Two New Changes: State & Federal Issues
New $10,000 Wage & Hour Fine Against Employers
As if employers didn’t have enough to contend with regarding allegations by employees that their employer retaliated against them for complaining about their wages. Now, the California Legislatures have done it again. AB 263 amends Labor Code section 98.6, which protects employees who assert their rights under the Labor Code. The current law only protected the employee from discharge and discrimination. The new added protection now gives them the opportunity to receive $10,000 if an employer takes ANY adverse action against them for complaining.
The issue that will have to be defended over and over again (in my opinion) is what exactly is defined as “adverse action.” Furthermore, it will open the door to complaints based upon incorrect or false assertions as to any action taken by the employer that the employee may perceive as adverse.
The best advice we can offer is to make sure you stay focused and keep your emotions under control when employees challenge you regarding their pay, breaks, lunches or overtime issues.
Workplace Rights Poster
Remember the requirement that employers had to post the “Workplace Rights Poster” regarding Union organizing? Well, we finally have a decision that is at least favorable for employers. The National Labor Relations Board (NLRB) announced last week that it will not seek Supreme Court review of the two Court of Appeals decisions invaliding the NLRB’s 2011 posting rule requiring private sector employees covered by the National Labor Relations Act to post a 11×17” poster outlining employees’ rights under the Act. In both of the Court of Appeals decisions, National Association of Manufacturers v. NLRB, 717 F.3d 947 (DC Cir. 2013), and Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013), the appellate courts held that the NLRB exceeded its jurisdiction when it promulgated the posting rule and invalidated it. Most expected the NLRB to seek an appeal to the United States Supreme Court on those decisions. The time for doing so expired on January 2, 2013. Yesterday, the NLRB announced that it would no longer be pursing the matter with an announcement on its website.
The NLRB may have given up this particular battle. However, we believe that the Board will continue to try to find new and imaginative ways to expand unionization, make it easier for employees to organize, and expand its reach into the non-union workplace through rulemaking and other creative measures. These activities will lead to further court battles, as employers’ groups test the scope of the NLRB’s authority and jurisdiction and challenge its broad pro-union interpretations of the National Labor Relations Act. Union and non-union employers would be wise to continue to monitor the activities of the NLRB through at least the rest of the Obama administration in order to understand where the NLRB is looking to make its presence felt in both sectors.
