An amendment to Section 1122 of the California Evidence Code on mediation confidentiality requires attorneys representing clients in connection with mediation to provide written disclosures to their clients about mediation confidentiality beginning January 1, 2019.
Articles Discussing General Workplace Issues in California.
September 1, 2018 marked the last day for the California legislature to pass bills and forward them to Governor Jerry Brown (D) for his consideration. Governor Brown has until September 30 to sign, veto, or otherwise decline to act upon these bills. The bills that become law will take effect on January 1, 2019, unless otherwise specified in the text of the measure. As always, the long list of bills crossing the governor’s desk includes numerous labor and employment items that could impact the operations of private employers in the Golden State.
Bruce Sarchet and Corinn Jackson of Littler’s Workplace Policy Institute discuss recently-adopted amendments to the California salary history ban. Although the ban took effect this past January, the original statute left open numerous important questions. Bruce and Corinn review the new definitions included in the amendments, which clarify when employers must provide pay scale information to applicants and when the wage history of internal candidates may be considered. They also address how these amendments, effective January 1, 2019, fit in with the Golden State’s existing equal pay laws.
On August 13, 2018, the California Fourth District of Appeal held in Monster Energy Company v. Schechter that an attorney who signed his client’s settlement agreement under the phrase “approved as to form and content” was entitled to the granting of an anti-SLAPP motion in a case against him for breaching the confidentiality provision of the settlement, finding that he was not a party to that agreement.
In its continuing, apparent quest to undermine federal law, the California legislature is moving to make it unlawful for employers to require applicants or employees to agree to resolve employment-related disputes by way of arbitration. AB 3080 would add provisions to the California Fair Employment and Housing Act (FEHA) and to the California Labor Code making it unlawful for an employer to require an applicant, employee, or independent contractor to agree to waive any forum (i.e. court) for the resolution of a dispute arising under FEHA (discrimination, harassment, and retaliation) or the Labor Code (wages/wage statements/meal and rest breaks/working conditions). The bill further specifies that an arbitration agreement is unlawful even if applicants or employees are permitted to opt out of the agreement. In other words, even where an employee is permitted to opt out of the arbitration agreement, the agreement still will be deemed to have been forced on the employee as a condition of employment, and therefore, will be considered unlawful.
On July 1, 2018, the newly implemented Hotel Housekeeping Musculoskeletal Injury Prevention Program (MIPP) regulation took effect.1 This program requires all California hotel/motel employers to institute and maintain written policies and training practices regarding housekeeping-related workplace hazards. The new Cal-OSHA regulation, which is intended to prevent and reduce work-related injuries to housekeepers in the hospitality industry, specifically requires that the MIPP be part of the employers Injury Illness and Prevention Program (IIPP) and that it be in writing, readily accessible to employees during their shift, and include the following components
On January 1, 2018, California’s salary history ban (A.B. 168) took effect. Under A.B. 168, California employers are prohibited from “seek[ing] salary history information” from an applicant.1 The statute also prohibits employers from relying on an applicant’s prior salary history “as a factor in determining whether to offer employment . . . or what salary to offer an applicant.”2 In short, employers cannot ask applicants what they made at their last job, and, if the information is involuntarily disclosed, cannot rely on this information—in any way—in determining the terms of an employment offer. On July 18, 2018, Governor Jerry Brown signed AB 2282, the Fair Pay Act Bill, which takes effect on January 1, 2019, and clarifies the application of California’s Equal Pay Act.
Today, the California Supreme Court issued its opinion in Troester v. Starbucks, refusing to hold that the well-established de minimis doctrine applies under California law. The de minimis doctrine is a principle of law that has long been endorsed and applied by both federal and California state courts (as well as California’s Division of Labor Standards Enforcement), holding that employers need not compensate employees for insignificant amounts of time spent performing work-related tasks off the clock where such time is administratively difficult to track. Today, the state’s high court held that, although the doctrine is widely accepted under the federal FLSA, California wage orders are more protective of employees and require payment for “all hours worked.” The Court held that the de minimis doctrine cannot be used to allow an employer to avoid paying for tasks that take, on average, 4-10 minutes at the end of an employee’s shift. However, the Court stated that is was not prepared to hold that the doctrine could never be applied under California law on potentially different facts involving smaller amounts of time spent off the clock and/or only sporadically.
