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Total Articles: 276

Impact of President Trump Likely Limited for California Employers

The new president will likely bring substantial shifts in federal government policy, but California employers will be less affected by the changes because California has so many of its own employment laws. Here are some predictions regarding how California employers might be affected by potential changes in the law under President Trump.

Senate Bill 1241: New Legislation Requiring Employment Disputes to be Adjudicated in California Under California Law

It is common practice for employers to utilize forum selection and choice of law provisions in employment agreements in order to require employees to have employment-related disputes adjudicated outside of California and/or under the law of a state other than California.

Impacts of Proposition 64 on California Employers

California voters have decided on a number of important Propositions yesterday. Of the Propositions receiving majority support, California employers may particularly wonder about the potential impacts of Proposition 64, which will legalize the recreational use of marijuana.

California Passes Law Expanding I-9 Controls

An amendment to California law expands state prohibitions against “unfair immigration-related practices” related to the hiring of foreign nationals. SB-1001 goes into effective on January 1, 2017.

SB 1241: Forum Selection and Choice of Law Clauses The Long Arm of California Law Just Got Longer

For employers with California employees, there seems to be no way to avoid California’s complicated and protective employment laws, and things just got a bit more complicated.

New Background Check Requirements for California Transportation Network Companies

Effective January 1, 2017, drivers participating with a Transportation Network Company (TNC) in California will be subject to mandatory criminal background checks, regardless of whether a driver is considered an employee or an independent contractor. California Governor Jerry Brown approved Assembly Bill 1289 on September 28, 2016. The new law adds Section 5445.2 to the Public Utilities Code, which regulates TNCs.

APPLYING CALIFORNIA LAW TO EMPLOYMENT DISPUTES

It is no secret that hiring employees and conducting business in California involve more laws and rules than in other states. Multi-state employers often desire consistent personnel practices, or to mitigate some of the more restrictive elements of California employment law. To achieve these goals, employers may draft confidentiality, arbitration, or other agreements that include choice of law provisions and forum selection clauses.

New Laws for 2017 - Shaw Valenza's Annual Employment Law Update

The California legislature was very busy last year.

California’s Fall Legislation Report: A Rundown of the Most Significant New Employment Laws

The California legislature and governor showed no signs of slowing down this year and enacted a long list of new employment laws. Below is a list of the most significant laws affecting private sector employers.

The Workplace Policy Institute’s California Legislative Update

On Wednesday, October 5, 2016, the WPI gave a one-hour review of the year’s major California employment laws affecting private-sector employers.

California Legislative Update: Employment-Related Bills Signed and Vetoed by Governor

As previously reported, September 30 was the last day for Governor Brown to sign or veto bills passed by the California legislature this session. This blog covers the final report on bills that were signed into law and vetoed.

California Expands Data Breach Notification Law

California’s data breach notification law is already considered the most stringent in the United States. Based on a new amendment recently signed into law, the law will soon get even tougher.

California Legislative Update: Which Bills Made the Final Cut?

Although the California Legislature sent Governor Jerry Brown bills on bed bugs, powdered alcohol, and making denim the official state fabric, the laws enacted in 2016 affecting the state’s private-sector employers were decidedly less exotic.

California Wage/Hour Update (No. 4, October 2016)

Perhaps no field of class action litigation in California is more fraught with complex certification issues than determining whether the administrative exemption applies to network, internet, and database administrators or related positions in IT departments.

Federal Contractors: Federal Paid Sick Leave Final Regulations Are Here

California employers have to provide paid sick leave. How much paid leave, and how to administer it, depends where your business is located within the Golden State. There is a statewide law, and a growing list of local ordinances. San Francisco, Oakland, Emeryville, and Los Angeles are some of the localities that have passed ordinances. Employers trying to harmonize state and local law must provide leave on whatever terms are most generous. That can cause some traps, particularly with respect to how the leave accrual is counted. And don't forget the posters!

CA Employers: Learn Your I-9 Rules or Pay Up to $10,000

The employment of more undocumented immigrants, formerly known as illegal aliens, remains a top priority for the California legislature. Whatever you think of that, the policy creates a dilemma for employers.

A Couple of New California Employment Laws that Require Attention

Here are two recently signed laws that will go into effect 1/1/17.

Avoid These Common Mistakes in Classifying Workers

The Department of Labor (DOL) has made it clear. Regardless of the reason, classification errors can be costly for employers, as the error often affects a number of employees having similar job titles and therefore lends itself to class treatment of the claim. Furthermore, if you are on the unlucky end of a DOL audit, you will likely be stuck paying payroll taxes, unemployment taxes, overtime, as well as a host of fines, fees and other costs.

Farmworkers’ “Phase-In” Overtime Bill Officially Sprouts

Much like the agricultural harvest cycles it may affect, September 12, 2016, marks the planting season for the Phase-In Overtime for Agricultural Workers Act of 2016.

San Diego Issues Required Postings, Acknowledgement Form under Earned Sick Leave and Minimum Wage Ordinance

The City of San Diego’s Earned Sick Leave and Minimum Wage Ordinance went into effect on July 11, 2016. Beginning October 1, 2016, employers must post two new notices in the workplace and give employees and new hires a notice containing certain employer information. Failure to comply with these requirements may result in significant civil penalties.

California Court Finds That Discretionary Clauses in Health Insurance Policies Are Enforceable

In 2011, the California legislature passed Insurance Code Section 10110.6 which bans the use of discretionary clauses in any policy, contract, certificate, or agreement offered, issued, delivered, or renewed, whether or not in California, that provides or funds life insurance or disability insurance coverage. The district courts in California have enthusiastically enforced this ban, holding that discretionary clauses are unenforceable in group insurance policies and self-funded employee welfare benefit plans that provide disability benefits.

California Legislative Update: It's Now Up To The Governor

The California Legislature completed its substantive legislative work for the year in the very early morning hours of Thursday, September 1, 2016, with the usual frenetic, last-minute flurry of bill-passing, including some bills that had been amended at the end of August.

California Department of Industrial Relations and Labor Commissioner Create Complaint Hotline

Employees who think their employer is not paying wages or following other California labor laws can now lodge complaints with the Department of Industrial Relations, which includes the state Labor Commissioner's office. See the press release here.

Berkeley Enacts California’s Newest Local Paid Sick Leave Law

On August 31, 2016, the City of Berkeley, California joined the long list of local jurisdictions to create a local sick leave law when it enacted the “Paid Sick Leave Ordinance.” Berkeley also amended its minimum wage law1 and codified a new law concerning hospitality service charges. The Ordinance appears to be an effort by the Berkeley City Council to control the paid sick leave debate because two competing ballot measures – one proposed by advocates and another by the city – will appear on the upcoming November ballot.2 Whether this move is a coup de grace or merely the first strike in a prolonged legal battle over which law controls remains to be seen. Until voters weigh in, the Ordinance will be the applicable law employers are required to comply with when it becomes operative on October 1, 2017.3

California Launches Online System for Reporting Labor Law Violations

California's Department of Industrial Relations (DIR) and its Division of Labor Standards Enforcement have launched an online system for reporting labor law violations. The agency anticipates the system will provide "real time leads on businesses that are breaking labor laws."

California Legislative Update: Bills on Governor’s Desk for Signature or Veto

Throughout the year, we’ve reported on various employment-related bills being considered by the California legislature. The 2016 legislative session came to a close yesterday, so we are now reporting on the final status of bills that were passed by both houses and have now been sent to the Governor for either approval or veto. The Governor has until September 30, 2016 to approve or veto these bills.

Patchwork of Laws Makes Employee Classification Harder Than Ever for California Employers

Employee classification has always been difficult for employers in California due to differences between California law and federal law.

San Diego Sick Leave Amendments: Cure for or Cause of Employer Ills?

San Diego’s Earned Sick Leave and Minimum Wage Ordinance has been amended less than two months after its July 11, 2016 effective date.1 The amendments, instituted via the oddly-titled “Implementing Ordinance,” plug gaps the original law created, create an administrative enforcement system for receiving and resolving complaints, and impose additional obligations that require employers to review and potentially revise their notices, policies, and procedures. Below we briefly summarize the amendments, which will take effect September 2, 2016.2

California's Recreational Marijuana Initiative Is Not Expected To Impact Employer Workplace Drug Policies

California may be the next state to join Alaska, Colorado, the District of Columbia, Oregon and Washington in legalizing adult recreational use of marijuana. On November 8, 2016, California voters will decide whether to approve Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act” (the Act), which would legalize recreational marijuana for individuals over the age of 21. If voters approve the Act, however, it is not expected to interfere with the right or ability of California employers to implement and enforce their workplace drug policies, including drug-testing policies.

California Fair Employment & Housing Council Considers Proposed (and Recently Amended) Rules to Restrict Employer Use of Criminal History

In April 2012, the Equal Employment Opportunity Commission (EEOC) issued its long-awaited “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” (2012 Guidance). The updated guidance does not prohibit employers from using criminal records, but outlines what the EEOC considers recommended best practices, including a recommendation that employers, among other things: (1) remove from employment applications the question that asks job applicants to self-disclose their criminal record; (2) not make an employment decision based solely on the fact of an arrest record; and (3) conduct an “individualized assessment” before rejecting an applicant or terminating an employee because of a conviction.

Recreational Marijuana Placed on California November Ballot

Voters will have the opportunity this coming November to determine whether California joins a growing number of states that have legalized recreational marijuana. If so, what would this mean for employers?

California Supreme Court: Arbitrator Decides Whether Class Claims Are Permissible

There has been much litigation over the issue of whether an employment arbitration agreement validly may include a provision requiring the employee to waive class claims. It is well-established now that these waivers are, in fact, valid. However, not all agreements contain language explicitly stating that the employee is permitted to bring claims on a class basis. Where the agreement is silent on the issue, it becomes an issue of contract interpretation but this scenario generally supports a finding that class arbitration is impermissible because the parties did not clearly agree to it. Nonetheless, this does not stop plaintiffs’ lawyers from bringing class claims, typically in court.

California Legislative Update: Heading Into The 2016 Session's Final Month

The California Legislature will return from its July recess on August 1, and will devote that month to final consideration of legislation for 2016.

A Bump in the Road for California’s Piece Rate Employers

On Monday, July 25, 2016, the Fresno County Superior Court denied a request to postpone the deadline for qualified employers to notify the Department of Industrial Relations (DIR) of their election to participate in the affirmative defense, also known as the “safe harbor” provision, set forth in Labor Code §226.2. The request would have also extended the December 15, 2016 deadline to make back payments to current and former employees for rest and recovery periods and nonproductive time.

San Diego City Council Amends Local Sick Pay Law

On July 26, the San Diego City Council ratified a minimum wage and sick pay ordinance approved by voters on June 7. Effective as of July 11, the ordinance imposes a citywide minimum wage rate and also obligates businesses to provide sick pay benefits to employees. As amended, the ordinance will allow employers to front load an annual sick pay allotment and also place a cap on accrual. Employers with workforces in San Diego will want to immediately update their pay practices and sick pay policies.

HOT WAGE-HOUR ISSUES: THE SALARY BASIS TEST AND THE “REGULAR RATE” OF PAY

Employers face a host of challenges to properly paying employees, particularly when it comes to overtime. When employees are properly classified as “exempt” from the overtime rules, an employer need not worry about these issues. But, the penalties for misclassification can be significant.

Department of Justice, California Employer Reach Non-Prosecution Agreement over Potential Criminal Violations of Immigration Laws

Gridley, California-based natural food company Mary’s Gone Crackers Inc. agreed and consented to payment of $1.5 million and establishment of a corporate compliance program under a non-prosecution agreement reached with the U.S. Attorney’s Office for the Eastern District of California on July 19, 2016. The agreement requires the company to establish a corporate compliance program covering its I-9 procedures and its E-verify system, in addition to requiring complete disclosure of immigration violations within 24 hours of discovery.

DFEH Now Authorized To File Civil Suits On Behalf Of Victims Of Human Trafficking

On July 7, 2016, Assembly Bill No. 1684 (“AB1684”)[1], introduced in support California’s anti- human trafficking laws, passed both the Senate and the House of Representatives and was ordered enrolled.

