Multi-Tasking Managers Can Get You Into Hot Water, According To The California Court of Appeal

It is hard to think of a job in the United States that does not involve some type of multi-tasking.  Every day, employees all around the country talk on the phone while simultaneously writing an e-mail.  Or manning the phones while overseeing office operations.

But apparently, the California Labor Code has not caught up with the concept of multi-tasking.  At least that is the impression you would have if you read the California Court of Appeal’s decision in Heyen v. Safeway, Inc.  In that case, the court found that a manager who performed various non-exempt tasks while simultaneously supervising other employees was not primarily engaged in the performance of exempt work and awarded her damages for overtime.

Linda Heyen worked at a Safeway store as an Assistant Manager.  Because her store was short-staffed, she believed that she and other managers needed to do both managerial work and non-exempt work in order to meet the company’s expectations.  But, she testified that when she needed to do non-exempt work, she was able to multi-task and do managerial work simultaneously.  So, for example, while she was busy supervising her employees, she also assisted them by bagging groceries or stocking shelves.  She did those tasks – both exempt (i.e., supervising employees) and non-exempt (i.e., manual labor) simultaneously.

She brought a lawsuit claiming that she was misclassified as an exempt employee under the “executive” exemption and that she was therefore entitled to overtime pay for anything worked over 8 hours in a day.  The case was tried to a jury who found in her favor, awarding her over $26,000 in overtime.

On appeal, Safeway made two arguments, both of which the Court of Appeal rejected.  First, it maintained that a managerial employee can simultaneously do exempt and non-exempt work without losing the exemption.  It was a common sense argument – while managers may be bagging or stocking, they are always managing by supervising others, instructing others what to do, observing the store and taking corrective action where needed.  The Court of Appeal acknowledged the “intuitive appeal” of the argument, but nonetheless found that California law did not support it.  Instead, the court found that the only time such multi-tasking will be found to be exempt is when: (1) the non-exempt task is helpful in supervising employees; or (2) it contributes to the smooth functioning of the manager’s department.  A jury’s responsibility is to determine whether the primary purpose of performing a non-exempt task is for one of those permissible reasons or for some other reason and, in this case, there was sufficient evidence to support the jury’s verdict.

Safeway’s second argument was that although Heyen may have performed non-exempt tasks, it had no reason to believe that she was doing so (because she never told anyone she was) and that it had a “reasonable expectation” that she was performing exclusively exempt work.  Under California law and under the Fair Labor Standards Act, an employee who primarily performs non-exempt work can still be found to be exempt when an employer has a “realistic expectation” that the employee is performing exempt work based on the “realistic expectations of the job.”  So, for example, courts have found that an otherwise exempt sales employee who was supposed to be performing exempt work more than 50 percent of the time, but failed to do so because of his own substandard performance, cannot evade the exemption, so long as the employer’s expectations were reasonable.  In this case, however, the court found that there was sufficient evidence to support Heyen’s argument that Safeway’s expectations were unrealistic based on the limited staffing that was available at the time and, as a result, it affirmed the verdict.

Because the court’s opinion is so distanced from the reality of modern work life, it raises more questions than it answers.  Do you know whether your managers are regularly performing non-exempt tasks in addition to their everyday responsibilities?  Why are they doing them?  Do they complain about it?  Do you see it?  If not, do you expect that they are doing it?  All of these questions are now significant based on the Heyen decision.

To be sure, there are some proactive measures that you can take to guard against a claim like this.  For example, your managerial employees should be informed that if their actual duties ever deviate from their job descriptions, they need to let someone know.  And you can have a policy which states that managerial employees are not expected to perform non-managerial tasks except in unusual circumstances.  But, at the end of the day, you need to keep a watchful eye on your managers to make sure that they are doing what they are supposed to do and that their work is truly managerial in nature.

- Dan Handman 

U.S. Supreme Court To Decide Whether SOX Whistleblower Provisions Extend To Employees Of Privately Held Companies

On May 20, 2013, the U.S. Supreme Court announced its decision to hear its first-ever Sarbanes-Oxley Act whistleblower case in Lawson v. FMR LLC et al.  The lower court’s controversial decision centered on whether SOX’s whistleblower protections apply to employees of privately held companies that are contractors to public companies.

