On February 11, 2014, the San Francisco Board of Supervisors passed sweeping amendments to San Francisco Police Code, Article 49, and Administrative Code, Article 12 (“the amendments” or “the ordinances”) that significantly restrict the ability of covered employers to inquire into, and use, criminal records.
Articles Discussing California Wage & Hour Laws.
San Francisco’s Board of Supervisors “Bans The Box” and Further Complicates Criminal History Checks by the City’s Employers
Yet another legislative body, San Francisco’s Board of Supervisors, has “banned the box,” the widely used criminal history check box on employment applications. The ordinance, which will become law no later than Thursday, February 13, 2014 unless the Mayor vetoes it, would make San Francisco the ninth jurisdiction to enact ban-the-box legislation applicable to private employers. In addition to banning the box, the new San Francisco legislation imposes a host of additional new restrictions on the use of criminal history for employment purposes. These restrictions supplement those already imposed by the federal Fair Credit Reporting Act (FCRA) and arguably make San Francisco the toughest jurisdiction in the U.S. for employers to use criminal history.
California Labor Department has Wage Theft in Sights
The California Division of Labor Standards Enforcement (DLSE) is taking aim at employers for wage theft. In the latest example of the Division’s aggressive stance, it claimed Little Lopez Corporation, a janitorial services provider, owed wages to 41 current and former employees and, following an investigation, has issued citations to the company totaling $332,675.
Managers’ Class Action for Unpaid Overtime May Proceed, California Court Rules
Announcing that “class-wide relief remains the preferred method of resolving wage and hour claims, even those in which the facts appear to present difficult issues of proof,” the California Court of Appeal reversed an order denying certification of a class of restaurant managers who claimed they were misclassified as exempt employees and denied overtime pay in violation of California law. Martinez et al. v. Joe’s Crab Shack et al., No. B242807 (Cal. Ct. App. Dec. 4, 2013). The Court found that the trial court incorrectly focused on factual disputes regarding how the managers spent their time, rather than on the employer’s policies the managers alleged resulted in their misclassification. In so doing, the trial court improperly shifted the burden of proving the exemption to the employees, the Court noted.
Wage-Hour Class Action Challenging Employer’s Policy on Pre-Shift Work May Proceed, California Court Rules
As common issues predominated regarding whether the employer had a policy of denying compensation for certain pre-shift work in violation of California’s wage and hour laws, denial of class certification is not appropriate, the California Court of Appeal has ruled, reversing the lower court. Jones et al. v. Farmers Ins. Exchange, No. B237765 (Cal. Ct. App. Nov. 26, 2013). However, the Court also ruled that the named plaintiff was not an adequate class representative and allowed the employees to amend their complaint to name a new class representative.
Employees May Proceed with Fraud Suit for Unpaid Bonus, California Court Rules
Employees who alleged they remained in their jobs after the employer made oral promises of a bonus upon completion of the sale of the company, which bonus was never paid, had adequately pled claims for promissory fraud (concealment), breach of contract and promissory estoppel, the California Court of Appeal has ruled, reversing dismissal of those causes of action. Moncada et al. v. West Coast Quartz Corp. et al., No. H036728 (Cal. Ct. App. Nov. 22, 2013). However, the Court affirmed the dismissal of the employees’ claims for intentional infliction of emotional distress, negligent misrepresentation, and equitable estoppel.
Nurses Must Go It Alone: Federal Court Denies Class Certification on California Meal & Rest Break Claims
Despite the effort of the California Supreme Court to set forth definitive guidelines on meal and rest period obligations in last year’s seminal Brinker Restaurant decision, employees continue to bring numerous class actions alleging their employers have a common policy or practice of unlawfully denying meal and rest breaks. By suing on behalf of a class, plaintiffs’ counsel seek to increase the potential damages in a lawsuit and thus exert more pressure on employers to settle rather than risk an adverse judgment.