San Diego’s New Sick Leave Ordinance Is In Effect, And Fixes Are Imminent

On Monday, July 11, the San Diego City Council certified the Minimum Wage and Sick Leave Ordinance passed by voters last month and also passed amendments to the Ordinance. We published a summary of the law when it was passed by the voters last month. Fortunately, the amendments address many of the questions left unanswered by the original bill. Unfortunately, some of the amendments also include increased penalties.

Implementing Los Angeles’ Minimum Wage And Paid Sick Leave Ordinance

The City of Los Angeles Office of Wage Standards (OWS) recently issued regulations providing clarification to the Minimum Wage and Paid Sick Leave Ordinance that went into effect on July 1, 2016. Last month, Mayor Eric Garcetti signed the Ordinance into law leaving employers with only a few weeks to coordinate their compliance efforts. The OWS’ regulations appear to bridge the gap and provide employers with necessary guidance and clarity in light of the increasing uncertainty regarding three key areas in the Ordinance.

Procrastinators Rejoice! Employers Handed Extra Time To File Safe Harbor Election Imposed By New Piece Rate Law

Right before the holiday weekend, a Fresno County Superior Court judge handed California employers some good news by issuing a temporary restraining order in the case of Nisei Farmers League v. California Labor and Workforce Development Agency, et al. The court’s June 30 decision eliminates the July 1, 2016 deadline which had been in place for qualified employers to notify the Department of Industrial Relations (DIR) of their election to participate in the affirmative defense (also known as the “safe harbor” provision) set forth in Labor Code §226.2.

PAGA Amendments Enacted as Part of California Budget Bill

On June 27, 2016, SB 836, a 96-page budget trailer bill, was signed into law. Sections 189-191 of this bill amend California’s Private Attorneys General Act (PAGA) (Labor Code sections 2699 et seq.) effective immediately. The changes are as follows:

California Court of Appeal Finds Fact Investigation by Outside Counsel is Privileged

Executive Summary: In City of Petaluma v. Superior Court (Andrea Waters), the California Court of Appeal recently held that outside counsel's fact investigation of an employee's harassment and discrimination claims conducted prior to litigation was protected by the attorney-client privilege and work product doctrine. Further, the employer's assertion of the avoidable consequences defense (i.e., that the employer took reasonable steps to prevent and correct harassment, but the employee failed to use those measures) in a subsequent lawsuit did not waive the privilege as to a post-employment investigation.

REMINDER: City of San Francisco Minimum Wage Increases to $13 Per Hour on July 1, 2016

Effective this Friday, July 1, 2016, employees working at least two hours in a workweek in the City of San Francisco must be paid at least $13.00 for each hour worked. The new $13 hourly rate is an increase from $12.25 per hour.

California’s Recreational Marijuana Initiative

In California, signatures are being gathered in support of the “Control, Regulate and Tax Adult Use of Marijuana Initiative.” The initiative is likely to qualify for the November 2016 ballot and, if passed by the voters, could legalize the recreational use of marijuana in California. In this podcast, Bruce Sarchet, Littler Mendelson Shareholder, explains the current status of California law in this area, the impact of Federal law, and the steps which employers can take now to prepare for this potential change in California.

California PAGA Amendments Will Expand Labor Officials’ Involvement in PAGA Claims

On June 15, 2016, the California Legislature approved Governor Jerry Brown’s budget. As part of the budget, the Legislature passed SB 836. Included as part of this 96-page budget “trailer bill” are a number of amendments to the Labor Code Private Attorneys General Act (PAGA).

Los Angeles Approves Minimum Wage Increases and Mandates Employers to Provide 48 Hours of Paid Sick Leave

Los Angeles Approves Minimum Wage Increases and Mandates Employers to Provide 48 Hours of Paid Sick Leave

Los Angeles One-Two Punch: Minimum Wage and Paid Sick Leave Changes Go Into Effect in July

Los Angeles is once again in the spotlight as it implements changes in its laws that will impact many of its employers and their employees beginning July 1, 2016. On June 1, 2016, the City Council passed the Los Angeles Minimum Wage Ordinance (No. 184320), adopting both new minimum wage rules and paid sick leave benefits applicable to all employees who perform at least two hours of work in a particular week within the geographic boundaries of the City of Los Angeles. Many employers will have recently implemented new paid sick leave policies in compliance with the state law. But employers of 26 or more employers may need to pull out their handbooks once again and revise their policies—while also providing wage increases to their minimum wage earners effective July 1, 2016.

City of Los Angeles Doubles Employees' Sick Leave Entitlement Effective July 1, 2016

Like its neighbor Santa Monica and other major California cities including San Francisco and Oakland, the City of Los Angeles approved its own sick leave entitlement ordinance on June 2, 2016. The Los Angeles Ordinance (“Ordinance”) will provide employees working in the City of Los Angeles with the ability to accrue and use up to 48 hours of sick leave, twice the amount provided by state law. Enacted as an urgency matter, the new sick leave obligations become effective for employers on July 1, 2016, less than 30 days after being signed by Mayor Eric Garcetti.

Voters Approve Paid Sick Leave Changes in San Diego and San Francisco

After enduring years of drought, California employers find themselves in a phenomenon of equal concern: a cruel summer. In the span of one month, two new local paid sick leave laws were signed and amendments to two existing local measures were approved. On May 10, 2016, Santa Monica amended its law, about two months shy of its scheduled operative date.

Los Angeles Implements Paid Sick Leave Policy That Doubles State Mandate

On June 1, 2016, the Los Angeles City Council finalized the City’s paid sick leave ordinance. Effective July 1, 2016, Los Angeles employers with 26 or more employees must provide employees with paid sick leave benefits, while employers with fewer than 26 employees must do so as of July 1, 2017.

San Diego Voters Approve Minimum Wage and Sick Pay Measure

Voters in the city of San Diego overwhelmingly supported a June 7 ballot measure that imposes a citywide minimum wage and also obligates businesses to provide sick pay benefits to employees. Employers with workforces in San Diego will want to immediately update their pay practices and sick pay policies.

California Legislative Update—Employment Bills That Failed Passage and Those That Are Still Alive

In the California legislative process, June 3, 2016 was the last day for each house to pass bills introduced in that house. On March 22, 2016, we reported on notable employment-related bills that had been introduced. Here is an update on the bills that failed passage in their house of origination, and an update on the bills passed their house of origination and have moved forward to the other house for consideration:

City of Los Angeles Approves Paid Sick Leave Ordinance

The Los Angeles City Council has passed a paid sick leave ordinance, which is slated to go into effect July 1, 2016 in conjunction with the previously passed minimum wage ordinance. The sick leave ordinance will require employers in the City of Los Angeles to provide paid sick leave benefits that exceed the benefits already mandated by California state law

Shaw Valenza's Employment Law Pot Pourri / Quick Takes

Here are some quick takes to catch you up on a bunch of recent developments.

California Legislative Update

The California legislature has reached the midpoint of its 2016 legislative session. The Governor has signed four bills of significance to California private sector employers. In addition, a few dozen workplace-related bills have moved beyond their initial policy committees, and many have passed their house of origin and proceeded to consideration in the other legislative chamber. Major bills still in process would change private arbitration of employment disputes, and would create predictive scheduling requirements for some employees working on a shift basis.

California Legislative Update: What State Law Changes Should Employers Anticipate?

California lawmakers have proposed a number of employment and labor law bills during the current legislative session. Most significantly, Senate Bill 3, the bill to increase California’s minimum wage to $15 per hour by 2022, passed and was signed into law on April 4, 2016. Below is a list of other significant California bills.

Starting July 1, 2016, Employees in Los Angeles Get Three Additional Days of Paid Sick Leave and $10.50 Per Hour

Executive Summary: On April 19, 2016, the Los Angeles City Council voted overwhelmingly in favor of a proposed ordinance that would permit Los Angeles workers to earn at least six paid sick leave days annually. That is double the mandatory minimum under California's state-wide paid sick leave law.

Combining 10-Minute Rest Breaks May—or May Not—Be Lawful in California

When must rest breaks occur, and may a company allow employees to combine their rest breaks with other breaks? California’s nuanced meal and rest break rules have spawned an endless cycle of litigation, and as a recent appellate court case illustrates, the rules remain imprecise.

California Ruling on Website Accessibility Highlights the Need for Proactive Measures

Any business operating a website for use by customers or other members of the public should take heed of a recent California decision that found a retailer liable for violations of federal and state disability access laws based on a disabled individual’s inability to navigate a website using a screen reader program.

WHAT’S ON YOUR WAGE STATEMENTS?

California has many requirements for the content of an employee wage statement, including this year’s new requirements for employees paid by a piece rate. Employees paid by piece rates must be separately compensated for rest and recovery periods and, where the employee does not earn at least minimum wage in addition to the piece rate, must be separately paid for non-productive time. The amount of time for these periods, the applicable rates of pay, and gross wages for these periods is required to be on the wage statement.

Paid Sick Leave Expanding into Los Angeles and Chicago

mployers in Los Angeles and Chicago may need to comply with new sets of paid sick leave rules based on proposed amendments to local minimum wage ordinances. Paid leave expansion in these municipalities is part of a larger, national trend, with California employers experiencing a particularly eventful year. The increase in paid sick leave protections has been checked by a rise in state preemption legislation and by the vocal opposition of prominent business groups, often representing small employers or certain affected industries.

California Appeals Court Provides Guidance on the Use of Electronic Signatures by Employees

In many companies, new employees sign key documents and policies—including arbitration agreements—with the use of electronic signatures. There has been a growing trend in litigation brought by former employees to challenge these signatures as inauthentic in response to employers’ motions to compel arbitration of the employees’ lawsuits. These challenges are based on employees’ claims that they either did not sign the agreement or that they can’t remember ever having seen the agreement and, if they had, that they would never have signed it. Many judges have been taking these challenges seriously and requiring employers to respond through extensive briefing and evidentiary hearings to authenticate the employee signatures.

The New California Regulations Part IV: Support Animals in the Workplace

The California Office of Administrative Law recently approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), went into effect on April 1, 2016.

California FEHA Forecast: Evidence of Pretext Required in Anti-SLAPP Case Against TV Stations

On January 19, 2016, a California Court of Appeal issued an unpublished decision in Hunter v. CBS Broadcasting, Inc. The case was brought by Kyle Hunter, who filed an employment discrimination complaint, claiming that two local CBS television stations, KCAL and KCBS, had “repeatedly shunned [him] for numerous on-air broadcasting positions . . . due to . . . his gender and his age.” He asserted that CBS’s failure to hire him was part of “[a] plan to turn prime time weather broadcasting over to younger attractive females” in violation of the California Fair Employment and Housing Act (FEHA).

All in the Family: California Court Holds Employers Have to Accommodate Disability of Employee's Family Member

A California Court of Appeal for the first time has decided that an employer has a duty to reasonably accommodate an applicant or employee who is associated with a disabled person who needs the employee’s assistance.1 This holding in Luis Castro-Ramirez v. Dependable Highway Express is unprecedented and likely to be appealed to the California Supreme Court. Until there is a definite ruling on this issue from the California’s highest court, employers should consider engaging in an interactive process analysis even when confronted with a situation where somebody is asking for a reasonable accommodation arising out of an “associated party’s” disability.

California Supreme Court Interprets Suitable Seating Requirements

Today, the California Supreme Court provided guidance that had been requested by the Ninth Circuit regarding California’s suitable seating requirements in two different cases -- Kilby v. CVS Pharmacy and Henderson v. JPMorgan Chase Bank (both pending before the Ninth Circuit). The Ninth Circuit certified the following questions to the California Supreme Court relating to the California Wage Order provision (Section 14(A) of various Wage Orders) stating that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats:"

California Supreme Court Takes a Stand on Employers' Obligations to Provide Seating

On April 4, 2016, the Supreme Court of California ruled on employers’ obligations, under certain circumstances, to provide seating for employees under Industrial Welfare Commission Wage Order No. 7-2001, which states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The court addressed three primary questions in the case: how expansively “nature of the work” should be interpreted, how courts should decide whether the nature of the work “reasonably permits” sitting, and whether a worker must prove that a suitable seat was available and was not provided in order to show that the employer violated the seating provision.

California Employers: New Requirements Go Into Effect Today. Is Your Harassment/Discrimination Policy Ready?

On April 1, 2016, recent changes by the California Fair Employment and Housing Council to the regulations implementing the state’s Fair Employment and Housing Act (FEHA) take effect. Among the changes are an expanded training requirement, whereby employers are required to train employees on “abusive” conduct and sexual harassment, and new requirements for the components of a policy to prevent such behavior.

California Lawmakers Approve $15 Minimum Wage

Early this week we reported on a "deal" reached between labor unions, certain democratic lawmakers, and the California Governor to increase California's minimum wage to $15 per hour by 2022. Yesterday, California's Assembly and Senate both voted to approve the bill, largely along partisan lines. All but two democrats (Assembly members Tom Daly and Adam Gray) voted in favor of the bill. No Republicans in either house voted in favor of the bill. The bill was passed by a vote of 48-26 in the Assembly and by a vote of 26-12 in the Senate. The bill is now on Governor Brown's desk for consideration. Governor Brown has already announced that he will sign the bill into law on Monday. [Unfortunately, this is not an April Fools joke.]

EMPLOYERS MUST UPDATE EEO POLICIES

In late 2015, the California Fair Employment and Housing Council finalized changes to regulations addressing employment discrimination, harassment, and retaliation prevention. The new regulations are effective on April 1, 2016, and require significant changes to California employers’ related policies.

March Madness: Pending California Employment Bills

Curious what the California Legislature is up to this legislative session? As is the case every year, there are several employment-related bills that have been proposed and are pending. As is also the case virtually every year, most of the proposed bills are bad for employers.

The New California Regulations, Part I: Preventing and Correcting Wrongful Behavior

California’s Office of Administrative Law approved regulations drafted by the California Fair Employment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), touch on almost every aspect of employment law and will go into effect on April 1, 2016.

California Corner: Things You Need to Know in 2016

With the new year underway, California employers are no doubt busy reviewing their policies to keep up with the state's new labor and employment laws. As many laws have expanded the scope of risk, we recommend that all California employers consult with experienced employment counsel to ensure compliance. Below are several important new laws employers should be aware of in 2016.

Assembly Bill Proposes An Eight Hour Workday and Forty Hour Workweek Standard For California Farmworkers

Agricultural workers have long been exempted from California’s traditional overtime laws. Instead farm workers have been subject to industry-specific overtime rules that allow companies to employ them for longer periods of time before overtime rates kick in. Under current law, farmworkers in California operate on a ten hour day and sixty hour standard workweek. Currently employers need only pay overtime to agricultural workers for all hours over ten in any work day and for the first eight hours on the seventh day of the work week, and double time for hours worked over eight on the seventh day of the workweek, with the exception that the worker may be employed on seven workdays in one workweek with no overtime pay when the total hours worked during the week do not exceed 30 and the total hours in any one workday do not exceed six.

Governor Brown’s Budget Proposal Targets Misguided and Inefficient PAGA Litigation

In January, Governor Edmund G. Brown submitted his 2016-17 budget to the California Legislature. The governor’s budget includes a proposal that, if approved, would have a resounding impact on civil actions filed by California employees under the Private Attorney General Act (PAGA). Since the PAGA was enacted, it has been criticized as wasteful and excessively costly for employers. This post is intended to illuminate the scope of those issues and explain why the proposal is an appropriate and measured plan to resolve them.

TALKING POLITICS AT WORK

The presidential primary season is upon us. The contests for both parties’ nominations are heated, reflecting the country’s politically divided mood. Employees naturally will bring their viewpoints and political beliefs into work; discussion will increase as the June California primary and November general election dates approach.

California Corner: Things You Need to Know in 2016

With the new year underway, California employers are no doubt busy reviewing their policies to keep up with the state's new labor and employment laws. As many laws have expanded the scope of risk, we recommend that all California employers consult with experienced employment counsel to ensure compliance. Below are several important new laws employers should be aware of in 2016.

California Legislative Update: Proposals Include PAGA Reform, Salary History Limitations, and Equal Pay Expansion

The pace of employment legislative activity in Sacramento picked up as February drew to a close. The following highlights some of the more notable issues under consideration in the Golden State.

State Budget Proposal Seeks to Reduce PAGA Litigation Through Increased State Oversight

On January 7, 2016, Governor Brown’s office submitted a 22-page Budget Change Proposal for 2016-2017 (http://web1a.esd.dof.ca.gov/Documents/bcp/1617/FY1617_ORG7350_BCP474.pdf) in an effort to “stabilize and improve the handling of Private Attorneys General Act cases.”

Reasonable Data Security Defined by California AG

Last week, California Attorney General, Kamala D. Harris – who has been mentioned as a potential nominee to fill Justice Antonin Scalia’s recently vacated seat on the U.S. Supreme Court – issued the California Data Breach Report (Report). The Report provides an analysis of the data breaches reported to the California AG from 2012-2015.

Governor Brown’s Proposed PAGA Unit May Have Power to Challenge PAGA Settlement in Court

The budget change proposal for the 2016/17 Fiscal Year [document: ] submitted by Governor Brown last month contains significant proposed changes to the operation of the Labor & Workforce Development Agency (“LWDA”), the agency responsible for overseeing the Private Attorney Generals Act of 2004 (“PAGA”) including the creation of a “PAGA Unit” with the authority to intervene and object to the adequacy of the settlement funds designated to PAGA claims. The budget requests a $1.6 million increase to the operation budget to cover additional staffing needs for the agency and an additional $1.5 million going forward to “stabilize and improve the handling of PAGA cases.” The budget proposal justifies the request for additional resources to increase the LWDA’s effectiveness.

San Diego Minimum Wage and Sick Pay Ordinance Placed On June Ballot

San Diego City Council members voted on February 8 to place a sick pay and minimum wage ordinance on the June 7 ballot.

PAYING PIECE-RATE WORKERS

Beginning on January 1, 2016, a new California law (AB 1513) affects how employers must pay “piece-rate” workers (those employees paid for completing a particular task or making a particular piece of goods). Piece-rate compensation is common in certain industries to incentivize workers to complete tasks efficiently, such as automobile mechanics or agricultural workers. However, following the passage of AB 1513, paying piece-rate workers is more complicated.

AB 816: Cooperatives come to California

Jason Brown’s article “AB 816: Cooperatives come to California” was featured in the Daily Journal on January 20, 2016.

Court of Appeal: Employer Entitled to Recoup Training Costs Under Repayment Agreement

Employers invest in employees in different ways. For example, sometimes employers pay for employees to undergo significant training. And they hope the employee will not promptly leave and use that training while working for another employer. So, they may ask the employee to repay the cost of the training if they leave employment within a period of time after receiving the training. At the same time, California law favors employee mobility, and disfavors employers' passing along the costs of doing business to employees.

California Employers Will Be Facing New "Break Wars" In The New Year

Although meal periods have occupied central stage in class action litigation over the past decade in California, rest-period litigation will soon join the “break wars.” A new law that just took effect on January 1, 2016 specifically addresses the way workers paid by a piece rate, or on a “piece-rate basis,” should be paid for their rest or recovery periods.

Preparing for the 2016 California Legislative Session – and Elections

Even before California's 2016 session gets underway in January, legislative committees have been scheduling bills for hearing next month. So far, hearings on bills of interest to California private-sector employers include the following:

A California Employer’s Guide to a Happy New Year

California employers will need to hit the ground running as soon as the New Year’s ball drops to ensure their compliance with a broad range of laws taking effect January 1, 2016. Rather than making the same old trite resolutions that will likely be forgotten before Super Bowl Sunday, Golden State employers will be much better off making a high-priority checklist of to-do’s requiring immediate action, including:

CALIFORNIA SUPREME COURT DECISIONS COMING IN 2016

There are a number of important employment cases pending on the California Supreme Court’s docket. Unlike the U.S. Supreme Court, California’s high court does not decide cases according to a strict schedule. We highlight below the key employment law cases that the Court may decide in 2016 based on their time on the docket.

California Employment Law Updates – Notable Changes in 2016

The new year promises to be a busy one for California employers with the passage of numerous labor and employment laws and amendments. With most changes taking effect on January 1, 2016, employers are encouraged to review their policies and practices with knowledgeable counsel to ensure compliance. Below is an overview of many of the most notable changes coming in 2016.1

California Legislative Update for 2016 – Notable Changes

The new year promises to be a busy one for California employers with the passage of numerous labor and employment laws and amendments. With most changes taking effect on January 1, 2016, employers are encouraged to review their policies and practices with knowledgeable counsel to ensure compliance. Below is an overview of many of the most notable changes coming in 2016.1

For California Employers, New Year Brings New Restrictions—Along With a Few Silver Linings

In 2015, the California legislature undoubtedly took aim at employers with piecemeal legislation covering everything from cheerleaders (who are now employees by statute) to gender-based pay differentials—the latter with what is now the nation’s most aggressive “equal pay” law. Nonetheless, some of the legislation provided clarity in the law, and other pieces of legislation are explicitly intended to give employers the chance to fix potential areas of noncompliance without facing civil liability for violations (i.e., the Motor Carrier Employer Amnesty Program and Assembly Bill (AB) 1506’s amendment to California’s Labor Code Private Attorneys General Act of 2004 (PAGA)). Most of these new laws take effect on January 1, 2016. Additionally, changes in federal laws and regulations are in the offing for 2016, with an anticipated increase in the salary base required to exempt an employee from the minimum wage.

California Labor Commissioner’s Enforcement Powers Set to Expand Dramatically

Effective January 1, 2016, California employers face a Labor Commissioner with significantly enhanced authority to enforce judgments for unpaid wages under California’s Fair Day’s Pay Act.

Worker Misclassification Risk? Top 10 Questions to Ask about Your Independent Contractors

Employers’ risk of liability for the misclassification of workers continues to grow, as employee misclassification remains a top enforcement priority for the U.S. Department of Labor (“DOL”), and class actions asserting misclassification claims are filed almost daily in federal and California state courts. Employers regularly using independent contractors should examine those relationships periodically to ensure that the classification remains defensible.

California Supreme Court to Decide Whether Finding That UTSA Claim Was Filed in Bad Faith Can Revive a Previously Dismissed Malicious Prosecution Claim

The California Supreme Court’s recent decision to review the Second District Court of Appeals’ ruling in Parrish v. Latham & Watkins, 238 Cal. App. 4th 81 (2015) sets the stage for a potential sea change in the litigation of Uniform Trade Secrets Act (“UTSA”) claims, and could lead to an unsuccessful UTSA claimant being subject to a malicious prosecution action.

NO-REHIRE CLAUSES IN SETTLEMENT AGREEMENTS

The only thing worse than being sued by a disgruntled former employee is to be sued later for refusing to re-hire the same employee. To avoid this situation, employers often require, as a condition of agreeing to settle a claim, that former employees agree to forego the right to seek reemployment in the future. Although these “no rehire” provisions are helpful in avoiding future litigation, employers should be thoughtful as to their scope. In fact, a provision that is so restrictive as to potentially bar a former employee from engaging in her chosen trade or profession may itself lead to litigation.

Why You Should Take a Closer Look at California’s New Piece-Rate Legislation

Employers doing business in California have seen a barrage of class actions and representative claims for various alleged wage and hour Labor Code violations. Some cases are premised solely on “technical” wage statement violations, where the employer may not have even realized the practice was occurring or was unlawful.

Filing of Police Report Accusing Coworker of Stealing Deemed Protected Activity by California Court

It is generally understood that an employer may not retaliate against an employee for “whistleblowing” and alerting authorities that a business has engaged in unlawful activity. Is an employee also protected against retaliation when he or she reports a coworker to the police for suspected theft of personal property? A recent California Court of Appeal published decision, Cardenas v. M. Fanaian, D.D.S., Inc., concluded that the California Labor Code does protect such activity.

California Court Rules That Employee’s Occasional Performance of Nonexempt Duties Does Not Negate Exempt Status.

In an unpublished opinion, Abarca v. JK Residential Services, Inc.., No. B256488 (June 26, 2015), the California Court of Appeal, Second Appellate District, recently affirmed a trial court order rejecting a residential property manager’s misclassification and overtime claims.

