Articles Posted in Employment Law

Even with recent employment reports showing sluggish job growth, federal unemployment benefits are still slated to run out starting this month, as reported by the Washington Post this week. While most state unemployment benefits provide 26 weeks of unemployment compensation, Congress in response to the recession had also provided an additional 26 weeks of unemployment to workers on behalf of the federal government. From the beginning of the recession to now, Congress has reauthorized the Federal Unemployment Compensation and the Extended Benefits programs over ten times in order to ensure that most Americans have at least a full year of unemployment compensation available to them. While the last reauthorization of the federal benefits was in February, these federal benefits are slated to phase out starting July 1 and without further Congressional action will no longer be available to any worker by December 31 of this year.

What this means is that for workers still facing an unemployment rate of 8.2 percent, unchanged for months, they will no longer have an important security net for them and their families. As the New York Times reported today, the nation added just 80,000 jobs in June, doing little to address the continuing unemployment and underemployment of millions of American workers. And with little hope of an additional stimulus measure passing Congress before the end of the year, these numbers will probably remain unchanged.

The mechanics of the phase out of federal unemployment benefits is simple but devastating for workers. Starting July 1, any worker who loses their job will only be eligible for their state unemployment benefits and there will be no federal benefits available to them if they do not find a job by December 31. Those who do find a job before December 31 will then be eligible for unemployment benefits up to December 29 at a maximum. If Congress does not reauthorize the Federal Unemployment Compensation and Extended Benefits programs, all federal unemployment benefits for any workers at the end of this year will be completely phased out.

Personal trainer jobs have grown exponentially in the past few years, standing out as one of the few areas of growth during the economic recession. The Department of Labor has found that personal trainer jobs grew 44 percent between 2001 and 2011, while job growth overall dropped 1 percent during the same period, as reported today in the New York Times. But while hundreds of thousands of people are flocking to these jobs that have relatively low barriers to entry, they are discovering that there are many legal pitfalls to these otherwise appealing positions. Many of the legal issues that face workers in the personal trainer industry are very complex, and can expose many of these hopeful aspirants to massive personal liability.

Personal trainers must contend with a number of legal issues relating to their liability for client injuries. In the first case, personal trainers must realize that they may face massive liability for any injuries their client’s sustain during their sessions depending on their relevant state laws. In many states, personal trainers may be found negligent for any advice or training they provide to their clients that lead to their being injured. One recent case in Georgia, Guthrie v. Crouser, is a good example of the kinds of cases many personal trainers may face. In that case, a woman alleged that her personal trainer during a session pushed her to exert herself in exercises until after one session she suffered renal failure and had to be put on life support. In her complaint, the woman claimed that she had protested that the exercise routine was too hard, but her trainer pushed on, as reported by a local Atlanta television station. While the Georgia Court found that the plaintiff only suffered $80 in damages, it also awarded her costs, leaving the personal trainer defendant out of pocket for hundreds, if not thousands of dollars.

For California personal trainers, the issue of liability for client injuries is mitigated somewhat by a recent case on the issue. In 2006, a California Appeals Court ruled in Rostai v. Neste Enterprises et al. that personal trainers under California state law could not be liable for negligence for any injuries a client suffers from a too-strenuous workout. In the opinion, the court extended its earlier rulings on the issue of primary assumption of risk, finding that clients assume the risk for the ordinary injuries they may sustain during a workout. As a result personal trainers owe no duty of care to their clients in California. What this case means for California personal trainers is that they will not be held liable for their clients’ injuries sustained during a training session or workout unless they acted intentionally or recklessly in bringing about the injury. In Rostai, the court had been confronted with the case of a man who hired a personal trainer for his workouts at a local Gold’s Gym. The man subsequently sustained a heart attack during his first workout, which he claimed was due to his personal trainer’s negligence in failing to investigate his risk factors before the workout and pushing him too hard even after he complained of loss of breath and exhaustion. The California court applying its new test found that because the personal trainer did not intentionally attempt to injure the man and did not act recklessly in his actions, then he could not be liable for the man’s injuries and granted summary judgment for the personal trainer and gym.