Plaintiffs Jackie Lawson and Jonathan Zang brought suit against their former employer, FMR, LLC, which is a privately held company that advises the Fidelity family of mutual funds.  The Fidelity mutual funds are public investment companies registered with the SEC and are required to file quarterly reports, but, as is common with investment companies, the Fidelity funds have no employees of their own.  Lawson and Zang alleged that FMR terminated them in retaliation for raising concerns about its inaccurate and fraudulent reporting practices.

On appeal, the First Circuit found that SOX does not apply to employees of privately held contractors of public companies.  Unlike two other federal whistleblower statutes which expressly included these broad protections, the plain language of SOX encompassed only employees of publicly traded companies.

Interestingly, the Lawson decision is in stark contrast to a decision from the Administrative Relations Board, the administrative body which initially adjudicates SOX claims, in Spinner v. David Landau & Associates.  In that case, the ARB found that SOX applies to employees of privately held companies that are contractors to public companies.

Although it is notable that the Supreme Court is going to decide a SOX case, there is reason to think that the Supreme Court has other, potentially more important  reasons for agreeing to hear the Lawson case.  In particular, the Supreme Court generally agrees to hear cases in two situations: (1) where there is a split between different circuit courts of appeal; or (2) where an important policy or political issue is presented.  Here, however, there is no split among the circuits, so one might reasonably ask what important issue Lawson  presents.

The First Circuit’s opinion in Lawson provides a good clue.  The court found that neither the SEC’s or DOL’s interpretation of the term “employee” as it relates to SOX was entitled to deference.  Is this a sign that the Supreme Court intends to push back on two federal agencies that have taken broad views of their jurisdictional powers?  Is it possible that the Supreme Court will force the DOL to reconsider regulations it has issued on other statutes it enforces, like the Fair Labor Standards Act or the Family and Medical Leave Act?  Only time will tell.  We will keep you informed of developments.

- Ferry Lopez

Brinker Made Me Do It: Class Certification Required Where Issue is Facial Validity of Break Policy

When the California Supreme Court issued its landmark decision in Brinker Restaurants a year ago, it was greeted with predictions that it would stem the flow of meal and rest period class action claims.  For the most part, that prediction has proved accurate:  in a majority of cases, the courts have ruled that class treatment of meal and rest claims is inappropriate because individual issues predominate when determining liability.  But Brinker also was careful to note that class treatment is appropriate where the claim challenges the facial validity of a policy applicable to the class as a whole.  Thus, the rest period policy in Brinker that provided a rest period only for work periods of 3.5 hours or more – rather than those exceeding two hours – was amenable to class treatment.

On the first anniversary of Brinker, a California appellate court has echoed that principle, holding that class certification is required where the issue is the facial legality of a meal period policy.  Faulkinbury v. Boyd & Assocs., Inc., No. G041702 (Cal. Ct. App. 4th Dist. May 10, 2013) (“Faulkinbury II”).  The members of the putative class in Faulkinbury II worked as security guards at various customer sites.  The employer required all security guards to sign an on-duty meal period agreement when they were hired.  In addition, none were ever provided a duty-free off-duty meal period.  The plaintiffs claimed that the on-duty meal period agreements were invalid because they were not voluntary and because the nature of security guard work did not qualify for the on-duty meal period exception.  The trial court had denied class certification in early 2009, finding that individual issues predominated in determining whether the employer had acted unlawfully toward class members for missed off-duty meal periods.  On appeal in 2010, prior to Brinker, the appellate court affirmed that denial (Faulkinbury I).  The California Supreme Court granted review in 2010 pending its decision in Brinker.  After it issued Brinker, the Supreme Court sent the case back to the appellate court with directions to reconsider its prior decision in light of Brinker

