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Whirlpool loses anti-dumping case

BY Ken Clark

In a victory for foreign-based manufacturers, the U.S. International Trade Commission has ruled that LG Electronics and its affiliates were not guilty of “dumping” certain refrigerator models on the U.S. market. The 5-0 vote ended a year-old investigation initiated by Whirlpool, which claimed that bottom-mount refrigerators made in Mexico and Korea were sold in the United States at below market value.

As a result of the ITC’s "negative injury determination," the Department of Commerce will not issue an anti-dumping duty order, and imports of bottom-mount combination refrigerator-freezers can enter the United States without any dumping duties being imposed.

The ITC’s decision reverses a March 19 finding by the U.S. Commerce Department, which ruled that two South Korean manufacturers and four Mexican producers were guilty of “dumping” their bottom-mount refrigerators on the U.S. market. LG Electronics and Samsung, among others, were hit with anti-dumping penalties.

In reaction to the ITC’s decision, Whirlpool issued the following statement: "Of course we’re extremely disappointed by [the ITC’s] ruling and the implications it has for our U.S. production of bottom-mount refrigerators," said Marc Bitzer, president, Whirlpool North America. "We believe the facts clearly demonstrated that dumped imports of bottom-mount refrigerators from South Korea and Mexico are causing injury to the U.S. industry. Despite [the] ruling, Whirlpool remains committed to taking action against any unlawful trade practices that threaten our 23,000 U.S. employees or our ability to produce in the United States the innovative and high-quality products that consumers demand."

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Ruling seen as victory for California employers

BY Joanne Deschenaux

The California Supreme Court, on April 12, 2012, issued a long-awaited ruling in the case of Brinker Restaurant v. Superior Court (No. S166350), concluding that employers only have to provide meal periods to workers, not make sure employees actually take them.

“An employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work,” Associate Justice Kathryn Werdegar wrote for the unanimous court in a 54-page opinion.

Workers first sued Brinker, the parent company of Chili’s restaurant chain and Romano’s Macaroni Grills, in 2004 on behalf of a proposed class of approximately 60,000 non-unionized, hourly employees. They claimed that managers pressured them to skip their breaks by failing to adequately staff the restaurants or by threatening to cut or change their hours.

Brinker’s attorneys argued that employees should have flexibility in choosing whether to take their scheduled breaks. 

A California appellate court sided with Brinker in 2008, finding that the restaurant company only had to “make available” the meal and rest breaks, but not “ensure” they were taken. The state’s Supreme Court agreed that employers do not have to police meal breaks but do need to relieve workers of duties at those times. In other significant rulings the court:

• Held, as to rest breaks, California employees are entitled to 10 minutes of rest for shifts from 3.5 to 6 hours in length, 20 minutes for shifts of more than 6 and up to 10 hours and 30 minutes for shifts of more than 10 hours up to 14 hours.

• Clarified that California wage-and-hour law does not dictate in what sequential order meal and rest periods must be taken and does not prohibit an employer from scheduling meal periods early within the shift. While the first meal break must be made available within the first five hours of work, there is no “rolling five-hour rule,” which would require an employer to provide a meal period for each five hours worked.

• Upheld the appellate court decision claims of off-the-clock work were not appropriate for class certification, saying that, “On a record such as this, where no substantial evidence points to a uniform, companywide policy, proof of off-the clock liability would have had to continue in an employee-by-employee fashion.” 

“This is very good news. It’s the right decision — the decision we have been hoping for. But it’s not a panacea,” Beth Schroeder, a labor and employment attorney at Lathrop & Gage in Los Angeles, who was appointed by the California Restaurant Association as their spokeswoman on the Brinker case, said.

The decision still requires compliance with California meal and rest break law, manager training and good written policies — “what we have been preaching through the years.” However, she added, “Employers have more flexibility. They don’t have to be babysitters.” 

But “it is still incumbent on employers to show that they made employees’ meal breaks available.”

And the court does not offer concrete guidance on how an employer shows that it met its obligation of providing breaks, said Mandana Massoumi, a partner in Dorsey & Whitney’s southern California office. “The court gives some parameters, but does not create a finite check list,” she said.

The court seems to be practical about this, she added, in that it says that this will differ from industry to industry and different elements may need to be considered to determine whether a company was in compliance.

In addition to having a good written policy, it is therefore very important that employers “train managers so that they understand what they need to do so people will take breaks,” she advised. 

Further, the written policy should specifically instruct employees to notify someone in upper management or human resources, in writing, if they have requested but have been denied the opportunity to take a meal and/or rest break, said David Kadue of Seyfarth Shaw’s Los Angeles office.

Kadue further noted that although the court denied class certification for the “off the clock” work claims, it ruled that meal break claims can still be brought as class actions. “That’s the fly in the ointment,” he said. “We will have more litigation and another trip to the Supreme Court on that issue,” he predicted.

Have HR-related questions and concerns? Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and the Society for Human Resource Management (SHRM).

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.

 

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Rate of new-home sales declines 7.1% in March

BY HBSDEALER Staff

Housing sales data took a turn in the wrong direction in March.

Sales of new single-family houses in March 2012 were at a seasonally adjusted annual rate of 328,000, according to estimates released jointly today by the U.S. Census Bureau and the Department of Housing and Urban Development. 

The March rate is 7.1% below the revised February rate of 353,000, but it’s 7.5% above the same rate from a year ago.

The median sales price of new houses sold in March 2012 was $234,500, down from $236,900 in February. The average sales price rose to $291,200, up from $269,700. The seasonally adjusted estimate of new houses for sale at the end of March was 144,000. This represents a supply of 5.3 months at the current sales rate.

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