By Kathryne Baldwin* and Samson R. Elsbernd, Esq.

The National Labor Relations Board (“NLRB”) enforces the federal National Labor Relations Act (NLRA), which applies to most private employers. Periodically, the General Counsel of the NLRB releases reports to clarify issues that arise in the workplace. One of the more recent reports discusses the lawfulness of employee rules found in a number of different employee handbooks. Section 7 of the NLRA protects the rights of all employees, not merely unionized employees, to communicate with one another or third parties at or away from work regarding terms and conditions of employment. Section 8 of the Act makes it unlawful for employers to interfere with, restrain or coerce employees in the exercise of their Section 7 rights.

Many of the examples of unacceptable employee handbook language were provisions containing broad, general language that would encompass Section 7 rights, whether or not that was the employer’s intention. Section 7 allows employees to be critical of their employer and management. Consequently, a handbook provision requiring employees to “[b]e respectful of others and the Company” would violate Section 7 because the rule would prohibit employees from criticizing working conditions and labor policies. Similarly, employers cannot institute general prohibitions on “negative” or “inappropriate” discussions among employees, but could more narrowly ban harassment of employees or prohibit the “use of racial slurs, derogatory comments, or insults” by employees.

Policies requiring employees to direct or refer all inquiries from the media or government to a particular person in the company would also violate Section 7 because employees have a right to speak about employment matters and labor concerns. Employers have a right to present their official position, but employees also have a right to communicate with the media, government and other third parties on their own behalf.

A handbook provision instituting a general prohibition on the use of company logos without permission would also run afoul because Section 7 protects non-commercial use of company logos by employees on protest materials, such as picket signs or leaflets. Section 7 would not protect employees in disparaging the employer’s product or customers, though.

The NLRB appears to be taking a greater interest in non-unionized workplaces under Section 7, and non-unionized employers should take note. Ultimately, whether a provision will be permissible will depend on how employees would interpret the clause, and context matters. Clauses that would otherwise be impermissible may be fine if employees would understand them to be limited in scope so as not to interfere with their Section 7 activity. Employers should review their policies (including email and social media policies), arbitration agreements, and handbooks to ensure compliance with Section 7 and the NLRA’s recent guidance. Otherwise, they could face an unfair labor practice charge prompting an investigation and an administrative action to remedy any unfair labor practice.

DID YOU KNOW…

The U.S. Supreme Court recently ruled that an employer may not discriminate against a job applicant’s religious beliefs during the hiring process under federal law (Title VII), even if the employer does not have actual knowledge of the need for a religious accommodation. E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (2015) 135 S.Ct. 2028, 2031 (failure to hire Muslim applicant who wore a headscarf because the headscarf conflicted with company dress code).

* Kathryne is currently a law student at The University of the Pacific, McGeorge School of Law and was hand-selected for a 2015 summer clerkship with Wilke Fleury.  She is also a member of McGeorge’s Nationally Ranked Mock Trial Team and is President of the McGeorge Women’s Caucus.

Twelve of Wilke Fleury’s attorneys have been listed as 2015 Northern California Super Lawyers and Rising Stars. The firm’s Super Lawyers are Dan Baxter, Philip Birney, Daniel Egan, George Guthrie, Ronald Lamb, Stephen Marmaduke, Thomas Redmon and Robert Tyler. The firm’s Rising Stars are Anthony Eaton, Samson Elsbernd, Bianca Watts and Steve Williamson.

Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check.

Super Lawyers® can be found online at www.superlawyers.com.

The California Healthy Workplaces/Healthy Families Act of 2014 has been operative since January 1, 2015 even though employees have not yet begun to accrue sick leave pursuant to the law. Employees will only begin to accrue sick leave pursuant to the law on  July 1, 2015.

The California Healthy Workplaces/Healthy Families Act of 2014 requires that employers, subject to very limited exceptions, provide paid sick leave to their employees. The new law covers exempt and non-exempt (including part-time, per diem, and temporary) employees. Employees who have worked in the State for 30 or more days within a year from the start date of their employment will accrue paid sick leave at the rate of one hour for every 30 hours worked, and may use their accumulated leave beginning on the 90th day of employment.

Paid Sick Leave law went into effect on January 1

Since January 1, California employers have been obligated to post the Labor Commissioner’s Healthy Workplaces/Healthy Families Act poster in a conspicuous location in the workplace. The information about the new law is also contained in the revised Notice to Employee, which is the Labor Commissioner’s form for newly hired non-exempt employees that contains employment-related information, such as pay rates and entitlement to sick leave. Employers have been using this revised form for non-exempt employees who are hired after January 1, 2015. As to non-exempt employees hired pre-January 1, 2015, employers already provided written notice of the sick leave law information on a revised Notice to Employee or in another writing, or will provide such notice by July 8, 2015, depending on date of implementation of their policy or the new law’s requirements.

Employees begin to accrue sick leave pursuant to the Paid Sick Leave law on July 1

Starting July 1, employees will accrue paid sick leave either pursuant to the Healthy Workplaces/Healthy Families Act only or pursuant to employer sick leave policies. Employees who simply accrue paid sick pursuant to the minimum requirements of the new law will accrue approximately 8 days (69 hours) of paid sick leave each calendar year, with accrued, unused paid sick leave carrying over to the following year.

Conversely, employees may accrue paid sick leave pursuant to employer sick leave or paid time off (PTO) policies. Employers, through sick leave or PTO policies, may cap the accrual and use of paid sick leave available to their employees pursuant to the Healthy Workplaces/Healthy Families Act. For example, company paid sick leave policies may limit full-time employees to using 3 days (24 hours) of paid sick leave in each year of employment. Accrued but unused paid sick leave must carry over from year to year unless employers simply advance the full 3 paid sick days at the beginning of each year. Employers may cap total accrual of paid sick leave at 6 days (48 hours).

Before employers simply fall back on their written paid sick leave or PTO policies, though, they should ensure that those policies satisfy the accrual, carryover, and use requirements of the Healthy Workplaces/Healthy Families Act. In other words, employer policies must meet the minimum requirements of the new paid sick leave law, and if they do, then employers do not have to provide additional sick leave. If they do not, employers must either modify their polices or allow their employees to accrue paid sick leave pursuant to the new law. Of course, employer policies may also exceed the minimum legal requirements of the new law.

Finally, employers should also be aware that the new law imposes record keeping requirements concerning sick leave, including requiring employers to provide written notice of the amount of sick leave available on the employee’s itemized wage statement or in another writing, and to maintain records concerning sick leave for 3 years.

By:  Samson R. Elsbernd
Wilke Fleury Labor & Employment News
June 2015