The California Supreme Court ruled that the winning party in meal and rest break cases cannot recover attorneys’ fees. In a unanimous decision in Kirby v. Immoos Fire Protection, Inc., the court ruled that neither employees nor employers who prevail can receive an attorneys’ fees award.  

A federal court for the District of Columbia ruled yesterday that the National Labor Relations Board’s (NLRB) new election rule is invalid. The court held that the NLRB did not properly adopt the controversial new rule, sometimes referred to as the “ambush election rule.”

The court found that the NLRB lacked the necessary quorum when it voted on the rule. Under federal law, a vote is valid if there is a quorum of at least three members voting on the rule. At the time the rule was adopted, the five-member board had three members, and only two of the three members voted on the rule. One member, Brian Hayes, expressed his opposition in a public hearing but did not actually participate in the vote. 

In response to the court’s decision, the NLRB announced that it suspended the implementation of the new rule and elections will proceed under the old rule.

According to the NLRB, about 150 election petitions were filed under the new rule. Many of those petitions resulted in election agreements and several have gone to hearing. The NLRB will contact all parties involved in the 150 cases and “provide them the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.” 

Cal/OSHA launched its 2012 heat illness campaign aimed at preventing worker deaths and illnesses due to heat exposure at outdoor workplaces.

Cal/OSHA already started inspections in California to ensure compliance with the heat illness prevention standard, and will conduct coordinated inspections across the state throughout the summer.

Cal/OSHA will also team with employer and worker organizations to educate workers about heat illness prevention. Cal/OSHA will continue its ongoing outreach efforts and engage in an extensive multilingual media campaign to remind workers and employers of their obligations.

Cal/OSHA will also provide statewide heat illness prevention training. Training dates are available from May through September. For more information about Cal/OSHA training, visit Cal/OSHA’s Heat Illness web page.

In 2005, California became the first state in the nation to adopt heat illness regulations on an emergency basis. The regulations became permanent in 2006. 

In 2010, the regulations were strengthened to include a high heat provision applicable to five industries:  agriculture, construction, landscaping, oil and gas extraction, and transportation/delivery of agricultural products.

The U.S. Department of Labor (DOL) released an updated version of its elaws Health Benefits Advisor for Employers on April 18.

The elaws Health Benefits Advisor is a helpful tool that outlines the federal laws that can affect health benefit coverage provided by group health plans. These laws include: 

Few small-business owners look forward to firing an employee, but a day will probably come when you need to do so. Job termination is a delicate situation and should be handled with dignity and respect, as well as knowledge of your legal responsibilities.

Today, the Equal Employment Opportunity Commission (EEOC) issued an updated Enforcement Guidance document on employer use of arrest and conviction records in employment decisions under federal law (Title VII ). 

The EEOC voted 4-1 to approve the guidance document. The EEOC also issued a Question-and-Answer document about the new enforcement guidance. 

Among other topics, the guidance discusses how an employer’s use of an individual’s criminal history in making employment decisions could violate the prohibition against employment discrimination under Title VII. For example:

Last week, hotels around the country received unexpected visits from investigators of the U.S. Department of Labor's Wage and Hour Division (WHD).  This week, WHD announced an initiative to investigate restaurants in the Los Angeles area, one of several (including Portland and San Francisco) such initiatives around the nation.  These activities are the latest evidence that WHD's long-expected aggressive enforcement agenda is finally coming to fruition.

Since the early days of the Obama Administration, WHD has been hiring new investigators --350, according to Solicitor of Labor Patricia Smith.  Now that those investigators have been trained and are ready to hit the streets, WHD can fully implement its strategic enforcement
initiatives.

Among the most critical initiatives WHD is pursuing is one dealing with "fissured" industries. Fissured industries, according to WHD, are those that rely on subcontracting or, in the case of restaurants and hotels, have numerous different franchising and operating arrangements.  These arrangements -- again, according to WHD -- result in increased rates of wage and hour violations.

As a result, WHD is focusing a significant portion of its investigative resources on the restaurant and hotel industries.  Typical issues addressed in these investigations include the proper payment of tipped employees, the exempt status classification of office and management employees, uniform deductions, payment of the proper rate for overtime hours (particularly for tipped employees), whether the required notice has been given to tipped employees, and whether the employer has the required posters.  Of course, issues related to timekeeping are also addressed in these investigations.

While these industries have long been among those targeted by WHD, employers in these industries should expect more frequent visits.  Moreover, WHD -- as is the case with DOL generally -- has adopted more aggressive enforcement tactics.  Whether it is starting investigations with little or no notice, or requiring the payment of liquidated (double) damages to resolve an investigation, or assessing civil money penalties, WHD is using its full arsenal of tools.

One favored tool has been what senior DOL officials have described in various contexts as "shaming."  Shaming includes issuing press releases and making all violations available in a publicly-searchable enforcement database.  That database has apparently been linked with Yelp! in a recent app known as Eat, Sleep, Shop, which allows consumers to search for restaurants, hotels, and retailers in a location, then view both their Yelp rating and their enforcement history, presumably so the consumers can determine for themselves whether the fact that an assistant manager was erroneously classified as exempt 2 years ago should outweigh the quality of the tiramisu.

The app's synchronization of quality ratings and enforcement data puts employers' reputations on the line in a way that simply cannot be duplicated by issuing a press release.  It is at the consumer's fingertips at the moment the decision is made as to where someone should eat, sleep, or shop.

The -- frankly unprecedented -- placement of an employer's reputation on the line (as well as its pocketbook) in an investigation makes it even more critical that employers review their wage and hour practices before WHD shows up at the door.  Employers in the hotel and restaurant industries need to ensure compliance to preserve their reputations.

To do otherwise would be a "shame."

The Court of Appeals for the D.C. Circuit granted the request of the National Association of Manufacturers (NAM) to temporarily stop the National Labor Relations Board (NLRB) from enacting its notice-posting rule.

A federal district court just ruled that the new National Labor Relations Act posting requirement is unlawful. At the present time, it is unclear what the effect of this ruling is on the April 30 posting deadline. HR Informant will be updating you as soon as possible on the effect of this ruling for California employers.

Last year, the National Labor Relations Board (NLRB) promulgated a rule requiring most private sector employers to post a notice informing employees of their rights under the NLRA. The rule was set to take effect on April 30, 2012. 

The U.S. Chamber of Commerce challenged the rule as an unlawful exercise of the NLRB’s authority.

A federal district court in South Carolina agreed, ruling that the NLRB exceeded its authority in violation of the federal Administrative Procedure Act (APA): “The court finds that the Board lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful under the APA … .”