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TRANSCRIPT
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
