PERB Upholds Employer Ability to Avoid Meet and Confer Obligations Over Minor And informal Policy Changes.

In SEIU Local 1021 v. County of San Joaquin, PERB found that in order to establish past practice, a party must show that both the Union and the Employer knew of an agreed to the practice. It is not enough to show that the practice went on without correction by management for several years.

In Local 1012, the SEIU alleged that the County had unilaterally eliminated a past practice of allowing District Attorney’s Office employees to have flexible schedules to help employees with childcare responsibilities. PERB noted that while employees had been permitted to come in late and make up time during lunch, management did not have any knowledge of the practice and never authorized it. A senior clerical worker (non-management) had apparently authorized the practice without expressly discussing it with management first. While management may have become aware of the practice, they never authorized it and thus it could not be considered a past practice. This allowed management to lawfully eliminate the flexible scheduling.

This case sets a troubling precedent that allows management to get away with eliminating or changing workplace policies informally implemented by managers by allowing them to claim that they never explicitly authorized it, even if they were aware of it. This creates a backdoor way for less scrupulous employers to implement unpopular policies or eliminate employee-friendly policies by doing so on an informal basis and thus, avoiding the duty to bargain over such changes.

In Montebello City Employees Assn. v. City of Montebello, PERB ruled that a union failed to prove an unfair labor practice where a unilateral change of policy changing the job duties of two employees.  PERB also clarified that the proper test for an alleged unilateral change of policy is a five element test for per se violations of the duty to bargain, not a totality of the circumstances test.

The Union brought an unfair practice charge against the city alleging that they unilaterally changed the duties of clerical assistants effectively requiring that they do additional work without a change in classification or pay. PERB found that the change was at most an isolated departure from the status quo with no generalized effect or continuing impact on the terms and conditions of employment. Additionally, the city later stripped the affected employees of the extra duties when it could not get a reclassification approved for budgetary reasons. Thus there was no continuing impact on the terms and conditions of employment except for one or two isolated cases where the employees still had increased duties.

Third Circuit Rules Employers Can't Claim Credits Against FLSA Violations Based on Paid Meal Periods

Employees at a DuPont manufacturing plant spent between 30 and 60 minutes each shift donning and doffing protective gear without compensation.  The Third Circuit Court of Appeals ruled the employees were entitled to overtime compensation for this work.

The employer tried to avoid its overtime liability under the FLSA by arguing that it should be allowed to offset the paid meal period it had agreed to provide its employees against the donning and doffing time.  The paid meal periods were not required under the FLSA to be treated as hours worked, but the employer had agreed to a policy treating them as such.

The court held nothing in the FLSA authorized the type of offsetting the employer claimed.  The FLSA explicitly states an employer may use certain compensation already given to an employee as a credit against its overtime liability, but the credits are limited to categories of compensation that are “extra compensation provided by a premium rate", such as daily overtime.  The court refused to allow any credit, holding that nothing in the FLSA permits employers to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability.   Pay for the meal breaks was included in the employees’ regular rate of pay, and thus could not qualify as “extra compensation.”

This decision clarifies an important issue that arises in FLSA damage calculations wherein employers seek credits for any compensation agreements or policies that exceed FLSA minimums.  This decision confirms that employers can not claim a credit against their FLSA violations simply because they have agreed to compensate idle time, such as meal periods where employees are relieved of all duties.