New State Mandate for Private Employers Hiring New Employees

Beginning January 1, 2012, there will be a new requirement private sector employers must comply with when hiring new employees.  Employers will be required by a new State law to provide the new hires with a list of information in a format to be determined by the Labor Commissioner.

New Labor Code Section 2810.5 requires "at the time of hiring" a written notice "in the language the employer normally uses to communicate employment-related information" to non-exempt employees containing all of the following:

1. The rate or rates of pay and whether paid by the hour, shift, day, week, salary, piece, or commission, including overtime rates;
2. Allowances, if any, to be considered part of the employee's minimum wage, such as meal or lodging allowances;
3. The regular payday designated by the employer;
4. The name of the employer, including any "doing business as" (dba) names used by the employer;
5. The physical address of the employer's main office or principal place of business, and a mailing address, if different;
6. The telephone number of the employer;
7. The name, address, and telephone number of the employer's workers' compensation insurance carrier; and,
8. Any other information deemed "material and necessary" by the Labor Commissioner.

Not to worry, though.  The Labor Commissioner will be providing a "template" for employers to use to convey this information.  Employers should look for information from the Labor Commissioner to help comply with this requirement.  Conceivably, this requirement could be satisfied with some modifications to an employer's existing "new hire" or offer letter.  Employers not using offer letters will want to follow the Labor Commissioner's "template" to assure compliance.

This written notice is not required for public sector employees, overtime exempt employees, and employees covered by a union contract (provided the regular hourly rate is at least 30% more than the State's minimum wage.

We Need to De-Politicize the NLRB

Perhaps it is inevitable that the National Labor Relations Board is political.  Certainly, the 1945 National Labor Relations Act created the NLRB to have a majority of members that reflect the political party that is then in power.  Lately, the majority of the NLRB members are effectively pro-union Democrats for the first time since the Clinton presidency.  What happens when the composition of the Board changes?  Not surprisingly, much of the labor relations law changes.  Recently, for instance, the NLRB reviewed and revised the law established by the Bush appointed Board about the permissibility of unions using employer-provided email systems.  And although the Employee Free Choice Act failed to win a legislative majority in Congress, the NLRB is attempting to effectuate the pro-union goals of that legislation by regulation.

Whether you support unions or employers, the flip-flopping of labor law depending on which party is in power is not only unseemly, it violates the rule of law.  The NLRB will no doubt argue that unlike federal courts it is not bound by the doctrine of stare decisis, the rule that requires adherence to precedent.  Interestingly, this is a prudential rule, not a law.  Abiding by precedents engenders respect for the rule of law and confidence in our legal system.  The progression of law is supposed to be evolutionary, not cataclysmic.  Politicizing the outcome of labor law cases can result in conduct that was lawful under prior rulings of the NLRB being held to violate the law according to the new composition of the NLRB.  Such outcomes not only hurt the party that in good faith comported its conduct consistent with the prior rulings it leads to a general loss of credibility and authority on the part of the NLRB.  Certainly the harmed party in such an outcome can appeal to the federal appellate courts, but that result requires the expenditure of additional funds as well as the loss of additional time and resources.

To complicate matters, the problem may temporarily solve itself.  In 2010, the United States Supreme Court held in the New Process Steel case that the NLRB could not issue opinions or regulations with less than three members.  Right now, the NLRB has only three members, one of whom is a Presidential recess appointment that expires at the end of this year.  Although the Democratic-controlled Senate must approve any Presidential appointments to the NLRB, Congress has been preoccupied with the economy and the Republican controlled House of Representatives has threatened to go after the funding of the NLRB should the Senate approve appointees deemed unacceptable to the Republicans.

Stay tuned.  If you don't like this program, it's bound to change--at least according to the current rules.

Ironic that Nation's Oldest Employment Protection Agency Taking Lead on Employee Use of Social Media

An interesting trend is developing at the National Labor Relations Board (NLRB).  This employment protection agency created in 1935 and known for conducting Union elections and resolving labor disputes is in the forefront of protecting employee use of new social media. A few months ago, the NLRB issued an unfair labor practice complaint against an ambulance company for disciplining an employee who disparaged her supervisor in a Facebook posting.  That case ended in a settlement in which the employee was given an undisclosed amount of money in exchange for a release and resignation.  Just last month, the NLRB indicated that it intended to file an unfair labor practice charge against Reuters, the news corporation, for disciplining an employee for criticizing management using her Twitter account.  So here's what the NLRB seems to be thinking.  Employees using social media sites to complain about their bosses or about working conditions is no different than sharing such concerns around the water cooler.  If an employee is disciplined for posting information about his or her employer that is not a trade secret and relates to working conditions, the NLRB will consider that an unfair labor practice for discriminating against an employee for exercising their rights under the National Labor Relations Act.  So far, the NLRB has not been receptive to proportionality arguments, such as the potential on-line audience is potentially much wider than complaints around the water cooler or loading dock.  Moreover, for unknown reasons, on-line postings have an unwarranted legitimacy, staying power, and potential reach than workplace communications could never achieve.  Despite these "scope" concerns, the NLRB seems bound and determined to be the guardian of employee on-line communications.  Therefore, before disciplining an employee for criticizing the employer or management employees in an on-line posting, be sure to consider whether the posting could be considered protected speech by the NLRB.