that private patrol operators and proprietary security employers with outdoor post assignments must comply with the Heat Illness Prevention Standard – Title 8 California Code of Regulations (T8 CCR) Section 3395?

Cal OSHA has developed a guide to assist employers in crafting their own heat illness prevention procedures, and to reduce the risk of work related heat illnesses among their employees.

Click here to read CAL OSHA’s Employer Sample Procedures for Heat Illness Prevention.

We wish all of our members a safe and prosperous summer!

BREAKING NEWS!

AN EPIC WIN FOR EMPLOYERS – SCOTUS RULES THAT CLASS ACTION WAIVERS IN EMPLOYMENT ARBITRATION AGREEMENTS ARE VALID

by Barry A. Bradley, Esq.

and Jaimee K. Wellerstein, Esq.

In a monumental victory for employers in one of the most significant employment rulings in recent history, the Supreme Court of the United States held on Monday, May 21, 2018 in Epic Systems Corp. v. Lewis that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act (“NLRA”) and are enforceable under the Federal Arbitration Act (“FAA”).

The long-awaited decision resolved a prior federal court circuit split. According to the National Labor Relations Board (“NLRB”), class action waivers prevented employees from engaging in protected concerted activity in violation of the NLRA. The Fifth Circuit rejected the NLRB’s rulings, first in D.R. Horton, Inc. v. NLRB, and, later in NLRB v. Murphy Oil USA, Inc. The Fifth Circuit was then joined by the Second and Eighth Circuits in refusing to enforce the NLRB’s rule.

However, in Epic Systems Corp. v. Lewis, the Seventh Circuit reached the opposite conclusion, holding that the right to bring a class or collective action is protected concerted activity under the NLRA, and that class action waivers violate that right. In Ernst & Young v. Morris, the Ninth Circuit agreed with the Seventh Circuit and the NLRB.

To resolve the dispute, the United States Supreme Court granted certiori in the three consolidated cases – Epic Systems Corporation v. Lewis; Ernst & Young, LLP v. Morris; and NLRB v. Murphy Oil USA, Inc. The Supreme Court heard oral argument in October 2017. In a 5-4 opinion, Justice Gorsuch, writing for the Court, settled the issue once and for all, holding that the right to bring a joint, collective, representative, or class-based claim is not considered a “concerted action” as understood and protected by the NLRA.

While class action waivers do not mean the end of all representative actions (because employees may continue to bring PAGA actions in California), the Supreme Court’s ruling today should still be viewed as a monumental win for employers. Join a online real monet lightning link pokies

Employer Takeaway: Class action waivers contained in employment arbitration agreements are valid! There is no longer any legal reason for employers not to have employees waive their ability to bring class actions under federal, state, and local employment laws. Companies, along with their counsel, should review their employment arbitration agreements to determine whether they comply with the SCOTUS standards.

Please contact Bradley & Gmelich LLP if you have any questions about the Court’s ruling.

The attorneys at Bradley & Gmelich LLP bring a wide variety of experience to assist their clients. Bradley & Gmelich attorneys excel in litigation, and a number of them focus specifically on appeals and motion work. Bradley & Gmelich attorneys have worked for large civil litigation firms, managed large and small businesses, served as deputy district attorneys and state prosecutors, and been honored with judicial internships and clerkships. Bradley & Gmelich LLP believes in the importance of continuing legal education for their clients, and we have presented seminars, workshops, and classes on many legal topics.

Barry A. Bradley is the Managing Partner of the 25-attorney law firm of Bradley & Gmelich LLP, located in Glendale, California, where he also heads up the firm’s Private Security Team.  A former Deputy District Attorney (Hardcore Gang Prosecution Unit), Barry’s practice concentrates on security licensing, business litigation and transactions, as well as defending cases involving negligent security, wrongful termination, wage and hour class actions, and assisting clients in avoiding liability through proactive, preventative measures.  The firm acts as general counsel for many security companies in California.  Barry is Legal Advisor to CALSAGA, and is an active member of ASIS International, and several other non-profit organizations.  He is rated AV-Preeminent by Martindale Hubbel, the highest peer rating available, and has been named a Southern California Super Lawyer for the past consecutive 14 years. Barry is a founding member of LEAPS, and has served on its board since its inception. bbradley@bglawyers.com

Jaimee K. Wellerstein is a Partner at Bradley & Gmelich LLP, and the head of the firm’s Employment Team. She 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 Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale Hubbel, the highest peer rating available. jwellerstein@bglawyers.com

Recently, the California Supreme Court handed down a decision regarding the calculation of the rate of pay for overtime, which is anything but user friendly.  A number of our members have indicated they are confused by the specifics of the decision.  The following information is meant to clarify the details.
In California, the multiplier for calculating overtime pay is based on an employee’s regular rate, which is not always an employee’s normal hourly wage. The “regular rate of pay” must include almost all forms of compensation that the employee receives. But how do you calculate the regular rate of pay when an employee receives both an hourly wage and a flat sum bonus or incentive – such as an extra $25 for working a weekend shift? This is at the crux of the case in question, Alvarado v Dart Container Corporation of California.

In the case, Dart Container allegedly maintained a policy of paying a flat “attendance bonus” of $15 per day to employees who worked Saturday and Sunday shifts, regardless of the number of hours worked on the weekend shift. A Dart employee (Alvarado) sued, claiming he was improperly paid overtime during the weeks that he earned the weekend attendance bonus.

Alvarado argued that overtime pay on any flat sum bonus or incentive should be divided only by the “regular” (non-overtime) hours he worked that week (the method used by the California Division of Labor Standards Enforcement [DLSE]), not by the “total” hours worked during the week (regular hours plus overtime hours worked – which is the formula used by the federal government and many other states). Under the DLSE method, if an employee worked 48 hours in one week, an employer would calculate the regular rate of pay by dividing 40 regular hours instead of 48 total hours (regular hours plus overtime hours) by all compensation earned in that week. This would result in a higher regular rate of pay and, thus, a higher overtime rate.  What was not clear before this case was whether the DLSE method was the law of the state.

After hearing the arguments, the California Supreme Court unanimously approved the DLSE method of calculating the regular rate and held that when a flat sum bonus or incentive is involved the total compensation earned in that week should be divided by only the regular hours worked, but also include the compensation earned as a flat sum bonus. Employers must divide the employee’s total compensation by the employee’s non-overtime hours worked, not by the total hours worked.
The Court reasoned that a flat sum bonus is not tied to the number of hours worked – the $15 will be paid when an employee picks up a weekend shift, regardless of how many hours the employee worked that week. Because the flat sum bonus was payable even if the employee did not work overtime, only the non-overtime hours should be considered when calculating the regular rate of pay.
FYI, the Court also based its ruling on two other policy factors:

• California requires premium overtime pay which is meant to discourage employers from imposing overtime work.
• California labor laws are interpreted liberally in favor of worker protection.

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