California Employers Win Latest Round In Bag Check Battle

A federal judge in California handed employers a recent victory earlier this week, dismissing a class action lawsuit brought by Apple retail store employees who wanted to be paid for the time they spend waiting for their personal bags to be checked at the end of their work shifts (Frlekin v. Apple, Inc.). Although employers won a similar victory at the U.S. Supreme Court this past summer (see our Alert here), this decision was based on California law and was not a foregone conclusion.

Sacramento Enacts Local Minimum Wage - Goes Into Effect in 2017

On October 27, the Sacramento City Council, by a 6-3 vote, passed an ordinance that will raise the minimum wage to $12.50 in gradual increments. The new city minimum wage will provide for citywide minimum wages for most businesses as follows:

HR Intel – California and New York Flex Their Legislative Muscle and More…

The HR world held its collective breath as legislative juggernauts California and New York released a wave of new employment laws in the past two weeks. California struck first with new wage and hour regulations, discrimination and retaliation protections and background check requirements, among others.

The Pitfalls of Holiday Hiring: What Not to Ask on an Employment Application

With holiday hiring in full swing, it is a good time to review some basic rules about employment applications in California. In general, employers should not request the following information on employment applications:

Changes to California’s Data Breach Notification Requirements

On October 6, 2015, California Governor Jerry Brown signed three new laws which substantially alter and expand the state’s security breach notification requirements. The new changes to California Civil Code sections 1798.29 and 1798.82, the Golden State’s laws that require notifications by state agencies and private sector entities of certain breaches of security (i) provide a definition for encryption, (ii) establish new requirements for the content and form of breach notifications, and (iii) add license plate information gathered through automated license plate recognition (ALPR) systems to the definition of personal information subject to the state’s notification requirements. These changes become effective January 1, 2016.

Two Recent California Employment Law Decisions of Note

I know I haven't been blogging as much lately. I don't want to let you three readers down.

California Laws Are Being Used to Advance Human Rights Claims Based on Global Supply Chain Activities

Recent class actions have claimed that companies have violated California consumer fraud and unfair competition laws resulting from alleged forced labor in their global supply chains. These state law claims argue that companies are liable for allegedly misrepresenting in various corporate declarations their efforts to eradicate forced labor from their global supply chains. Plaintiffs have argued that corporate statements referring to international standards, such as the U.N. Guiding Principles on Business and Human Rights (the "UN Guiding Principles") and International Labour Organization (the "ILO") Conventions, contribute to the companies' duties to disclose the use of any forced labor in their supply chains.

California Legislative Recap

We previously reported on several employment-related bills passed by California's Legislature and signed by the Governor. These include AB 304 (which clarifies certain aspects of the state paid sick leave law), AB 1506 (which provides a limited right to cure certain wage statement violations), SB 327 (which clarifies the law surrounding meal period waivers in the health care industry), SB 358 (which strengthens laws against wage differentials on gender lines), and AB 622 (which provides a private right of action for misuse of E-Verify). Yesterday was the last day for the Governor to sign or veto bills so we are now reporting on the outcome of other employment bills that were passed by the Legislature this term.

Misuse of USCIS' E-Verify System Is Now Enforceable in California Superior Court

On October 9, 2015 Governor Jerry Brown signed Assembly Bill 622 into law. AB 622 expands the definition of an unlawful employment practice to include the misuse of the E-Verify system. The new law prohibits employers from using the E-Verify system to inquire on the employment authorization status of an employee outside of the time and manner permitted under federal law. Additionally, employers that use E-Verify are now required to give employees copies of the derogatory notices issued to the employer from E-Verify. This new law provides for a civil money penalty of up to $10,000 per occurrence.

A Legislative El Niño for California?: New 2016 Employment Laws for the State’s Private Sector Employers

Experts are predicting a 95% chance of heavier-than-usual seasonal rainfall this year in Southern California based on the phenomenon known as “El Niño.” Did the California Legislature and its Governor produce a comparable deluge of new employment laws for the state’s private sector employees?

Employer Successfully Challenges PAGA Claim Based on Insufficient Notice Letter

The Ninth Circuit Court of Appeals (“Ninth Circuit”) dismissed an employee’s Private Attorneys General Act (“PAGA”) claim because the plaintiff failed to comply with the PAGA’s notice requirements.

Ninth Circuit Addresses When Commuting Time May Be Compensable Under California Labor Code and What Must be Included in a PAGA Notice

The U.S. Court of Appeals for the Ninth Circuit recently addressed the compensability of commute time under the California Labor Code and the content required in a Private Attorneys General Act of 2004 (PAGA) letter. The Ninth Circuit examined the following:

California Governor Signs Gender Wage Equality Law

The California Fair Pay Act (FPA), a state law that codifies the principle that an employee is entitled to equal pay for equal work without regard to gender, has been amended with the passage of Senate Bill 358 (SB 358), which Governor Jerry Brown signed yesterday.

California Amends Representative PAGA Law, Allows Curing of Certain Wage Statement Violations

An amendment to California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”) affords an employer the right to cure certain wage statement violations before an employee may bring a civil suit against the employer.

Governor Signs Bill Allowing Employers to Avoid Certain PAGA Claims

On October 2, 2015, Governor Jerry Brown signed AB 1506 (Hernandez) into law. The bill, which amends sections 2699, 2699.3, and 2699.5 of the Labor Code (which encompasses the Private Attorneys General Act (“PAGA”)) took effect immediately upon the Governor’s signature. PAGA allows an employee to file a representative action against an employer for any violation of the Labor Code, including Labor Code section 226, and subjects at employer to statutory penalties and attorneys’ fees. Labor Code section 226 sets forth categories of information that must be included in an itemized wage statement. This new law will provide an employer 33 days to cure an alleged violation of Labor Code section 226(a)(6) (the inclusive dates of the pay period for which the employee is paid) and (a)(8) (the name and address of the legal entity that is the employer). If the employer cannot cure the violation, then the employee still would be permitted to file a civil action.

Private Attorneys General Act (PAGA) Amended to Address Some Excesses

On October 2, 2015, Governor Brown signed urgency legislation (Assembly Bill [AB] 1506) that immediately amends California's Labor Code Private Attorneys General Act of 2004 (PAGA)1 to address increasing civil litigation alleging technical violations of itemized wage statements (pay stubs) issued to employees.

All Over But the Penning: the California Legislature Completes its Work for 2015

The California Legislature adjourned its 2015 regular session early last Saturday morning. It is now up to Governor Brown to sign or veto the last of the Legislature’s 2015 work product. He has until Sunday, October 11, to do so.

2015 CALIFORNIA SUPREME COURT ROUNDUP PART 2

Here are the rest of the most important employment law decisions from the California Supreme Court during the past year.

Sales May Sizzle, But Keep Employees Cool

When the outdoor temperature tops 80 degrees Fahrenheit, the cool, air-conditioned comfort of a retail store may be a refuge for salespeople, but it is easy to forget that many other retail employees (including truck drivers, loaders, mechanics, janitors, maintenance personnel, cart attendants, and warehouse crews) may be feeling the heat in their workplaces.

All Over But the Penning: the California Legislature Completes its Work for 2015

The California Legislature adjourned its 2015 regular session early last Saturday morning. It is now up to Governor Brown to sign or veto the last of the Legislature’s 2015 work product. He has until Sunday, October 11, to do so.

Managing Employees in California: Three Legal Minefields

Those managing employees in California know all too well the legal minefields they have to carefully navigate through each day. California is known as perhaps the most “employee-friendly” state in the nation with good reason, as its state legislature, agencies and courts continue to impose additional burdens on employers and expand the rights of employees.

New Amendments Cure Some of the Heartburn Caused by California's Sick Leave Law

California's Healthy Workplaces, Healthy Families Act went into effect January 1, 2015, with accrual rights beginning July 1, 2015. Most California employers have spent the first half of 2015 trying to reconcile various apparent contradictions in the law. On July 13, 2015, Governor Jerry Brown approved Assembly Bill No. 304, which amended various aspects of California's paid sick leave law. The amendments are effective immediately and clarify some of the ambiguities pertaining to implementation.

2015 California Supreme Court Roundup

The California Supreme Court issued several decisions during the past year that will affect employment law for California employers. We summarize the most important of these decisions below.

DLSE Issues First Bit of Guidance on New Paid Sick Leave Law

As California employers are aware, the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code section 245, et seq.) went into effect this year. Under the Act, employers may choose between granting sick leave under an “up-front” method or an accrual method. Employers are permitted to offer more sick leave than the Act requires, but must meet certain minimum leave requirements. As employers prepared for July 1, 2015, the date on which employees became eligible to use and accrue sick leave under the new law, many were struck by how little guidance the new law provided for the realities of the workplace.

Former In-House Attorney Cannot Duck Trade Secrets Allegations with Anti-SLAPP Motion

On July 17, 2015, a California appellate court affirmed the denial of an intellectual property attorney’s anti-SLAPP motion against his former employer. Terrence Wyles, the defendant and former in-house counsel for medical products company West Hills Research and Development, Inc. (“West Hills”), sought to dismiss his former employer’s trade secrets misappropriation case by asserting that its lawsuit interfered with his efforts to file a complaint against its senior officers for embezzlement. The defendant alleged that he retained copies of confidential company documents following the termination of his employment as evidence to support a shareholder derivative lawsuit he planned to file alleging that the company was engaging in financial misconduct. The Court of Appeals affirmed the denial of the defendant’s motion, finding that the alleged financial misconduct had nothing to do with the misappropriation of trade secrets underlying the company’s complaint.

Last Call: California Legislature Makes Final Push for 2015 Session

The California Legislature reconvened on Monday, August 17, to finish its work for the 2015 regular session, which must end by September 11.

California Amends FEHA, Protecting Accommodation Requests

On July 16, 2015, California’s Governor Jerry Brown signed a bill amending the California Fair Employment and Housing Act (FEHA), adding protections for workers who request accommodations for disabilities or religious beliefs.

California Court of Appeal Rules in Favor of Public Entity Employer: No Forum Shopping for California Public Entity Employees

In a recent unpublished case, the California Court of Appeal ruled a public civil service commission decision on a worker’s employment claims precluded him from relitigating his claims in a civil action. According to the state appellate court, the suit brought by a discharged worker who filed claims against his public employer was barred. Glover v. City of Santa Barbara, No. B257114 (May 21, 2015).

California's Special Restrictions on Who May Complete Form I-9

California's Secretary of State recently clarified whether an employer may use a notary public as its authorized representative to complete the Form I-9 Employment Eligibility Verification.

Bay Area Employer 411: What You Need to Know About the New Laws on Equal Pay, Fair Scheduling and Slavery-Free Supply Chains

Jackson Lewis Shareholder Punam Sarad will serve as a panelist at the Bay Area Employer 411: What You Need to Know About the New Laws on Equal Pay, Fair Scheduling and Slavery-Free Supply Chains Conference hosted by the San Francisco Department on the Status of Women, Department of Labor/Women’s Bureau, Equal Employment Opportunity Commission and American Association of University Women/San Francisco Branch. The panel will be followed by a roundtable discussion about the Family Friendly Workplace Ordinance and Retail Workers Bill of Rights.

Amendments to California’s Paid Sick Leave Law Have Been Enacted and Are Effective Immediately

This week, California’s Governor signed into law urgency legislation passed by the legislature (AB 304) to amend California’s recently enacted paid sick leave law. These amendments take effect immediately and are intended to clarify some areas of ambiguity in the law as originally enacted. While the amendments do provide clarification in some areas, they nonetheless create added confusion and burden for employers that have already adopted or modified paid time off policies to take effect July 1, 2015, based on their best interpretations of the paid sick leave law in its originally enacted form. The amendments also leave a number of ambiguities in the original law unanswered. Click on the link to read the full summary of the amendments.

Court of Appeal: OK for Employers to Withhold Taxes on Lost Wages Verdict / Settlement

When an employee wins a wrongful termination lawsuit, or settles a case, part or all of the recovery usually will be compensation for lost wages. After a verdict, though, the court enters a judgment. Usually interest accrues from the date of the judgment, and continues to accrue unless the judgment is "satisfied." Additionally, employees may enforce the judgment with collection proceedings.

