FRIDAY FLURRY: UPDATES ON NEWS FROM THIS WEEK

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08/23/2017

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FRIDAY FLURRY: UPDATES ON NEWS FROM THIS WEEK

 By: Rebecca Hause-Schultz

Marvin Kaplan Sworn in as NLRB Member

On August 10, 2017, Marvin Kaplan (“Kaplan”), one of President Trump’s nominees to the National Labor Relations Board (“NLRB”), was sworn in as a member. Kaplan’s term will run until August 27, 2020. As we previously reported here, business groups expressed their approval of the nomination, and it is expected that Trump’s NLRB (once his final nominee is confirmed and sworn in) will reverse many Obama-era rulings.

Judge Lydia Villareal Hears Motion for Summary Judgment Regarding AB 1513 “Safe Harbor”

On August 9, 2017, SLG Senior Labor Counsel Jennifer Schermerhorn attended oral argument on a summary judgment motion in the Murcia v. Tanimura & Antle matter pending in the Monterey Superior Court before Judge Lydia Villarreal. In that case, Plaintiff, on behalf of herself and a class of employees, is claiming she was not properly compensated for rest breaks from 2011 through 2015. The defendant employer asserted an AB 1513 “safe harbor” affirmative defense.  Under AB 1513, if an employer properly made AB 1513 safe harbor payments, it will have an affirmative defense to claims or causes of action based on the employer’s failure to timely pay compensation due for rest and recovery periods and other non-productive time “for time periods prior to and including December 31, 2015 . . . ”

Plaintiff is claiming that the “safe harbor” defense does not apply to time periods before July 1, 2012.  Plaintiff’s argument is contrary to the plain language of the statute and the legislature’s intention in enacting the “safe harbor” provision, which was to provide employers with an opportunity to make a good faith payment to employees for prior rest periods that would exonerate the employer from future liability.

We will provide an update on this matter when Judge Villarreal issues her ruling.

No Good Deed Goes Unpunished: Could Google Be in Trouble After Terminating Engineer Who Authored an “Anti-Diversity” Memo?

Earlier this week, Google fired an employee who wrote an internal memo critical of the company’s diversity practices. The memo accused Google of silencing conservative political opinions and argued that “biological differences” play a role in the shortage of women in tech and leadership positions.

In response to the memo, Google CEO Sundar Pichai sent a note to employees explaining that the memo “violate[s] our Code of Conduct and cross[ed] the line by advancing harmful gender stereotypes in our workplace.”

The fallout from the termination and the memo itself has resulted in significant debate on both sides of the issue. The terminated employee will likely argue that Google violated California law because it terminated him because of his political beliefs or violated his right to discuss his working conditions with other employees. The fired engineer has also stated that he is “exploring all possible legal remedies” against Google following his termination, and he has already filed a claim with the National Labor Relations Board (“NLRB”) claiming that Googles’ actions violated his rights under the National Labor Relations Act.  More filings are sure to follow.

To complicate matters, Google has been dealing with an ongoing investigation by the Department of Labor (“DOL”), which has claimed that the company discriminates against female employees. The DOL has argued that records it has reviewed show an “extreme” gender pay gap between what Google pays its male and female employees.

COUNSEL TO MANAGEMENT:

Situations like this put employers in a catch-22. On one hand, had Google let the author of the memo stay in his position, it would have been exposed to hostile workplace claims from other employees. Certainly, the memo would have been “Exhibit A” in any Plaintiff’s suit brought by a female co-worker alleging harassment. On the other hand, because it terminated this employee, Google is now dealing with a potential wrongful termination claim by the terminated employee.

This situation highlights the narrow tightrope employers walk in California and the importance of consulting with expert labor counsel before making the decision to terminate an employee. Further, gender pay gaps are not only a sign of potential discrimination, but are also generally unlawful in and of themselves in California with the passage of SB 358 in 2015 (codified as Labor Code section 1197.5). If you have questions about your company’s harassment policies or have questions about navigating the termination of an employee, contact the experts at The Saqui Law Group.

 

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