Preparing for the Planned May 1, 2006 Labor Strike

1. What is the May 1, 2006 strike that I have heard about and should I be concerned?
May 1 is known as the International Day of the Worker in Mexico. Opponents of recent immigration legislation are using this day to call for "The First American Strike" or "Great American Boycott," a worker strike and boycott to protest recent congressional attempts to crack down on illegal immigration. The strike is meant to underscore the value of Latino workers to the nation's economy and rally against the recently introduced federal legislation. All employers should be concerned about this strike as it is expected to garner unprecedented support from the immigrant workforce and those that support their causes.

2. How can I prepare for and respond to this strike in a manner that allows me to continue operating my business but limits my legal exposure?
A. Employers Can Enforce Their Attendance Policies.
You can certainly enforce your existing attendance policies in responding to employees who do not show up for work on May 1. However, you should refrain from aggressively enforcing their attendance/absenteeism policies beyond normal enforcement. Employers who deviate from their normal attendance/absenteeism policies to severely discipline their employees for being absent on May 1, 2006 may be liable for improperly interfering with their employees' political activities.
B. Do Not Demean The Strike Or Threaten/Demean Employees Who Support Or Want to Participate In the Strike.
Being exasperated by the strike is understandable, but employers need to be careful to ensure that their reaction cannot be interpreted as demeaning the strike or the individuals who voice support for the strike. In addition to potential liability for interfering with their employees' political activities, employers' conduct that could be construed as demeaning or threatening to their employees may be used as evidence of discriminatory animus for disparate treatment claims.
C. Communicate With Your Employees About the Strike Up Front.
Talk to your employees, so you can determine the impact of the May 1, 2006 strike on your operations. If you are in the retail industry, restaurant industry or another service industry that serves the general public, then the impact may not be as severe because May 1 is a Monday. Mondays are generally light days for many service industries, and you may have staff members who normally do not work on Mondays. You can determine who wants to take off May 1 and who is not interested in taking off May 1. Some employees who generally do not work on Mondays may be willing to "pick up an extra shift."
If Monday is not a light day for your industry, you should still communicate with your employees to determine who wants to come to work. You may need to have your operations open on Sunday, have some employees work overtime on Monday, or make other operational adjustments, but if you communicate with your employees beforehand, you will at least have the opportunity to plan for the day rather than simply responding to the situation on May 1.
D. Remind Employees About Your Attendance Policy.
Remind employees about your absenteeism/attendance policy, your policy for requesting days off, your no show/no call policy, and your policy on falsifying the reason for being absent. Consistent enforcement of such policies are not considered to be discriminatory or improper.
E. Provide May 1, 2006 Off To As Many Employees As Your Operations Allow.
Provide May 1, 2006 off to those employees who follow the procedure for requesting the day off to the fullest extent your operations allow. If you revise your schedule to allow employees to have the day off - Document it! If you provide the day off to a large number of employees who properly requested it off - Document it! You want to demonstrate that you provided the day off to as many people as your operations would allow if you get sued by those employees who did not get it off. Use objective criteria such as seniority to decide which employees get the day off if you have more employees requesting the day off than you can accommodate.
F. Be Creative in Your Staffing For May 1, 2006.
Look at your staffing needs on May 1, 2006 and find creative ways to solve them. Can you have your operations open on Sunday and provide Monday off to everyone? Can you pull employees from other departments? Do you have departments that can go dark on Monday? Can you provide those department's employees some training that will allow them to perform the essential duties that must be completed on May 1, 2006?
For example, if you are a manufacturer and expect most of your workforce to be absent on Monday, can you have your employees work on Sunday? If you are in the restaurant industry and most of the workers that you expect to be absent on May 1, 2006 are kitchen employees, can you do food preparation on Sunday? Will one of your food servers volunteer to be a dishwasher on Monday?
G. Explain Why You Cannot Provide The Day Off To Those Employees Whose Requests You Cannot Honor Because Of Your Operational Needs.
After looking at creative ways to schedule and staff your gaps, you may still not be able to accommodate everyone's request to have the day off. For those employees whose requests you cannot accommodate, explain that you cannot honor their requests because of your operational needs. Also remind them that you expect them to be at work on May 1, 2006. Provide them copies of your absenteeism/attendance policy, your no show/no call policy, and your policy on falsifying the reason for being absent.
H. Enforce Your Absenteeism/Attendance Policy In The Same Manner As You Have In the Past.
If you have been lax or inconsistent with enforcing your attendance policies, May 1, 2006 is not the day to get tough. If you do decide to discipline employees for missing May 1, look at other factors in determining the appropriate discipline: How frequently has the absent employee been absent in the past; what is that employee's past disciplinary record and performance; how long has the employee been employed by you; how effectively have you communicated your attendance policy to your employees; and what progressive discipline or other corrective actions have you used for past violations. Make sure the discipline you impose for the May 1, 2006 absence is equivalent to the disciplinary measures you normally impose for such violations.
I. If Your Business Is At Risk of Not Having Enough Workers, Consider Incentive Pay or Other Incentives to All Workers that Work on May 1.
If you have credible information that leads you to believe that you are not likely to have a sufficient number of workers to operate your business, consider offering incentives. For example, employers can offer incentive pay such as double time or bonuses to all workers who work on May 1. If you are supporting the strike but need your workers to come to work, you can offer to make a donation to the primary political group organizing the strike, the Immigration Solidarity Network, for each worker that comes to work on May 1 as an incentive to encourage your workforce to come to work (click here for a link to the Immigration Solidarity Network). The two keys to lawfully implementing such incentives are to (1) make sure that you really have a legitimate risk of not having enough workers to operate your business efficiently before implementing any incentive program, and (2) make sure that you offer the incentives to every single employee that works on May 1 - do not limit the incentive only to those employees whom you believe will not come to work. Such limitation could be prima facie evidence of discrimination.
J. Remember To Properly Review Your I-9 Forms
May 1, 2006 may not be the day to review your I-9 Forms, but the immigration debate has also put pressure on U.S. Citizenship and Immigration Services ("USCIS") to more aggressively enforce the immigration laws that are currently on the books. As a result, employers face the heightened risk of aggressive government enforcement, the material disruption to their operations a raid may cause and criminal liability for their corporate officers. On the other hand, employers who overreact to such risks and who improperly target employees when performing an I-9 audit may face claims of discrimination under the Immigration Reform and Control Act of 1986. Employers interested in such audits are therefore advised to retain legal counsel.