Your Rx for Complying with California’s Newly Effective Paid Sick Leave Law

The Healthy Workplaces, Healthy Families Act of 2014, which Governor Jerry Brown signed on September 10, 2014, goes into effect today, July 1, 2015. The Act requires California employers to provide employees with one hour of paid sick leave for every 30 hours worked. Below is a round-up of some helpful articles covering all the details of the Act, including employers’ obligations and the latest developments on the new law.

Court Refuses Enforcement of Forum Selection and Choice of Law Clauses

The recent published decision issued by the Fourth District California Court of Appeal (May 28) in Verdugo v. Alliantgroup, L.P. will make it more difficult for out-of-state employers to enforce forum selection and choice-of-law clauses in litigation with their California employees. The defendant, Alliantgroup, is a tax consulting firm headquartered in Texas, with one of its eleven regional offices in California. The plaintiff, Rachel Verdugo, brought a class action against the company on behalf of past and present employees, alleging various hour and wage claims under the California Labor Code. Upon being hired to work at Alliantgroup’s Irvine office, Verdugo signed an employment agreement that included a forum selection clause stating that Harris County, Texas would be the exclusive forum for disputes arising out of the agreement. The employment agreement also included a choice-of-law clause, designating Texas law as governing any arising disputes. California courts have traditionally held that they will not defer to a selected forum if doing so would violate public policy by diminishing the rights of California residents. Furthermore, the courts have established that if the claims at issue are based on rights that California statutes have deemed “unwaivable,” the party seeking to enforce the forum selection clause bears the burden of showing that enforcement will not diminish the substantive rights afforded under California law in any way. In making certain rights “unwaivable,” the California legislature and courts are primarily concerned with providing California residents with all of the protections they are entitled to under California law. In Verdugo, the court ruled that California Labor Code rights are unwaivable. In applying this rule, and the applicable precedent, the Court of Appeal held that defendant Alliantgroup could not enforce the forum selection clause or the choice-of-law provision in the agreement because it failed to show that the forum selection and choice-of-law clauses would not diminish plaintiff Verdugo’s statutory rights by requiring her to litigate her claims in Texas and under Texas law. The court did not create a specific test for determining whether deferring to a forum selection clause will diminish an employee’s rights under the Labor Code. Although it does not make forum selection and choice of law clauses per se unenforceable, the holding in this case is significant because it places the burden on the employer to show that application of the forum and/or choice of law clause will not diminish the employee's rights.

No-Hire Clauses Common to Settlement Agreements Now Void In California

Executive Summary: The Ninth Circuit Court of Appeals recently broadened California's already expansive interest in promoting employee mobility by voiding any contract provision imposing a meaningful obstacle to a California resident's ability to work. The appellate court's decision calls into question the continued validity of post-employment restrictive covenants commonly included in severance packages and settlement agreements.

California Legislative Update

The end of the first week of June is the deadline for California bills to pass out of their house of origin. The following are significant bills affecting private-sector employers in the Golden State that have advanced to date:

Captain of the Cheerleading Team: An Employee Too?

On April 21, 2015, California’s legislature advanced a bill that would require professional sports teams based in California to classify their cheerleaders as employees and pay them a minimum wage. The state assembly’s Committee on Arts, Entertainment, Sports, Tourism and Internet Media voted 5-to-2 in favor of the bill, which must now pass a vote by the Appropriations Committee before it can be reintroduced to the legislature.

California Court Ruling Pulls the Spurs Off PAGA Deputies' Boots

Executive Summary: A new California appellate court decision provides much needed guidance regarding the proper scope of discovery in representative actions brought under the California Private Attorneys' General Act of 2004 (PAGA), Cal. Lab. Code sections 2698, et seq. Specifically, the opinion now allows lower courts to take an incremental approach to discovery, requiring the named plaintiff to demonstrate that s/he was actually subjected to wage and hour violations – and after that, subjected to uniform employment policies and practices – before authorizing statewide discovery. The opinion is the first published California decision concerning how courts should approach discovery in PAGA actions.

Court of Appeal Explains Limits on Discovery of Third Party Employees' Information in PAGA Claim

The plaintiff in a "representative action" asserted under the Private Attorney General Act (PAGA) claimed Marshall's (the retailer) denied him meal and rest breaks, accurate wage statements, etc. That's when you are making an individual claim for your own damages, but will try to recover PAGA-authorized penalties on behalf of others whom you prove were wronged.

Employment-Related Bills Pending Before The California Legislature

There are a number of employment-related bills pending before the California legislature this session. While it is too early to tell which of these bills ultimately will be passed and signed into law, California employers may wish to follow the progress of some of these bills and/or to submit comments, opposition, or support (for the most part, unlikely) for a particular bill.

California Remains Ahead of the Curve With Workplace Trends

California continues to lead the way in expanding the rights of employees and obligations of employers in the workplace in many areas. This should come as no surprise to employers and HR since the California Fair Employment and Housing Act (FEHA) extends protections to almost 20 protected classes and California provides employees with more than one dozen types of leave.

California Attorney General Seeks Supply Chain Transparency Information from Businesses

Executive Summary: Recently, a number of large retail and manufacturing companies doing business in California may have been surprised to receive a letter from the California Attorney General asking them to demonstrate compliance with the California Transparency in Supply Chains Act. The Act was enacted in 2010 and became effective in 2012; however, the recent round of letters sent out by the California Attorney General has focused more attention on the Act. Recipients of the letters have 30 days to respond by providing a link to their disclosure or providing information showing they are not covered by the Act.

FIRING EMPLOYEES FOR MISCONDUCT DURING LEAVE

Many employers have struggled with the issue of disciplining an employee for misconduct while he or she is on a leave of absence under the California Family Rights Act (“CFRA”) and federal Family Medical Leave Act (“FMLA”). Employers legitimately fear that the employee will claim that the discipline was taken because of the legally protected leave. In Richey v. AutoNation, the California Supreme Court provided some reassurance to employers who terminate employees on leave based on well-documented evidence of policy violations.

Oakland Minimum Wage and Paid Sick Leave Law Effective This Week

In addition to having to comply with the new statewide paid sick leave law, California employers with employees in Oakland need to ensure that they are complying with a new Oakland minimum wage and paid sick leave measure that took effect March 2, 2015.

Court of Appeal Finds Insufficient Evidence Attributing Electronic Signature to Employee

Employers increasingly rely on electronic acknowledgements of policies and procedures. An "electronic signature" is valid under California law. But the reason those signatures exist is so that employers can prove the employee read and signed the document. That's what Moss Bros. Auto found out in a recent case.

California eAuthority (March 2015)

California Court Rules on Whether to Compel Arbitration Where Employer Could Not Authenticate Employee’s Electronic Signature; House Painter With Vertigo and Restriction to Work “at Ground Level” Loses FEHA Case; Worker’s Failure to Perform His Job Duties Satisfactorily Dooms FEHA Retaliation Claim;Being on Call in California Does Not Impede on Rest Breaks;From the Blog: California Labor Commissioner Revises Sick Pay Notice Obligation.

A Pot Pourri of Recent Employment Law Decisions

Here are some recent significant California employment law developments I missed. Long post, but chock full of employment law goodness. Or something:

Will California’s recent law on anti-bullying training begin a nationwide move toward passage of the Healthy Workplace Bill?

The Healthy Workplace Bill (HWB) has been discussed by state and federal legislators for nearly 15 years, and has been the subject of substantial debate and interest. During that time, 26 states have introduced the HWB, or one modeled on it. No state has yet passed the bill (although Tennessee has passed a bill limited to public-sector employees), and several state legislatures have vetoed it.

California Legislative Update for 2015 – Notable Changes

As in recent years, California remained a hotbed of legislative action in the labor and employment field. The legislature passed several new laws and amended many others in significant ways. With changes taking effect on January 1, 2015, unless otherwise stated below, employers are encouraged to review their policies and practices to ensure compliance. Below is a summary of many of the most notable changes coming in 2015:

New Year’s Resolutions for the California HR Manager

So what’s it going to be for 2015? Get up and run three miles every morning? Finally pay off those credit cards? Learn to speak French? Before you finish the list of New Year’s resolutions, consider adding a few on the human resources front. Below are a few recommendations for HR leaders—the payoff will be much better than losing 10 pounds (again). Pick a few and knock them off early in the year, and call it a good start.

DLSE CLARIFIES NEW SICK LEAVE LAW

Beginning on July 1, 2015, California employers must provide paid sick leave to employees. The Healthy Workplaces, Healthy Families Act (AB 1522) applies to all employers, regardless of size. The law requires either one hour of sick leave for every 30 hours worked or three days of sick leave per year. Employees accrue sick leave upon hire, although they may be restricted from taking earned leave until they have completed 90 days of employment.

New Year Brings New Liability When Using Outsourced Labor

Beginning January 1st, California law requires “client employers” to share certain compliance responsibility and liability with the companies that provide them with contract labor, such as staffing agencies. Client employers are defined as private employers with at least 25 employees that utilize at least six temporary workers from a staffing contractor, subject to limited exceptions.

Countdown To July 1st: Preparing For California's Mandatory Paid Sick Leave

Beginning July 1, 2015, California employers, with limited exceptions, must grant every employee 24 hours or three paid sick days each year. Even employers who are already providing paid sick leave face potential liability for failing to comply with the new law’s accrual, notice and recordkeeping requirements. Employers should start preparing now for this regulatory challenge as this state-mandated benefit will likely be fertile ground for new wage and hour class actions.

California eAuthority (December 2014)

Two California Appellate Decisions Expand the Scope of Tameny Claims Based on Whistleblower Laws; Ninth Circuit Defends Employer’s Discharge of Worker With a History of Intimidation and Threats; LA County Employee’s Retaliation Claim Fails but Disability Bias Claim Moves Forward; California Court Revisits Employer’s Duty to Reasonably Accommodate Disabled Employee Under FEHA; San Francisco Board of Supervisors Approves “Retail Workers’ Bill of Rights”

DLSE's Digest of New California Employment Laws

The California Division of Labor Standards Enforcement compiled a booklet of new California employment laws, as well as some bills that did not make the cut.

California Confusion over Paid Sick Leave

Per Labor Code 2810.5, employers must provide non-exempt workers with a Wage Theft Notice at the time of hire and after certain changes to wages and other covered matters.

Another State Requires Paid Sick Time

We have reported on jurisdictions such as New York City and Connecticut passing sick leave laws. We can now add California to this growing list. The Golden State recently passed the Healthy Workplaces, Healthy Families Act of 2014 requiring employers to provide sick leave to their employees.

California Supreme Court Denies Review of Cell Phone Reimbursement Case

The California Supreme Court has denied a petition to review Cochran v. Schwan’s Home Service, Inc., Court of Appeal of California, Second Appellate District, Division Two, No. B247160 (August 12, 2014). As a result of the court’s decision, an appellate court ruling that found that employers must reimburse employees for the business use of personal cell phones in some circumstances will stand. Employers should consider taking measures accordingly to minimize the risk of class action litigation.

California eAuthority (November 2014)

Who Decides the Issue of Class Arbitration? Ninth Circuit Dismisses Worker’s “‘Sweeping Conclusory Allegations’ of Unequal Treatment”; California Court Overturns Employee’s Jury Verdict in Reverse Discrimination Case; California’s New Sick Leave Landscape—Your Paid Leave Questions Answered; From the Blog: FAAAA Does Not Preempt California Meal and Rest Period Requirements.

California Legislation 2014

California Governor Jerry Brown has signed into law a number of bills that will impact the employer community. A brief summary of these new laws, along with links to the bills, can be found below.

California Court Finds Lack of Evidence Undermines False Claims Act and Retaliation Claims

The Southern District of California recently issued a favorable ruling for employers under both the False Claims Act and California’s retaliatory discharge provision codified at California Labor Code section 1102.5. The court not only rejected the relator’s claims, but it also resolved all issues in the employer’s favor on summary judgment.

San Diego Minimum Wage Ordinance Put On Ice

San Diego’s hotly contested minimum wage ordinance has been put on ice until at least 2016. The City Council approved the ordinance in July and then later overrode the mayor’s veto. A petition drive by San Diego business leaders has now succeeded in forcing the issue to the ballot.

California Law Expands Scope of Liability of Employers that Use Labor Contractors

Executive Summary: California employers that hire temporary workers now share liability with staffing agencies for certain violations of the state's labor laws. On September 28, 2014, California Governor Jerry Brown signed into law Assembly Bill 1897, a controversial bill that significantly expands the scope of liability of employers that contract with staffing agencies. The full text of the bill is available on the California Legislature's website: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140AB1897.

