A Moving Target: The California DLSE Modifies Again Its FAQs on California's New Wage Notice Required for Hourly Employees
On January 23, 2012, the California Division of Labor Standards Enforcement (DLSE) announced on its website1 modifications to the answers to two of its Frequently Asked Questions (FAQs), and added 10 new FAQs and answers concerning the wage notice required by the California Wage Theft Prevention Act (WTPA) in Labor Code section 2810.5.2
Is Rounding of Employee Time Entries Legal in California?--California Supreme Court Orders Appellate Court to Decide
In a matter of significance for California employers, in See’s Candy Shops, Inc. v. Superior Court of San Diego, the California Supreme Court recently ordered the California Court of Appeal, Fourth Appellate District, to review a trial court decision holding that rounding employee time entries violated California law.
California Court of Appeal Finds Employees Are Exempt Under California's Commissioned Sales Exemption
On January 24, 2012, the California Court of Appeal, Fourth Appellate District, issued an important decision providing new and needed guidance on the commissioned sales exemption. In Muldrow v. Surrex Solutions Corporation, the court concluded that a class of “senior consulting service managers” was exempt from overtime pay requirements.
Class-Action Antitrust Complaint Alleging an Unlawful Employer "No-Poaching" Conspiracy Appears to Have Survived a Motion to Dismiss
Executive Summary: At a hearing yesterday in San Jose, California, a federal district court judge indicated from the bench that antitrust claims alleging an "over-arching conspiracy" to fix and suppress employee compensation through interconnected employer "no-poaching" agreements would survive a motion to dismiss for failure to state a claim.
Court Rejects FEHA Claim Brought by Employee Fired for Allegedly Filing False Harassment Complaint
Earlier this week, a state appellate court held that an employee failed to introduce substantial evidence under the Fair Employment and Housing Act (FEHA) that his employer’s decision to terminate his employment was motivated by retaliatory animus. According to the California Court of Appeal, the employee, who was fired for allegedly making false statements related to his sexual harassment complaint against his supervisor, could not show that his employer’s stated reason for firing him was pretextual. Joaquin v. City of Los Angeles, No. B226685, California Court of Appeal (January 23, 2012).
State High Court Orders Review of Case to Clarify Legality of Rounding Timecard Entries - California Chamber of Commerce
The California Supreme Court directed the Fourth District Court of Appeal to review a case involving whether "rounding" time clock entries is lawful under California law. Federal law permits rounding, and the California Division of Labor Standards Enforcement has permitted as a matter of policy, so long as the "rounding" evens out or favors the employee. A trial court recently ruled that a class action involving rounding could proceed against an employer, See's Candies. See's sought a writ in the Court of Appeal, which summarily denied the Petition. The Supreme Court, however, unanimously voted to Order the Court of Appeal to hear See's petition on the merits
Arbitration Agreement in Employment Application Unconscionable, Unenforceable, California Court Rules
A provision in an employment application requiring the applicant, but not the employer, to submit all disputes to arbitration was both procedurally and substantively unconscionable, and therefore unenforceable, the California Court of Appeal, Third Appellate District, has ruled. Wisdom v. AccentCare, Inc., No. C065744 (Cal. Ct. App. Jan. 3, 2012). The agreement was procedurally unconscionable, the Court said, because the trial court found the plaintiff-applicants had no opportunity to negotiate its terms, the applicable arbitration rules were not provided, and the employer did not explain the agreement’s meaning. The agreement also was substantively unconscionable because, unlike the applicant, the employer was not bound to submit claims to arbitration. Consequently, the appellate court affirmed the order denying arbitration.
CALIFORNIA STATE EMPLOYMENT CREDIT CHECK LAW TAKES EFFECT
California employers may wish to obtain employees' and applicants' credit information as part of their hiring processes and for other employment-related reasons. Assembly Bill 22, which took effect on January 1, 2012, significantly restricts employers' ability to procure credit reports. The new law specifically applies to credit checks and does not address criminal record and other background checks.
EMPLOYEE REPRESENTATIVE ACTIONS: A "CLASS" OF THEIR OWN
The United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion allows parties to avoid arbitrating class action claims. The Court overturned an earlier California Supreme Court decision, in which the state court held class action waivers in arbitration agreements were unenforceable. The U.S. Supreme Court based its decision on the Federal Arbitration Act's ("FAA") mandate that parties be given the freedom to choose the scope of agreements to arbitrate.
NEW EMPLOYEE NOTICE REQUIREMENTS NOW IN EFFECT
Labor Code § 2810.5, which was added to the Labor Code as part of the "Wage Theft Prevention Act of 2011" ("WTPA") became effective on January 1, 2012. It imposes a new requirement on employers to provide certain information in writing to all new hires, as set forth below.
