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.
EEOC Adopts New Position Statement Procedures
For many years, the primary way that a charging party could obtain a copy of an employer’s EEOC’s position statement was through a Freedom of Information Act request following the resolution of the charge and closure of the case. As of January 2016, the Equal Employment Opportunity Commission (“EEOC”) implemented nationwide procedures that allow its offices to release employer position statements and non-confidential information to employees and their representatives during an ongoing investigation.
New Harassment/Discrimination Prevention Policy Requirements Take Effect April 1
California’s Fair Employment and Housing Council ("FEHC") has adopted new regulations under the Fair Employment and Housing Act ("FEHA") that take effect April 1. For the most part, the new regulations reflect recent changes in the law (e.g. making clear that FEHA protects interns and volunteers and persons providing services pursuant to a contract). However, the new regulations contain an important new substantive requirement that employers adopt a written discrimination, harassment, and retaliation prevention policy that meets specified requirements. According to the FEHC, this new policy requirement is in furtherance of employers’ obligation to prevent (and not just correct) discrimination, harassment, and retaliation in the workplace, and is in addition to employers’ existing obligation to provide its workforce with a copy of the DFEH brochure on sexual harassment (DFEH-185) and/or an alternative anti-harassment policy that complies with Government Code section 12950.
USCIS Launches the Pilot of the Known Employer Program
Modeled after its Known Crewmember program for flight crews and other airline personnel that regularly pass through TSA screening checkpoints, USCIS announced the launch the pilot of the Known Employer Program. If fully implemented, the Known Employer Program would represent a shift in the way immigration law is practiced. It would streamline the adjudication of employment based immigration benefit petitions and applications. It would reduce and remove repetitive and unnecessary paperwork the current system demands employers produce.
Criticizing Your Boss’s Salary May Not Cost You Your Job Under New California And Federal Laws
Writing an open letter to the CEO of your company about your pay may go viral on the internet and draw a firestorm of commentary, but California’s new Equal Pay Act and a recent decision from one federal Court of Appeal may limit what an employer can do in response to such criticism and commentary.
California Issues Proposed Regulations Concerning Criminal History Inquiries
California’s Fair Employment and Housing Council has issued proposed regulations concerning the use of criminal history information in employment decisions. The proposed regulations set forth pre-existing statutory prohibitions on using or inquiring about the following types of criminal history about an employee or applicant, when making employment decisions such as hiring, promotion, training, discipline, and termination:
PERM: Where Details Matter
In 2010, Abundant Life Evangelical Community filed a PERM labor certification application with the US Department of Labor on behalf of an individual to work as an administrative assistant. PERM is the process most employers use to seek permanent residency or a green card for an employee. PERM involves testing the labor market or seeking qualified US citizen or other employment authorized workers. If no qualified workers are found, the employer files the PERM application with the DOL requesting certification.
California Employers Beware: Many California Cities Have Enacted Minimum Wage Ordinances
California’s minimum wage increased to $10 per hour effective January 1, 2016. This is the second increase in just 18 months under legislation originally signed by Governor Jerry Brown in 2013. Unfortunately, this latest increase to the statewide minimum wage is not the only one facing California employers. More than a dozen cities across California have already enacted their own minimum wage ordinances requiring employers to pay workers at rates as high as $15.37 per hour – and several other cities are looking to follow suit. It is a hodgepodge environment in our state, when it comes to minimum wage regulation.
DOL Issues Administrative Interpretation Broadening Test for Joint Employment
Earlier this week, the federal Department of Labor issued a new administrator’s interpretation (No. 2016-1) providing “additional guidance” for determining when an employee is considered “jointly employed” by two or more employers for purposes of the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Workers Protection Act (MSPA).
Unaccepted Offers of Complete Relief to Named Plaintiff Do Not Moot Class/Collective Claims
Yesterday, the United States Supreme Court issued its opinion in Campbell-Ewald Co. v. Gomez, resolving a split among the federal Circuit Courts of Appeal on the issue of whether an unaccepted Rule 68 offer of judgment to the representative plaintiff in a class or collective action operates to moot the class/collective claims.
Revised EEO-1 Report Would Require Employers To Submit Employee W-2 Earnings And Hours Worked
On Friday, the EEOC made a startling announcement regarding proposed revisions to the scope of information requested by the annual EEO-1 report. To further the pay equality goals of the Lilly Ledbetter Fair Pay Act, the EEOC wants to add aggregate data on pay ranges — including employees’ W-2s and hours worked — to the information already collected through the EEO-1 report, beginning with the September 2017 report. Currently, the EEO-1 report requires employers with 100 or more employees to submit certain company data categorized by race/ethnicity, gender, and job category.
EEOC Seeking Comments on New Enforcement Guidance Concerning Retaliation in the Workplace
Late last month, on January 21, the EEOC published its draft EEOC Enforcement Guidance on Retaliation for public comment. The comment period ends on February 24, 2016. These Guidelines would replace the current Enforcement Guidelines, which have been in place since 1998.
Supreme Court Rebukes Another California Anti-Arbitration Ruling
Today the U.S. Supreme Court issued its opinion in DirectTV v. Imburgia, reversing a California Court of Appeal’s refusal to enforce a consumer arbitration agreement containing a class action waiver. The case involves a service agreement between DirectTV and its consumers, stating that any dispute between DirectTV and the consumer will be resolved by binding, individual arbitration and that the consumer waives the right to pursue any claim on a class basis. However, the agreement further provided that if the class waiver is unenforceable under “the law of your state” (the state where the consumer resides), then the entire arbitration provision will be deemed unenforceable.
Pair of Decisions On FLSA Retaliation and Work Comp Retaliation
Two new employment decisions were issued today, one by a California Court of Appeal and the other by the Ninth Circuit. In Prue v. Brady Company, the California court held that a plaintiff who suffered a work-related injury and subsequently was fired stated a valid legal claim against the employer for wrongful termination in violation of public policy. The employer argued that the plaintiff’s claim was invalid because it effectively was a Labor Code section 132a retaliation claim that could only be brought before the Workers’ Compensation Appeals Board, not in court. The court disagreed, reasoning that the plaintiff adequately alleged that he was wrongfully terminated for having a disability, in violation of the public policy of the Fair Employment and Housing Act, and therefore the claim was not barred by the doctrine of workers’ compensation exclusivity. The employer argued that even if the claim was based on the public policy of FEHA, the claim would be barred by the one-year statute of limitations applicable to FEHA claims. The court rejected this argument as well, ruling that a wrongful termination in violation of public policy claim is governed by a two-year statute of limitations and not by the statute of limitations applicable to FEHA claims. This decision is not particularly novel, but is a good reminder for employers that employees who believe they have been fired for reasons relating to a work comp injury can sue their employer in court and seek punitive damages (under a disability discrimination theory) and are not limited to the remedies set forth in Labor Code 132a.
Wellness Program Amendments to GINA Proposed by EEOC
The concept of wellness programs is relatively simple. Employers provide incentives to promote health or disease prevention amongst their employees. However, a variety of laws exist in order to strike a balance between incentivizing health and protecting an individual’s confidential medical information.