CalNeva Law Podcast Brett Sutton, ESQ.

There’s a lot of fear in the air right now. Brett has never been so busy within his practice and he’s been doing this for 35 years. During times of perceived economic downturn, litigation and lawsuits end up spiking up. In this podcast episode, Brett explains how to reduce your risk as much as possible when you’re considering letting go of some of the workforce. How do you approach this? How do you avoid getting sued for unfair termination? Brett covers all of this and more.
 
Highlights:
Brett and his office have been busy! There’s some economic disruption happening.
What should employers be thinking about when it comes to reduction in workforce?
What are some alternatives to reduction in force?
There are a lot of nuances to reducing your workforce “without” notice.
If you’re in California, you need to be careful with reducing someone’s hours. You need advance notice.
Can employers do furloughs?
After exhausting all the alternatives, what’s the next step to reducing the workforce?
Are you going to let someone go due to their performance? Brett explains the best legal approach to doing this.
From a legal perspective, really think through your layoffs. You need to have proof.
Are you laying off anybody who recently filed a worker’s comp?
People get scared and they start to think if they’re next, and then a ripple effect ensues.
Be careful. People get angry or upset and might sabotage relationships with your clients and/or publish unflattering news about you on social media.
When does it make sense to conduct a company-wide layoff?
After a layoff, people do consult their lawyers and you might get dinged for something unrelated to the layoff itself.
If you have a remote worker, are they still eligible for FMLA?
If you go through a second or third round of layovers within a 90-day period, you need to be careful if it falls under the WARN act.
Do your employees have a written employment agreement?
Whatever you do, you need to have a qualified attorney helping you with this process.
What do you want confidential? Your client list should be on there.
In your severance agreement, there is often language that makes other agreements void once an employee signs this one. You have to make sure you’re referencing other agreements that employees have signed in the past like NDAs.
You need to have a clear document stating the decisional markers as to why employees were fired.
You have to also prove that you didn’t fire your older employees intentionally or else you could be sued for ageism.
What should employers know about the “Silence No More” act?
The more information you can give to your employees, the better. People tend to “fill in the blanks” when they don’t have the needed information and their imagination can take over.
Have questions? Please feel to reach out to Brett and his team.
 
Resources:
Suttonhague.com
Calnevalaw.com

There’s a big development happening in California employment law that many employers have been waiting on. For a little while, California employers were in a bit of a limbo to understand whether mandatory arbitration agreements were enforceable or not. In this episode, Brett explains what an arbitration agreement is, what the AB51 is, and what does this new court ruling mean for employers with employees in the state of California. 
 
Highlights:
What’s happening with legislation in California? 
Let’s give context and talk about what AB51 is. 
What is an arbitration agreement? 
A properly drafted arbitration agreement makes it difficult for people to file a class action lawsuit against their employer. 
The arbitration process is very expensive, however there is a trade off. 
So what was the main reason for drafting AB51? 
Is AB51 enforceable? 
For a little bit, the courts were in limbo with this assembly bill.
As of February, 2023, it means this bill is not enforceable. But what does this mean for employers? 
What is Brett’s recommendation as of right now for California employers? 
 
Resources:
Suttonhague.com
Calnevalaw.com

Geralynn Patellaro has been practicing law for the last 20 years and is licensed in California and Nevada. During her time, she’s seen every conceivable workplace investigation and has experienced all facets of where it can go. In this webinar, Geralynn answers some frequently asked questions from employers, business owners, and HR. She covers everything from workplace sexual harassment lawsuits to how to conduct an investigation with international jurisdictions and witnesses.
 
Highlights:
A little bit about Geralynn and her background in law. There are certain distinctions you need to be aware of on who can do outside workplace investigation in the state of California and Nevada. When you take the time to investigate an issue, it’s going to look like to the jury that you took this workplace issue seriously. Does investigation seem too serious of a word? Geralynn recommends calling it a “fact-finding” mission. Who should do the workplace investigation? What options do employers have? You have to do the best investigation you can, based on the information provided. Geralynn offers things she considers when she’s working with a client on an investigation case. You have to understand what you’re legally/required to turn over vs. what information you don’t have to turn over. If your investigation involves someone who is not a U.S. citizen, there are distinctions you need to be aware of, too. Sometimes an investigation boils down to a “he said, she said.” What do you do then? Geralynn shares the EEOC’s five credibility factors and DFEH’s nine factors. Quick shout out to Boys & Girls Club of Truckee Meadows. All proceeds from this webinar will be donated to them. Please consider donating. Does the employee need to inform you that they’re recording their investigation interview? What’s the best way to talk to the complainant? What do you do if both parties in dispute have to continue working with each other? After the investigation, check in with the complainant. This is where the hard work truly begins. How do you ask questions without alarming staff members? The manager often doesn’t want to escalate a situation to HR. Geralynn’s philosophy is that if a manager can handle it, let him or her do it, but at least document it with HR. Geralynn offers some final piece of wisdom: Just document what you can. No report is perfect, but there should be a paper trail for why things couldn’t get followed up on and more. What should you look for in an interpreter if an employee is not a native English speaker?  
Resources:
Suttonhague.com
Calnevalaw.com
Babwp.com
Bgctm.org