Bullying in the Workplace: California’s New Training Requirement

Everyone remembers a bully in junior high school. She might have been the mean girl who told others not to be your friend, or the brute who inflicted his cruelty with wedgies and half nelsons. Sadly, some people never graduate from junior high—mentally, at least—and some of those miscreants are now employed in your workplace. What is an employer to do? California has an answer.

Governor Brown Signs End of Session Employment Laws Part II

Here are some of the other employment laws that Governor Jerry Brown has signed, which will result in new obligations and liabilities in 2015.

California eAuthority (September 2014)

Quit or Retired? It Makes No Difference When It Comes to Paying Final Wages in California; California Legislative Update: September 2014; Ninth Circuit Finds Police Officer with ADHD Not Disabled Under ADA; A Bird’s Eye View of the DFEH (Part 3): An Interview with Patti Perez on Reasonable Accommodations, the Interactive Process, and Companion Animals; California Court: Exceeding Break Times and Falsifying Time Records Is Grounds for Disqualification from Unemployment Benefits: From the California Blog: California Appellate Court Rules That California’s Prevailing Wage Laws Do Not Apply to Off-Site Fabrication.

California Governor Brown Signing More New Employment Laws at End of 2014 Session (Part I)

The 2014 legislative session is over. But employers will be remembering this one for a long time. California Governor Jerry Brown signed a host of new laws at the end of the session. Many deal with narrow-cast and public sector-related funding issues, which I won't cover here. (You're welcome).

Recent Changes to California Laws—the Healthcare Perspective

The efforts made by professional athletes seeking workers’ compensation benefits for injuries that they sustained on the playing field has resulted in a considerable amount of drama in the press. As a result, the California legislature has amended the state Workers’ Compensation Act to include coverage for some athletes. In-state athletes are covered. Out-of-state professional athletes may be covered if (a) the athlete played at least two years for a California sports team; or (b) played more than 20 percent of his or her career for a California sports team. While the situation is unlikely to arise for most healthcare providers or institutions, if a professional athlete seeks medical treatment, it may be wise to consider asking if the injury is work-related.

More New California Employment Laws... Anti-Bullying Training and Unpaid Intern Harassment

The Governor has signed or is about to sign two more employment laws:

California Becomes Second State to Offer Paid Sick Leave

Over the holiday weekend, California became only the second state (after Connecticut, which began granting paid sick leave in 2012 and just passed more tweaks to it) to guarantee at least some annual paid sick leave for most full and part-time employees. Assuming Governor Brown signs the bill, California’s law would be the tenth in the nation at the state or local level that requires employers to provide paid sick leave. The bill, entitled the “Healthy Workplaces, Healthy Families Act,” passed with hefty majorities in the Assembly and Senate, and Governor Brown has indicated that he plans to sign it. That total would match the ten states that have passed preemption laws that ban any locality from passing paid sick leave legislation.

California Enacts Paid Sick Leave

The Governor signed AB 1522, which confers upon most California employees paid sick leave. The law is somewhat similar to San Francisco's paid sick leave ordinance.

California Legislature Passes Mandatory Paid Sick Leave Bill

On Saturday, August 30, 2014, in the early morning hours and amid controversy among labor supporters, the California legislature passed a bill that provides workers with three paid sick days per year. Governor Brown enthusiastically endorsed the law’s passage and is expected to sign it very shortly. Assuming the governor signs the legislation, it will take effect on July 1, 2015.

California eAuthority (August 2014)

California Supreme Court: Holding Franchisor Liable as Employer Depends on Level of Control Over Day-to-Day Employment Decisions; California Court Interprets Vague Language in Arbitration Agreement in Favor of Employee; California Legislative Update: August 2014; A Bird’s Eye View of the DFEH: An Interview with Patti Perez (Part 2); From the California Blog: Employer Required to Reimburse Employees for Personal Cell Phone Use Despite Unlimited Minutes Plans

CA Governor Signs Two Wage-Hour Bills

Governor Jerry Brown signed a couple of wage-hour laws, which will take effect 1/1/15. Neither is earth-shattering, but affected employers take note:

Back to School! Employers: Are You Ready for School-Related Leave for Parents?

The lazy days of summer are behind us this month as many children head back to school. Employers of parents with school-aged children should review California’s laws, which provide certain rights to employees to take time off from work to deal with school-related issues.

Can You Hear Me Now: Employers in California Must Reimburse Employees for Mandatory Work-Related Calls on Personal Cell Phones

Executive Summary: A California Appeal Court has held that employees are only required to show that they were required to use their personal cell phone for work-related calls to be entitled to reimbursement under California Labor Code § 2802. In reaching this conclusion, the appeal court held that it does not matter whether the phone bill is paid by a third person or not paid at all. See Cochran v. Schwan's Home Service (Aug. 12, 2014).

California Court of Appeal: Employers Must Reimburse Employees for Cell Phone Use - Even if Plan is Unlimited

The Court of Appeal made an unprecedented ruling regarding the employer's obligation to reimburse employees for business use of personal items; here, a cell phone.

California eAuthority (July 31, 2014)

Motor Carriers Face Uphill Battle After California Supreme Court Decision; A Bird’s-Eye View of the DFEH: An Interview with Patti Perez; Ninth Circuit Allows Deputies to Proceed with Sex Discrimination Suit; California Legislative Update: July 2014; California Family Rights Act Interference Claims Proceed; Court Endorses PTO Use for Exempt Employee Partial-Day Absences; San Diego City Council Approves Minimum Wage Increase and Sick Pay Ordinance; From the California Blog: Single Act of Disobedience Does Not Disqualify Employee From Unemployment Benefits, California High Court Rules.

Pot Pourri of Recent Cases I missed

There have been so many recent employment law decisions that I can't long-form blog them all. So, here's a quick roundup of three recent, significant rulings -

City of San Diego Imposes Minimum Wage Hike and Sick Pay Ordinance

Rejecting a call to place a proposed minimum wage hike on the November ballot as a referendum item, on July 14 the San Diego City Council approved an ordinance raising the city’s minimum wage to $11.50 per hour by 2017.

California Governor Signs Bill Giving Small Businesses Extra Time To Comply With ACA 07/11/2014

On July 7, 2014, Governor Jerry Brown signed legislation that will give small business owners additional time to comply with the Affordable Care Act (ACA). The bill takes effect immediately as an urgency statute.

Court Determines California Teacher Tenure Laws Are Unconstitutional

On June 10, 2014, Judge Rolf M. Treu of the Superior Court of California for the County of Los Angeles issued an opinion in Vergara v. California,[1] striking down provisions of the California Education Code as unconstitutional. The sections of the California Education Code in question concerned teacher tenure (the so-called “Permanent Employment Statute”), dismissal (the “Dismissal Statutes”) and layoffs (known as “Last-In-First-Out” (LIFO)).[2] The court held that these statutes violate the equal protection clause of the California Constitution because they prevent students from accessing their fundamental rights to equal education by adversely affecting the quality of the education they are afforded. The statutes were held to “cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students but with particular detriment to minority and/or low income students.” Vergara at 4.

Employers Are Not Required to Provide Transit Fringe Benefits—Except in California

Since the Golden State sometimes can be a bellwether for national trends, employers nationwide may want to keep an eye on what’s occurring in California regarding commuter benefits. Certain employers in the San Francisco Bay Area have less than six months to comply with a new law that requires them to provide commuter benefits to employees. The law is intended to help reduce air pollution and alleviate traffic congestion in the Bay Area by encouraging employees to take mass transit, vanpools, carpools, or bicycles, or to walk rather than drive alone to work.

Court of Appeal: Extortion Is Not a Legally Protected Pre-Litigation Demand

Jerome Stenehjem sued his former employer, Akon, Inc., and Surya Sareen, Akon‘s president and chief executive officer, for defamation, among other causes of action.

California eAuthority (April 2014)

California Court Finds Employers Can Seek Evaluation After Employee Returns From FMLA Leave; California Court Gives the Green Light for Arbitration of Wrongful Termination Suit; Contract That Shortens Time for Bringing Employment Claims Rejected by California Court.

LOCAL JURISDICTIONS “BAN THE BOX”

To combat high unemployment rates amongst individuals with criminal histories, in recent years many state and local government have enacted “Ban the Box” laws. These laws are so named because they generally prohibit employers from asking applicants about their criminal histories early in the hiring process—including by requiring applicants to check a box on an employment application indicating the existence of a criminal history. San Francisco recently enacted such a law, which tightly regulates employers.

California Court of Appeal: Fitness for Duty OK after Reinstatement from FMLA Leave

Susan White was an investigator for the LA County District Attorney. She makes a number of errors and acted erratically over the course of several months. She was making her co-workers nervous about her judgment. She was in a dangerous job, sometimes involving arrest warrants and the like. She had problems giving testimony at trials, resulting in a defense lawyer filing perjury charges against her.

California Chamber's Job Killer List - Employment Law

Contrary to what you may think, the California Legislature has not finished perfecting the laws governing the California workplace. But, they persevere.

Undocumented Worker Case Before California Supreme Court

The California Supreme Court has decided to hear a case that could impact the ability of undocumented workers to collect back wages or sue employers for discrimination in California, and may prove instructive in other courts that periodically have to tackle these issues. The case is Salas v. Sierra Chemical Co. (Case No. S196568), and the California Supreme Court will consider whether an employee’s use of false documentation (in this case, a Social Security number) to obtain employment precludes future actions by that employee for discrimination (disability discrimination here).

Former Employee Ordered to Pay $100,000 in Attorneys’ Fees for Bringing “Vexatious” FEHA Action After Being Fired for Sexual Harassment

Robert v. Stanford University, H037514 (February 25, 2014): The California Court of Appeal recently affirmed an award of $100,000 in attorneys’ fees to a prevailing employer in a case in which a former employee brought a frivolous and unsubstantiated claim of discrimination under the Fair Employment and Housing Act (FEHA). The Court of Appeal upheld the award, even though the trial court had not issued a separate written order regarding the attorneys’ fees, because the trial court had made express oral findings on the record and applied the appropriate standards.

CALIFORNIA’S NEW LAWS PROTECT UNDOCUMENTED WORKERS

The California Immigrant Policy Center recently estimated that there are approximately 2.6 million undocumented immigrants working in California. Over the years, their advocates claim employers take advantage of their “illegal” status, e.g., by paying substandard wages. According to the National Employment Law Project, employers threaten to turn over these workers to Immigration and Customs Enforcement (“ICE”), after they try to organize a union or seek the benefits of wage and hour laws. Other acts can include (1) improperly conducting I-9 self-audits after employees filed workplace-based complaints, or in the midst of labor disputes or collective bargaining; (2) the misuse of the federal “E-Verify” system, which matches employees identification information against databases maintained by the Social Security Administration; (3) threatening to report employees’ family members immigration status to ICE; and (4) filing false reports to law enforcement causing review of employees’ immigration status.

CA Supreme Court Will Answer Ninth Circuit's Suitable Seating Questions

We wrote an article about the California wage orders' "suitable seating" requirement here.

California Court of Appeal SLAPPs Claim for Breach of Settlement Agreement

Perhaps you have read about the EEOC's recent lawsuits attacking severance agreements as allegedly containing illegal provisions, because they impede the EEOC's work. The EEOC is challenging everything from "cooperation clauses," to general releases that broadly preclude the releasing employee from bringing future claims. You know, in exchange for money. Here's an example of what the EEOC is doing.

A NEW OBLIGATION TO INVESTIGATE?

Suppose an employee complains of sexual harassment by a supervisor. The supervisor admits that sexually inappropriate conduct took place, but claims the complainant was the instigator. Neither the employee nor the supervisor offers other witnesses who might shed light on what really occurred. What do you do?

California eAuthority (February 28, 2014)

San Francisco Mayor Signs Ordinance to “Ban the Box” on Employment Applications and more....