California Meal and Rest Break Class Actions Regain Momentum After Brinker
Brinker Restaurant Corp. v. Superior Court made it clear that California employers do not have to police meal and rest periods, so it would seem they have a safe harbor so long as employees have the freedom to take meal and rest breaks, right? Not only that, Brinker cited (albeit in a footnote) the same commentator (Professor Richard Nagareda) as the U.S. Supreme Court did in Wal-Mart Stores, Inc. v. Dukes for the proposition that “what really matters to class certification is not similarity at some unspecified level of generality but, rather, dissimilarity that has the capacity to undercut the prospects for joint resolution of class members’ claims through a unified proceeding.” Given the convergence of Brinker and Dukes on the basic elements required for class certification, wouldn’t it be reasonable for California courts to follow the Supreme Court’s opinion in Comcast Corp. v. Behrend denying class certification where individual damages issues would overwhelm issues common to the class?
Nannies Join Employees Required to Receive Overtime Under California’s Domestic Worker Bill Of Rights
Effective January 1, 2014, California will become the third state after New York and Hawaii to require overtime compensation for all nannies and other domestic work employees.
San Francisco Adopts Ordinance That Prohibits Caregiver Discrimination and Provides Flexible Work Arrangements for Caregivers
San Francisco recently adopted the “Family Friendly Workplace Ordinance,” which prohibits caregiver discrimination and gives employees a right to request “flexible” or “predictable working arrangements” to assist employees with caregiving responsibilities for children, family members with serious health conditions, or parents 65 years or older.1 The ordinance goes into effect on January 1, 2014, and applies to all employees in the City and County of San Francisco who work for employers with 20 or more employees in the city.2 The ordinance applies to employees who have worked for a covered employer for at least six months and regularly work at least eight hours per week. The ordinance is based on federal legislation rejected three times by Congress, and a similar statute adopted by Vermont.
San Francisco Enacts Flexible Work Arrangement Ordinance
San Francisco Mayor Edwin M. Lee (D) has signed an Ordinance allowing employees working in the City to request flexible work arrangements to care for a child, family member with a serious health condition, or parent over age 65 without retaliation. Employers must consider employees’ requests and must provide business reasons for denying them. San Francisco joins the State of Vermont, which enacted similar legislation in May 2013, in adding another dimension to employee leave management. The Ordinance becomes operative January 1, 2014.
Domestic Workers to Receive Overtime Pay under California Law
Effective January 1, 2014, private individuals employing domestic workers in California, such as childcare providers and caregivers, must pay such employees overtime at a rate of time-and-a-half for all hours worked in excess of nine in one day or more than 45 hours in one week. The new law will expired on January 1, 2017, unless it is extended.
BRINKER REDUX: California Superior Court Certifies Meal Break Class and Denies Decertification of Rest Period Class
After the tortuous appellate process that finally resulted in the seminal California Supreme Court Brinker Restaurant Corporation1 decision defining the legal duty to provide a meal period and authorize rest breaks, you might have thought the battle was over, at least for Brinker Restaurants. You would be wrong. That was just Round One. In Round Two, last week San Diego County Superior Court judge William Dato addressed the question the California Supreme Court did not decide during the multi-year appellate process: whether a class should be certified to litigate whether meal periods were “provided” to thousands of employees of restaurants owned and operated by Brinker throughout California. While the California Supreme Court decision was widely viewed as a victory for employers on the meal break requirement under California law, last week’s decision gave the green light to employees to continue this now nine-year fight as a class action to seek premium pay, penalties and possibly injunctive relief from their employer for failure to provide meal and rest breaks.
Raising the Floor: California Increases its Minimum Wage
For the first time since 2006, California’s Legislature passed legislation increasing the state’s current minimum wage of $8 per hour. Governor Brown signed the bill on September 25, 2013.
California Passes Increase to State Minimum Wage; What Else is Affected?
California Governor Jerry Brown on September 25, 2013, signed into law a bill that increases the state’s hourly minimum wage rate from $8.00 an hour up to $10.00 an hour by January 1, 2016. The new law (AB 10) amends Section 1182.12 of the California Labor Code and does not automatically increase the wage rate annually based on inflation. The rate increase will take effect in two stages: a $1.00 increase on July 1, 2014, to $9.00 an hour, and another $1.00 increase on January 1, 2016, to $10.00 an hour. The last time California increased its minimum wage was on January 1, 2007.