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The California Supreme Court Provides Guidance on Day of Rest Requirements

June 14, 2017

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The California Supreme Court clarified employer obligations under the state’s day of rest statutes, Cal. Labor Code §§ 550-558.1, which entitle employees to one day’s rest in seven.  In Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074 (2017), a case that was (mostly) good news for employers, the Court unanimously upheld interpretations of the requirement that largely preserved scheduling flexibility for employers and employees alike.

Three questions were certified to the Court for consideration:

  • Is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any seven-consecutive-day period?
  • The day of rest requirement is calculated by workweek.  After finding the plain language of sections 551 and 552 “manifestly ambiguous” and the legislative history irrelevant to the dispute, the Court held that the regulatory and statutory schemes of the day of rest laws required the day of rest requirement to apply during each workweek.  The Court looked to past iterations of Wage Orders related to day of rest requirements and to section 510 of the Labor Code, which governs overtime, in deciding that sections 551 and 552 require a day of rest per workweek, and not on a rolling basis.

    Importantly, the Court noted that the current wage order governing day of rest requirements only guarantees one day of rest per every seven days on average.  In other words, “rest days need not fall on every seventh day and can be spaced out differently in a calendar

    Employers May Substantially Reduce Their Potential Exposure for Employment-Related Lawsuits with a Simple Modification to Their Employment Applications

    June 12, 2017

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    Employers go to great lengths and expense to reduce their potential exposure to employment-related claims.  Most employers implement employment policies to address the ever-growing myriad of federal, state, and local employment laws, regularly conduct employee EEO training, hire qualified human resources professionals and in-house attorneys with expertise in employment law, and regularly seek advice and assistance from outside counsel concerning these prophylactic measures.  The article addresses a fast, simple, and inexpensive way to substantially reduce exposure to certain types of employment-related claims through the inclusion of an express waiver (“Waiver”) in a form employment application or other document signed by applicants or employees.  The Waiver contractually reduces to six (6) months the time period within which certain types of employment-related claims must be filed and waives any statute of limitations to the contrary, thereby significantly reducing the number of timely-filed claims and, consequently, the employer’s potential exposure.  Although waivers can vary by jurisdiction, the following include example of things to bear in mind.

    Which Claims Should Be Included in the Waiver?

    The employment-related claims that subject employers to the most potential exposure are those that carry lengthy limitations periods and no damages caps.  For example, 42 U.S.C. § 1981 (“Section 1981”), which prohibits race discrimination and retaliation, has a four (4)-year statute of limitations and does not cap emotional distress or punitive damages.[1]  State common law also provides a source for employment-related breach of contract and tort claims, such as defamation, intentional infliction of emotional distress, negligent hiring /

    Macron’s Reforms

    Macron’s Reforms

    June 8, 2017

    Authored by: François Alambret

    Emmanuel Macron was elected one month ago promising to reform France’s employment regulations. It’s too early to determine if Mr. Macron will succeed in opening up the French labor market and much will depend on the result of parliamentary elections that will be held in mid-June 2017. However, what are the main reforms that have been proposed by Mr. Macron?

    Click here to read the Alert in full.

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess the French labor market. If you or your organization would like more information on this or any other employment issue, please contact an attorney in the Labor and Employment practice group.

    Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 3 of 3)

    Common Mistake No. 3: Poor Drafting of Termination Letters

    This post continues the discussion of common errors made by employers terminating employees which can be easily avoided.

    As a general rule, an employer may terminate an employee for a good reason, a bad reason, or no reason, just not for an illegal reason. Moreover, in most (but not all) states, an employer is not required to provide an employee with the reason for the employee’s termination. Although there are different schools of thought on the subject in light of the broad latitude given to employers in most states, I typically recommend including the reason(s) for the employee’s termination in the termination letter. In my experience, the termination of an employee without providing a reason usually strikes an employee as fundamentally unfair and increases the likelihood of the employee seeking advice from an attorney (which, in turn, increases the likelihood of a lawsuit being filed by the terminated employee).

    In drafting termination letters, the most common mistake that employers make is not including all of the reasons for the employee’s termination in the termination letter. This does not mean that the termination letter should be long and detailed. To the contrary, it should be short and use broad terms that encompass all of the reasons for the employee’s termination without including unnecessary detail. In order to understand the rationale behind this recommended approach, a brief discussion of the employee’s burden of proof in attempting to defeat an employer’s motion for summary

    Employers Should Accept Resignations As Soon As Possible

    Although an employee can claim constructive termination, it is always beneficial for an employer to accept, as soon as possible and in writing, an employee’s resignation.  By doing so, the employer creates a clear record that an employee was not fired and limits the potential claims which an employee can assert against the employer.

    This point was recently illustrated in Featherstone v. Southern California Permanente Medical Group.  In that case, the ultimate issue was whether a resignation is an “adverse action” under California’s anti-discrimination law, the Fair Employment and Housing Act.  In that case, Ms. Featherstone tendered her resignation on December 23, 2013, and it was immediately accepted.  The court recognized that general contract rules apply to resignations and that “a resignation is an offer which may be withdrawn prior to its acceptance.”  In that circumstance, however, though Ms. Featherstone subsequently tried to rescind her resignation, the court held that she was no longer able to rescind the resignation (which was an offer) because it had already been accepted.

    Of equal importance, the court held that the refusal of the company to allow Ms. Featherstone to rescind her resignation was not an “adverse employment action” and, therefore, she had no claim under the Fair Employment and Housing Act for discrimination and/or retaliation because both such claims require an adverse employment action.

