Month: April 2019

HR Consulting News–Working 7 Consecutive Days

by hrconsulting14

We are all familiar with the classic 40 hours per week and Monday through Friday scheduling. But there are situations, from an HR consulting point of view, in which the employer can legitimately ask for work seven days in a row if there is a bona fide business reason.

California Labor Code Section 551 states: “Every person employed in any occupation of labor is entitled to one days’ rest therefrom in seven.” In turn, Labor Code Section 552 states: “No employer of labor shall cause his employees to work more than six days in seven.”

Those sections do not apply “when the nature of employment reasonably requires that the employee works seven or more consecutive days, if in any each calendar month the employee receives days of rest equivalent to one day’s rest in seven (LC 554)”. For example, this would apply to retail employees who have to work longer consecutive days during the Christmas holidays.

From an HR standpoint, these provisions do not apply “to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof (LC 556).”

Two employees of Nordstrom sought to enforce these provisions in the California Supreme Court case of Mendoza v. Nordstrom (2017). For example, one of them claimed that they were forced to work 11 straight days. But in that time period, there were periods in which the work was less than six hours/day.

The court noted that the labor code sections above did not have a specification of civil penalties. This means the plaintiffs sought their penalties under the Private Attorney General’s Act (PAGA), which requires $200 per employee for each pay period, together with attorney’s fees and court costs, in which the labor code violation occurs.

For these reasons, HR consultants should be aware of these exceptions.

National Lien Law can act as your virtual Independent HR Consultant–either replace your existing HR Department or augment it with our ongoing HR consultation. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our independent HR consultants have law degrees and 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

Denying Service to Patrons of Places of Public Accommodation (Hotels and Restaurants)

by hrconsulting14

The question presented is whether a place of public accommodation, such as a hotel or restaurant, can deny service to a patron. This is important for HR consultants to understand, because it may impact whether your clients are sued for discrimination.

Take the example of a restaurant. This is clearly a place of public accommodation. In other words, the public may enter and use the facilities. In general, a place of public accommodation has the right to refuse service to a patron. But not on the basis of a protected class. In California, this includes: race or color, national origin or citizenship, religion or creed, sex, age, disability, pregnancy, genetic information, veteran status, marital status, sexual orientation or gender identity, medical condition, HIV status, political affiliations or status as a victim of domestic violence, assault or stalking. It appears Kevin is not a member of any protected class.

But California goes even further. In 1959 it enacted the Unruh Civil Rights Act, Civil Code Section 51, which states:

(b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

This prohibits any form of arbitrary discrimination, even if it is not included in the protected classes described above.  In Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142 1152, it construed the Act to apply to several unexpressed classifications–namely, unconventional dress or physical appearance, families with children, persons under age 18, and homosexuality. (Harris, supra, 52 Cal.3d at p. 1155).

This allows a restaurant to exclude if there is a showing of good cause. The court observed in Stoumen v. Reilly, 37 Cal.2d 713:

 

Members of the public of lawful age have a right to patronize a public restaurant and a bar so long as they are acting properly and are not committing illegal and immoral acts. The proprietor has no right to exclude or reject a patron except for good cause, and if he does so without good cause, he is liable in damages.” Clearly, the law does not allow a business to arbitrarily exclude a prospective customer. In order for courts to determine what constitutes arbitrary discrimination, the court must examine whether the action taken by a business owner is reasonable and for good cause. Good cause is established when there is evidence of improper, illegal or immoral conduct by the customer that occurs on-premises and that is contrary to the public’s welfare or morals.

 

Thus, the exclusion can be proper if it is based upon neutral or economic factors (Harris, supra, 52 Cal.3d 1142, 1148), namely preventing a patron from further harassment of an employee. Other examples would be a patron causing a disturbance or committing some kind of illegal act.