Introduction: Last February, we provided an overview of California’s Immigrant Worker Protection Act, AB 450. The law, which took effect on January 1, 2018, was a response to anticipated increases in federal immigration enforcement efforts under the Trump administration and was aimed at providing workers some protections from federal immigration enforcement actions in the workplace. AB 450 regulates three things: (1) the level of workplace access employers are permitted to give immigration enforcement officials, (2) notice to employees about immigration enforcement efforts, and (3) reverification of an employee’s employment eligibility.
On July 4, 2018, the U.S. Department of Justice obtained a partial victory in its challenge of California’s Immigrant Worker Protection Act (“Assembly Bill 450” or “AB 450”) and other sanctuary laws when a California federal court held that certain provisions of AB 450 violated the Supremacy Clause of the Constitution.
A key issue for any business facing class action litigation in response to a data breach is whether the plaintiffs, particularly consumers, will have standing to sue. Standing to sue in a data breach class action suit, largely turns on whether plaintiffs establish that they have suffered an “injury-in-fact” resulting from the data breach. Plaintiffs in data breach class actions are often not able to demonstrate that they have suffered financial or other actual damages resulting from a breach of their personal information. Instead, plaintiffs will allege that a heightened “risk of future harm” such as identity theft or fraudulent charges is enough to establish an “injury-in-fact”.
By Philip L. Gordon and Andrew Gray on July 9, 2018
With the May 25, 2018 effective date of the European Union’s General Data Protection Regulation (GDPR) barely in the rear-view mirror, California’s Governor Jerry Brown, on June 28, 2018, signed into law the “California Consumer Privacy Act of 2018”1 (CCPA or “the Act”). The law flashed onto the scene after a concerned and wealthy California citizen funded, and obtained the approval of, a ballot initiative for a similar law to be placed on the November 2018 electoral ballot. The initiative’s backer used that approval as leverage in the waning days of June to force the California government to enact an alternative law in exchange for his withdrawal of the initiative from the November 2018 ballot before the June 30 publication deadline. The CCPA is aimed at granting individuals more control over their personal information and more insight into how businesses use and disclose their personal data.
Executive Summary: California has become the first state to introduce privacy protection for individuals’ personal data comparable to that provided under the European Union’s General Data Protection Regulation (GDPR). The California Consumer Privacy Act of 2018 (“CCPA” or “the Act”), which takes effect January 1, 2020, is a sweeping digital privacy law that creates new protections and rights for consumers’ personal data. The CCPA will grant California consumers the following rights: (1) to know what personal information is being collected about them; (2) to know whether their personal information is sold or disclosed and to whom; (3) to say no to the sale of personal information; (4) to access their personal information; and (5) to equal service and price, even if they exercise their privacy rights (e.g., businesses may presumably offer tiered pricing for goods and services, such as offering higher prices for increased privacy); and in addition, to hold companies liable for data breaches.
On July 4, 2018, Federal District Judge John A. Mendez granted a preliminarily injunction enjoining the State of California, Governor Brown, and Attorney General Becerra from enforcing parts of AB 450, the controversial new law that limited employer conduct when dealing with federal immigration enforcement. Specifically, the Judge stopped the enforcement of the California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2(a)&(b) as applied to private employers. The Judge upheld two other sanctuary state laws and part of AB 450. The Judge stated in his decision:
The California Fair Employment and Housing Council published new regulations on May 17th relating to national origin discrimination. The regulations will take effect in just a few weeks, on July 1, 2018, and will be codified in the California Code of Regulations sections 11027 and 11028.