This time, in Falkinbury II, the court appeal changed course, reversing the trial court’s denial of class certification.  It first concluded that the plaintiffs’ claim was that the employer’s meal period policy was facially unlawful.  It further reasoned that there were at least two common questions that could be determined on a class-wide basis relevant to its legality:  (i) whether to be valid, an on-duty meal period agreement must be voluntary, that is, the employee given a choice whether to sign it or not; and (ii)  whether the nature of security guards’ work prevented them from being relieved of all duty. Because Brinker teaches that certification is required where the issue is the lawfulness of a common policy, the Falkinbury II court reversed and held that the trial court should have granted class certification.  The court brushed aside concerns that individual issues would be required to determine whether the agreements were valid as to each class member – such as determining whether the nature of a particular class member’s work at a particular site precluded an off-duty meal period – by noting that the employer required everyone to sign the agreements and thus should be forced to defend them on a class-wide basis.  Notably, this last rationale has been debunked as a basis for certification by both state and federal courts in California in the context of misclassification cases where all employees in a particular job category are classified as exempt.  E.g., Vinole v. Countrywide, 571 F.3d 935 (9th Cir. 2009); Walsh v. IKON, 148 Cal.App. 4th 1440, 1461-62 (2007).

There were two other claims in the case on which class certification was required as well.  First, the plaintiffs’ claim for denial of rest periods, the court held, was based on the legality of the employer’s admitted class-wide practices of (i) having no formal written rest period policy and (ii) having an explicit policy that required employees to stay at their posts unless relieved by a supervisor or other security guard.  The court held that the common question arising from these facts was whether company policies (or lack thereof) effectively forbade off-duty rest periods.  It reached this conclusion despite the employer’s evidence that some security guards had indeed been authorized and permitted to leave their stations for rest breaks, calling the existence of a class-wide practice into question.

Second, the plaintiffs claimed that the employer had unlawfully failed to include certain payments when calculating the “regular rate of pay” for overtime purposes.  The excluded payments included expense reimbursements for uniform cleaning and gas, as well as an annual bonus the company contended was discretionary but which the plaintiffs contended was not.  Since the practice of excluding these items from overtime calculations was a class-wide practice, the court held that legality of the practice could be decided on a class-wide basis and certification should have been granted.

Take-Away Lessons

It is not news that the legality of a written policy is an issue that calls out for class treatment.  What is noteworthy about this decision is the lengths to which the appellate court went to fit the meal and rest period claims into the that box.  The Falkinbury II decision stands as a reminder for employers to examine their meal and rest period policies to ensure that what they say is identical to what the law allows and requires.  It also teaches that employers who utilize on-duty meal period agreements should do so with great caution.  These agreements should be entered into on an individual basis, rather than requiring all employees in a specific job classification to execute them, and only after a specific determination that the nature of the individual’s work really does as a practical matter preclude an off-duty break.

Felicia Reid

 

Kitchen-Sink Guidance On Harassment, Retaliation and Joint Employment Issues

A recent case from the Court of Appeal for the Second Appellate District is a veritable  grab bag of issues for employers.  You name it – the court gave guidance on harassment, retaliation, and joint employer issues in McCoy v. Pacific Maritime Association.

McCoy worked for over a decade as clerk for terminal operator Yusen when she and several coworkers filed a federal discrimination lawsuit against their employer.  The lawsuit led to a confidential settlement between the parties.  Under the settlement, Yusen was required to train McCoy to be a vessel planner, a more prestigious position.

McCoy subsequently sued PMA, an organization that serves as a bargaining agent for Yusen, the employer, alleging that she was sexually harassed and suffered emotional distress during the vessel planner training, and that she was retaliated against due to the filing of the previous lawsuit.  Apparently, the harassment consisted of a co-worker’s comment about the buttocks of other female employees and his crude gestures toward a woman when her back was turned.  None of the sexual comments were directed at her.

The Court of Appeal affirmed the dismissal of McCoy’s sexual harassment claim, reasoning that although the comments were crude and offensive, the conduct, which occurred only five to nine times over a four-month period, did not create a work environment “permeated” with sexual harassment.  Moreover, the employee making the offensive remarks was not McCoy’s supervisor, and McCoy admitted she never mentioned the remarks or anything about sexual harassment to management.  Thus, there was no evidence that PMA knew or should have known of the alleged harassment and failed to take appropriate action.

On the retaliation claim, however, a jury awarded McCoy $1.2 million in damages, but the trial court granted PMA’s motion for judgment notwithstanding the verdict.  On appeal, the court ruled that the trial court had erred in excluding McCoy’s “me-too” evidence by other coworkers who complained they were retaliated against due to their participation in the same lawsuit as McCoy and who received the same training as McCoy as a result of the settlement.  Because the consideration of “me-too” evidence is fact intensive, the Court opined that the trial court should have at minimum conducted a hearing to ascertain the details of the evidence and similarity to McCoy’s claims before subjecting it to blanket exclusion.

