In this podcast, Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, survey numerous wide-sweeping changes affecting California employers in 2019.
Articles Discussing General Workplace Issues in California.
For decades, American employers have used the legally endorsed policy of rounding employees’ time to the nearest quarter hour. This has always been permissible, provided the policy was neutral in effect, meaning that on balance employees were not underpaid as a result. Back in the days not so long ago when payroll was calculated by scribes in green visors and sharp pencils, rounding made perfect sense, as trying to pay to the minute when someone on a 9:00 am – 5:00 pm shift clocks in a 8:57 am (so as not to violate the punctuality policy) and doesn’t leave their work station until 5:00 (again to not violate policy) and clocks out at 5:05, would have been far more cumbersome. So rounding to the nearest quarter hour was permitted, provided “it all comes out even in the wash” so as not to deprive employees, on balance, of time worked.
The California Supreme Court has upheld the ability of California health care workers who work more than twelve hours a day voluntarily to waive their second meal period, rebuffing plaintiffs’ argument that their voluntary waivers were unenforceable. (Gerard v. Orange Coast Memorial Medical Center (Dec. 10, 2018) Case No. S241655.)
On November 28, 2018, the California Business & Industrial Alliance (an association that represents the interests of small and mid-sized businesses in California and which was formed for the specific purpose of accomplishing the appeal or reform of the Private Attorney General Act (“PAGA”)) filed a lawsuit against Xavier Becerra in his official capacity as the Attorney General for the State of California for injunctive and declaratory relief in the Orange County Superior Court.
Voters in Oakland, California recently approved ballot “Measure Z,” titled the “Oakland Minimum Wage Charter Amendment.” The measure imposes new minimum wages and employment standards for some hotel workers, authorizes the City to administratively enforce its employment standards through investigations and penalties, and will create a Department of Workplace and Employment Standards (DWES) to carry out such enforcement activities.
California Governor Jerry Brown recently signed a slew of employment-related bills into law, many of which will take effect on January 1, 2019. These laws will have an immediate impact on the workplace and will require employers in the Golden State to revamp existing practices and procedures.
It is well-established that restrictive covenants are prohibited by statute in California. Since the decision by the California Supreme Court that partial restraints like customer non-solicitation clauses were void under Business and Professions Code Section 16600, the courts have been strictly interpreting any covenant that impinges on employment opportunities.
A California Court of Appeal concluded that what appeared to be a standard nonsolicitation of employees provision was, in fact, an unenforceable noncompete that prevented its former employees from carrying out their chosen profession. The Court of Appeal in AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. upheld summary judgment in favor of employee defendants and their employer defeating an 11 count complaint that asserted claims of breach of contract, misappropriation of trade secrets, interference with prospective economic advantage, aiding and abetting misappropriation of trade secrets, and unfair business practices after four of AMN’s recruiters were hired by Aya and recruited other of AMN’s employees to work for Aya. In addition, the Court of Appeal upheld an injunction against the former employer from attempting to enforce such agreements in the future and awarded the defendants $190,000 in attorneys’ fees.
Bruce Sarchet and Corinn Jackson, with Littler’s Workplace Policy Institute, chat with Betsy Cammarata of the firm’s Knowledge Management team about major upcoming changes to California laws governing employee release and confidentiality agreements. Bruce and Corinn explore three new laws (AB 3109, SB 820, and SB 1300) that nullify certain common contractual terms. SB 820, for example, generally outlaws provisions in settlement agreements that would prevent the disclosure of facts related to claims of sexual harassment. Bruce and Corinn discuss steps that employers can take now to prepare for compliance with these laws by the January 1, 2019 effective date.
Under the Family Medical Leave Act, eligible employees are entitled to take time off for due to a “qualifying exigency” arising from the deployment of the employee’s spouse, parent, or child for active military duty to a foreign country. Examples of “qualifying exigencies” include attendance at military events, making childcare arrangements arising from a military member’s covered active duty, making or updated financial and legal arrangements to attend a military member’s absence on covered active duty, and accompanying the military member during a rest and recuperation leave during deployment.
Many businesses will temporarily increase staffing levels for the upcoming holiday season, during which an uptick in colds and other illnesses is common. Employers may be concerned that seasonal workers will be absent on multiple occasions during their brief period of employment. Below we briefly highlight some issues for employers to consider when managing seasonal employees and paid sick and safe time (PSST).
The #MeToo movement has sparked new legislation aimed at tackling the problem of sexual harassment, especially in the workplace. California Governor Jerry Brown has signed several of these bills into law, set to take effect on January 1, 2019. Employers should review their policies in preparation for the changes.
On September 27, 2018, California enacted Senate Bill 970 establishing a minimum threshold for human trafficking awareness training and education in the hospitality industry. Under the law, hotels and motels are required to provide 20 minutes of classroom or other interactive training regarding human trafficking awareness to each employee likely to interact or come into contact with victims of human trafficking. Employees required to receive training are those who have recurring interactions with the public, including those working in the reception area, performing housekeeping duties, helping customers move their belongings, and driving customers.
On the last day for Governor Brown to sign or veto bills this legislative session, here is the list of key employment-related bills that have been signed into law, along with a list of bills that were vetoed. All new laws take effect January 1, 2019 unless noted.
In Jones v. Farmers Ins. Exchange (2013) 221 Cal.App.4th 986 (“Jones”), the California Court of Appeal held that “[t]he lack of an adequate class representative … does not justify the denial of the certification motion. Instead, the trial court must allow Plaintiff[ an opportunity to amend [his] complaint to name a suitable class representative. [Citation & fn. omitted.] The court should then grant the certification motion if it approves a class representative.” Id. at 999.