Many deployed reserve soldiers find themselves shut out of their former jobs upon their return from war as reported by MSNBC this week. As more and more veterans find themselves unemployed at higher rates than the general population, currently pending House Bill 3860 proposed by Representative John Garamandi from California’s 10th District, attempts to remedy the situation by closing loopholes that have allowed employers to refuse to rehire reserve soldiers when they return. This Bill will ensure that employers do not circumvent the requirements of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Even with the protections of USERRA, veterans have found themselves hardest hit during these difficult economic times, posting a 12.7 percent unemployment rate in May compared to the 8.2 percent unemployment of the general population. Returning from war in Iraq or Afghanistan, many veterans find their jobs gone or replaced by overseas workers. This is despite the fact that since the passage of USERRA in 1994, it has been illegal for employers to refuse to rehire deployed National Guard or Reserve veterans upon their return. The House Bill addresses the loophole that many employers have used to avoid their obligations under the law. If House Bill 3860 is signed into law, employers with over 500 workers can no longer claim the “undue hardship” exemption to avoid rehiring returning veterans into their former jobs. This will ensure that employers recognize their obligations to serve and protect those who serve and protect them.

While many employee rights activists are enthusiastic about the proposal of the Bill, not all veterans are in support. The American Legion, which represents 2.4 million veterans, is in full support of the House Bill and has participated in lobbying efforts. The Veterans of Foreign Wars (VFW), however, at 2.1 million has been wary of the effect the bill may have on the initial hiring of Reserve and National Guard members. The VFW has warned that if House Bill 3860 is passed, employers will avoid hiring National Guard and Reserve members in the first place, fearful of their liability if they are deployed and return.

The California Court of Appeal Second District ruled last week that a class action waiver in an employment contract did not violate the labor and employment laws, precipitating an almost inevitable showdown in the California Supreme Court over the issue.

The court’s decision in Iskanian v. CLS Transportation Los Angeles LLC concerned a trucker at CLS Transportation who signed an arbitration agreement at the outset of his employment that waived his rights to class action or representative action procedures for his arbitration claim. During his time at the company he filed a class action claim in state court alleging the trucking company’s failure to pay overtime, provide meal and rest breaks, reimburse business expenses and process wage statements properly, among other issues at the company. He brought his claims under various provisions of the California Labor Code.

The trial court after much litigation ultimately found that class action certification was not permissible under the arbitration agreement and filed an order to compel individual arbitration under the agreement. The plaintiff appealed to the California Court of Appeals, claiming that the trial court’s decision to compel individual arbitration was inconsistent with the California Supreme Court’s 2007 decision in Gentry v. Superior Court, as well as the California Labor Code’s Private Attorney General Act of 2004 (PAGA).

California has some of the greatest protections for workers of any state, including expansive antidiscrimination provisions under the California Fair Employment and Housing Act (FEHA) and generous overtime pay requirements under the California Labor Code. While many employees may be aware of these provisions, they may not know that California state law also provides extensive protections for employees under the reimbursement requirements of § 2802 of the California Labor Code. The California Labor Code § 2802 requires that employers reimburse employees for all necessary expenses or losses incurred during the course of their employment duties. This requirement extends to all employees in the state, regardless of salary or title, and employees cannot waive their rights under the law, which means employers and employees cannot contract around this requirement. While independent contractors are not covered by the code, due to the fact they are not considered employees under the law, this provision still covers the vast majority of California’s over 13 million workers.

This reimbursement provision has been in place since the California Labor Code was first published in 1937, and was amended to its present-day form in 2000. The provision has been read very broadly by courts over the years, imposing significant liability on employers who shirk its requirements. The code applies to any and all expenses, including cellphone, hotel, travel, and other expenses incurred by employees fulfilling their job duties. The only expenses clearly excluded from the code are travel expenses incurred commuting to and from work. California Labor Code § 2802 is also significant because it requires employers to pay for any attorney fees or other expenses employees incur to recover reimbursements and to defend criminal or civil suits from third parties for actions undertaken in furtherance of their employment duties. Under the code, employers must pay for expenses they know or reasonably should have known employees have incurred. The 2009 case of Stuart v. RadioShack Corp. has clarified that once employers have reason to know of an employee expense, it is their responsibility to undertake the due diligence to ensure the employee is adequately reimbursed.