Brett Sutton and Jared Hague talk about the recent Wage and Hour ruling in the Viking River Cruise case, and talk about what California employers need to be aware of when it comes to class-action cases. If you’re a California employer, then this is an episode you won’t want to miss as it has some new information about the recent court ruling that could affect California-state specific employers going forward. 
 
Highlights:
California has one of the strictest wage and hour rules in the entire country. There are frequent class action cases filed in California and it really hurts employers.  There are two types of penalties employers can fall under with the wage and hour law.  Can employees sign an arbitration agreement to help mitigate the risk on the employer?  What is an arbitration agreement in a nutshell?  What can be covered in an arbitration agreement between employer and employee? If you don’t have these certain key bullet points within your arbitration agreement that doesn’t include all these features, then it might not be enforceable. Employers can not require employees to enter into an arbitration agreement as a condition of their employment.  What do you need to know about the AB51 law?  Employers can include a class action waiver in their arbitration agreement.  Let’s talk about the Viking River Cruise case.  Every California employer should take arbitration agreements seriously.  California law requires you to pay for the arbitration. That’s not a small amount, especially if a group of employees bring a class-action arbitration against you.  An arbitration agreement with a class action waiver is as close as you can get to being protected.  A very minor infraction in the California laws can just snowball into a big monster for an employer.  The best thing you can do is make sure you’re in compliance with California Wage and Hour laws.  
Resources:
Suttonhague.com
Calnevalaw.com

Brett Sutton and Jared Hague talk about the latest update to California meal and rest period employment laws and what California employers need to know about this recent change. There are little nuances to this law that you need to be aware of and in this episode, Brett and Jared help make suggestions (not legal advice) on how to best navigate this within your company. 
 
Highlights:
A bit of background around meal and rest period laws.  There are significant financial consequences if you don’t properly provide meal and rest time to your California employees.  Meal periods are unpaid and rest periods are paid. What penalties should the employer be aware of if they do not accurately do this?  Brett reminds employees what their pay stub needs to say.  Your employees might be taking all the necessary rest breaks, but if you are unable to prove this, you’re on the hook.  Jared brings up the recent case that got brought up in regards to accurate meal and rest period times. With the recent decision, the stakes have increased dramatically.  You really have to revisit what you’re doing and make sure your company is fully compliant. The first starting point is your policy.  Jared recommends doing a quarterly spot check within your company.  Supervisors need employee training to help them understand employment laws and to keep track of meal and rest period breaks.  It is part of a manager’s job to make sure the company complies with meal and rest periods.  It’s hard enough to be in business. Don’t make it harder for yourself.   
Resources:
Suttonhague.com
Calnevalaw.com

Today’s special guest is Ryan Lyle from IRI Consultants. Ryan has extensive experience in union representation and they have invited him today to talk about current developments for employers on the National Labor Relations Board. Jared shares his own experience and key takeaways from a recent successful union election. Ryan also discusses topics that will help employers better understand the latest trends happening within the union and shares how he believes workforces will be unionized in the future.
 
Highlights:
What is the National Labor Relations Board (NLRB)? The NLRB has two main areas of responsibility: run union representation elections and administer unfair labor practice charges. Ryan provides an overview of how a union election works in the U.S. He shares what happens in a worst-case scenario when an employer gets surprised by a petition for an election. Ryan also talks about the mandatory meetings that cover the educational aspects of having a union. Jared shares the process they went through and some of the lessons they learned from the recent union election they had in Nevada. To persuade the employees to vote against the union, Jared talks about captive audience meetings and explains why they were critical in their communications. In August 2021, then newly-appointed general counsel of the board, Jennifer Russo released a public memo. Ryan continues to share what it was. Ryan disagrees that captive audience meetings are implicit or implied threats. He explains why. He shares there is now an emphasis on the NLRB making rule changes based on case law and administration. Ryan provides some examples. One of the ways that a union can organize in a workplace is to get authorization cards signed. Ryan shares what the changes will be if the new law passes. Brett and Jared share their thoughts on the potential, significant changes explained by Ryan. Brett summarizes the key takeaways from today’s discussion: assess the risk early, don’t make assumptions, and be proactive in your communications.  
Resources:
Suttonhague.com
Calnevalaw.com
Iriconsultants.com