    Take Aways:

    • An employer should accept an employee’s resignation as soon as possible and in writing;
    • Not every perceived wrong by an employee constitutes an adverse employment action

    Mandatory Paid Sick Leave for Arizona Employees: How Proposition 206 Impacts Your Business

    After surviving a legal challenge rejected by the Arizona Supreme Court, Arizona’s $10 minimum wage enacted under Proposition 206 is already in effect, and the sick leave portion of the law takes effect in July. For many companies, this will require new paid time off and sick leave policies, or at least revisions to their existing policies.

    With enactment of Proposition 206, Arizona joins other states with sick leave laws, including Illinois, California, Oregon, Washington, Massachusetts, Vermont, and Washington, D.C. As previously reported by the Bryan Cave Retail Law blog, the Illinois law took effect in January 2017.

    The Arizona law generally applies to all Arizona employees; it makes no distinction between salaried, hourly, full-time, part-time, temporary or seasonal employees. All employees must accrue one hour of paid sick time for every 30 hours worked.

    Paid sick leave can be used for medical care of a mental or physical illness, injury or health condition of the employee or their children, spouse or registered domestic partner, parents, grandparents, grandchildren, siblings, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. Paid sick leave cannot be used, however, to bond with a new child or for grief and recovery following a family member’s death.

    Employers cannot ask the reason for taking paid sick leave unless three consecutive days off are requested, in which case they can request documentation that the leave was requested for permitted reasons.

    Bryan Cave attorneys

    OSHA Indefinitely Postpones Electronic Submission of Injury and Illness Records

    May 26, 2017

    Categories

    We’d like to share with our readers a recent Client Alert from the Bryan Cave OSHA Industry Team providing notice to clients that an upcoming July 1, 2017 deadline for submission of injury and illness logs to OSHA has been delayed by the Trump Administration.  The alert also contains some additional commentary on related injury/illness recordkeeping requirements.

    https://www.bryancave.com/en/thought-leadership/osha-indefinitely-postpones-electronic-submission-of-injury-and.html

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations. If you or your organization would like more information on this alert or how the new regulations affect your business, please contact an attorney in the Labor and Employment practice group.

    France’s Right to Disconnect

    May 24, 2017

    Categories

    Early this year, France enacted a new law concerning the right of French employees to disconnect from digital devices off hours. The intent is to reduce work-induced stress and enable employees to benefit from their rest time at night, on weekends, and during vacation.

    On May 9th 2017, Bryan Cave Labor & Employment lawyers Sarah Delon-Bouquet, Federica Dendena, Gary Freer, and Martin Luederitz from four jurisdictions – France, Germany, Italy and the UK – presented a highly attended webinar discussing the recent developments in France and Europe. For those clients operating globally and across various EU jurisdictions, it came as no surprise that there is no uniformity amongst the EU jurisdictions, and each requires individual interpretations that also include a consideration of the differing cultural norms and working practices.

    Although there are differences, the following summary can be applied universally:

    • Try to anticipate and plan ahead;
    • Recognize the working culture and expectations of staff across Europe is critical;
    • Apply common sense rules that respect the rights and employees and ensure they are able to retain a healthy work life balance;
    • Avoid court battles with your employees over these topics;
    • Enable your staff to voice their concerns;
    • Listen to raised concerns and work to avoid costly disputes; and
    • Consult your legal advisors if confrontation appears likely.

     

    If you would like a copy of Bryan Cave’s presentation, or would like to discuss France’s Right to Disconnect or any other EU jurisdiction, please contact a member of Bryan Cave’s Labor

    Avoiding Three Common Mistakes Made By Employers When Terminating Employees (Part 2 of 3)

    Common Mistake No. 2: Paying a Separating Employee Something Extra Without Requiring a Waiver and Release

    This post continues the discussion of common errors made by employers terminating employees which can be easily avoided.

    Whether it is advisable to pay a separating employee something extra in exchange for a waiver and release of claims against the employer depends on a number of factors, such as the strength of the potential claims that the employee would be waiving and the likelihood of the employee filing suit. That said, an employer should never pay separating employees money to which they are not otherwise entitled without requiring the execution of a waiver and release.

    While the wisdom of this advice might be obvious to some, it is not uncommon in my experience to see an employer gratuitously pay a couple of weeks pay to a separating employee without requiring the employee to execute a waiver and release. As you might guess, this mistake typically comes to my attention because the separating employee is threatening the employer with legal claims after depositing the employer’s gratuitous severance payment, given further credence to the first rule of employment law: No good deed goes unpunished.

    While employers sometimes voluntarily provide severance to separating employees at the time of separation, other employers contractually obligate themselves to provide severance (without a corresponding duty on the part of the employee to provide a release) through poor drafting of employment agreements. For example, the employer promises in an employment agreement at

    The Use of Unconditional Offers of Reinstatement to Reduce Damages Exposure

    This post discusses the underutilized litigation strategy of extending an unconditional offer of reinstatement to a former employee-plaintiff who has filed (or has threatened to file) suit challenging his or her termination from employment.

    How the Rejection of an Unconditional Offer of Reinstatement Impacts Damages

    The U.S. Supreme Court has held that a former employee’s rejection of an unconditional offer of reinstatement (i.e., one that does not require the plaintiff to waive or compromise his or her discrimination claim) to a substantially equivalent position tolls the accrual of the employer’s back pay liability:

    An unemployed or underemployed claimant, like all other Title VII claimants, is subject to a statutory duty to minimize damages. . . . This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding suitable employment. Although the unemployed or underemployed need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to back pay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll accrual of back pay liability by unconditionally offering the claimant the job he sought, and thereby providing him with an opportunity to minimize damages.

    A plaintiff’s rejection of a Ford Motor Offer is measured by an objective standard – namely, whether a reasonable person would refuse the offer of reinstatement. See Feidler v. Indianhead Truck Line, Inc., 670 F.2d 806, 808 (8th Cir.

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