One recent case in the Northern District of California highlights the reach and significance of § 2802. The case of Hopkins v. Stryker Sales Corp., decided just last month by District Court Judge Lucy Koh, demonstrates the complexity of this provision and its protection of employees from subsidizing their employer’s business expenses. In this case a group of former employees of Stryker Sales Corp., a medical device company, filed for class certification of their claims under § 2802 for non-reimbursement of employment-related expenses. These employees had worked as salespeople for the company which they allege had an official policy of not reimbursing its sales representatives. The plaintiffs claimed that the company issued memos stating they would not reimburse salespeople for their expenses incurred while driving to client sites, staying overnight in hotels, accessing internet and e-mail while on the road or calling clients on their cellphones. The company defended itself by citing the 2007 case of Gattuso v. Harte-Hanks Shoppers Inc., in which the Supreme Court of California held that companies may satisfy the requirements of § 2802 through increased salaries or commissions, as long as they make clear to their employees which portion of their salaries or commissions are to go towards their reimbursements. Further, employers under Gattuso must ensure that the additional salary or commission adequately reimburses employees for their expenses. Stryker Corporation in its defense in Hopkins claimed in this case that the salespeople were being reimbursed through their higher salaries and commissions at the company, therefore discharging its duties under § 2802.

A report published yesterday in the Wall Street Journal highlights the problems that many employees may face due to their interaction with social media, such as Facebook, MySpace, Youtube or Twitter. According to the report, there has been a marked increase in the past year of cases involving employees fired for “liking” certain pages on Facebook, or making comments on Twitter or Youtube criticizing their co-workers, supervisors or company. Some employees have been fired for demonstrating support for certain political causes through comments or “likes”; others for “liking” a competitor’s page, or for writing comments complaining about work conditions or conflicts with co-workers on Twitter or Youtube.

For workers who have been reprimanded or fired due to their interaction with social media, there is often confusion about whether they face any legal protections for their speech. Many workers in fact may not even realize that their off-duty conduct can expose them to adverse employment action. The default rule for any employment relationship in the United States is that employment is at-will. That means that a worker can be fired for any reason for any time, unless the employer and employee have contracted otherwise. Therefore, unless an employer violates another specific constitutional or statutory restriction, there is little protection for employee speech whether on or off the job.

The First Amendment does protect some speech of federal, state or local government workers, but these protections do not extend to the vast majority of Americans who work in the private sector. For private sector employees, state constitutional law and statutes may provide some protection for their speech however. For example, California is among three other states that completely protect employees from adverse workplace action for their lawful off-duty conduct. This means that workers in California who “like” a certain Facebook page or even criticize their co-workers or employers outside of work are protected. But if such speech or conduct rises to the level of defamation or harassment or violates some other law it will not be protected. The speech must also take place outside of work hours and off work premises and should not use employer technology such as work-provided phones, computers or other equipment.

The American Bar Association’s Study of Fairness in Employment Discrimination Lawsuits found that the whole process stinks. No one likes it. The study was conducted by three sociologists, Ellen Berry, Steve Hoffman and Laura Beth Nielsen and their findings were published in the Law & Society Review in March, 2012.

The study is based on 100 interviews with plaintiffs, defendants and the employment lawyers involved. The universal view held by all was that the system is unfair, but each side had different reasons.

Plaintiffs thought the process was too expensive and biased towards defendants. Some plaintiffs said the high costs resulted in personal hardships leading to divorce, depression and bankruptcy. Defendants, on the other hand, thought the system was unfair because it allows people to bring bogus suits that they are required to defend.

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