Updated: Court Temporarily Stops the NLRB from Enforcing Poster Requirement

The Court of Appeals for the D.C. Circuit granted the request of the National Association of Manufacturers (NAM) to temporarily stop the National Labor Relations Board (NLRB) from enacting its notice-posting rule.

Employers will not have to meet the April 30 implementation deadline. 

*UPDATE* In response to the court's ruling, NLRB Chairman Mark Gaston Pearce announced that: “In view of the DC Circuit's order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.” 

In March, a federal district court for the District of Columbia generally upheld the validity of the posting requirement rule. NAM appealed the decision. NAM then asked the court to stop the NLRB from implementing the poster requirement while its appeal was pending. Today, the court agreed to grant this temporary injunction.

On April 13, HR Watchdog reported that a federal district court in South Carolina ruled that the National Labor Relations Act posting requirement is unlawful. Employers nationwide are presented with two federal decisions that are in conflict with each other. 

Given the uncertainty caused by the conflict in opinions, this injunction is welcome news.

Employers who purchased poster products from CalChamber can rest assured that their poster set will continue to work for them. CalChamber offers its members a two-poster set that contains the NLRA notice separate from the other legally mandated notices in the California and Federal Employment Notices Poster. Employers should continue to post the all-in-one poster that contains the 16 required California and federal notices for 2012. 

HRWatchdog will continue to keep you updated on the status of the NLRA poster requirement.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel 

Federal District Court: New NLRA Poster Requirement Unlawful

A federal district court just ruled that the new National Labor Relations Act posting requirement is unlawful. At the present time, it is unclear what the effect of this ruling is on the April 30 posting deadline. HR Watchdog will be updating you as soon as possible on the effect of this ruling for California employers.

Last year, the National Labor Relations Board (NLRB) promulgated a rule requiring most private sector employers to post a notice informing employees of their rights under the NLRA. The rule was set to take effect on April 30, 2012.

The U.S. Chamber of Commerce challenged the rule as an unlawful exercise of the NLRB’s authority.

A federal district court in South Carolina agreed, ruling that the NLRB exceeded its authority in violation of the federal Administrative Procedure Act (APA): “The court finds that the Board lacks the authority to promulgate the notice-posting rule. As such, the rule is unlawful under the APA … .” 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

On Video: The Brinker Decision's Impact

Yesterday, HRWatchdog gave a brief summary of the California Supreme Court’s decision in Brinker Restaurant Corp. v. Superior Court, relating to meal and rest breaks.

One key component of this ruling is that employers do not have to ensure that employees take their meal breaks, but must make them available. 

Stay tuned: CalChamber’s employment law experts will have more to say on the ruling. In the interim, take a couple of minutes to watch this Brinker video to get an idea of the impact of this decision.

Labor Commissioner Releases Updated Wage Notice and FAQ

Today is a big news day in the employment law world.

First, the California Supreme Court released its decision in Brinker Restaurant Corp. v. Superior Court (check our blog post for a summary). Then, California's Division of Labor Standards Enforcement (DLSE) released an updated wage and employment notice “Notice to Employee (Labor Code section 2810.5)” and a second update to its FAQ on the wage and employment notice

As California employers know, the Wage Theft Protection Act of 2011 requires employers to provide nonexempt employees with a new notice at the time of hire that lists specified wage information. California employers struggled with putting the provisions of the law into effect.

The Labor Commissioner issued the first update to its “Frequently Asked Questions (FAQ) Wage Theft Protection Act of 2011 - Notice to Employees” in late January to help answer questions from employers. The second update to the FAQ revises several of the previous FAQs and also contains five additional questions and answers.

For new hires made after the posting of the updated template on the DLSE’s website, the newer posted version of the template must be used. The DLSE will archive any earlier template on its website for informational purposes.     

The updated wage and employment notice is available for download from HRCalifornia. The English version is now available. The Spanish version of the form is being translated by the DLSE and will be posted to HRCalifornia as soon as the form is available.

Need help trying to sort all this out? You’re in luck: CalChamber’s employment law experts will be conducting a live Paying and Scheduling Nonexempt Employees webinar on April 19, 2012.

Brinker Case Decided

Today, the California Supreme Court finally released its long-awaited decision in the Brinker Restaurant Corp. v. Superior Court case. The Brinker case is extremely important to all California employers because it involves employers’ obligations relating to meal and rest breaks.

The most critical part of the unanimous ruling is that employers do not have to ensure that employees take their meal breaks, but must merely make them available. The court also provided flexibility to employers with regard to the timing of meal and rest breaks.

According to the court:

To summarize: An employer’s duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.

According to Erika Frank, California Chamber of Commerce General Counsel and Vice President of Legal Affairs, “Employers have finally received some much-needed clarity in a common sense decision from the California Supreme Court that will provide certainty and flexibility to employers and employees allowing them to effectively manage their workload and serve their customers and clients. One of the most significant benefits of this ruling is that it will reduce employers’ exposure to costly and frivolous litigation.” 

Stay tuned to HRWatchdog for more information and analysis.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel 

Allow CalChamber’s employment law experts to interpret the ruling for you. Join us next Tuesday, April 17, for a 90-minute live webinar: Meal & Rest Breaks: What Does the Brinker Decision Mean for Your Workplace?

Our employment law experts will discuss the Brinker decision’s impact on your workplace, and analyze the Brinker decision's impact on current meal and rest break requirements for nonexempt employees. You will also learn best practices and tips on complying with the court’s decision.

Register now for the webinar.