Human Resources Committee - Collision Industry … · self-organization, to form, join, or assist ... Costco Case (9/7/12) ... Human Resources Committee Cory King – Chair

Human Resources

Committee Las Vegas, NV

November 2012

Labor &

Employment

Issues for 2013

It is that time of year again…

Minimum Wage

Increases

Federal Minimum Wage is $7.25/hour

But, did your STATE Minimum Wage

Change?

San Francisco Bay Area • Long

Beach • San Diego

Some States tie their minimum salary to qualify for the “white

collar” overtime exemptions to the minimum wage!

Example: CA – Salary must be 2x min. wage for a 40 hr week!

How would a

minimum wage increase impact

salaried employees?

How Would a Minimum Wage Increase

Impact Commissioned / Flat Rate Exempt Employees?

FLSA 7(i) Commissioned Employee Exemption

Retail Establishment

More than ½ income from “commissions” (“flat rate” counts)

Plus….

FLSA 7(i) Commissioned Employee Exemption

Make at least 1½ times Minimum Wage for all hours worked!

Quick Note for re:

Flat Rate/Commission Agreements NEW CALIFORNIA LAW January 2013

(But its headed your way…)

Commissioned & Flat Rate Employees

MUST have a written Pay Plan – verbal and

“cocktail napkin” pay plans are history!

Must have detailed “complete” and

“accurate” description of how pay is

calculated and paid

Must be signed and copy to EE

ER Must keep a receipt that EE received it

Case Law Re-Update

AT&T Mobility LLC v. Concepcion

U.S. Supreme Court (April 2011)

ISSUE: Whether arbitration agreement and class

action waiver in consumer contract is

enforceable. Underlying Court held that state

law made class action waiver

unconscionable/unenforceable.

FINDING: Federal Arbitration Act preempts

State Law…the agreement is enforceable.

Arbitration Agreements

& Class Action Claims

Mandatory Arbitration Agreements (even

without a class action waiver) are effective

tools for avoiding Class Action lawsuits!!!

Arbitration Agreements are a matter of

contract, and the parties did not contract to

arbitrate class action claims. Thus, a

purported class representative who is subject

to mandatory arbitration CANNOT maintain a

class action case.

How is this case being used?

Social Media Policies

&

The NLRB

May 2012

• Statement of Board’s

Litigation Position – Not

Binding on Board

• Looked at legality of Social

Media & other handbook

policies vis-à-vis NLRA

compliance

NLRB General Counsel Memo

• Sec. 7. Employees shall have the right to

self-organization, to form, join, or assist

labor organizations, to bargain collectively

through representatives of their own

choosing, and to engage in other concerted

activities for the purpose of collective

bargaining or other mutual aid or protection,

and shall also have the right to refrain from

any or all such activities except to the extent

that such right may be affected by an

agreement requiring membership in a labor

organization as a condition of employment

as authorized in section 8(a)(3).

NLRA Section 7 – Rights of Employees

• 8(a) It shall be an unfair labor

practice for an employer –

• (3) by discrimination in regard

to hire or tenure of

employment or any term or

condition of employment to

encourage or discourage

membership in any labor

organization….

NLRA Section 8(a)(3)

Costco Case (9/7/12)

• Electronic Communications &

Technology Policy

• NLRB struck down broad policy that

prohibited social media posts that

“damage the company, defame any

individual or damage any person’s

reputation, or violate the policies

outlined in the Company Employment

Agreement.”

NLRB Opinions

Costco Case (9/7/12)

• Noted Policy did not include “saving”

language to exclude Section 7

protected communications from

Policy.

• Key – Policy was too broad in its

prohibitions on employee

communications.

NLRB Opinions

Costco Case (9/7/12)

• Prohibition against discussing

private matters of employees,

including medical and personnel

information – VIOLATES section 7

• Prohibition against discussing

“sensitive information” and payroll –

VIOLATES section 7.

NLRB Opinions

Costco Case (9/7/12)

• Prohibition requirement that posts

exhibit “appropriate business

decorum” – NOT a violation of

section 7

NLRB Opinions

Costco Case (9/7/12)

What are the “take aways” from this?

1. Review ALL your policies – is there

any interpretation of any part of that

policy that could violate Section 7?

2. Does your Handbook have a Section

7 savings clause?

NLRB Opinions

Thank You!

Human Resources

Committee

Cory King – Chair

[email protected]