University of California San Diego LAMP Program 2013

1. University of California San Diego LAMP Program 2013 Employment Law and Practice Presented by: Lonny M. Zilberman, Esq. Wilson Turner Kosmo LLP lzilberman@wilsonturnerkosmo.com May 7, 2013

2. What’s on the Menu? • Laws regulating the California Workplace • Recurring employment risk issues: How to Spot Red Flags • Tips for “Rightful” Termination and Performance Management

3. ManagingWithout Fear

4. How the Law Changed HR – The Last 70 Years: • 1950s – Untamed Wilderness • 1960s – Civil Rights Comes to Work • 1970s – Sex, Safety & Class Actions • 1980s – Layoffs & Individual Rights • 1990s – Disability and Family Leave • 2000s – Privacy Rights, Drug testing • 2010s – Facebook, Twitter, social media

5. What’s Happening Out There? Certain types of claims are on the rise • Failure to Investigate or Prevent Harassment • Retaliation • Failure to Accommodate • Wage and hour mistakes • Age Discrimination

6. Why Should I Care? • You might be liable: • statutes (harassment, retaliation) • common law (defamation, invasion of privacy, interference, fraud) • A happier team is a more productive team! • The alternatives are not attractive

7. A Jury of Your Peers?

8. Hot Topic #1: Discrimination and Harassment • Title VII of the Civil Rights Act (1964) • Age Discrimination in Employment Act (1967) • The Americans with Disabilities Act (1990) • California Fair Employment and Housing Act • The California Labor Code

9. Title VII - Civil Rights Act of 1964 • Protected characteristics: • Race • National Origin • Color • Religion • Sex

10. Title VII - Civil Rights Act of 1964 • Prohibits employment discrimination in: • Recruitment • Hiring • Advancement • Decisions affecting pay and other terms and conditions • Discipline and termination • Prohibits harassment as well

11. California Government Code • FEHA (Gov’t Code Sec. 12940) race, color, sex, national origin, ancestry, disability (mental or physical), sexual orientation, gender identity (including transgender status) medical condition (cancer), pregnancy, childbirth (and related medical condition), religion, and marital status.

12. Title VII and Discrimination • 2 Types : • Direct evidence of discrimination – Disparate treatment • Disparate impact • “Neutral” policy that discriminates in its application – the numbers tell the story

13. Age Discrimination • Prohibits discrimination: 40 or older • Protects Applicants and Employees • No discrimination in hiring, training, compensation, discharge and other terms and conditions of employment • Reid v. Google case – Cal. Sup. Crt.

14. Americans with Disabilities Act • An employer may not: • Limit, segregate or classify applicants or employees because of disability • Exclude or otherwise deny equal jobs because of disability • Refuse to make reasonable accommodations

15. Definition of a “Disability” • A physical or mental condition that substantially limits a major life activity* • A history of such a condition • Being regarded as having such a condition * Under California Law = “merely” limits a major life activity

16. “Major Life Activities” • Talking, walking, seeing, hearing • Performing manual tasks • Learning • Working • Interacting with others • Concentrating • Pro-creation

17. Reasonable Accommodation • Employers must make reasonable accommodations to known disabilities of applicants and employees, unless the accommodation would cause “undue hardship”

18. The Interactive Process • Employer has an affirmative duty to engage in the interactive process to explore reasonable accommodations • Light Duty?

19. Top Disability-Related Mistakes: • Not engaging in the interactive process • Demoting employees who take leave • Denying an employee’s reasonable accommodation request • Denying that employee has a disability • Discontinuing accommodation for no reason • Sandell v. Taylor-Listug, Inc.case

20. Harassment: Sex and Other Forms • A form of discrimination • 2 Types: QPQ and HWE • QPQ examples • Personal liability for harassment

21. Who Can be a Harasser? • Supervisors • Co-Workers • Customers • Vendors and Contractors

22. Hostile Work Environment • Unwelcome • Conduct, speech or action • Of a sexual nature • Touching the workplace • So “severe or pervasive” • That it affects the job or creates HWE

23. Same sex Sexual orientation Sexual “stereotyping” Disability Religion Race National Origin Age Harassment is Broadly Defined

24. Harassment Prevention • Duty to prevent - Gov’t §12940(h)(i) • Individual liability • Prompt and reasonable investigation • The benefits of a good job: Cotran • Training obligations • Applies to third parties & vendors

25. Avoiding Harassment Claims • Set an example • Intervene early -- be proactive • Don’t punish the messenger • Impose/support decisive corrective action

26. 6 Steps To Avoid Harassment Liability: Train employees and managers regarding all forms of potential harassment – not just “sexual” Take all complaints of harassment seriously – even those involving “name calling” or “teasing” Conduct prompt and thorough investigations State and restate policies at every opportunity Discipline those who do not comply Document the process!