3.Where can I get more information about this strike?
You can get more information about the strike at either of the following websites (which are run by the strike organizers): www.immigrantsolidarity.org or www.actionla.org. If you have any legal questions about how to respond to the strike, you should contact your employment law attorney. At Carothers, DiSante, & Freudenberger, you should contact the following individuals:
San Diego - David Osborne - dosborne@cdflaborlaw.com
Irvine - Chris Carlton - ccarlton@cdflaborlaw.com
Los Angeles - Brian Van Vleck - bvanvleck@cdflaborlaw.com
San Francisco - Heather Sager - hsager@cdflaborlaw.com
Sacramento - Mark S. Spring - mspring@cdflaborlaw.com

How to Develop and Implement a Policy

Susan M. Heathfield, who writes the blog "About Human Resources" at about.com, has this interesting post on how to develop and implement a policy.

New Spotlight Article: When I call our employment law attorney with a question, the first question he asks me is, "Do you have a policy?" The second question is whether the policy is in the employee handbook. If the answer is no, and even when the answer is yes, he asks, "What has been your practice?" Then, he asks, assuming we had a policy, "Did the employee sign off on the policy and is the signoff sheet in the employee's file?"

Actually, I've heard these questions so many times that I ask myself the same questions daily as I interpret and fairly apply our policies. You want to have the necessary policies and procedures to ensure a safe, organized, convivial, empowering, nondiscriminatory work place. Yet, you do not want to write a policy for every exception to accepted and expected behavior. Find out how to develop a policy.

