In Lawson v. ZB, N.A. (2018) 18 Cal.App.5th 705, California’s Fourth District Court of Appeal recently ruled that the two elements comprising damages under Labor Code § 558 – (a) underpaid wages and (b) denominated assessments – are indivisible. Because a claim under Labor Code § 558 is indivisible and it is a civil penalty encompassed by the California Private Attorneys General Act (“PAGA”), the entire claim under Labor Code § 558 is not subject to any arbitration agreement between an employee and an employer, even if the employee waived his or her right to bring a class or representative claim against his or her employer.
Articles Discussing General Workplace Issues in California.
Although both medicinal and now recreational consumption of marijuana have been legalized in California, this legalization did not impact an employer’s right to discipline or even terminate employees for marijuana use. That could change for medical marijuana users if a bill pending before the California legislature becomes law.
California’s public and private employers are prohibited from voluntarily consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace or to voluntarily allow the agent access to employee records unless the agent provides a judicial warrant. Labor Code 90.2(a)(1).
The First Appellate District had a second occasion to rule upon class certification issues in the case of Duran v. U.S. Bank (“Duran II”), and again ruled that class treatment was improper because Plaintiffs failed to demonstrate that common issues predominated or that the case would be manageable as a class action, thereby affirming the trial court’s ruling denying class certification. CDF represented U.S. Bank during the entire pendency of this case, including this most recent appeal.
California employers should remember that they must revise their notice to employees regarding the federal Earned Income Tax Notice to include California’s version of it. Effective January 1, 2017, employers must revise their notice to employees regarding the earned income tax credit when issuing W-2 or 1099 forms.
In Kim v. Reins International California, Inc. (B278642, Cal. Ct. App., December 29, 2017), the State of California Court of Appeal for the Second Appellate District addressed for the first time the question of whether an employee-plaintiff, who had settled and dismissed his individual claims under the Labor Code against his employer, was able to maintain a representative action under the Labor Code Private Attorneys General Act (the “PAGA”) on behalf of other “aggrieved employees”. The Court held that because of the settlement and dismissal of his individual claims, the employee-plaintiff was no longer an “aggrieved employee” and therefore did not have standing to represent other “aggrieved employees” under the law.
In addition to fueling the filing of more sexual harassment lawsuits across the country, the recent sexual harassment scandals involving high-powered public figures have led to legislative efforts to prevent settlements of sexual harassment suits from being “confidential,” and to disallow individuals or entities from taking tax deductions for attorneys’ fees and/or settlements related to such claims. This will have the perhaps unintended consequence of hampering settlement of these cases and instead fueling continued costly litigation in courts whose dockets are already overburdened (particularly in California).
As discussed in a prior article, unsuccessful bills proposed in the California legislature in 2017 can carry over into the 2018 session. State lawmakers may revive measures that did not make it through both chambers of the legislature —or reintroduce bills that Governor Brown vetoed.
It’s a new year, and there is a lot of publicity about recreational marijuana now being legal in California. However, many people seem to have the mistaken belief that they cannot be fired or refused a job for smoking marijuana (since it’s legal and all). Wrong. It is important for both employers and employees to understand that the new law does not impact employers’ rights to maintain and enforce drug-free workplace policies and drug testing policies that make a positive test for marijuana a terminable offense (or a bar to hiring).
Several of our clients have operations in California and their HR teams are often tasked with supporting facilities and employees that are based in California. Yet another important California difference is what employers must do, and must not do, when faced with a Federal immigration compliance inspection, and important considerations as to how the company currently maintains its Form I-9 records.
With the turn of the year comes a wave of new California disability and leave laws. Employers should review their existing policies and procedures to determine if they will be compliance with these new laws—many of which will go into effect on January 1:
Bruce Sarchet and Corinn Jackson, both with Littler’s Workplace Policy Institute, review the status of the California Private Attorney Generals Act, which authorizes employees to recover penalties for many Labor Code violations. They discuss how PAGA currently operates, explore open questions concerning the law, and summarize the recent employee-friendly Lopez v. Friant & Associates appellate court decision. Bruce and Corinn also look ahead, addressing possible legislative clarification of PAGA as well as ballot initiatives that might put PAGA amendments to a vote in 2018.
While parts of Northern California are still reeling from damaging wildfires there two months ago, multiple fires are currently threatening Santa Barbara/Ventura, Los Angeles and Northern San Diego Counties. Fueled by high winds, the Southern California blazes are far from being contained. Without a doubt, safety and security are the highest priorities at present as this dangerous situation unfolds.
Effective January 1, 2018, Senate Bill 306 amends Labor Code § 98.7 and adds Labor Code §§ 98.74, 1102.61 and 1102.62 to provide the Division of Labor Standards Enforcement (“DLSE”) with expanded authority to enforce the retaliation provisions of the Labor Code. Specifically:
The grace period is over. Effective January 1, 2018, the City of Santa Monica’s minimum cap on accrued sick leave for eligible employees will increase from 40 to 72 hours for businesses with 26 or more employees. The accrual-cap for businesses with 25 or fewer employees will increase from 32 to 40 hours.