The Court of Appeal also held that, aside from the “me too” evidence, there was substantial evidence from which a jury could find retaliation.  Yusen did four things that could support a retaliation verdict: (1) it exposed details of the confidential settlement agreement to McCoy’s supervisor; (2) it tolerated the offensive remarks by McCoy’s co-workers; (3) it denied her needed assistance; and (4)  it gave her substandard training compared to the other trainees.   

As for PMA, the court found it was not an employer under the FEHA.  Although PMA negotiated labor contracts on Yusen’s behalf, Yusen paid McCoy, supervised her and employed the co-workers who allegedly retaliated against her. 

This case is a reminder that even when an employer is not held liable for sexual harassment, employers can steal defeat from the jaws of victory by retaliating against employees.

Amy Durgan

The NLRB Ramps Up Its Activity Level

Several weeks ago, the NLRB filed a petition for certiorari in the U.S. Supreme Court asking it to reverse the decision of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB.  In Noel Canning, the Supreme Court found that President Obama’s recess appointments to the NLRB were unconstitutional and that since January 2012, the NLRB has lacked a quorum.  You can read our post on it here.

As that petition awaits the Supreme Court, another appeals court, the Third Circuit, threw its hat into the ring, issuing a 2-1 decision that accords with Noel Canning.  Now the only two appellate courts to have considered the issue have found that the NLRB is not properly constituted.  If the Supreme Court declines cert in Noel Canning or affirms the decision, it will mean that all decisions from the NLRB since January 2012 are invalid.  That would include groundbreaking decisions the NLRB has reached on social media, arbitration agreements, investigations and other issues affecting both non-union and union employers.

In the meantime, the President has nominated new members to the NLRB.  Traditionally, the NLRB has been constituted by five members, three from the President’s party and two from the other party.  The President nominated three Democrats (the current Chairman and the two purported recess appointees) and two Republicans.  The Senate has taken those nominations under consideration and they are expected to be voted on in committee next week.

The NLRB has also doubled down on its much maligned decision in Banner Health Systems that purported to limit an employer’s ability to require confidentiality in internal investigations of the workplace.  While that decision is being reviewed by an appellate court, the NLRB issued an Advice Memo in which it found that an employer’s policy requiring confidentiality in all investigations was improper.  The NLRB suggested that the employer should change its policy to clarify that it can only require confidentiality “in some circumstances.”

And if that was not enough, a decision is expected any day from the Fifth Circuit in its review of the NLRB’s controversial decision in D.R. Horton.  In that case, the NLRB found that class action waivers in mandatory arbitration agreements violated Section 7 of the Act.  Although there is no consensus, many employment lawyers expect the Fifth Circuit to vacate the NLRB’s decision.

- Dan Handman

Stop the Presses! NLRB Poster Rule Invalidated By DC Circuit Court of Appeals

As previously reported, in August 2011 the National Labor Relations Board (“NLRB”) adopted a rule that required most private-sector employers to notify employees of their rights under the National Labor Relations Act by posting a notice where other employee notices are customarily posted, including on the employer’s website.  An employer’s failure to do so would be considered an unfair labor practice. 

The rule was scheduled to go into effect on April 30, 2012, having been postponed several times already.  In light of several court rulings last year, the April 30th implementation of the rule was temporary enjoined until the legal issues were resolved.  On May 7, 2013, the legal issues were “resolved” when the D.C. Circuit Court of Appeals vacated the rule.  Analyzing the issue under section 8(c) of the National Labor Relations Act, which provides that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, … shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act …, if such expression contains no threat of reprisal or force or promise of benefit,” the Court held:

Suppose that § 8(c) prevents the Board from charging an employer with an unfair labor practice for posting a notice advising employees of their right not to join a union. Of course § 8(c) clearly does this. How then can it be an unfair labor practice for an employer to refuse to post a government notice informing employees of their right to unionize (or to refuse to)? Like the freedom of speech guaranteed in the First Amendment, § 8(c) necessarily protects—as against the Board … the right of employers (and unions) not to speak.

We don’t know if the NLRB will appeal the D.C. Circuit’s ruling.  Other legal challenges to the rule are currently pending.  In 2012, the United States District Court for the District of South Carolina ruled that the NLRB lacked the authority to promulgate the rule.  Chamber of Commerce of the U.S. v. NLRB, 856 F. Supp. 2d 778 (D.S.C. 2012). The appeal in that case is now pending before the Fourth Circuit.

We’ll keep you posted…

Natasha Baker

UNCLE SAM WANTS YOU…TO AVOID ONE MILLION EEO VIOLATIONS WITH VETERANS

Most employers have been educated, either in the school of hard knocks or by the guidance of their counsel, to manage within the law and avoid employment discrimination—whether as to hiring or active employment.  The “protected classifications” of workers under California and federal law are usually easy to spot.  For example, with an employee returning from a disability leave, an employer is obviously aware of the disability issues beforehand and has its antennas up to ensure that the return-from-leave process (and any interactive process that needs to occur) is deliberate—perhaps to a fault.

But what happens when the applicant walking through the door, or the employee returning from leave is, say, a seemingly able bodied, twenty-something white male?  Unless that applicant/employee walks through the door wearing a military uniform, the employer might not recognize that the applicant/employee, as a military veteran, has “protected class” rights similar to those given to other groups under state and federal equal employment opportunity laws?  That is exactly the scenario that will play out in California and elsewhere in the United States over the next few years as one million military veterans, protected by the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) reintegrate into the civilian workforce.

Under USERRA, an employer has to reemploy certain veteran-employees who, during their employment, were called up to active service.  An employer violates USERRA when the employee’s military obligations are a “motivating factor” in the decision not to hire him or her. 

You can expect increased focus on USERRA as veterans report back from war zones.  Indeed, the L.A. Times recently noted that complaints of USERRA violations by veterans have effectively doubled in the twelve years since the United States’ deployment of troops, and particularly called-up reservists and National Guard members, ramped up after 9/11. 

So what can an employer do to prepare for this next wave of EEO challenges?  Here are a few ideas:

  • Make sure that you track your employees if they are reserve members of the Armed Forces, or members of the National Guard, particularly their leaves of absence and particularly if they are deployed to active duty.  USERRA requires re-employment even five years after deployment under certain circumstances, so keeping track of such folks is essential.
  • With regard to reserve Armed Forces members, members of the National Guard and veterans: be deliberate in your consideration of both the first-time applicant and the employee seeking reemployment, post-deployment, and document your process carefully.
  • As with any EEO process, be consistent. Regardless of intent, an inconsistent hiring/rehiring process can be contorted to show (or attempt to show) discrimination.

Monte Grix

 

NLRB Issues More Social Media Decisions

Just when you thought it was safe to go back in the water, the NLRB issued two new decisions in social media cases, one ordering the reinstatement of a tour bus driver who complained about his employer on a facebook page and the other striking down a hospital’s social media policy.  This continues the Board’s frontal assault on social media in the workplace, which we blogged about just a few days ago (click on our social media tab for more decisions in this area).

In the first case, the Board found that Fred Pflantzer, a tour bus driver, engaged in protected activity when he complained about the lack of health care insurance, minimal sick and vacation days, unsafe buses, and payroll practices with On Board Tours, his former employer.  In particular, he applauded City Sights, another tour operator where he worked before On Board, calling it a “worker’s paradise” compared to On Board.  Pflantzer applauded the work of a labor union in creating a positive workplace at City Lights and informed the readers of the benefits of having a labor union.  On Board  admitted that this post — which it considered libelous — was a motivating factor in its decision to terminate Pflantzer and the Board found that such activity was protected under Section 7 of the National Labor Relations Act, even though there was no evidence that any other On Board employees had access to the facebook page, which was private.

In the second case, an administrative law judge for the NLRB found that the University of Pittsburgh Medical Center had an overly broad social media policy and ordered parts of it to be removed.  In particular, UPMC’s policy prohibited employees from:

  • soliciting employees “to support any group or organization”
  • using e-mail “in a way that may be disruptive, offensive to others, or harmful to morale”
  • limiting use of e-mail and social media to “authorized activities.”

The ALJ found that while those policies were not necessarily targeted at prohibiting protected activities, they were ambiguous enough so that they would “chill” employees from engaging in protected, concerted activities.  For that reason, they were overbroad and must be removed.

While it remains very possible that a court will reverse these decisions, it remains of paramount importance for employers to: (1) review their social media policies to ensure that they are not overbroad; and (2) consult with counsel any time they are disciplining or terminating an employee based on his online activities.  We expect many more social media decisions to follow in the coming months and we will keep you posted on them.

- Dan Handman

 

OSHA Opens The Door To Union Agents

If you asked 100 non-union employers  whether they thought they would be required to admit union representatives to inspections of their facilities, probably 99 of them would say no.  It turns out they are wrong, at least according to the Occupational Safety and Health Administration (OSHA) under President Obama.

In a little-publicized interpretative bulletin recently issued, OSHA opined that employees of a non-union employer can be represented by anyone he prefers, including an outside union agent.  While OSHA maintains that this is merely a continuation of already existing policy, the fact remains that in the 40-plus years of its existence, OSHA has never provided such an interpretation in the past and there is nothing in the OSH Act or the implementing regulations which supports this guidance.  In fact, OSHA’s guidance directly contradicts a previous interpretive letter which said that union representatives were not allowed at a non-union facility for an inspection.

Why should you care?  Any time a government agency gives a union direct access to a non-union facility, employers should be concerned about the effect it can have on employees.  During an OSHA inspection, it is inevitable that the union agent will make his presence known to other employees, no matter how you try to curtail his activities.

If you are going to be inspected, can you do anything to keep a union out?  You can try.  In response to an inspection notice, employers can tell OSHA that it can proceed with the inspection, but that union agents will not be allowed onsite.  OSHA (and, to a lesser degree, the union) will be given a choice whether they want to proceed with the inspection or seek an inspection warrant from a federal judge.

Is this a sign of more bad news to come?  Potentially.  Over the years, the National Labor Relations Board has reversed itself repeatedly on the issue of whether Weingarten rights apply in non-union workforces.  In Weingarten, the U.S. Supreme Court found that employees in unionized workplaces have the right to the presence of a union representative during any management inquiryhe employee reasonably believes may result in discipline, provided that he asks for such a representative.  Presently, the Board has found that Weingarten rights apply only in union workforces, but under previous administrations, the Board had broadened the holding in Weingarten to apply in non-union settings as well. This administrative action suggests that Weingarten may  be expanded by the Board.

- Dan Handman

Beware of Using Stale Policies and Seemingly Derogatory Employee Facebook Posts To Support Terminations

As we have blogged before (see our Social Media tab for more posts), the NLRB continues its storm of decisions on social media cases.   The NLRB recently awarded  reinstatement and back pay to several terminated employees who had posted derogatory statements about their supervisor on Facebook. The employer in the case, Design Technology Group, LLC (which makes Bettie Page clothing) is a wholesale and retail clothing sales company that operates a store in San Francisco, where the action took place.  Several employees were unhappy with the way the store manager treated them (both at work and outside of work) and took to Facebook to complain about it.  While their supervisor was away from the store on a business trip, the employees posted statements about her on Facebook.  This included statements that she was “immature as a person” and that she made their lives “miserable….”  One of the employees also stated that she intended to bring a book into work concerning rights of workers in California.  Another employee noticed these posts and alerted the supervisor, who returned from her business trip early to terminate the employment of the employees who had made the posts.

The NLRB held that these terminations violated Section 8(a)(1) of the National Labor Relations Act because the employer terminated the employees for engaging in protected concerted activity.  According to the NLRB, the Facebook postings constituted “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment…” and that their conversations were “for [their] mutual aid and protection….”  The NLRB therefore confirmed the administrative law judge’s order to reinstate the employees, with back pay.  For good measure, the NLRB also confirmed the ALJ’s order that the employer remove a rule in its employee handbook that prohibited employees from discussing or disclosing their wages and compensation to each other – although there was no discussion of this rule forming the basis for the employees’ terminations.

The take-away from this case is that employers should carefully consider the reasons for terminating an employee who has posted offensive statements online.  If the postings discuss working conditions, a manager’s behavior, or other issues that could be construed as matters employees could focus on for their mutual aid and protection, the employer should consult with counsel before terminating the employee(s).  Employers should also continue to review their employee handbooks to ensure compliance with the National Labor Relations Act – and California law, as the provision at issue in this case also violated the California Labor Code.

Robert R. Flemer