You can read her post here.

This post is appropriate this year as blogs are drastically increasing. Our firm has been asked by numerous clients about whether they need to implement a "blogging policy." Generally, a company's already existing policies should already cover acceptable and unacceptable employee behavior during company time, and this will apply to employee blogging. However, given a specific company's industry or support for employee's use of blogs, the company may need a detailed policy to address what is proper for employees to write about concerning the company.

California Supreme Court Agrees to Hear Medical Marijuana Case

Yesterday, the California Supreme Court granted review of the ruling of the Third District Court of Appeal in Ross v. Ragingwire Telecommunications, Inc. that held an employer did not violate California law for terminating an employee who used marijuana for medical purposes.

The lower court held that "because the possession and use of marijuana is illegal under federal law, a court has no legitimate authority to require an employer to accommodate an employee's use of marijuana, even if it is for medicinal purposes and thus legal under California law." The court continued, "If FEHA is to be extended to compel such an accommodation, that is a public policy decision that must be made by the Legislature, or by the electorate via initiative, and not by the courts."

Cal Labor Law will provide updates on the status of the appeal.

How long should California employers maintain employee records?

California employers are subject to a myriad of federal and state requirements for the retention of employment records. Here is a brief list of important records employers should maintain and the time periods they should be retained in order to avoid civil penalties and to protect against litigation. This is a general list that pertains to most employers in California. Employers should consult with an employment attorney to ensure that they are in compliance with all applicable document retention laws. Download file

New I-9 Form Available

The United States Customs and Immigrations Service (USCIS) has recently published the new Form I-9, Employment Eligibility Verification. Employers can download the new form at the USCIS website. Employers are required to complete a Form I-9 within three business days of hiring a new employee and are required to retain the forms for three years post-hire or one year after termination of employment, whichever is longer. Employers are required to use this new form by January 2006, but can begin using it before that time.

Verify Employees’ Social Security Numbers Online

The Social Security office now offers employers the ability to verify employees' social security numbers online (click here for the website).
The site also provides information to employers about their reporting requirements and what to do if the social security number provided by the employee does not match. Registration is required to use the service, but it appears to be a valuable resource for employers.

Employee Uniforms

Question: May I require my employees to wear a particular uniform?

Answer: California law allows employers to require employees to wear particular types of clothing or uniforms to work. If an employer requires non-exempt employees to wear a uniform, the employer must pay for and maintain it for the employee. What constitutes a "uniform" is not always clear.

According to the California Labor Commissioner, the term "uniform" includes any apparel and/or accessories of distinctive design or color. An employer may prescribe the weight, color, quality, texture, style, form, and make of a "uniform" required to be worn by employees. When an employer simply requires employees to wear "basic wardrobe items which are usual and generally usable in the occupation," the clothing is not a uniform. For example, specifying that employees wear white shirts, dark pants, and black shoes and belts, all of unspecified design, does not constitute a "uniform." The employer is not required to pay for that clothing or its maintenance. If the required clothing can double as street clothes, it is probably not a "uniform."

Some safety equipment or protective apparel must be worn by employees as a matter of law. Proper safety equipment such as goggles, gloves or other accessories or apparel must always be provided by the employer if they are required by a regulation of the Occupational Safety and Health Standards Board.

How is maintenance of a uniform handled?

In addition to the cost of the uniform, the employer must provide non-exempt employees with reasonable maintenance of the uniforms. The employee can either maintain the uniform itself, or pay the employee a weekly maintenance allowance of an hour's pay at minimum wage, provided that an hour's pay is a reasonable estimate of the time necessary to maintain uniform properly. It is reasonable to require employees to maintain uniforms requiring minimal care, such as washing and tumble drying, without reimbursement; however, special care, such as ironing, dry cleaning or separate laundering because of heavy soiling or special color, must be reimbursed to non-exempt employees. An employer may never impose a financial burden on employees, with respect to purchasing or maintaining clothing, which would reduce the employees' wage rate below the minimum wage.

