Just over a year ago, we reported about a $105 million California verdict in favor of Starbucks baristas who were required to pool their tips with supervisors. As you might expect, Starbucks appealed that decision. Yesterday, a California Court reversed the decision. Click here to read the decision in Chau v. Starbucks.
The 4th District Court of Appeal in San Diego ruled Tuesday that supervisors "essentially perform the same job as baristas," so they should get their fair share of the collective tips. (We wonder what that says about the supervisors' exempt status?) Attorneys for the baristas have indicated they will appeal to the California Supreme Court, and the Stoel Rives World of Employment will be watching, its $3.50 latte in hand.
According to the Washington Post, executives from three progressive employers, Costco, Whole Foods and Starbucks, have offered a compromise of sorts on the Employee Free Choice Act (EFCA). Their proposed compromise would drop the card-check and mandatory arbitration provisions of the act, but give unions greater access to employees and guarantee union elections within a specific time period. Click here to read the Post's article on the proposal.
The compromise would remove from EFCA the two provisions that give employers the most heartburn: a provision that would allow employees to form a union without a secret-ballot election if a majority sign pro-union cards, and one that would impose binding arbitration if employers and unions fail to reach a contract after 120 days. However, the compromise would keep EFCA's increased penalties for companies that retaliate against workers before union elections or refuse to engage in collective bargaining, would set a fixed period in which an election must be held, limiting the delays that give employers time to campaign, and would provide unions equal access to workers before elections -- for instance, by allowing organizers to address workers on a lunch break on company premises.
Don't expect either side to jump on the bandwagon soon. Unions are committed to the card-check and arbitration provisions, and anti-EFCA forces will not favor giving unions on-site access to employees anytime soon. But, as the EFCA fight goes on, creative proposals like this one might be what is needed to break a Senate filibuster. Keep watching the Stoel Rives World of Employment for more EFCA news and updates.
Earlier this month, Starbucks scored an important procedural victory from the California Court of Appeals, which ruled that a class of employees lacked standing to sue over questions the coffee chain asked on its employment applications about prior marijuana convictions. Click here to read the opinion in Starbucks v. Superior Court.
Despite the apparent victory, this case teaches an important lesson for California employers: make sure your employment applications do not inquire about minor marijuana possession convictions that are more than two years old. Such questions violate California Labor Code Sections 432.7 and 432.8. In the Starbucks case, even though the court held that the applications violated the statute, there was no evidence that any of the class members had been harmed; the outcome would have been different had the class consisted of employees who were denied employment based on their answers to the question, or employees who disclosed that information in response to the unlawful question.
The New York Times is reporting that Starbucks has settled with the National Labor Relations Board an unfair labor practice claim filed by a former employee who alleged he was terminated for attempting to organize his coworkers to join the Industrial Workers of the World, aka "the Wobblies."
Under the terms of the settlement, Starbucks will post a notice in the employee's store for 60 days informing workers they have a right to unionize under federal law. Starbucks will also remove from its files any reference to the employee's firing and will repay him for any loss of earnings. (Starbucks had already voluntarily reinstated the employee before he filed his charge with the NLRB). For more about the Starbucks Workers' Union (a branch of the IWW), click here.
This case is a reminder to employers that it is unlawful to discharge or take any other adverse action against an employee because of that employee's support for or activities on behalf of a labor union. Just because the employee supports a union does not require you to give him or her special treatment, nor does it make them immune for discipline unrelated to their union activities; however, if you terminate a union organizer, you proceed at your own (substantial) risk.