A CHECKLIST FOR ENDING EMPLOYMENT

All employers will be faced at some point with ending an unsuccessful employment relationship. California is an “at-will” state, so an employer may terminate an employee for any reason except an illegal one (for example, because of an employee’s race or gender). Sound simple? Not so fast. The numerous legal restrictions surrounding the termination process give employers pause even when making legitimate personnel decisions. Of course, a hasty personnel decision can cost an employer far too much—in legal fees, management time, damaged client relations, and negative employee morale. To reduce the legal risk associated with terminations, employers should keep a few key concepts in mind.

Getting Down to Business: Highlights of New California Employment Laws

With the start of the new year, it is the perfect time for employers to ensure that their policies reflect the changes in California law. We covered many of the laws affecting employers in our “California Legislative Update 2013” article and in my three-part blog series, “How the New California Laws Will Impact Your Business in 2014 and Beyond.” Part one of the series covered recent wage and hour legislation; part two covered EEO, disability, and leave legislation; and part three covered immigration-related legislation.

LITIGATION AND EMPLOYEE MEDICAL PRIVACY

We previously wrote about protecting employee privacy when responding to subpoenas for personnel records. (See “Employee Privacy: Responding to Subpoenas,” September 27, 2013.) This article addresses the related topic of employee medical privacy during litigation and the discovery process. Even if your company is not currently involved in litigation, it is essential to understand the privacy issues that may affect the organization’s defenses down the road.

California Legislative Update for 2014

California has one of the most proactive legislatures in the nation with respect to labor and employment matters. The coming year will bring several significant changes, new laws and obligations of which businesses with California operations should be aware. We hope you find the below summary informative and look forward to working with you to ensure compliance as you move into 2014.

California Employers Must Timely Post Undertaking to Appeal Labor Commissioner Ruling

Must. Igor Palagin was a welder. He filed a labor commissioner claim for underpayment against Paniagua Construction. Paniagua claimed Palagin was not its employee; rather, he was a subcontractor. The DLSE found in favor of Palagin.

NEW CALIFORNIA EMPLOYMENT LAWS FOR 2014 (PART 1)

Several new laws taking effect in 2014 will significantly change the practices of California employers. This article summarizes them and includes tips on how to comply. The bills become law on January 1, 2014, unless otherwise noted.

NEW CALIFORNIA EMPLOYMENT LAWS FOR 2014 (PART 2)

This article is Part 2 of a two-part series providing an overview of new federal and California employment laws.

CalChamber's List of New California Employment Laws for 2014 and Beyond

Our friends at the California Chamber of Commerce posted this long list of new, California employment laws that will take effect in 2014. You can review the list here. The list also includes the San Francisco ordinance allowing requests for flexible schedules.

How the New California Laws Will Impact Your Business in 2014 and Beyond, Part 3: California Immigration Related Legislation

The final post in this three-part series on the newly-signed legislation in California covers the three immigration-related bills that Governor Brown recently signed. I also discuss two significant bills that the governor vetoed.

Court of Appeal: State Anti-Hacking Criminal Statute Applies to Employee

Childs was a senior engineer for the City and County of San Francisco. Via a series of events, he assumed significant control over a major part of the city's IT infrastructure, against the wishes of management. I'm oversimplifying here. The opinion contains all the gory IT details, and there are many.

California Legislative Update 2013

Governor Jerry Brown recently signed bills enacting several new employment statutes, marking the end of the California Legislature’s 2013 regular session. A brief summary of these new laws, along with links to the bills, can be found below.

Two More Changes to California Employment Law

California Governor Jerry Brown signed into law two more employment law-related bills.

Court of Appeal: No Duty to Pay for Defendant Employee's Choice of Lawyer

Several years ago, a radio station conducted a contest that involved consuming water. The one who "held it in" the longest would win a prize. Unfortunately, one contestant died from drinking too much.

Half a SLAPP Still Hurts

Jessica Chang sued her former employer and an individual named Howard Cho for sexual harassment. Cho counter-sued Chang for IIED and defamation.

ASSISTIVE ANIMALS IN THE WORKPLACE

Many employers believe that “assistive animals” are limited to service dogs for the visually or hearing impaired. What if an employee wants to bring a chinchilla, snake, or ferret to work for “emotional support?” Under state and federal regulations, employers may have to allow these and other animals in the workplace as a “reasonable accommodation” for disabled employees.

California Governor Signs Bill Limiting Attorneys’ Fees for Employers in Wage Cases

California Governor Jerry Brown on August 28, 2013, signed into law a measure limiting the ability of employers to obtain attorneys’ fee awards if they are prevailing defendants in wage disputes.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2012-2013, PART I

This article is the first installment of a two-part article in which we summarize recent California Supreme Court decisions in employment law. The California Supreme Court issued several employment law-related decisions during the past year, all of which may affect California employers.

California eAuthority (August 2013)

California Supreme Court Action in Piece-Rate Pay Case Causes Concerns About Alternative Pay Systems; Restricting the Activities of California On-Call Employees May Mean Having to Pay Them for Their Time; California Agencies Don’t Get Two Bites at the Apple When It Comes to Misclassification.

California Wage/Hour Update (July 2013)

Appellate Court Attacks Piece-Rate Compensation – Again;Court Clarifies Impact Of Multi-Tasking On Exempt Status.

California EAuthority (June 2013)

No Administrative Exemption Under California Law Where Worker Did Not Receive Fixed Salary California Employer’s Policy of On-Duty Meal Periods Will Be Litigated as a Class Action Implied Covenant of Good Faith and Fair Dealing Saves California Employer’s Arbitration Agreement

Restaurant Industry Legal Alert: Answers To Frequently Asked Questions Concerning California's Human Trafficking Notice Requirements

In response to our June 6, 2013 Restaurant Industry Newsletter, we received several questions about whether California's human trafficking statute applies to all restaurants and drinking establishments. As a result, we are providing the following answers as a guide to help you determine whether you must comply with the statute.

Legal Alert: In An Effort To Raise Awareness Of Human Trafficking California Requires Certain Businesses And Establishments to Post Public Notices Regarding Victims' Rights

Executive Summary: The California Legislature has enacted a new law that requires certain businesses in the hospitality, transportation, and healthcare industries to post public notices regarding slavery and human trafficking or face stiff penalties. This new law became effective on April 1, 2013 and is the latest in California's efforts to combat this unlawful multi-million dollar industry.

CA Supreme Court: LA County Union Entitled to Home Addresses and Phone Numbers of Non-Union Employees

The California Supreme Court in a unanimous opinion addressed employees' privacy rights in the public sector union context. The decision has implications for non-union, private sector employers as well, so read on.

California eAuthority (April 29, 2013)

California Piece-Rate Employees Entitled to Compensation for Each Hour Worked; One-Sided Arbitration Agreement Found Unconscionable by California Court; Suitable Seating Class Action Cases Are on the Rise in California; California Court Rejects Managers’ Overtime Misclassification Class Action.

Catching Up - Friday Pot Pourri

Here are a few of the cases I should have mentioned;.

Me Too? Too Far

"Me too" evidence is when the plaintiff attempts to prove discrimination against him or her by offering evidence that others suffered similar discrimination. The courts admit this evidence as proof of intent or motive, where it otherwise would be excluded as "character" evidence.

California eAuthority (March 2013)

California Appellate Court Holds Employee Entitled to Reasonable Accommodation After Pregnancy Leave Ends; Court Rejects FEHA Claim Brought by Fired Department Manager; California Employer Should Have Engaged in Interactive Process Before Firing Employee; Tip Pooling Policy Held Lawful by California Court—So Long As Recipients Are Not Management Level.

California Supremes Expanding Employment Law Docket

The California Supreme Court is taking up several cases for review that will have significant effects on California employment law. Once the Supreme Court grants review, the lower court opinion is not precedent and cannot be cited in briefs or relied upon unless the Court says otherwise.

Annual Compliance Checklist for Employers

Employers periodically must comply with certain obligations imposed by law. These requirements arise annually or at other intervals, and are separate from those that arise when the employer hires or discharges employees. The following are some of the obligations employers should ensure are on their calendars for annual review.

California DIR: Friendly Reminder: Post Your Annual Injury and Illness Summary

A message from the California Department of Industrial Relations (online here):

Court of Appeal: Discharge of Executive Uncooperative in Investigation

Applied Signal fired John McGrory. One of his reports, Dana Thomas, complained to human resources that McGrory harassed / discriminated against her because of her sex / sexual orientation. Applied hired an outside investigator. McGrory did not like the investigator, but she exonerated him of mistreating Thomas. She did find, though, that McGrory was untruthful and uncooperative during the investigation. She also found that McGrory violated the company's anti-harassment policy because he made off-color jokes related to sex and national origin.

Legal Alert: California Rings In 2013 With New Employment Laws

Executive Summary: After the Mayans failed to predict the end of the world on December 21, 2012, it became apparent that California employers would have to comply with a string of new laws that take effect on January 1, 2013. Here is a summary of seven new employment laws to be aware of so you can revise your employment policies accordingly.

California Employers - Don't Forget your EITC Notice....

EITC? Huh? The California Legislature requires employers to give annual notices to all employees of their right to claim an Earned Income Tax Credit. Information and sample notices

Court of Appeal Endorses Business Judgment Jury Instruction in Discrimination Cases

The court of appeal in Veronese v. Lucasfilm issued a highly significant ruling that will bring some balance to jury instructions in discrimination cases.

NEW LAWS FOR CALIFORNIA EMPLOYERS - PART 1

New federal and California laws affecting California employers will take effect on January 1, 2013. Employers should begin preparing for changes to their policies and practices in advance of the new year.

NEW LAWS FOR CALIFORNIA EMPLOYERS - PART 2

This article is Part 2 of a two-part series regarding new federal and California employment laws.

California eAuthority (November 2012)

California Appellate Court Allows Time Clock Rounding No Implied-in-Fact Arbitration Agreement Where Employee Had No Intention of Signing Court of Appeal Relies on “Motivating Factor” as Standard of Causation in FEHA Case California Court Affirms that Customer Lists Can Qualify as Trade Secrets

2013 New California Employment Laws

Our friends at the California Chamber of Commerce sent out this list of new California employment laws taking effect in 2013 (here). These new statutes are only part of the story though, as the California courts are busy issuing rulings that shape California employment laws. Let's not forget the federal agencies and courts doing their part as well.

California Joins Maryland and Illinois in Restricting Employers' Access To Employees' "Social Media"

On September 27, 2012, California Governor Jerry Brown signed into law Assembly Bill 1844, which prohibits employers from requiring or requesting an employee or applicant for employment to: (1) disclose a username or password for personal social media, (2) access their accounts in the presence of employers, or (3) divulge any personal social media. It also makes it illegal to discipline or retaliate against an employee or applicant for not complying with a request or demand for access to personal social media.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2011-2012 - PART 2

This article is Part 2 of a two-part series regarding recent California Supreme Court decisions in employment law.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2011-2012

This article is Part 1 of a two-part series providing an overview of recent California Supreme Court decisions in employment law. Part 2 of this article will be featured soon.

Court of Appeal: Desperate Housewives Case

A jury deadlocked on whether Touchstone wrongfully terminated Sheridan in violation of public policy (retaliation for her complaint she was battered). The trial court repeatedly rejected Touchstone's argument that non-renewal of annual contracts do not give rise to wrongful termination claims.

Employer SLAPPed for Suing Ex-Employee

Robert Rogers is a former officer of Summit Bank, a local, Oakland bank. When Summit learned there were a number of anonymous, negative posts about it on Craigslist, it decided to sue Rogers for defamation. Here are some of his posts, according to the court

UPDATING EMPLOYEE HANDBOOKS FOR 2012

Much of the legislation passed in 2011 goes into effect on January 1, 2012. Employers should update their employee handbooks or other policies to reflect these legislative and other changes. Here are some of the most significant changes facing California employers.

NEW LAWS FOR CALIFORNIA EMPLOYERS

Recently, Governor Brown signed into law a few key bills that mark significant changes for California employers. Employers should prepare now to comply with these new laws (most of which become effective January 1, 2012) and adjust their practices accordingly. Full texts of each of these laws can be found at: http://leginfo.legislature.ca.gov/faces/homeTemplate.xhtml.

New Year Brings New Laws for California Employers

During Arnold Schwarzenegger's tenure as governor of California few new employment laws were enacted. This has changed under Gov. Jerry Brown. As the first year of his term concludes he has signed into law several bills that will affect California employers on January 1, 2012. From consumer credit reports to health care benefits, leaves of absence, and new wage and hour requirements, every California employer has something to prepare for in 2012.