Note also that California Penal Code Section 602.1 allows a restaurant owner to exclude a patron if that person would disrupt the business:

 

(a) Any person who intentionally interferes with any lawful business or occupation carried on by the owner or agent of a business establishment open to the public, by obstructing or intimidating those attempting to carry on business, or their customers, and who refuses to leave the premises of the business establishment after being requested to leave by the owner or the owner’s agent, or by a peace officer acting at the request of the owner or owner’s agent, is guilty of a misdemeanor, punishable by imprisonment in a county jail for up to 90 days, or by a fine of up to four hundred dollars ($400), or by both that imprisonment and fine.

 

Note also you do not need a sign to eject someone. Although it might be helpful from a practical standpoint, signs such as: “We reserve the right to refuse service at any time” are not technically required.

So as an HR consultant, bear these issues in mind and appropriately inform your clients.

 

National Lien Law can act as your virtual Human Resources Consulting Firm–either replace your existing HR Department or augment it with our ongoing human resources consulting services. And, we are equipped to prepare any documents required (for example, termination notices, warnings, employment agreements/confidentiality/noncompete, employee handbooks, write-ups, responses to claims, wage and hour disputes, legal memos to management, response to attorney demands, legal investigations, help with arbitrations or language used in your emails and communications with employees). Services can be on a retainer basis, hourly or flat fee. Our human resources consultants have law degrees and 20+ years’ experience in human resources consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434. Info.NationalLienLaw@gmail.com.

California Employment Arbitration Provisions

by hrconsulting14

Just how far can you go in drafting a California arbitration provision for employer/ employee disputes? This is important information for HR professionals.

Under the California Armendariz decision, the employee must be given the same rights in arbitration as they would have in litigation. But for most companies, there are some exceptions. Waiving the right to consolidate or have a class-action in arbitration is one.  This is allowed by the US Supreme Court in ATT Mobility vs. Conception  131 S. Ct. 1740, 1750 (2011).

An agreement can also waive a jury trial. The argument is that arbitration, for example through the American Arbitration Association, almost never can provide for a jury trial. In other words, it is the nature of arbitration not to have a jury. It’s just not set up for that. So you probably will get by with this exception.

Examples of what rights cannot be waived would be damages for emotional distress, punitive damages, injunctive relief, declaratory relief or other examples.

An HR consultant should also know about a waiver of the employee being able to bring an action as a private attorney general under California Labor Code Sections 2698 – 2699.5 (for example penalties for over time etc., in which the employee brings the action on their behalf as well as others)? This is not allowed because of the California case of Iskanian vs. CLS Transportation, 59 Cal.4th 348 (2014) which prohibits such a waiver. But you can include the following provision:

A mutual agreement to arbitrate claims also means that both you and the Company forego any right either may have to a jury trial on claims relating in any way to your employment, and both you and the Company forego and waive any right to join or consolidate claims in arbitration with others not signatory or to make claims in arbitration as a representative or as a member of a class or in a private attorney general capacity, unless such procedures are agreed to by both you and the company.

 

www.HRconsulting.network can act as your virtual HR Independent Consultant. Our consulting services include: 1) acting as your virtual Human Resources department, 2) assisting your existing HR department personnel, 3) giving advice to other HR consultants or 4) simply providing outsourcing information to anyone interested in HR matters. And, we are equipped to prepare any documents required. Examples include: termination notices; warnings; counseling reports; progressive discipline procedures; write-ups; employment/confidentiality/noncompete agreements; employee handbooks; responses to employee demands; responses to wage and hour, overtime, rest/meal breaks, retaliation and hostile work environment disputes; memos to management; complaint investigations and reports; separation and severance agreements; settlement and release agreements; responses to sexual harassment claims; responses to discrimination claims; arbitration procedures (preparing a binding arbitration agreement, responses and other paper work, scripts and declarations for testimony, representatives to appear at hearings) and help with language used in your emails and communications with employees. Services can be on a retainer basis, hourly or flat fee. Our HR consultants have 20+ years’ experience in HR consulting. Or, simply give us a call for a free initial consultation. (800) 995-9434 (Ext. 1). Or email our parent company (attention Cliff): Info.NationalLienLaw@gmail.com.