EMPLOYMENT AND LABOR LAW: LEGAL UPDATE FOR CALIFORNIA EMPLOYERS
Topics for this Month include:
– New Employment Legislation Introduced in California
– Status of OSHA Reporting Regulations & Repeal of Blacklisting Executive Order
– Possible Expansion of FMLA
– Update on Law on Employment Arbitration/Class Action Waiver Agreements
– Protection of Internal Whistleblowing
– Second Meal Period Waivers for Healthcare Workers Clarified
California Bills to Watch
More employment-related legislation was introduced during the first quarter of 2017. Here are some of the bills now pending in California for employers to keep an eye on:
- SB 63: Expands the CFRA to employers with 20 or more employees within a 75- mile radius.
- SB 524: Gives employers a “good faith defense” for relying on written advice received from or published by the Labor Commissioner.
- AB 5 (Opportunity to Work Act): Requires employers with 10 or more employees to offer additional hours of work to an existing non-exempt employee before hiring another employee, unless it would require the employer to pay overtime.
- AB 168: Prohibits employers from inquiring about salary history during the hiring process. Similar legislation failed last year.
- AB 353/AB 1477: Allows employers to preferentially hire veterans. Similar legislation has failed multiple times, but we are trying again!
- AB 569: Prohibits discrimination against an employee due to the employee’s use of various medical options for reproductive health.
- AB 1008: Extends “ban the box” statewide, prohibiting employers from asking about applicants’ criminal convictions until after a conditional offer of employment.
- AB 1173: Establishes an overtime exemption for employee-selected holiday season flexible work schedules, allowing employees to work up to 10 hours without overtime pay within a 40-hour workweek.
- AB 1174: Makes California a “right to work” state, meaning employees cannot be required to financially contribute to a union in order to work.
- AB 1565: Raises the minimum salary to qualify as an exempt employee to $47,472 or twice the state’s minimum wage rate, whichever is higher. This bill is an attempt to implement the DOL’s overtime regulations that were put on hiatus.
OSHA Recordkeeping Rules May Be Rolled Back
On March 22, 2017, the Senate passed a resolution to repeal an Obama-era regulation to fine employers for failing to keep proper workplace injury and illness records up to five years after receiving an OSHA citation. If President Trump signs the resolution, then OSHA inspectors will only be able to fine companies for reporting violations within six months of receiving an OSHA citation.
Obama’s Fair Play and Safe Workplace Executive Order Has Been Repealed
On March 27, 2017, President Trump signed a Congressional Review Act resolution disapproving the regulations issued in 2016 by the Department of Labor and the Federal Acquisition Regulatory Council (FAR Council) implementing President Obama’s “Fair Pay and Safe Workplaces” Executive Order 13673, also known as the “blacklisting” rule. The Executive Order required federal contractors to disclose labor law violations when bidding on federal contracts and to include certain information on employee paychecks.
FMLA Could be Expanded to Include Parental Bereavement
A bill has been introduced in the U.S. House of Representatives to add the death of a child as a qualifying event triggering an employee’s ability to take up to 12 weeks of protected FMLA leave.
SIGNIFICANT CASE LAW
Because Class Action Waiver Rules Were Not Confusing Enough . . .
The U.S. Supreme Court has agreed to review several federal circuit decisions on whether class action waivers in employment arbitration agreements are enforceable or violates the right to protected concerted activity under the National Labor Relations Act. Here in California, we have the added complexity of private attorney general claims under the Labor Code Private Attorneys General Act (“PAGA”). In 2014, the California Supreme Court held that PAGA waivers in employment arbitration agreements are unlawful in Iskanian v. CLS Transportation Los Angeles, LLC. But, can an individual employee be compelled to arbitrate PAGA claims in a representative capacity? The Ninth Circuit said yes in the unpublished opinion Valdez v. Terminix Int’l Ltd. Co. Partnership. The Court distinguished Iskanian, which held that PAGA claims cannot be waived entirely in an arbitration agreement, but an individual’s contractual agreement to arbitrate can bind the State of California to arbitrate PAGA claims. Four days later, the Fourth Appellate District of California held in Betancourt v. Prudential Overall Supply that PAGA claims cannot be compelled to arbitration because the State of California cannot be bound to an individual’s arbitration agreement.
On top of this, yesterday, the California Supreme Court held that consumer arbitration agreements cannot prohibit plaintiffs from seeking injunctive relief on behalf of the public under statutes such as the Consumer Legal Remedies Act and the Unfair Competition Law. McGill v. Citibank, N.A. The Court held that an arbitration agreement that prohibits the ability to seek a public injunction in any forum is unenforceable. Will this extend to injunctions related to employment issues? Time (perhaps) will tell.
Internal Whistleblowing is Protected
In Somers v. Digital Realty Trust, Inc., the Ninth Circuit held that employees who complain internally of alleged unlawful activity under the Sarbanes-Oxley Act are protected whistleblowers. The anti-retaliation provisions are not narrowly tailored to protect only those who complain to the Securities Exchange Commission, but also to protect those who complain internally to one’s employer.
Healthcare Workers Can Waive Second Meal Period
In Gerard v. Orange Coast Memorial Medical Ctr., the Fourth Appellate District of California reversed its original ruling, finding that healthcare workers can waive their second meal period even if they work more than 12 hours, as long as the workers did not waive their first meal period. This ruling is derived from Section 11(D) of Wage Order 5, which is unique to the healthcare industry in permitting workers to voluntarily waive one of their two meal periods after working eight hours.
[This article is for informational purposes only and does not constitute legal advice. Do not act or rely upon any of the resources and information contained herein without seeking appropriate professional assistance.]