27. Jury Verdicts: Believe It or Not! De La Cruz v. Cal-Pac Group, Inc. (2010): $2,500,000 • Female minimum wage card dealer alleged her manager sexually harassed her. She reported his unwanted advances to HR, but no investigation was conducted. She was terminated one week after the Casino learned she hired an attorney. Manager accused of telling plaintiff she had a nice “rack,” rating other women in discussions with plaintiff and bringing in an erectile dysfunction drug pen and showing her how the pen “grew” in length when a button was pushed. Kell v. AutoZone, Inc. (2010): $1,468,675 • Plaintiff was a District Manager and was terminated five months after complaining of harassment. Kell reported to Division HR Director that local store managers were referring to employees and customers as “retards” and “lazy N-word.” At trial, Plaintiff relied on numerous witnesses who testified that HR Director failed to investigate harassment complaints and that Plaintiff complained of harassment by various store managers. AutoZone confronted Plaintiff with false resume he prepared post-termination claiming that he exaggerated his military rank and medical history because he falsely claimed that he was awarded a purple heart.

28. Wages & Hours: Hot Topic #2 3 Biggest Mistakes Managers Make and How to Avoid Them

29. California’s Wage & Hour Laws • Meal periods • Breaks • Overtime • Off The Clock Time

30. The Rule: Meal Periods • Employee MUST take a 30 minute meal period for shifts more than 5 hours long; • Employee MUST take a 2nd 30 minute meal period for shifts longer than ten hours • Need not be paid • Doesn’t count as “hours worked”

31. Restrictions on Meal Periods • Must be “duty-free” • Employee free to leave work station • Employee free to leave work premises

32. Meal Period Exceptions • 6 hours or less, if voluntarily waived • 12 hours or less, if 1st not waived • “on duty” meal period, if required by the nature of the job

33. Watch Out! • Don’t be too nice • Most employees cannot waive “duty-free” meal period • Waivers must be voluntary • Waiver restrictions

34. The Rule: Rest Periods • Employee must be AUTHORIZED AND PERMITTED to take a 10 minute break for every 4 hours of work • In middle of each work period • “Duty-free” but can prohibit leaving • Must be paid

35. Penalties & Other Costs • 1 hour pay for EACH meal & rest period missed • Overtime “domino” effect • $$$ Attorney’s fees

36. Recent Case Examples: Wren v. RGIS Inventory Specialists (2010): $27,000,000 Plaintiffs claimed they often performed duties while not “clocked-in” and managers knew that they were not compensated. Also claimed unpaid overtime, missed meal and rest breaks and inaccurate itemized wage statements and late payment of wages. Counsel received $5,400,000 (20% of settlement)

37. More Recent Wage and Hour Class Action Settlements From 2011: • Lane v. Stewart Title (Sales Reps.) • $10.8 million settlement for alleged OT • Williams v. Sun Microsystems (IT Writers) • $5 million settlement for alleged OT (152) • Keefe v. Polo Ralph Lauren (Mgrs.) • $4.5 million settlement for alleged OT • Burnham v. Kendal Floral Supply (Merch.) • $3.6 million settlement for alleged OT (371)

38. Failure to Pay Business Expenses: • West v. U.S. Foodservice (Sales Reps.) • $14.5 million settlement for unpaid business related mileage and cellular phone bills (687) • Brunner v. Aon Insurance (Sales Reps.) • $6.8 million settlement for unpaid business related expenses associated with mileage (100)

39. Spotting The Problem • Busy, high-stress workplace • Employees eating at their work areas • Traveling employees • No break area • Laid back timekeeping system

40. The Problem: “Off The Clock” Time • Pre-work activities • Work from home • On-call • Travel time • Key: difficult to disprove

41. What is “work time” anyway? • “Suffered or permitted to work” • Employer control • If employer knows or has reason to know

42. Steps You Can Take To Protect The Company • Review wage statements • State and restate policies • Discipline those who do not comply (and Document this!) • Provide complaint mechanism

43. Wage & Hour FAQ No. 1: • Question:If the employee chooses to work through both of his rest periods, is the employer required to let him leave work 20 minutes early? • Answer:No, working through a rest period does not entitle an employee to leave work early or arrive late.

44. Wage & Hour FAQ No. 2: • Question:Are employers required to keep records of employee breaks? • Answer:No, because the break time is time that the employee is required to be compensated.

45. Wage & Hour FAQ No. 3: • Question: When an employee needs to use the toilet facilities during his work period does that time count towards his ten (10) minute rest break? • Answer: No, Allowing employees to use toilet facilities during working hours does not meet the employer’s obligation to provide rest periods as required by the IWC’s wage orders.

46. Wage & Hour FAQ No. 4: • Question:Can an employee choose to work through her meal period so that she can leave work 30 minutes early? • Answer: Yes, so long as the employee is relieved of all duty and may take a lunch break if she wants.

47. Wage & Hour FAQ No. 5: • Question: Can an employee combine his meal break with his rest period breaks? • Answer: No, meal and rest period time cannot be combined.

48. Wage & Hour FAQ No. 6: • Question: Once a month we provide a training session for our employees during lunch where we provide them with food and drinks. Do we have to pay these employees for that time? • Answer: Yes, the DLSE has concluded that this is an on-duty meal period that must be paid at the employee’s regular rate of pay.

49. Wage & Hour FAQ No. 7: • Question:Are employers required to keep a record of employee meal periods, and if so, for how long? • Answer: Yes, section 7 in each of the IWC’s Wage Orders requires that these records be maintained for at least three (3) years.

50. Wage & Hour FAQ No. 8: • Question: If an employee works unauthorized overtime is the employer obligated to pay for it? • Answer: Yes, California law requires that employers pay overtime, whether authorized or not. An employer can, however, discipline an employee if he violates the company’s policy of working overtime without the required authorization.