What An Employer Needs To Know About Arbitration Agreements

Question: I am considering requiring all new employees to sign an arbitration agreement. What do I need to know to prepare an enforceable agreement?

Answer: Many employers view arbitration agreements as a cost-effective and time-saving method for resolving disputes with their employees. In recent years, the Courts have issued differing opinions on whether such agreements are enforceable. Generally speaking, the courts closely scrutinize arbitration agreements because the employee lacks equal bargaining power, particularly where an agreement to arbitrate is a condition of employment. The courts examine both procedural unconscionability (i.e., oppression or surprise to one side that arises from unequal bargaining power) and substantive unconscionability (i.e., whether the terms of the agreement are unduly harsh or one-sided). The California Supreme Court has held that an agreement to arbitrate is unenforceable only if both the procedural and substantive elements are satisfied, but that these types of unconscionability are viewed on a sliding scale. Armendariz v. Foundation Health Psychare Services, Inc., 24 Cal.4th 83 (2000). In other words, the more substantively oppressive the terms of the arbitration agreement, the less evidence of procedural unconscionability is required.

In Armendariz, the California Supreme Court set forth the minimum requirements for an enforceable arbitration agreement: (1) a modicum of mutuality; (2) a neutral arbitrator; (3) all costs beyond those normally incurred in litigation to be borne by the employer; (4) some discovery; (5) a written decision with some reasons for the award; (6) the same relief available as in litigation. 24 Cal.4th at 103-13. Subsequent decisions by the California courts and the Ninth Circuit Court of Appeal have found unconscionable provisions that restrict an employee's appeal rights to a second arbitrator and to awards exceeding $50,000, require payment of a deposit and fees for each arbitration session by the employee, and limit an employee to a one-year statute of limitations. Fittante v. Palm Springs Motors, Inc., 105 Cal.App.4th 708 (2003); McManus v. CIBC Word Markets Corp., 109 Cal.App.4th 76 (2003); Circuit City Stores, Inc. v. Mantor, 335 F.3d 1101 (9th Cir. 2003).

Employers should keep in mind the risk of invalidation if their agreement is improperly drafted. While the courts have enforced arbitration agreements where only one term is unconscionable and can be severed, they have denied enforcement where the entire agreement was permeated with objectionable provisions or the purpose of the agreement appears to be to obstruct the employee's claims. Compare, Little v. Auto Stiegler Inc., 29 Cal.4th 1064 (2003) (severing provision and enforcing agreement), with Ingle v. Circuit City Stores, Inc., 328 F.3d 1165 (9th Cir. 2003) (refusing to sever or enforce).

Given the complicated issues in this area, employers should consult with experienced employment counsel before drafting or implementing an arbitration agreement. The focus in drafting these agreements should be on changing the forum for resolution of the dispute, rather than seeking to gain a substantive advantage over the employee. Some general "DO's" and "DON'Ts" are worth noting:

* DO consider allowing the employee an opportunity to opt-out of arbitration within 30 days after being notified of the program.
* DO provide a procedure for the selection of a neutral arbitrator.
* DO specify the types of claims that are subject to the agreement.
* DO provide for some mutuality, rather than just requiring arbitration by the employee.
* DO allow for more than minimal discovery.
* DO require a written decision by the arbitrator setting forth the basis for the award.
* DO allow for some judicial review of the decision.
* DO include a severability clause in the event any provision is found unenforceable.
* DON'T bury the agreement to arbitrate in pre-printed complex forms that the employee is unlikely to read.
* DON'T limit the statute of limitations for any claims.
* DON'T limit the employee's ability to pursue class or group claims.
* DON'T require the employee to share the cost of the arbitration fees or to incur other costs that they would not bear in ordinary litigation.
* DON'T limit the recoverable damages.
* DON'T provide for one-sided amendments or changes to the agreement by the employer.