On October 6, 2015 Governor Jerry Brown signed Senate Bill 358 (“SB 358”), a law that substantially eases California employees’ burden in proving gender-based pay claims. This law also increases the number of years that employers must retain employee records, and creates additional protections for employees who wish to discuss or disclose their wages.
Articles about California Labor And Employment Law.
Legislative Update: Fair Pay Act, Right to Cure Wage Statement Defects, Paid Sick Leave, and More
As California’s current legislative process heads into its final days, we have a few updates on employment-related matters relating to paid sick leave, wage statement violations, meal period waivers in the health care industry, and the Fair Pay Act.
Top 10 Mistakes to Avoid During the Reasonable Accommodation Process
The Americans with Disabilities Act (ADA) and California Fair Employment and Housing Act (FEHA) both require employers to make reasonable accommodations for qualified individuals with disabilities, provided that the accommodations do not impose an “undue hardship” on the employer.
California Amends Representative PAGA Law, Allows Curing of Certain Wage Statement Violations
An amendment to California’s Labor Code Private Attorneys General Act of 2004 (“PAGA”) affords an employer the right to cure certain wage statement violations before an employee may bring a civil suit against the employer.
California Passes Law Aimed to Bridge the Gender Wage Inequality Gap
On October 6, 2015, California’s Governor Edmund G. Brown, Jr. signed into law Senate Bill (SB) 358, legislation intended to increase wage transparency and which will make it more difficult for an employer to defend against an equal pay claim. This measure, which amends Section 1197.5 of the California Labor Code relating to private employment, will take effect on January 1, 2016. When it takes effect, California’s law on this subject will be one of the strongest equal pay laws in the nation.
Private Attorneys General Act (PAGA) Amended to Address Some Excesses
On October 2, 2015, Governor Brown signed urgency legislation (Assembly Bill [AB] 1506) that immediately amends California’s Labor Code Private Attorneys General Act of 2004 (PAGA)1 to address increasing civil litigation alleging technical violations of itemized wage statements (pay stubs) issued to employees.
Ninth Circuit Upholds California Rule on Unenforceability of PAGA Representative Action Waivers
The Ninth Circuit issued a surprising decision (disagreeing with the view of many California district courts), holding that the California Supreme Court’s Iskanian v CLS Transportation decision is not preempted by the Federal Arbitration Act (FAA). In Iskanian, the California Supreme Court held that while class action waiver provisions in arbitration agreements are enforceable, a PAGA representative action waiver is not enforceable because employees have an unwaivable statutory right to bring a representative PAGA claim against their employers. The California Supreme Court reasoned that a PAGA plaintiff essentially stands in the shoes of the state in bringing the claim and acts in large part to collect penalties on behalf of the state. In this way, the intent of the statute would be frustrated if employees could be required to waive the right to pursue a representative PAGA action. The Court further held that the FAA does not require that California enforce a PAGA waiver in an arbitration agreement.
California Ban on Waiver of Representative PAGA Claims Not Barred by Federal Arbitration Act, Federal Court Holds
Declining to enforce a representative action waiver contained in an arbitration agreement, the Ninth Circuit Court of Appeals, in San Francisco, has held that the Federal Arbitration Act (“FAA”) does not preempt California’s “Iskanian rule,” which prohibits waiver of representative claims under the state Private Attorneys General Act of 2004 (“PAGA”), Cal. Lab. Code § 2698 et seq. Sakkab v. Luxottica Retail North America, Inc., No. 13-55184 (9th Cir. Sept. 28, 2015).
All Over But the Penning: the California Legislature Completes its Work for 2015
The California Legislature adjourned its 2015 regular session early last Saturday morning. It is now up to Governor Brown to sign or veto the last of the Legislature’s 2015 work product. He has until Sunday, October 11, to do so.
State Appellate Court Considers Employer’s Duty to Conduct Criminal Background Checks
In the last few years, there has been a significant spike in the number of lawsuits challenging employer use of criminal background checks, including class action lawsuits brought under the federal Fair Credit Reporting Act.1 There also has been a sharp increase in the number of state and local laws that restrict when employers can ask job applicants to self-disclose their criminal history (so-called “ban the box” laws). Of course, employers also must be mindful of the types of conviction and arrest records that are considered “off limits” at the state and local level.
DLSE Issues First Bit of Guidance on New Paid Sick Leave Law
As California employers are aware, the Healthy Workplaces, Healthy Families Act of 2014 (Labor Code section 245, et seq.) went into effect this year. Under the Act, employers may choose between granting sick leave under an “up-front” method or an accrual method. Employers are permitted to offer more sick leave than the Act requires, but must meet certain minimum leave requirements. As employers prepared for July 1, 2015, the date on which employees became eligible to use and accrue sick leave under the new law, many were struck by how little guidance the new law provided for the realities of the workplace.
California Court Holds Arbitrator Decides Class Arbitrability Where Agreement Specifies AAA Rules
An employment arbitration agreement that incorporated the American Arbitration Association’s National Rules for the Resolution of Employment Disputes vested the arbitrator with the power to decide whether the agreement authorized class-wide relief, the California Court of Appeal has ruled. Universal Protection Service LP v. Superior Court, No. C078557 (Cal. Ct. App. Aug. 18, 2015). The Court denied an employer’s petition to set aside the trial court’s order compelling class arbitration and ordered that the arbitrator should determine the class issue.
Constitutional Challenge to California’s Background Check Law Rejected
If a background check includes information about a job applicant’s character, California’s background check law applies, the California Court of Appeal has held, rejecting an employer’s challenge to the California Investigative Consumer Reporting Agencies Act (Cal. Civ. Code § 1786 et seq.) (“ICRAA”). Connor v. First Student, Inc., No. B256075 (Cal. Ct. App. Aug. 12, 2015).
Recent Opinion Letter Raises Questions Regarding California’s Paid Leave Law
Executive Summary: California employers are now facing another hurdle in their efforts to comply with state’s paid leave law, the Healthy Workplaces, Healthy Families Act of 2014, in light of a recent opinion letter from the state agency that enforces the law.
Former In-House Attorney Cannot Duck Trade Secrets Allegations with Anti-SLAPP Motion
On July 17, 2015, a California appellate court affirmed the denial of an intellectual property attorney’s anti-SLAPP motion against his former employer. Terrence Wyles, the defendant and former in-house counsel for medical products company West Hills Research and Development, Inc. (“West Hills”), sought to dismiss his former employer’s trade secrets misappropriation case by asserting that its lawsuit interfered with his efforts to file a complaint against its senior officers for embezzlement. The defendant alleged that he retained copies of confidential company documents following the termination of his employment as evidence to support a shareholder derivative lawsuit he planned to file alleging that the company was engaging in financial misconduct. The Court of Appeals affirmed the denial of the defendant’s motion, finding that the alleged financial misconduct had nothing to do with the misappropriation of trade secrets underlying the company’s complaint.