As reported in prior blogs, the National Labor Relations Board (NLRB) has become increasingly active in attacking employer policies on the grounds that those policies chill employees’ rights to engage in concerted activity. In particular, the NLRB has been scrutinizing social media policies. Read More
Katina B. Miner
Katina Brooke Miner, a managing associate in the San Francisco office, is a member of the Employment Group. Ms. Miner practices employment litigation on a variety of issues, including discrimination, harassment and wrongful termination claims. She also has experience in wage-and-hour issues, including class and representative actions, claims for overtime compensation, and meal and rest period penalties. Ms. Miner also counsels and advises clients regarding a broad range of employment issues, including human resource policies and procedures.
Before joining Orrick, while at Boalt, Ms. Miner was a clinical intern in the family law and domestic violence department of Bay Area Legal Aid, and a public benefits advocate for the General Assistance Advocacy Project in San Francisco and the East Bay Community Law Center.
In a July 30, 2012 decision the Second Appellate District of the Court of Appeal ruled that an employee was not bound by the arbitration clause in his employee handbook for a slew of reasons:
- the clause itself was buried (or as the Court said “not specifically highlighted”) in a lengthy handbook and was not called to the employee’s attention;
- the employee did not specifically acknowledge the clause or agree to arbitrate, but merely signed an acknowledgment of receipt of the handbook itself;
- the handbook contained a (relatively) standard clause that it was not intended to create a contract but, the employer also “had it both ways” and retained the rights to unilaterally amend the handbook’s provisions;
- the employer failed to provide the employee with the specific arbitration rules; and
- the clause itself was found unconscionable: procedurally, because the employer did not distribute the rules governing the arbitration to employees and because the issue of arbitration was not negotiable and, substantively, because it required the employee to relinquish administrative and judicial rights and made no express provision for discovery rights.
While this decision points out the pitfalls of this particular factual scenario, it also highlights some nuances. As courts reinvigorate their scrutiny of arbitration clauses and agreements, due to what this Court called “the increasing phenomenon of depriving employees of the right to a judicial forum,” employers may want to revisit and revise their handbook language.
Earlier this year, in D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 6, 2012), the National Labor Relations Board (“Board” or “NLRB”) held that mandatory arbitration agreements requiring all employment disputes to be resolved through individual, bilateral arbitration violate the National Labor Relations Act (“NLRA”) because such agreements impermissibly restrict employees’ rights under Section 7 to engage in “concerted action for mutual aid or protection.” Although some courts have already rejected D.R. Horton (see e.g., opinion from S.D.N.Y., opinion from M.D. Fla. and opinion from California State Court) two recent pronouncements call into question additional, commonly used and accepted employment practices after finding they also had a “chilling effect” on employees’ right to engage in protected, concerted activity. Even though it remains to be seen whether these decisions will survive full Board and/or appellate court review, their rationale applies to union and non-union workplaces, and both decisions are worth reviewing now for the impact they may have on employer practices in these and other areas. Read More
In a decision issued April 23, 2012, the EEOC held that gender-identity discrimination-or discrimination against transgender individuals because they are transgender-constitutes sex discrimination under Title VII. This decision builds on the Supreme Court’s decision in Price Waterhouse v. Hopkins in 1989, which held that the prohibition against sex discrimination includes protection for people who do not conform to gender stereotypes. The EEOC also held that, even if stereotyping was not involved, an employment decision made on the basis of the fact that an employee had a change of sex would be considered sex discrimination under the law. Since transgender employees report facing workplace discrimination at high levels, this decision, coupled with an increasing number of states that now include sexual identity as a protected category under their anti-discrimination statutes, may spark an increase in claims brought on this basis.
As the nation awaits the Supreme Court’s opinion on the constitutionality of its individual health insurance mandate, some lesser-known provisions of the “Patient Protection & Affordable Care Act” (a.k.a. “Obamacare”) have received short shrift. For instance, the Affordable Care Act also amended the Fair Labor Standards Act (“FLSA”) and requires employers to provide nursing employees with “a reasonable amount of break time to express milk as frequently as needed” for up to one year after a child’s birth. The law also requires all employers subject to FLSA to provide employees with a private place to express milk that is not a bathroom.
While at first blush, this law sounds rather broad, it contains several limitations: Read More