Employer Who Sues Ex-Employee Does Not Have to "Indemnify" Ex-Employee for His Attorney Fees

Nicholas Laboratories, LLC sued its former employee, Chen. Ultimately, the parties resolved the case. Chen sought reimbursement of his fees under Labor Code Section 2802.

California Governor Signs New Employment Bills

Below are brief explanations of these new laws that affect private employers along with links to the actual bill language. Each of these bills will become effective January 1, 2012. Ogletree Deakins is sponsoring seminars in Los Angeles (October 18), Orange County (October 19) and San Francisco (October 20) where attorneys will discuss these new legislative updates in more detail. On December 7, the firm also will conduct a webinar on the new California laws. For more information or to register for the webinar, contact Moira Cue at (310) 217-8191 (ext. 221).

California Governor Brown Signs Employment Bills at Last Minute

In my last post, I said that Governor Jerry Brown vetoed a bunch of ill-conceived laws. Well, I posted too soon, and I take that back.

Court of Appeal: False Social Security Number = Unclean Hands = No Case

Vicente Salas worked for Sierra Chemical Company. He was seasonal, and was repeatedly laid off and re-hired. Along the way, he injured himself. The company allegedly denied him re-hire after he did not produce a release from his doctor. Salas claimed he was told he had to be 100% healed, which is one of those ADA no-nos. He sued for a variety of employment based claims, including disability discrimination, failure to provide reasonable accommodation, etc.

CALIFORNIA SUPREME COURT’S EMPLOYMENT LAW DECISIONS: 2010-2011

Every year, the California Supreme Court decides cases that have significant impact for California employers. In its most recent term, the Court addressed a variety of relevant employment issues. Below, we summarize some important cases, and also address additional key issues awaiting the Court’s review.

California Legislature Clarifies Paid Bone Marrow Leave

Governor Brown just signed SB 272, which clarifies last year's paid bone marrow /organ donation leave law. That law requires employers to grant up to five days' paid leave for bone marrow donation and up to 30 days' paid leave for organ donation.

An Ounce Of Prevention Is Worth A Pound Of Litigation

Wading through complex employment laws is often a challenging endeavor for employers. This has been especially true during the last several years, as companies have been reorganizing their workforces, cutting costs and tightening their budgets to stay competitive. If you were one of these employers, it's likely that you were required to reexamine the classification of certain employees who, as a result of the change in their duties, no longer met the exemption requirements.

Court of Appeal: Employer's Lawsuit Against Terminated Employees Beats Anti-SLAPP Motion.

Overhill Farms received notice from the IRS that hundreds of its employees' social security numbers were invalid. The company gave employees a chance to correct the problem. Those who did not were terminated. The law imposes fines and potential criminal liability on employers who permit employees to work with false social security numbers.

"Suitable Seating" Class Action Goes Forward

Retailers must provide "suitable seating" in accordance with the California Industrial Welfare Commission's Wage Order 7-2001, section 14. It says: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."

NEW GOVERNOR, NEW EMPLOYMENT LAWS COMING

Elections have consequences for employers and their lawyers. Governor Brown may turn out to be a pro-business governor, sensitive to the delicate economic conditions employers face, persistent high unemployment, and the incredible patchwork of laws and regulations already daunting employers. Sure, and the Easter Bunny is on his short list for Labor Commissioner.

NEW LAWS FOR CALIFORNIA EMPLOYERS.

This year, as in years past, the Legislature presented Governor Schwarzenegger with a number of workplace-related bills. The Governor chose to veto a number of bills that would have significantly impacted employers, and signed a few about which employers should be aware. We summarize the key laws below.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2009-2010.

The California Supreme Court decided significant employment law cases since our last review in 2009. The Court’s opinions address a number of topics of interest to employers: wage and hour law, harassment, arbitration agreements, attorney-client privilege, and the significance of “stray remarks.” However, the Court also left many issues for lawyers to wrangle with in the future. We summarize below the recently decided cases.

SLAPPING THE BOSS.

There are a number of ways employers can raise a former employee's ire. These include contesting an unemployment claim or reporting the former employee to a licensing agency. Sometimes ex-employees retaliate with litigation they would not have filed were it not for the employer's action. The ex-worker's claim may involve significant potential liability and defense costs, possibly motivating the employer to settle or dismiss the initial action.

DRIVING FOR DOLLARS.

The daily commute would be more pleasant if workers were paid for their time. The only thing that could make listening to music, talking on the phone, and sipping a hot beverage while driving more fun would be wages accruing with each lurch forward. Traffic jams, the risk of accidents, and insufferably bad driving no doubt would be less frustrating, too.

EMPLOYMENT LAW ON THE MENU.

Whether it is menu planning, budgeting, negotiating leases or franchise agreements, monitoring the internet for the latest customer reviews, or getting food prepared and to the table, restaurateurs are pulled in many directions every day. With such diverse and unrelenting pressures, it is easy to overlook compliance with the many employment laws governing the workplace. Many restaurants are small employers, without the resources to employ human resources management. It is left to the chef, general manager, or owner to know the law and apply it correctly.

Retail Industry: Sanity Prevails in California.

It's true: the California appeals court struck down a particularly nutty employment law, one which required anyone who bought a Los Angeles supermarket to retain the prior owner's employees. The California Supreme Court is due to review the decision.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS: 2008-2009 TERM.

Every year, the California Supreme Court decides cases that affect the workplace. Here are some of the most important employment law opinions since our last update in July 2008.

PUBLIC ENTITIES ARE EXEMPT FROM CERTAIN PROVISIONS OF CALIFORNIA’S LABOR CODE.

An on-going debate regarding whether certain provisions of California’s Labor Code apply to public entities may be a bit closer to resolution. The Labor Code clearly applies to private employers. In some areas, however, it is silent as to its application to public employers. Fortunately, the California Court of Appeal recently shed some light on this issue. In Johnson v. Arvin-Edison Water Storage District, the Court held that California’s Labor Code provisions governing daily overtime, meal periods, and payment of wages upon separation of employment do not apply to water storage districts.

INVESTIGATIONS OF GOVERNMENT EMPLOYEES RULED CONSTITUTIONAL.

Like all employers, public-sector employers (such as government agencies) conduct internal investigations concerning a variety of issues. Some investigations are occasioned by claims of unfair treatment. Others result from possible unlawful activity in the workplace.

CHINDARAH V. PICK UP STIX, INC.: A BONA FIDE VICTORY FOR EMPLOYERS.

California law prohibits employees from waiving or releasing their rights to minimum wages, overtime, and other minimum protections. For example, Labor Code section 1194 prohibits agreements by employees to work for less than minimum wage or without receiving overtime. Section 206.5 prohibits releases of wages concededly due. Section 2804 prohibits an employee from waiving the right to indemnification under Labor Code section 2802 for expenses incurred in the scope of employment. Section 5001 bars the release of an employee’s claim for workers’ compensation benefits unless approved by the Workers’ Compensation Appeals Board.

GOLDEN STATE OF MIND.

Employers based in other states may send their workers to California on sales or service calls, for long-term consulting assignments or for brief meetings. Employers regularly employing workers in California learn - sometimes the hard way - about the many unique employment laws and regulations they must follow, particularly in the "wage and hour" arena. But then there are businesses whose workers enter California only sporadically or for short periods of time. Can it be that an employee who lives and works in Arizona is covered by Arizona law on Monday and California law on Tuesday just because she takes a business trip? Hint: If the answer were "no," this article would be much less interesting.

RECENT DEVELOPMENTS REGARDING INTERNAL EEO COMPLAINT PROCEDURES.

Lawsuits claiming harassment, discrimination or retaliation are expensive to defend. In an effort to resolve equal employment opportunity (EEO) issues before they become legal liabilities, most employers have developed and implemented procedures for dealing with internal EEO complaints. These internal procedures often involve a multi-step process used to evaluate whether the conduct at issue violates the organization’s policy and identify solutions to prevent inappropriate conduct from continuing.

NEW LAWS AND OTHER DEVELOPMENTS FOR CALIFORNIA EMPLOYERS.

Once again, Governor Schwarzenegger vetoed a majority of the workplace-related bills passed by the Legislature. Only a handful of new laws will directly affect employers. We summarize those laws, various bills that may reappear in the next legislative session, and a few additional developments below.

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008.

The California Supreme Court decided several significant employment law cases since our last summary in September 2007. The Court’s opinions address a number of topics, including expense reimbursement, employee privacy, government employee due process rights, leaves of absence, drug testing, and retaliation. The Court also accepted review of several decisions that will affect employment law in the months to come. We summarize below the recently decided and pending cases.

The Differences Between State and Federal Anti-Discrimination Laws.

President Bush recently signed into law the Genetic Information Nondiscrimination Act (“GINA”). The new law, when it takes effect at the end of 2009, makes it unlawful for employers to discriminate against employees based on genetic characteristics. Yet, California’s Fair Employment and Housing Act (“FEHA”) already prohibits discrimination on the basis of genetic information. In fact, the FEHA has traditionally provided broader protections against discrimination than federal law. This creates confusion for employers who do not understand the many distinctions between the federal and state statutes. While this article does not address all of those distinctions, below are some of the key differences.

A Kin Care Conundrum.

Many employers provide some form of paid sick leave to their employees. In fact, employers are required to do so for employees working in San Francisco. Don’t be jealous. The Legislature is considering a bill that would mandate paid sick leave statewide. See Assembly Bill 2716.

Two New California Employment Laws Now In Effect.

January 1, 2008, is the effective date of the Earned Income Tax Credit Information Act (the Act). This legislation evolved from a California Franchise Tax Board study showing that approximately 460,000 California families qualified, but did not file, for the federal earned income tax credit (EITC.) The EITC Act requires employers on an annual basis to notify their employees of their potential eligibility for the EITC.

New Laws for California Employers in 2008.

With the New Year comes new legislation. This year, the Legislature presented Governor Schwarzenegger with a number of workplace-related bills. The Governor chose to veto a significant number of bills that would have significantly impacted employers, and signed a few with which employers will need to comply come January. In addition to the legislation the Governor signed this year, a few laws from past years become effective in 2008. The key laws are summarized below.

Judge Strikes Down Controversial Supermarket Ordinance.

A Los Angeles County Superior Court judge issued a tentative ruling last month, voiding a Los Angeles city ordinance that required supermarkets, occupying more than 15,000 square feet and which changed ownership, to retain existing eligible workers for 90 days after the transfer of ownership.

The Breach of the Duty of Loyalty - What Employers Can Do About It.

A recent report called The Walker Loyalty Report for Loyalty in the Workplace, released in September 2007, noted more than 35% of employees are likely to leave an employer within the first two years of employment. Yet, employers’ investments in training, recruiting, and compensation continue to rise. Turnover is even more damaging when employees take clients, employees and trade secrets with them. Do employers have the legal right to expect their employees’ loyalty? And what can an employer do to protect itself from competitive conduct by employees during employment?

California Supreme Court Issues Two Big Decisions.

The California Supreme Court ended the summer with a bang by announcing two major decisions which could have far-reaching effects. Here is a brief overview of the implications of each case to California employers.

California Supreme Court Employment Law Decisions 2006-2007.

The California Supreme Court decided several significant employment law cases since our last summary in August 2006. The Court’s opinions address a number of topics, from employment at will to class actions. The Court also has accepted review of several decisions that could be blockbusters in the months to come. We summarize below the recently decided cases and those that remain pending.

California Alert - CA Supreme Court Issues Three Key Decisions.

California employers should be aware of three decisions in the last week that will impact the way they do business here.

Employment Lawsuits Against Individuals.

Plaintiffs in employment law cases frequently name individual employees as defendants. Sometimes, they sue co-workers. More frequently, they name supervisors or managers, and even high-level executives up to the CEO.

California Employment Law Protects Employees Unauthorized to Work.

As anyone paying attention to the news is aware, immigration is a politically charged and volatile issue. Employers as a result must sort through a morass of laws and regulations. There are specific laws and procedures applicable to the employment of non-citizens. It is illegal to employ and retain aliens who are unauthorized to work.
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