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.
Articles Discussing General Workplace Issues in California.
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.
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.
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.
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.
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
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.
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 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.
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.
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.
The California Legislature will return from its July recess on August 1, and will devote that month to final consideration of legislation for 2016.
On July 7, 2016, Assembly Bill No. 1684 (“AB1684”), introduced in support California’s anti- human trafficking laws, passed both the Senate and the House of Representatives and was ordered enrolled.
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.
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: